Land and Environment Court of New South Wales CITATION : Wollongong City Council v McLean [2006] NSWLEC 295 APPLICANT Wollongong City Council PARTIES : RESPONDENT Carolyn Ruth McLean FILE NUMBER(S) : 41296 of 2005 CORAM: Preston CJ KEY ISSUES: Civil Enforcement :- order under s 124 of Local Government Act 1993 to bring premises into a safe and healthy condition - overgrown vegetation and accumulated rubbish on respondent's premises are a harbourage for vermin and a fire risk - respondent failed to comply with the order - breach of the Local Government Act 1993 - court order made requiring respondent to do certain work to bring premises into a safe and healthy condition. LEGISLATION CITED: Local Government Act 1993 (NSW) s 124, s 132, s 672, s 673(1) Interpretation Act 1977 (NSW) s 76(1)(b) CASES CITED: McKenzie v McKenzie [1970] 3 WLR 472; [1970] 3 All ER 1034; O'Connell & Ors (Children) Rev 2 [2005] EWCA Civ 759 (22 June 2005) DATES OF HEARING: 29/05/2006 EX TEMPORE JUDGMENT DATE : 05/29/2006 APPLICANT Mr M Mantei SOLICITORS LEGAL REPRESENTATIVES: Kells The Lawyers RESPONDENT In person assisted by Mr Arnold McLean (brother) SOLICITORS Not Applicable JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES PRESTON CJ 29 MAY 2006 41296 OF 2005 WOLLONGONG CITY COUNCIL V McLEAN JUDGMENT 1 HIS HONOUR: Carolyn Ruth McLean lives in a suburban house at 183 Jacaranda Avenue, Figtree. There is nothing unusual about the house. It is a red brick, single storey dwelling house with a tiled roof and a single car garage. But there is something unusual about the yard surrounding the house. It is unkempt and full of rubbish. 2 True it is that not everyone aspires to have a beautiful garden or is motivated to keep their yard especially neat and tidy. Some latitude in living is permitted. 3 But there are limits. One of the limits is imposed by the Local Government Act 1993 (NSW) ("the Act") that land or premises must be kept by the owner or occupier in a safe or healthy condition. If the owner or occupier of premises fails to keep land or premises in a safe or healthy condition, the council of the local government area in which the land is or premises are located can give an order under the Act requiring the owner or occupier to do or refrain from doing certain things to ensure that the land is, or the premises are, placed or kept in a safe or healthy condition: order 21 of s 124 of the Act. 4 Ms McLean is the owner and occupier of the premises at Lot 40 in Deposited Plan 242509 known as 183 Jacaranda Avenue, Figtree. 5 Ms McLean has permitted the premises to become in a condition that is unsafe and unhealthy. They have stayed in that condition for a long period of time. 6 The vegetation in the yard has become overgrown. No garden maintenance of any note has been done. Even worse is the accumulation of rubbish. Clothing, shopping trolleys, packaging, building materials, old carpet, discarded kitchen pots and utensils, garden tools and cleaning utensils, plastic bags and plastic bins amongst other materials, as well as food waste and animal faeces, have been allowed to accumulate on the premises. 7 These materials have been piled so high in the past that vehicular access to the garage was impossible, as was pedestrian access to the front door. On one inspection on 25 February 2005 by a Council officer, Mr Vlandys, the materials were stacked against the front door and porch area to a height of approximately six feet. 8 The condition of the land is unhealthy and unsafe because it is a potential harbourage for vermin and a fire risk. 9 A neighbour who lives at 181 Jacaranda Avenue, Figtree, Mr Dennis Allan Forbes, has observed the state of Ms McLean's premises for a long period of time. He has noted that for as long as he has known, Ms McLean's premises have not been kept in a clean or tidy condition. He has noted that Ms McLean's premises are filled with discarded clothes, buckets, cleaning containers, old chairs, plastic bags, overgrown grass, shrubs and trees. There are a variety of animals including chickens and ducks that are kept on the land. 10 Mr Forbes has observed in Ms McLean's front yard, on the front doorstep and driveway of her house, mountains of plastic bags containing what appear to be clothes and other discarded objects and materials as well as an old shopping trolley, plastic rubbish bins, buckets of water, discarded black plastic pot plants, clothes hanging on string tied between the trees, old brooms and rakes, washing baskets and plastic containers. 11 Mr Forbes has noted that during certain weather conditions there are what he describes as disgusting smells coming from the property. He has seen rats and snakes in his backyard. He is concerned as to the fire potential from the rubbish and dead vegetation in the yard. 12 Eventually, after complaints to Wollongong City Council from the neighbour, Mr Forbes, and after the Council's own inspections, the Council determined that enough was enough. The unhealthy and unsafe condition of the premises needed to be rectified. 13 On 15 March 2005, the Council issued a notice of intention to give an order under s 124 of the Act. The giving of a notice of intention is required by s 132 of the Act. 14 On 1 April 2005, the Council issued an order under s 124 of the Act requiring Ms McLean to do specified work, namely to cut and remove the overgrown vegetation on the premises and to remove all the accumulated rubbish from the premises. The order stated that the work must be done within a period of 30 days after the date of service of the order. 15 The order was sent to Ms McLean by registered mail to the premises. Ms McLean does not contest that she was served with the order. 16 The period for compliance with the order was 30 days after the date of the service of the order. The date of service is deemed to have been the fourth working day after the order was posted to the premises: see s 76(1)(b) of the Interpretation Act 1977. The order was posted on 1 April 2005, so the fourth working day after that was 7 April 2005. Hence, the period for compliance with the order expired on 7 May 2005. 17 Unfortunately, Ms McLean was unmoved by either notice. She took no action to clean up the premises in response to either. 18 As a consequence, after the expiry of the period for compliance with the order, Ms McLean came to be in breach of the Act. 19 On 29 August 2005, the Council officer, Mr Vlandys, inspected the premises again. That inspection revealed no improvement in the condition of the land. 20 On 11 October 2005, Mr Vlandys asked the NSW Fire Brigades to inspect the premises and report on the fire safety of the premises. 21 On 4 November 2005, Inspector Greg Adams of the NSW Fire Brigades, reported to the Council. He stated: "During the inspection I found: * A large volume of plastic and assorted bags, filled with a range of material, across the entire front of the residence. These bags were under the eaves and extended up to 4m from the house. The presence of the bags blocks any access to the house from the front and presents a significant fire risk. * Access to the rear of the house is impeded by debris and/or overgrown vegetation. * The rear of the premises completely overgrown by vegetation. This presents a significant fire risk. * That because of the high fire load at 183 Jacaranda Avenue, the properties on either side would be at risk. My main concerns are: * That the high fire load present around the dwelling presents a significant fire risk to the occupants and the adjoining properties. * That access to the property during a fire would be hampered (if not impeded and/or too dangerous) therefore posing a threat to the occupant and fire fighters. * That the hoarding of material on the outside of the house may be reflected inside the house. This would further add to the risk of fire, and therefore increase the potential danger for the occupant, neighbouring premises and fire fighters. Recommendation It is my recommendation that, if possible, action be taken by Council to remove the significant fire risk present at 183 Jacaranda Avenue Figtree." 22 On 4 November 2005, the Council commenced these proceedings, seeking a declaration that Ms McLean has failed to comply with the s 124 of the Act and, more importantly, an order that she do the things she was required to do under the s 124 order to cut and remove vegetation and remove all accumulated rubbish. 23 On 24 April 2006, an inspection by Mr Vlandys revealed a slight improvement in that some of the rubbish had been cleared from the dwelling and the front porch. However, a large accumulation of rubbish still remained. Mr Vlandys remained of the opinion that the state of the premises posed a high significant health and safety risk to Ms McLean and occupiers of adjoining properties, by reason of it being a potential harbourage for vermin and a fire risk. 24 On the weekend of 14 and 15 May 2006, the brothers of Ms McLean attempted to cut and remove vegetation and remove accumulated rubbish from the premises. The Council had provided a large skip about 6 metres in length and about 2.4 metres wide. The brothers of Ms McLean nearly filled this skip to the brim with accumulated rubbish as well as the cut vegetation. 25 Unfortunately, after the brothers left on the evening of 14 May 2006, Ms McLean climbed into the bin and unloaded a great deal of the accumulated rubbish. The only material that was left in the bin was the cut vegetation. Ms McLean then moved the accumulated rubbish back onto her premises. 26 Mr Forbes gave oral evidence at the hearing. He said that there has not been any improvement in the visual unsightliness of the premises or the smells that are emanating from it. Although some rubbish has been moved, it has merely been moved from one place to somewhere else on the premises. Only recently, Mr Forbes said, he encountered two dead rats on his property. He said that the smell is sometimes unbearable. 27 Mr Vlandys also gave oral evidence at the hearing. He said that for a period of about eight or nine years he had attempted to negotiate with Ms McLean to come up with a solution to the problem of accumulation of rubbish and other material on the premises. Unfortunately, he said, he has been unsuccessful. He said that the current condition of the premises remains a significant fire risk and a potential harbourage for vermin. 28 Ms McLean gave oral evidence. Ms McLean did not really dispute any of the facts concerning the accumulation of rubbish or the unkempt vegetation on the premises. Ms McLean was concerned that there was a lack of consistency by the Council in enforcement. She was concerned that on her walks around the area she has seen other properties, including Council land, which are messy and a harbourage for vermin, including foxes. 29 Ms McLean gave evidence in relation to the fact that the premises are a steep site with poor aspect, subject to winds and cold. As a result, it is necessary to dry clothes at the front of the premises, including on the front verandah. Ms McLean said that some of the rubbish that is to be found on her premises had been placed by other persons. She is concerned that other persons have entered onto the premises without her permission and have left rubbish on the premises. They have also apparently committed interference with her property, including damaging the electricity meter and gas meter. As a consequence, the house is no longer connected to electricity and gas. 30 Ms McLean said that she would like to remove some of the rubbish from the premises. When asked within what time frame she might be able to do this, she indicated "soon". However, Ms McLean would not define what she meant by "soon". 31 Ms McLean said that she is a deep animal lover. She likes to have animals around on the premises. She is also fond of gardening. She wishes to retain some of the cut vegetation so that it might be able to be composted. The compost could then be used in her gardening activities. 32 Pursuant to s 672 of the Act, failure to comply with an order made under Part 2 of Chapter 7 of the Act (which includes s 124), is a breach of the Act. A Council may bring proceedings in this Court to remedy or restrain such a breach under s 673(1) of the Act. 33 I am satisfied on the evidence that Ms McLean has breached the Act in that she has failed to comply with the order issued by the Council under s 124 of the Act. There has been no challenge to the validity of the order issued by the Council under s 124 of the Act, nor is there any basis on the evidence for doubting the validity of that order. 34 The order required that the overgrown vegetation be cut and removed and that the accumulated rubbish be removed within a period of 30 days after deemed service of the order. As I have noted, the period for compliance with the order expired on 7 May 2005. This is now over one year ago. Although there has been, mainly due to the good efforts of Ms McLean's brothers, some attempt to remove the material, there still remains a large quantity of material that needs to be removed. 35 Accordingly, I am satisfied that the Council is entitled to the first declaration that they have sought in the class 4 application, namely a declaration that Ms McLean has failed to comply with the s 124 order. 36 There also is a need, having regard to the non-compliance which is ongoing, for the Court to make an order requiring Ms McLean to bring the premises into a healthy and safe condition. 37 Of particular concern is the significant fire risk that is posed by the accumulation of vegetation and rubbish on the premises. That fire risk has been assessed, not merely by the next door neighbour or the Council, but also by the relevant fire authority, the NSW Fire Brigades. I have set out the considered opinion of that authority earlier in these reasons for judgment. The Court should give weight to that opinion. 38 Ms McLean has been assisted by her brother, Mr Arnold McLean. I allowed Mr McLean to assist Ms McLean in her defence of the proceedings by way of being a McKenzie friend. A McKenzie friend assists a litigant in person in court. The name derives from the eponymous case in which their role was set out: McKenzie v McKenzie [1970] 3 WLR 472; [1970] 3 All ER 1034. See also the discussion of authorities on McKenzie friends in O'Connell & Ors (Children) Rev 2 [2005] EWCA Civ 759 (22 June 2005). 39 Mr McLean made submissions on behalf of his sister, Ms McLean. Mr McLean said that Ms McLean is suffering from an obsessive compulsive disorder. This has meant that Ms McLean has a compulsion to accumulate certain materials which she believes to be valuable but other persons without the disorder may view as rubbish. Of particular concern is the collection of certain pots and plastic bags as well as junk mail, clothes and other household items, many of which are broken and not able to be used. 40 Mr McLean submitted that if an order were to be made it should be quite particular so that there can be no doubt as to what the materials are that should be removed. He wished to try and ensure that the interests of Ms McLean would be protected. He submitted that, rather than the cut vegetation being removed from the premises to a tip, there should be an opportunity for that material to be able to be composted on the site. This compost could then be used by Ms McLean in her gardening activities which give her pleasure. 41 Mr McLean submitted that there were some building materials which might be able to be used to build a garden wall. They should be able to be retained. He accepted that those materials could be neatly stacked. 42 Mr McLean also submitted that not all vegetation should be removed. Rather, the order should be limited to dead trees, shrubs or branches. Mr McLean was also concerned about using words such as "all" in the order because that may pose a problem if just before the inspection to see whether there had been compliance, a dead branch, for example, were to fall. 43 The Council, represented by its solicitor Mr Mantei, put forward a draft substitute order for the order that was claimed in paragraph 2 of the Class 4 Application. That alternative order sought to limit the scope of the order to allow Ms McLean to retain some materials but to address the particular concerns of fire risk, vermin and unpleasant smells. 44 The orders that are proposed in the alternative are, in my opinion, preferable to the original order sought in the Class 4 Application. Any order that the Court may make should be as specific as possible so that there is no doubt in the mind of Ms McLean, or those assisting Ms McLean, as to what is required of her. 45 Furthermore, it should be quite plain in any inspection after the expiry of the time period for compliance with the order, whether the order has been complied with or not. This means that vague statements such as "rubbish", to pick one item, need to be avoided. What one person may view as rubbish, someone else may view as valuable. Rather, there needs to be a particular identification of the items that need to be removed. 46 Furthermore, there needs to be identification of the locations from which material needs to be removed. I note in the draft alternative order put forward by the Council that it nominates a particular distance from the external walls of the dwelling in which combustible material, for example, needs to be removed. This is the sort of particular reference that needs to be made in the order. 47 I propose to make an order which will be along the lines of the Council's alternative order. However, I propose to stand the matter down for the luncheon adjournment to allow the order to be more particularly drawn. It would be preferable that the order be able to be settled between the Council and Ms McLean, but in default I will make a ruling as to what is the appropriate order. I do not propose to say anything more in relation to the order at this stage in these reasons but will address the form of order further after lunch. 48 In relation to costs, this is an unusual case. The respondent, Ms McLean, although in breach of the order under s 124 of the Local Government Act, is nevertheless in breach for a reason concerned with her state of mental health. The Court and the Council have been assisted by her brother, Mr McLean. The orders that have been made have been brought about by his assistance. In the circumstances, it would not be fair and just to make an order that the respondent pay the costs of the Council in these proceedings up to this point. 49 However, nothing I have said in relation to the orders up to this point should be taken to govern the situation that might pertain in the future. That is to say, if Ms McLean fails to comply with the orders that the Court will now make, then it may well be that the proper order is that in any future proceedings Ms McLean will be forced to pay the Council's costs of those proceedings. That is a matter which Ms McLean should take into account in ensuring that she complies with the orders that the Court will make. 50 For the reasons I have given, I will make the following orders: 1. Within 14 days, the respondent is to remove from the front and back yard area of the property located at 183 Jacaranda Avenue, Figtree: (a) all dead trees, dead shrubs and dead branches; (b) all loose combustible material such as wood, bags full of clothing, old chairs and broken plastic pots from that part of the yard area within 4 metres of the external walls of the dwelling house; (c) all putrescible matter including food waste, animal faeces and any deceased animals, but not including any composting material located in a container for that purpose; (d) all plastic bags whether empty or full; and (e) all household items in a poor state of repair including old shopping trolleys, old blankets, old pots, old kitchen utensils, rolled-up carpet, broken clothes baskets, old brooms, broken garbage bins, buckets, plastic containers, broken garden tools and cleaning utensils. 2. Within 14 days, the respondent must ensure that: (a) all wooden building materials are neatly stacked and stored no closer than 4 metres to the external wall of the dwelling house; and (b) all other building materials are neatly stacked. 3. Orders 1 and 2 are suspended for a period of 28 days. 4. Each party is to pay their own costs of these proceedings. ********** 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.