Lane Cove Council v Chami (No 5)

[2014] NSWLEC 93

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Lane Cove Council v Chami (No 5) [2014] NSWLEC 93
Hearing dates:	7 July 2014
Decision date:	07 July 2014
Jurisdiction:	Class 4
Before:	Biscoe J
Decision:	Interlocutory orders as per [7].
Catchwords:	INJUNCTIONS - interlocutory - for access to residential premises.
Legislation Cited:	Land and Environment Court Act 1979 s 63 Land and Environment Court Rules 2007 r 7.7
Cases Cited:	Lane Cove Council v Chami (No 4) [2014] NSWLEC 89
Category:	Interlocutory applications
Parties:	Lane Cove Council (Applicant) Sarab Chami (Respondent)
Representation:	COUNSEL: N Eastman and J McKelvey (Applicant) N/A (Respondent) SOLICITORS: Pikes & Verekers (Applicant) N/A (Respondent)
File Number(s):	40044/14

EX TEMPORE Judgment

1. These are civil enforcement proceedings for demolition of alleged unauthorised works and reinstatement works at residential premises of which the respondent is the registered proprietor.

1. The applicant, Lane Cove Council, now seeks interlocutory orders in terms of paragraphs 2 and 3 of its notice of motion filed on 30 June 2014, as follows:

2. The Respondent, her servants and agents be restrained from preventing and/or resisting persons duly authorised by the Applicant from exercising their power of entry pursuant to Part 6, Division 1A of the Environmental Planning and Assessment Act 1979 into the premises at 8 Bayview Street, Northwood.

3. Further, and in the alternative, that the Respondent shall provide access for persons duly authorised by the Applicant to enter the premises at 8 Bayview Street, Northwood (including all levels of the dwelling house and all of the yard areas) for the purposes of inspecting same and taking such measurements and photographs as they shall require.

1. Upon the matter being called on for hearing this afternoon, the respondent Ms Chami did not appear. Mr Raymond Ross appeared and told me that she was unable to attend because she was unfit to do so based on recent medical advice connected with her pregnancy; that she did not take issue with the orders sought in the notice of motion subject to reasonable notice before entry or access by Council; but that she disputed some of Council's evidence and was critical of Council's conduct in respects alleged in her affidavit filed today. Mr Ross raised certain other matters from the bar table but it is unnecessary for me to detail them.

1. Mr Ross applied for leave to appear as the respondent's agent but in the end did not press it. The respondent's affidavit filed today includes an authority to Mr Ross to appear as the respondent's agent, which may satisfy the requirement of s 63 of the Land and Environment Court Act 1979. However, the requirements of r 7.7 of the Land and Environment Court Rules 2007 relating to leave to appear as an agent have not been complied with. I have proceeded on the basis that the respondent is not formally represented today.

1. I have, at Council's instance, read both the affidavit of Adrian Moore of 27 June 2014 filed in Council's case as well as the affidavit of the respondent filed today. It is unnecessary to recount Mr Moore's evidence because it is detailed in my reasons for judgment last week when I made orders for substituted service: Lane Cove Council v Chami (No 4) [2014] NSWLEC 89. The respondent's affidavit raises factual disputes, which it is unnecessary to resolve on the present interlocutory application. In my opinion, Mr Moore's evidence establishes that there is a serious question to be tried as to whether there are illegal works being carried out at the residential premises owned by the respondent and that the balance of convenience favours the grant of interlocutory relief along the lines sought.

1. I consider it appropriate to make orders in accordance with paragraphs 2 and 3 of Council's notice of motion on an interlocutory basis, specifying that it is without admissions by the respondent and with the proviso that the entry and access referred to in those orders shall not occur before 9 am the day after tomorrow.

1. The orders of the Court are as follows:

Until further order and without admissions by the respondent:

(1) The respondent, her servants and agents be restrained from preventing and/or resisting persons duly authorised by the applicant from exercising their power of entry pursuant to Part 6, Division 1A of the Environmental Planning and Assessment Act 1979 into the premises at 8 Bayview Street, Northwood.

(2)   The respondent shall provide access for persons duly authorised by the applicant to enter the premises at 8 Bayview Street, Northwood (including all levels of the dwelling house and all of the yard areas) for the purposes of inspecting same and taking such measurements and photographs as they shall require.

(3)   Entry and access referred to in Orders 1 and 2 shall not occur before 9 am on 9 July 2014 without leave of the Court.

Amendments

11 July 2014 - Typographical error to decision date

Amended paragraphs: cover page