Land and Environment Court New South Wales Medium Neutral Citation: Gunnedah Shire Council v Woodhead [2020] NSWLEC 131 Hearing dates: 7 September 2020 Date of orders: 7 September 2020 Decision date: 07 September 2020 Jurisdiction: Class 4 Before: Moore J Decision: See [26] and [27] Catchwords: CIVIL ENFORCEMENT - failure to comply with clean-up orders made pursuant to s 124 of the Local Government Act 1993 - premises in an unhealthy and unsafe condition - owner of premises ordered to clean them up within 60 days - substitute performance order appropriate if premises not cleaned up as ordered COSTS - Council seeks gross sum costs order - appropriate that gross sum costs order be made - property owner ordered to pay Council's costs in the gross sum of $8,500 within 28 days Legislation Cited: Civil Procedure Act 2005, s 98 Local Government Act 1993, s 124 Category: Principal judgment Parties: Gunnedah Shire Council (Applicant) Nigel Woodhead (Respondent) Representation: Counsel: Mr M Cottom, solicitor (Applicant) Respondent in person Solicitors: Pikes & Verekers Lawyers (Applicant) File Number(s): 351609 and 351610 of 2019 Publication restriction: No EXTEMPORE JUDGMENT Introduction 1. HIS HONOUR: In November 2019, Gunnedah Shire Council (the Council) commenced these Class 4 proceedings seeking civil enforcement action, concerning orders made pursuant to s 124 of the Local Government Act 1993 (the Local Government Act), in which order number 21 to the table of that provision were served on Mr Woodhead concerning premises which he owns at 120 and 122 Bloomfield Street, Gunnedah. The orders under the Local Government Act required Mr Woodhead to clean up the premises so that they were rendered safe and healthy. 2. I have a variety of affidavits that have been read by the Council in these proceedings. Two of them are critical to my understanding of the circumstances of the premises. 3. The first of them is an affidavit of Mr Wade Berryman, the Council's Regulatory Services Coordinator - an affidavit which he made on 26 February 2020. In [16] of that affidavit, he refers to visiting the premises and having a series of photographs taken by a company known as Stewart Surveys (who operated an unmanned aerial vehicle - that is a drone - to take a series of aerial photographs) of 120 and 122 Bloomfield Street. 4. A range of those photographs are attached to, and form part of, Mr Berryman's February 2020 affidavit. Particularly, the photographs that are contained in Annexure D (at photographs D2, D3 and D4 - being overhead aerial photographs) show the significant accumulation of a variety of materials in the backyard - that is, the common and undivided backyard of 120 and 122 Bloomfield Street at Gunnedah. 5. Since that time, for the purposes of these proceedings, Mr Berryman has provided a further affidavit (dated today) which attaches to it a total of 22 colour photographs - a significant number of which show the rear of the premises in the common backyard between 120 and 122 Bloomfield Street. 6. Those photographs have been taken from the neighbouring properties at 118 and 124 Bloomfield Street. They show not only the significant accumulation of metallic materials (old vehicles and other material), but they also show that the vegetation has grown significantly since the time of the photographs in Mr Berryman's earlier affidavit. 7. The photographs in the earlier affidavit showed that there were comparatively bare patches of ground between some of the otherwise accumulated material and vehicles - patches of ground which, on the contemporary photographs, show vegetation that is apparently at least chest deep and, in some of the photographs, taller than the roof line of the vehicles that are located in the rear of the premises. 8. I am satisfied, on the basis of that evidence, that the premises are not presently in a safe and healthy condition. I am satisfied that it is necessary to require the premises to be cleaned up. 9. There has been, over recent years, as shown in the Council's chronology (which is behind Tab 7 in the Court Book), a history of interaction between the Council and Mr Woodhead since late October 2017 concerning the necessity to address the state of the materials and vegetation in and around 120 and 122 Bloomfield Street, Gunnedah. 10. It is unnecessary to traverse the past enforcement proceedings that have been undertaken by the Council. It is sufficient, for present purposes, to note that these are the first proceedings concerning the two premises that have been conducted in this Court. 11. During the period since the proceedings in this Court were commenced in November 2019, there has been some further forbearance on behalf of the Council and of the Court in permitting Mr Woodhead additional time to address the state of the premises. 12. It is clear from Mr Berryman's two affidavits dated today, particularly the more recent of the two of them, that not much progress, if any, has been made concerning the state of the premises. 13. Mr Woodhead has given evidence this afternoon that he has undertaken some work using herbicide to kill some of that vegetation. He also acknowledged that he has been unable (for understandable reasons concerning his physical condition) to undertake further work including the whipper-snipping or cutting down of that vegetation. The killing of the vegetation, although a commendable effort on his part, in fact contributes to the fire risk around the premises (as dead vegetation is more flammable than live). 14. Mr Woodhead provided, earlier this year, a document entitled "Points of Defence" - a document which became Exhibit 1 in these proceedings (without objection being raised by Mr Cottom, solicitor for the Council). 15. In addition to traversing a number of matters concerning the interaction between Mr Woodhead and the Council over a period of time, it is appropriate that I note that that document explains (without the necessity for me to intrude into Mr Woodhead's personal circumstances in any detail) the significant physical difficulties that Mr Woodhead would suffer in endeavouring to address and comply with the terms of the orders which the Council now seeks that this Court makes. 16. Mr Woodhead has, however, indicated to me that he has sought assistance from an organisation known as GoCo, and from the National Disability Insurance Scheme, for cleaning up his premises. 17. For that reason, I proposed to the Council's legal representatives that, rather than the 28 days proposed in the Council's orders sought in the summonses in each of these proceedings, a longer period of time (of modest length only) should be permitted to Mr Woodhead. That might enable him to seek and obtain some assistance in clearing up the vegetation and waste materials that are in and around 120 and 122 Bloomfield Street. 18. The Council has accepted that it would be appropriate to permit a period of 60 days, rather than the 28 days as proposed. 19. Mr Cottom also raised with me the question as to whether I should order that a copy of the orders that I might make arising out of each of these proceedings, could be directed to be served on each of the organisations that might potentially assist Mr Woodhead. I do not consider it appropriate that I make such a direction but I am happy to have a copy of these remarks provided to those bodies, together with a copy of the orders, so that they might be able to assess whether they could assist Mr Woodhead during the period that is to be permitted to him to undertake the clean-up activities. 20. However, the Council also proposes that, if those activities are unable to effect the rendering of the two premises into a safe and healthy condition within 60 days of the date of the orders that I will make in these proceedings, the Council should have what is known as a "substituted performance order" in each proceedings what will enable the Council to enter the premises and carry out the necessary clean-up works. 21. The Council also proposes that if it elects to do so, that the costs of doing that will be a debt recoverable from Mr Woodhead. That is the conventional form for a "substituted performance order". 22. The final matter that I need to address this afternoon is the question of the Council's costs. The Council accepts that the costs of today - given that the evidence of the state of the premises between February of this year and now was not before me when I commenced to hear these matters today and that that has necessitated the preparation and speedy service of two additional affidavits from Mr Berryman - should not form part of the Council's costs of the proceedings. The Council also proposes that I should make a gross sum costs order, pursuant to s 98 of the Civil Procedure Act 2005 (the Civil Procedure Act), with that gross sum costs order being in the amount of $8,500 (inclusive of filing fees in this Court). 23. The reason that Mr Cottom has proposed on behalf of the Council that this be a gross sum costs order is to avoid the necessity for the undertaking of a costs assessment process. 24. Mr Cottom has explained to me the basis upon which the Council's calculation of $8,500 has been made - it amounts, in substance, to seeking reimbursement to the Council for the entirety of its filing fees and of 66% (or thereabouts) of the amount of the solicitor and client costs that have been incurred by the Council. Such an amount of the solicitor and client costs is within the conventional range of 60% to 75% that would ordinarily be applied for the purposes of calculating a gross sum costs order pursuant to s 98 of the Civil Procedure Act. I accept that it would be appropriate to make a gross sum costs order in that amount. 25. The Council also proposes that that costs order should require that Mr Woodhead pay those costs to the Council within 28 days. It is conventional that such a time limit be incorporated in such an order - but that that order does not preclude the Council entering into some arrangement with Mr Woodhead that would permit the costs to be paid over a longer period of time, if Mr Woodhead and the Council can come to some appropriate agreement on that basis. 26. The consequence of everything that I have said means that I am satisfied that, of the relief that is claimed in the Council's summonses, I should make: 1. the declaration that is sought in terms of the first element of the summons in each matter; 2. the orders that are sought in (2) of each summons - save that the terms are to require the work to be done within 60 days rather than within 28 days; 3. order (3) in the terms sought by the Council in each summons - again save that 28 days is to be amended to 60 days in that order; 4. order (4) as sought in each of the summonses, being the appropriate substituted performance order as sought by the Council; 5. finally, from the orders sought in the Council's summons, the Respondent is to pay the Applicant's costs of the proceedings (in total across the two proceedings) in the gross sum of $8,500 pursuant to s 98 of the Civil Procedure Act. 1. I also indicated, during the course of the hearing, that I should grant leave to the Council to reapproach the Court (if, for instance, there became some catastrophic bushfire risk) in order to seek - if there was such circumstance - a truncating of the 60-day period to enable the Council to go in earlier than that period of time to effect a clean-up. The orders should so provide. 2. As a consequence of all of that, I direct that the Council prepare orders in the terms that I have dealt with; provide them to my Associate by the close of business on Tuesday 8 September 2020 and I will formalise those orders in chambers. ********** ANNEXURE A Annexure A - orders (238417, pdf) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 September 2020