Land and Environment Court of New South Wales CITATION : Auburn Council v Czopak [2005] NSWLEC 357 APPLICANT: Auburn Council PARTIES : RESPONDENT: Mr Mychaljo Czopak FILE NUMBER(S) : 40472 of 2005 CORAM: Pain J KEY ISSUES: Injunctions and Declarations :- whether the Court should make orders for evacuation and demolition of significantly dilapidated dwelling LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 121D DATES OF HEARING: 08/06/2005 17/06/2005 EX TEMPORE JUDGMENT DATE : 06/17/2005 APPLICANT: Mr P Tomasetti (barrister) SOLICITORS: Matthews Folbigg LEGAL REPRESENTATIVES: RESPONDENT: Mr M Parasyn (solicitor) SOLICITORS: Michael Parasyn JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pain J 17 June 2005 40472 of 2005 Auburn Council v Mychaljo Czopak EX TEMPORE JUDGMENT 1 HER HONOUR: These are Class 4 proceedings brought by Auburn Council ("the Council") seeking numerous declarations and orders in relation to a dwelling located at 11 New Street, Lidcombe ("the site") owned by the Respondent, Mr Mychaljo Czopak. 2 In the Class 4 Application dated 18 May 2005 the Council sought the following orders and declarations: 1. A declaration that the Respondent has not complied with the terms of an Emergency Order No. 7 pursuant to s 121D of the Environmental Planning and Assessment Act 1979 dated 15 April 2005 within the specified period of compliance; 2. A declaration that the Respondent has not complied with the terms of an Emergency Order No. 8 pursuant to s 121D of the Environmental Planning and Assessment Act 1979 dated 15 April 2005 within the specified period of compliance; 3. A declaration that the Respondent has not complied with the terms of an Emergency Order No. 10 pursuant to s 121D of the Environmental Planning and Assessment Act 1979 dated 21 April 2005 within the specified period of compliance; 4. An order that the Respondent be restrained from using the dwelling house and any ancillary outbuildings erected on the premises Lot 14, DP 39372 (No.11) New Street, Lidcombe for residential purposes or any other purposes within such time allowed by the Court; 5. An order that the Respondent evacuate the dwelling house and any other ancillary outbuildings erected on the premises Lot 14, DP 372 (No.11) New Street, Lidcombe within such time allowed by the Court; 6. An order that the Applicant enter the premises Lot 14, DP 39372 (No.11) New Street, Lidcombe and do all such tings as are necessary or convenient to give effect to the terms of Emergency Order No. 2 pursuant to s 121D of the Environmental Planning and Assessment Act 1979 given by the Applicant to the Respondent on 15 April 2005 to demolish the dwelling house and all other ancillary outbuildings erected on the premises within such time allowed by the Court; 7. An order that the Respondent pay any expense incurred by the Applicant in satisfaction of compliance with order (6); 8. An order that the Respondent pay the Applicant's costs of, and incidental to, these proceedings; and/or 9. Any other order or orders the Court deems fit and appropriate to make. Background 3 On 25 March 2003, orders were made by the Court requiring the Respondent to undertake works in relation to the dwelling located on the site. The orders required the Respondent, among other things, to demolish sections of the dwelling and undertake significant structural works to repair the dwelling. The Respondent has not complied with these orders. 4 On 15 April 2005, the Council issued Emergency Orders No. 2, 7 and 8 pursuant to s 121D of the Environmental Planning and Assessment Act 1979. Emergency Order No. 2 required the Respondent to demolish his dwelling by 23 May 2005. Emergency Orders No. 7 required the Respondent to erect a fence around the site by 21 April 2005 to prevent persons from entering the dwelling. Emergency Order No. 8 required the Respondent to cease using the dwelling for habitable purposes by April 19 2005. 5 On 21 April 2005, the Council issued Emergency Order No. 10 pursuant to s 121D of the Environmental Planning and Assessment Act 1979. Emergency Order No. 10 required the Respondent to cease using the dwelling and evacuate the premises by 22 April 2005. 6 This matter first came before me for hearing on 8 June 2005. The Respondent did not attend on that occasion. There was clear evidence before the Court that he had been served with the Class 4 Application and was made aware by the Council that the proceedings were listed on that day. The Respondent is of Ukrainian descent and interpreters were employed to translate letters from the Council to him explaining the commencement of Court proceedings and advising him strongly to attend the Court. 7 The matter was part-heard on 8 June 2005. I read the affidavit of Mr Michael Ryan, the Council's Senior Health and Building Surveyor, sworn 17 May 2005 and relied on by the Council. Mr Ryan has attended the site on a number of occasions and has carried out several external site inspections of the dwelling. It is clear from Mr Ryan's affidavit that there is a significant safety issue in relation to the Respondent's premises. It is evident that the dwelling located on the site is in a dilapidated state and is in need of significant repairs. Mr Ryan gave evidence that the dwelling had significant structural defects in the foundations, walls and roof and that without significant repair was likely to collapse. Mr Ryan also gave evidence that there was no electricity, running water or functioning toilet at the premises and that the dwelling had deteriorated to such an extent that it was unsafe and incapable of being used for habitable purpose. 8 Mr Ryan's evidence was supported by the report of the Mr Neil Walsh, a consultant civil and structural engineer engaged by the Council, which is attached to the affidavit of Mr Ryan dated 17 May 2005. Mr Walsh's report states: 5.0 RECOMMENDATIONS Due to the dangerous state of the existing structure and the advanced level of structural damage we recommend that: · The residence is to be evacuated immediately. · The western wall is to be propped to avoid collapse. · The eastern window and overhead wall is to be propped to avoid collapse. · The residence is to be demolished. · The existing party wall be waterproofed and flashed to the adjoining roof. · A concrete pathway 1500 wide is to be placed along the western side of the existing party wall in order to protect the party wall footing from moisture variation and excessive movement 6.0 CONCLUSION The residence is in a poor state of repair. The rear verandah walling and roof have collapsed. The rear western masonry wall is in immediate danger of collapse. Access to and from the residence and passage along the western pathway is unsafe. The above recommendations should be carried out as a matter of urgency in order to protect the safety of the occupant and to avoid further collapse of the structure. 9 Also attached to Mr Ryan's affidavit was a letter dated 31 August 2004 to the Council from the adjoining neighbours, Mr Manuel Crespo Snr and Mrs Milagros Crespo, at 9 New Street, Lidcombe. The dwellings at 9 and 11 New Street share a common wall and roof. The letter states that Mr and Mrs Crespo have spent a significant sum of money in roofing repairs as a result of the dilapidation of the Respondent's dwelling and suffer the effects of deterioration in the common wall, holes in the Respondent's side of the roof, severely overgrown front and back yards, erosion and flooding from the Respondent's dwelling. 10 I undertook a site inspection on 8 June 2005 with Mr Paul Vergotis, the Council's solicitor, and Mr Ryan. I was unable to speak with the Respondent on the view, but I was able to observe and confirm the dilapidated condition of the Respondent's dwelling. While on the view, the Court had the opportunity to speak with Ms Roma Price, a Wesley Missions caseworker. The Court found it beneficial to hear from Ms Price and her concern about the state of the Respondent's current accommodation. I also inspected the alternative premises that the Council have made available for the Respondent to live in. 11 I stood the matter over to today to allow the Respondent to attend Court and give evidence and caused a letter to be sent to him from the Court explaining this. The Respondent has attended and is represented by a solicitor, Mr Parasyn, who speaks Ukrainian but is not an accredited interpreter. The Respondent has been asked if he wishes to give evidence and has declined. It would be preferable that he does so with an accredited interpreter. Finding 12 From the evidence of Mr Ryan and Mr Walsh I consider that the Respondent is in considerable danger in residing in his dwelling. In addition, I consider that the dwelling poses a considerable safety risk to the adjoining neighbours and any members of the public that may pass by. 13 It has been clearly demonstrated by the Council that Emergency Orders Nos. 2, 7, 8 and 10 referred to in the Class 4 Application which require the Respondent to fence the site so as to prevent persons from entering the dwelling, require the Respondent to cease using the dwelling and evacuate the premises respectively, have not been complied with. The Council has also demonstrated that pursuant to s 121G of the Environmental Planning and Assessment Act 1979 the Council has ensured that the Respondent has been able to arrange satisfactory alternative accommodation before issuing orders that are likely to have the effect of making a resident homeless. I consider that the alternative premises are adequate so that if the Respondent is no longer able to live at his current residence there is alternative and appropriate accommodation available to him. 14 I am satisfied that the emergency orders were appropriately issued and I am concerned they have not been complied with. Therefore I make the declarations sought in prayers 1, 2 and 3 of the Class 4 Application filed in these proceedings. 15 The Council also seeks consequential orders that follow from the declarations I have made. The orders sought are that the Respondent be restrained from using the dwelling and that he evacuate the premises. Further, the Council seeks orders enabling the Council to demolish the dwelling located on the site and order that the Respondent pay the costs of demolition and of the proceedings. 16 I consider that the orders in prayers 4 and 5 of the Class 4 Application filed in these proceedings go hand in hand. I have serious concerns about the safety of the Respondent in his current accommodation. Therefore I make the orders sought in prayers 4 and 5 of the Class 4 Application and order that the Respondent be restrained from using the dwelling house and that he evacuate the premises. 17 I am reluctant, however, to make the demolition orders sought in prayer 6 of the Class 4 Application in the absence of any evidence from the Respondent. I propose to give the Respondent the opportunity to put to me any reasons why he thinks I should not make an order for demolition. 18 I will stand this matter over until Tuesday 21 June 2005 and ensure that an accredited interpreter is present in Court so that the Respondent can give any evidence he wishes. Orders 19 The court makes the following orders: 1. A declaration that the Respondent has not complied with the terms of an Emergency Order No. 7 pursuant to s 121D of the Environmental Planning and Assessment Act 1979 dated 15 April 2005 within the specified period of compliance; 2. A declaration that the Respondent has not complied with the terms of an Emergency Order No. 8 pursuant to s 121D of the Environmental Planning and Assessment Act 1979 dated 15 April 2005 within the specified period of compliance; 3. A declaration that the Respondent has not complied with the terms of an Emergency Order No. 10 pursuant to s 121D of the Environmental Planning and Assessment Act 1979 dated 21 April 2005 within the specified period of compliance; 4. An order that the Respondent be restrained from using the dwelling house and any ancillary outbuildings erected on the premises Lot 14, DP 39372 (No.11) New Street, Lidcombe for residential purposes or any other purposes after Friday 24 June 2005; 5. An order that the Respondent evacuate the dwelling house and any other ancillary outbuildings erected on the premises Lot 14, DP 372 (No.11) New Street, Lidcombe on or before Friday 24 June 2005; 6. That prayers 6, 7, 8 and 9 in the Application – Class 4 dated 18 May 2005 be stood over to Tuesday 21 June 2005 before Justice Pain at 4.00 pm. 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.