Ku-Ring-Gai Council v Faigan - [2007] NSWLEC 767

Land and Environment Court

of New South Wales

CITATION: Ku-Ring-Gai Council v Faigan [2007] NSWLEC 767

PARTIES: APPLICANT
Ku-Ring-Gai Council
RESPONDENT
Mark Faigan

FILE NUMBER(S): 40383 of 2007

CORAM: Pain J

KEY ISSUES:
Civil Enforcement :- whether local government order complied with - exercise of discretion to make order to remove items
Civil Enforcement:- whether independent use of front yard for storage and mechanical repairs which required consent under the Environmental Planning and Assessment Act 1979

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Local Government Act 1993 s 124, s 678(10)

CASES CITED: Baulkham Hills Shire Council v O’Donnell (1990) 69 LGERA 404

DATES OF HEARING: 19 November 2007

EX TEMPORE JUDGMENT DATE: 19 November 2007

LEGAL REPRESENTATIVES: APPLICANT
Ms L Finn (solicitor)
SOLICITOR
Home Wilkinson Lowry
RESPONDENT
Mr W Purdon
SOLICITOR
William Purdon Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

19 November 2007

40383 of 2007 Ku-Ring-Gai Council v Faigan
EX TEMPORE JUDGMENT

1 Her Honour: The Council has commenced Class 4 proceedings seeking declarations and orders in relation to, firstly, the breach of an order under s 124 of the Local Government Act 1993 (the LG Act) in relation to 33 Ivey Street, Lindfield (the premises). Secondly the Council alleges that the Respondent is carrying on a use for which development consent is required in breach of the Environmental Planning and Assessment Act 1979 (the EPA Act) at the same premises.

2 The Council relied on the affidavit of Mr David Mitchell, Council officer, sworn 24 October 2007 which annexes the Council’s file dating from 1991 concerning issues raised by neighbours about the state of the premises and inspections undertaken by him of the premises. These proceedings focus on the front yard of the premises.

3 Mr Konsti, Council officer, also swore an affidavit dated 24 October 2007. He also inspected the premises on 19 July 2007 and 23 August 2007 and took photographs which are attached to his affidavit.

4 The affidavit of Ms Finn, solicitor, dated 30 April 2007 was read. The affidavit annexes a title search confirming that the Respondent owns 33 Ivey Street, Lindfield and attached the letter in January 2007 sent by her advising that proceedings would be commenced if no undertaking to stop certain activity was not received within 14 days. The Council’s solicitor’s letter to the Respondent stated that he was using 33 Ivey Street, Lindfield for the storage of unregistered motor vehicles and associated parts, machinery, plant etc and for the purposes of welding, panel beating and spray painting without the Council’s consent. The letter also stated that he has also failed to comply with the s 124 order issued under the LG Act.

5 Mr Faigan, the Respondent, swore an affidavit on 2 November 2007 in which he stated he is not aware of any derelict articles or motor vehicles on his property. He attached photographs taken of his front yard on 17 October 2007 which show that there is an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWLEC 767
Decision Date: 19 November 2007

CaseChat Overview and Summary

The Ku-Ring-Gai Council initiated legal proceedings against Mr Faigan concerning the non-compliance with an order issued by the Council on 23 March 2006. The matter was heard in the Supreme Court of New South Wales. The Council sought a declaration that Mr Faigan had failed to adhere to the order, which required the removal of specific items from the property located at 33 Ivey Street, Lindfield. The Council also sought an order mandating the removal of the remaining items within a specified timeframe and requested that the Court order Mr Faigan to pay half of the Council's costs.

The primary legal issue before the Court was whether Mr Faigan had contravened the Council's order. The Court needed to determine whether the order was valid, if Mr Faigan had received proper notification of the order, and if the items in question were indeed subject to the order. The Court also had to consider whether the Council's order was reasonable and if Mr Faigan had acted in bad faith.

The Court found that the Council's order was valid and had been properly served upon Mr Faigan. The Court determined that the items in question were indeed subject to the order and that Mr Faigan had failed to comply with it. The Court also found that the Council's order was reasonable and that Mr Faigan had acted in bad faith by failing to remove the items as directed. Consequently, the Court granted the declarations sought by the Council and ordered Mr Faigan to remove the remaining items from the property within eight weeks. The Court also ordered Mr Faigan to pay half of the Council's costs.

Orders

Orders of the court

1. A declaration that the Respondent by himself, his servants and agents has failed to comply with an order issued by the Applicant on 23 March 2006 in breach of the Local Government Act 1993.

2. An order that the Respondent by himself his servants and agents remove or cause to be removed all car chassis, car body parts and associated machinery plant and equipment, timber and other disused material from the front yard at 33 Ivey Street, Lindfield within eight (8) weeks of today’s date other than the unregistered white van and the 1942 compressor referred to in the affidavit of Mr Faigan dated 2 November 2007. No more than one trailer may be located on 33 Ivey Street at any time.

3. The Respondent is to pay half the Applicant’s costs as agreed or assessed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Ku-Ring-Gai Council v Faigan [2007] NSWLEC 767
PARTIES:	APPLICANT Ku-Ring-Gai Council RESPONDENT Mark Faigan
FILE NUMBER(S):	40383 of 2007
CORAM:	Pain J
KEY ISSUES:	Civil Enforcement :- whether local government order complied with - exercise of discretion to make order to remove items Civil Enforcement:- whether independent use of front yard for storage and mechanical repairs which required consent under the Environmental Planning and Assessment Act 1979
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Local Government Act 1993 s 124, s 678(10)
CASES CITED:	Baulkham Hills Shire Council v O’Donnell (1990) 69 LGERA 404
DATES OF HEARING:	19 November 2007
EX TEMPORE JUDGMENT DATE:	19 November 2007
LEGAL REPRESENTATIVES:	APPLICANT Ms L Finn (solicitor) SOLICITOR Home Wilkinson Lowry RESPONDENT Mr W Purdon SOLICITOR William Purdon Lawyers