Inner West Council v Kontellis

Land and Environment Court

New South Wales

Medium Neutral Citation:	Inner West Council v Kontellis [2017] NSWLEC 57
Hearing dates:	17 October 2016
Date of orders:	17 May 2017
Decision date:	17 May 2017
Jurisdiction:	Class 4
Before:	Sheahan J
Decision:	See Declarations and Orders in [141]
Catchwords:	CIVIL ENFORCEMENT: Council enforcing requirements of a development consent, and compliance with a statutory order – interaction of planning and dividing fences legislation – discretion – orders made, as sought – costs.
Legislation Cited:	Dividing Fences Act 1991 Environmental Planning and Assessment Act 1979 Marrickville Local Environmental Plan 2011 State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Trees (Disputes Between Neighbours) Act 2006
Cases Cited:	Conomos v Chryssochoides (unreported, 29 October 1997, matter No 40269 of 1996) Miller v Evans [2010] WASC 127 Rothwell Boys Pty Ltd v Coffs Harbour City Council [2012] NSWLEC 19
Category:	Principal judgment
Parties:	Inner West Council (Applicant) Marika Kontellis (First Respondent) Dimitrios Poulikakos (Second Respondent)
Representation:	Counsel: Mr M Arch, solicitor (Applicant) Mr A Fernon, barrister (First and Second Respondents)   Solicitors: Concordia Pacific (Applicant) Not applicable (First and Second Respondents)
File Number(s):	2016/154186

Judgment

Introduction

1. This Class 4 civil enforcement proceeding was commenced by Marrickville Council, which has now been absorbed into the present Applicant, Inner West Council.

2. The litigation has been conducted in a climate of regrettable, but worsening, conflict between the neighbouring households directly affected by the building works concerned in the case.

3. The Respondents are Marika Kontellis and her partner Dimitrios (“Jim”) Poulikakos, joint tenants who have lived at No. 12 Pine Street, Marrickville since 1996, with their two children, aged 14 and 9.

4. Both Respondents work as “qualified social workers”, or “social housing officers” (Tp94, LL33 – 38), or perhaps “social care sector specialists” (at “Zakumi Consulting Pty Ltd”, see, e.g., Kontellis, fol 66ff)), but Poulikakos is also a qualified builder (Tp87, LL44 – 45, and p94, LL29 – 38)).

5. Kontellis served as a member of the former Marrickville Council 2008 – 2012 (Tp70, LL37 – 43).

6. The Council claims in its summons (set out in full at [17] below) that the Respondents have:

1. done works at/on No. 12 which do not comply with their development consent (“DC”);

2. disobeyed a statutory order from Council; and

3. encroached on No. 10 Pine Street, with works for which there is no DC.

7. Council seeks declarations, consequential orders, and an order for costs.

8. Council was represented by its solicitor, Michael Arch, and the Respondents by Andrew Fernon of counsel.

9. No. 10, next door to, but generally west of, No. 12, has been owned and occupied by Juliane Khoury (a senior corporate executive) and her husband Franco (“Frank”) Chirico, since January 2014. Their son Zac, born on 24 July 2014, lives with them there. (I will refer to Khoury and Chirico, together, as “the neighbours”.)

10. Both No 10 and No 12 are located within a low-density residential “R2” zone, under the Marrickville Local Environmental Plan 2011 (“the…