Land and Environment Court of New South Wales CITATION : Hawkesbury City Council v Dundler and Another [2005] NSWLEC 662 APPLICANT Hawkesbury City Council FIRST RESPONDENT PARTIES : Anna Dundler SECOND RESPONDENT Hannes Dundler FILE NUMBER(S) : 40241 of 2005 CORAM: Cowdroy J KEY ISSUES: Injunctions and Declarations :- premises in unsanitary condition - risk to public health - second respondent occupying premises - first respondent registered proprietor of premises - caveat by second respondent - jurisdiction of Court Land and Environment Court Act 1979 s 16(1A), s 20(2) LEGISLATION CITED: Local Government Act 1993 s 124, s 131A, s 676(1), s 678(10) National Parks and Wildlife Service and Another v Stables Perisher Pty Ltd (1990) 20 NSWLR 573; Nix and Dunn v Pittwater Council (1994) 84 LGERA 199; CASES CITED: NTL Australia Pty Ltd v Minister for Land and Water Conservation (2001) 112 LGERA 403; Scharer v State of New South Wales (2001) 116 LGERA 217; Wentworth v Wentworth and Others (2000) 52 NSWLR 602 DATES OF HEARING: 01/08/2005 EX TEMPORE JUDGMENT DATE : 08/01/2005 APPLICANT S Berveling SOLICITORS A R Warmsley & Co LEGAL REPRESENTATIVES: FIRST RESPONDENT A Dundler (agent) SECOND RESPONDENT No appearance JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Cowdroy J 1 August 2005 40241 of 2005 HAWKESBURY CITY COUNCIL Applicant ANNA DUNDLER First Respondent HANNES DUNDLER Second Respondent JUDGMENT 1 Cowdroy J: As this matter requires a degree of urgency the Court will deliver ex tempore judgment. 2 By amended application, Hawkesbury City Council ("the Council"), seeks a declaration that the respondents failed to comply with the Order No 21 issued pursuant to s 124 of the Local Government Act 1993 ("the Act"). Additionally, it seeks a declaration that the respondents have not complied with the Orders Nos 21 and 22 issued pursuant to s 124 of the Local Government Act 1993 and dated 15 June 2005. 3 Each order required the respondents to take steps to render safe or healthy premises known as 278 Terrace Road, North Richmond, which is as Lot 16 in Deposited Plan 238403 ("the premises"). The orders also sought that the respondents remove and dispose of waste held on the premises. 4 The first respondent appears by her agent, Mr Alex Dundler. There has been no appearance by the second respondent. 5 The premises are owned by the first respondent. They are currently occupied by the second respondent. The first respondent is a pensioner now living on the North Coast of New South Wales. She is aged seventy-five years. The second respondent is seventy years of age. The respondents are estranged and on 27 July 2004 an apprehended violence order was issued against the second respondent at the instance of the first respondent under Pt 15A of the Crimes Act 1900. 6 The second respondent has lodged a caveat against the title to the premises, claiming an equitable interest in fee simple in the premises. 7 The Court is satisfied that the first and the second respondents were effectively served with the notice of intention to issue an order in respect of the first and second orders. Additionally, the evidence establishes that the second respondent has had adequate notice of the hearing date of which he was reminded last week. 8 The evidence in support of the Council's claims is contained in the following affidavits: Andrew George Matthews, 19 May 2005, 27 June 2005, 1 August 2005; John Thomas Pye, 29 July 2005; Anthony Head, 29 July 2005 and 1 August 2005. Additionally, Mr Pye has given oral evidence this morning. 9 Mr Matthews is an environmental health officer of the Council. His affidavit discloses that the premises have no current water supply, that the garden at the premises has been used as a toilet and that complaints have been received from neighbours. Prior to January 2003 the Council visited the premises on approximately three occasions. 10 Mr Matthews gave evidence of his inspection of the premises which took place on 14 January 2003. He entered the house with the consent of the second respondent and noticed sheep excrement, cat and dog faeces strewn on the floor. He noticed human faeces in a plastic bag on the floor near the food preparation bench top in the kitchen. Household rubbish, papers, spent food containers, dirty food containers were strewn over the floor and around the premises. Food items were on the bench top comprising bread and open canned products. 11 Mr Matthews tested the water supply and no running water flowed from the tap in the kitchen. He went into the lounge room and noticed the floor was covered with blankets, newspapers and household waste. On the first floor was a bedroom cluttered with clothes, waste and building materials. No furniture was in the room. He went into the bathroom or toilet and noticed that the toilet bowl was filled two-thirds with faecal waste approximately 75 mL from the top of the toilet bowl. No water was in the toilet and the stench was very noticeable. He noticed that the bath contained several plastic buckets approximately 20 L in size. The buckets contained toilet paper and other waste. 12 When asked what toilet facilities existed the second respondent replied that he went to the toilet in the rear garden and that he had drinking water brought in. In other bedrooms of the premises Mr Matthews noticed faecal waste on the floor and the remains of sheep wool. On the veranda overlooking the rear yard he noticed a 10 L bucket half filled with faecal waste. In another bedroom he noticed containers contained faecal waste and food products. 13 Mr Matthews subsequently visited the premises on approximately eight occasions. He did not go inside the premises again but made similar observations of the grounds as he had made on previous occasions. He noticed the odour of decomposing faecal waste in the grounds. 14 On 16 October 2003 he again visited the premises. The respondent then acknowledged that the grounds were being used as a toilet. 15 On 19 February 2004 the RSPCA removed one dog and twenty-one cats from the premises. Mr Matthews then ascertained that the second respondent was currently in prison and would be so until 11 May 2004. 16 Mr Matthews considers that the premises constitute a serious health risk. No sewerage exists which is usable and there is no potable water. The water service was terminated on or about 9 May 2005 because of an outstanding amount of $15,195.43 owing to Sydney Water. 17 Mr Pye in his affidavit sworn on 29 July 2005 testified that he is a compliance and enforcement co-ordinator of the council. He visited the premises on 21 July 2005. He spoke to the second respondent and thereafter in the company of a photographer took photographs of the premises. The second respondent acknowledged that he had not been out of the house for four days and had not had a shower. 18 Photographs show a dwelling constructed of brick and of two storeys located in overgrown grounds. Heaps of rubbish and debris are scattered around the premises in long grass. Photographs taken inside the premises show rubbish, debris of all kinds and show that the premises have become a rubbish dump. The premises are clearly unfit for habitation. 19 The first respondent has adduced evidence in an affidavit sworn on 11 May 2005. She deposes that she separated from the second respondent in 1991 and they lived separately in the premises until March 2001. During those ten years it became increasingly difficult to deal with the second respondent. He had spent several periods in gaol for various offences and was banned from entering local clubs, shopping centres and other establishments. The first respondent says that he began collecting and hoarding an increasing number of second-hand goods and materials and subsequently "turned the premises into something which resembled a rubbish dump". 20 The first respondent moved to Lismore having kept her address secret from the second respondent. However, he learned of the address and as a result the apprehended violence order was obtained. The first respondent generally supports the orders that are sought by the Council but seeks to have any orders made directed to the second respondent including costs. 21 The second respondent has not contributed to the upkeep or maintenance of the property and rates and other charges amounting to $14,741.77 had accrued up to last year. In August of last year the Council arranged to dispose of the property by auction for non-payment of rates. However, such rates were paid by or on behalf of the first respondent. 22 The first respondent is a pensioner and her only assets are $927.54 currently held in a bank account. She is unable to pay the costs of any clean up of the premises. 23 The Court is satisfied that both the first and the second order have been disobeyed. Mr Pye testified that the state of the premises has deteriorated and that they posed a significant risk to the health, not only of the occupant, but also of the public. 24 The Court makes the first and second declarations sought in the application. 25 The second respondent is the only occupant of the premises. Until recently he has been in gaol. An interlocutory order was made on 4 July 2005 restraining the occupation of the premises. The order has not been effective since the second respondent is now in occupation. 26 Section 676(1) of the Act provides: If the Land and Environment Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. 27 It is clear that a breach of the Act has occurred. There is no sewerage or water services available to the premises and they are in an insanitary state. It is necessary in the interests of public health that an order be made to restrain the risks. It is apparent that the second respondent is the cause of the condition and that it is necessary for an order to be made restraining him from further occupation of the premises. 28 The Court is mindful that to evict an occupant from premises may cause hardship. However, the question of hardship because of lack of alternative premises is dealt with in the affidavit of Mr Matthews of 27 June 2005. Pursuant to s 131A of the Act, the Council is required to consider the consequences of making the resident homeless and whether satisfactory alternative accommodation may be obtained in the locality. Mr Matthews' affidavit establishes that emergency housing is provided by the Department of Housing and that an officer of that Department is available to entertain any application for emergency housing that might be made to him. Additionally, the locality is well served by numerous retirement villages for which the second respondent may be eligible. 29 Taking these matters into consideration the Court is satisfied that it should make an order directing the second respondent to vacate the land and premises at 278 Terrace Road North Richmond by 10 am on 8 August 2005 and that the second respondent be restrained from re-entering of the land or from occupying any part of it until water and sewerage are connected to the premises. 30 The next matter for consideration is the question of the cleanup of the grounds. The amended application sought orders requiring the respondents to undertake various work to the premises including the removal of waste, the slashing of the ground, and the proper and orderly disposal of the waste in a proper facility. 31 The Court usually does not make orders where they will be futile. In this case if the Court made an order against the second respondent or the first respondent it is apparent that the means will not be available for those orders to be fulfilled. The first respondent is impecunious and through her agent has indicated that she does not have the funds to pay for a cleanup. In these circumstances the Court is entitled pursuant to s 678(10) of the Act to make an appropriate order. That subsection provides as follows: In any proceedings before the Land and Environment Court that are brought by a council against a person as a result of the person's failure to comply with an order under Part 2 of Chapter 7, the Court may, at any stage of the proceedings, order the council to exercise the council's functions under this section. Having made such an order, the Court may continue to hear and determine the proceedings or may dismiss the proceedings. 32 The Court is satisfied that this is an appropriate case for it to order that the Council enter upon the land and remove all rubbish, waste, vermin from the land, house and grounds of the premises known as 278 Terrace Road North Richmond. 33 In addition to the orders for the cleaning up of the grounds the council seeks an order that the first respondent enter into a binding agreement with a licensed real estate agent to sell the premises and to use her best endeavours to dispose of the premises. Such order would direct the first respondent to sell the premises. The question arises as to whether the Court has the power to make such an order or any order requiring a sale of the premises. 34 The council relies upon s 20(2) of the Land and Environment Court Act 1979 ("the Court Act"). That subsection relevantly provides: (2) The Court has the same civil jurisdiction as the Supreme Court would, but for section 71, have to hear and dispose of proceedings: (a) to enforce any right, obligation or duty conferred or imposed by a planning or environmental law or a development contract; 35 The Court has been referred to authorities concerning the power of the Court to make ancillary orders. Reliance is placed upon Wentworth v Wentworth and Others (2000) 52 NSWLR 602, especially at 607 where Fitzgerald JA referred to the breadth of the Supreme Court jurisdiction. The Council submits that this power is included in this Court's jurisdiction to make ancillary orders. 36 The Court has also been referred to authorities of this Court which have been considered by the Court of Appeal, such as National Parks and Wildlife Service and Another v Stables Perisher Pty Ltd (1990) 20 NSWLR 573. 37 In addition the Council relies upon the jurisdiction provided by s 16(1A) of the Court Act which provides: The Court also has jurisdiction to hear and dispose of any matter not falling within its jurisdiction under any other provision of this Act or under any other Act, being a matter that is ancillary to a matter that falls within its jurisdiction under any other provision of this Act or under any other Act. 38 With respect to s 16A of the Land and Environment Court Act reliance is placed upon the decisions in NTL Australia Pty Ltd v Minister for Land and Water Conservation (2001) 112 LGERA 403 at 412 and in Scharer v State of New South Wales (2001) 116 LGERA 217. Reference is also made to Nix and Dunn v Pittwater Council (1994) 84 LGERA 199 at 201. 39 In NTL Pearlman CJ at 412 said of the power bestowed by s 16(1A) of the Court Act: From the foregoing authorities, I derive the following propositions: (a) This Court has jurisdiction to decide all questions of law and fact which it needs to decide in order to deal with a claim which is properly within its jurisdiction ( National Parks v Stables Perisher ); (b) That jurisdiction extends to all matters that are a step in the cause of action which this Court does have jurisdiction to determine, in the sense that those matters are incidental to the matter in which the Court has jurisdiction ( Minister for Minerals and Energy v Vaughan-Taylor ); (c) Although s 16(1A) amplifies to some extent the jurisdiction of this Court ( Nix v Pittwater Council ), it operates only in relation to a matter which is ancillary, that is, incidental, accessory or auxiliary ( Nix v Pittwater Council ). I respectfully adopt, in this connection, the statement of Talbot J in Duncan v Moore (at 319) that, "... the matters brought within the Court's jurisdiction by s 16(1A) are only those matters which must be resolved as part of an accessory or ancillary subservient function in the course of determining the matter within jurisdiction"; (d) Section 16(1A) does not operate to confer jurisdiction on this Court in relation to a matter which is separate to and independent of the matter properly within jurisdiction, such as a claim for damages for tort or trespass (eg Mitchell v Waugh ). 40 Gleeson CJ (as he then was) in Nix referred to the use of the word "ancillary" at 205 and said: The New South Wales legislature used, in s 16(1A), the word "ancillary" rather than "associated" . In his Second Reading Speech, the minister introducing the amending legislation spoke of removing the necessity for "genuinely ancillary proceedings" to be removed to another court: (NSW, Legislative Assembly, Hansard , 11 March 1993, at 725). The relationship between two matters referred to in s 16(1A) is clearly intended to be a narrower one than that of association. The relevant dictionary meanings given to "ancillary" are incidental, accessory or auxiliary: Macquarie Dictionary . The word derives from the Latin "ancilla", a hand-maid: see the discussion in Koala Motels Pty Limited v Chief Licensing Inspector (1977) 18 ALR 12. The matter the subject of the equity proceedings in this case could not reasonably have been regarded as ancillary to the matters the subject of the Land and Environment Court proceedings. It may be that the narrowing of the issues in the proposed cross-application for nuisance, and the elimination of two parties, who in the equity proceedings were proper and arguably necessary parties, amounted to an attempt to overcome that problem. However that may be, Bannon J was right, on discretionary grounds, to refuse to permit the artificially and inappropriate narrowed nuisance claim to proceed before him. 41 The above authorities demonstrate that despite the existence of s 16(1A), the Court is not invested with broad powers to make orders relating to ancillary matters. There must be a step in the cause of action for s 16(1A) to apply. Section 16(1A) does not operate to confer jurisdiction on the Court in respect of a separate and independent matter. 42 In these proceedings compliance with the first order and second order will be achieved by a restraining order prohibiting occupation of the premises until the premises are fit for occupation and, secondly, by a clean up of the premises. A sale of the premises is not a necessary step in that process. That is, such sale is not a step in the cause of action in which this Court has jurisdiction. 43 It might be convenient for the first respondent to have this Court make an order for the sale of the premises and it might be convenient for the Council to recoup its costs resulting from such sale. However those considerations are insufficient to render a sale of the premises a matter which is ancillary to the essential proceedings before the Court. In any event the costs of the Council in cleaning up the premises are recoverable by statute: see 678(6) of the Local Government Act 1993. The first respondent retains the power to sell the property at any time. That power should be exercised if she considers this to be the appropriate course. It is not, however, a matter within the ancillary jurisdiction of the Court. 44 Section 20(2) of the Court Act similarly does not vest jurisdiction of the Court since it is not necessary for a sale of the property to be effected to enforce the obligation conferred by an environmental planning law. For these reasons the Court determines that it does not possess the jurisdiction to make an order for the sale of the premises. Costs 45 The first respondent resists an order for costs. It is apparent from the evidence that she has not been a party to the degradation of the premises which has led to these proceedings. However, the first respondent is not entirely a disinterested party. She is the registered proprietor of the land and has power the power to sell the premises or to take proceedings to have the second respondent evicted. An opportunity arose in August 2004 when the council intended to sell the premises because of unpaid rates. If that sale had proceeded it is likely that these proceedings may have been avoided. Instead a decision was made by the first respondent to pay the rates. 46 The first respondent retains responsibility as a property owner. In the absence of any evidence of steps taken to sell the premises or evict the second respondent it is appropriate that the order for costs be directed against both respondents. Orders 47 Accordingly, the Court makes the following declarations and orders: 1. A declaration that the first and second respondents have not complied with the Order No 21 issued pursuant to section 124 of the Local Government Act 1993 dated 8 December 2004, to do things to ensure that the premises known as Lot 16 DP 238403, known as 278 Terrace Road North Richmond are placed or kept in a safe or healthy condition. 2. A declaration that the first and second respondents have not complied with the Order No 21 and 22 issued pursuant to s 124 of the Local Government Act dated 15 June 2005, to do things to ensure that the above premises are placed or kept in a safe or healthy condition, and to collect, remove and dispose of waste which is on the premises. 3. An order that the second respondent vacate the land and premises known as 278 Terrace Road North Richmond by 10 am on 8 August 2005 and be restrained from re-entering upon the land or occupying any part of it until water and sewerage services are available to the premises. 4. An order that the applicant enter upon the land known as 278 Terrace Road North Richmond and to remove all rubbish, waste, vermin and other debris from the land including the house and the grounds of the premises. 5. An order that the respondents pay the costs of these proceedings. 6. An order that the exhibits be returned. **************************** 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.