Land and Environment Court of New South Wales CITATION : Canterbury City Council v Burslem [2007] NSWLEC 737 APPLICANT PARTIES : Canterbury City Council RESPONDENT Roy Frank Burslem FILE NUMBER(S) : 40704 of 2007 CORAM: Pain J KEY ISSUES: Civil Enforcement :- whether Court should exercise its discretion to enforce s124 order issued under Local Government Act - whether order should be made ex parte LEGISLATION CITED: Land and Environment Court Act 1979 s20(1)(d) Local Government Act 1993 s124, s672, s673, s678 CASES CITED: Manly Council v Moffit (2006) 146 LGERA 215 DATES OF HEARING: 8 October 2007 EX TEMPORE JUDGMENT DATE : 8 October 2007 APPLICANT Mr P Jackson (solicitor) LEGAL REPRESENTATIVES: SOLICITOR Pike Pike and Fenwick RESPONDENT No appearance JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Pain J 8 October 2007 40704 of 2007 Canterbury City Council v Burslem EX TEMPORE JUDGMENT 1 Her Honour: The Council is seeking various orders in relation to the non-compliance by the Respondent with an order issued under s 124 of the Local Government Act 1993 (the LG Act) by the Council requiring that work be done at 70A Hay Street Ashbury. The order required that the Respondent: (i) clear to within 75 millimetres of the ground surface of the said land and dispose of appropriately all overgrown grass, vegetation and vegetative matter whether alive or dead excluding trees, shrubs and plants under cultivation which is upon the abovementioned land in premises; (ii) maintain the vegetation on the premises in a satisfactory condition at all times; (iii) remove all accumulations of miscellaneous household refuse from the front and rear yards and dispose of in a lawful manner. 2 There was no appearance at the hearing by the Respondent, who owns 70A Hay Street, and the Council sought to have the matter heard on an ex parte basis. Evidence 3 The Council relied on the following affidavits: (i) Ms D'Arcangelo, sworn 5 July 2007 which dealt with the serving of letters of demand on the Respondent. (ii) Mr Choueiri, sworn 3 August 2007 which dealt with the service of the Class 4 application, (iii) Mr Jackson, sworn 16 August 2007 which dealt with notifying the Respondent of the first directions hearing, (iv) Ms D'Arcangelo, sworn 17 August 2007 which referred to matters relevant to the substantive issues in the Class 4 proceedings concerning the unsafe and unhealthy condition of the Respondent's property. (v) Ms D'Arcangelo, sworn 28 August 2007 which refers to the affidavit of service of Mr Jackson's affidavit of 16 August and her affidavit of 17 August. (vi) Mr Jackson, sworn 19 September 2007 which concerned the notification of the Respondent of the second directions hearing. (vii) Mr Jauncey, sworn 4 October 2007 which concerned the service of the council's solicitor's letter of notification of hearing dates (viii) Ms D'Arcangelo, sworn 5 October 2007 which dealt with her recent site inspection of the premises. Notification of Respondent 4 I am satisfied on the basis of the affidavits that the Respondent had adequate notice of the hearing today and of prior mentions before this Court, including the mention when a hearing date was obtained. There has not been an appearance by the Respondent or any representative for him at any of the mentions before this court. It is also clear that the Respondent was notified personally by telephone by the Council's solicitor on two occasions that the matter was before the Court and that prior written notice was given by the Council's solicitor before the Court proceedings commenced. It is appropriate that the matter proceed today on an ex parte basis. State of premises 5 I am also satisfied based on the affidavit of Ms D'Arcangelo sworn 17 August 2007 that the premises were in an unhealthy state when the s 124 order (order 21) was issued on 20 March 2007. It is also clear from the evidence that the required Notice of Intention to issue the order and the order were served appropriately on the Respondent as required by the LG Act. 6 In the latest affidavit of Ms D'Arcangelo sworn 5 October 2007 she annexes photographs of her recent inspection which show that the Respondent has done some work which complies with the terms of the order, particularly in relation to the cutting of vegetation and the removal of some refuse. The outstanding issues for the Council in terms of ongoing threats to health and safety as a result of the state of the premises concern the need for removal of: (a) household refuse in the two cars in the front yard of the property (b) the accumulation of rubbish in the rear shed in the rear yard (c) all cardboard boxes open to the elements (d) removal of textile material such as bedding, clothing and blankets. In addition, the items stacked on the northern boundary must be removed from that boundary to enable maintenance of the vegetation on that boundary 7 Non-compliance with an order under Pt 2 Ch 7 of the LG Act is a breach of s 672(b)(ii) of that Act. These proceedings are authorised by s 673 of the Act. This Court has jurisdiction to determine the matter under s 20(1)(d) of the Land and Environment Court Act 1979 (the Court Act). Section 678(10) provides that the Court can order the Council to exercise functions such as undertaking the work required by an order made pursuant to s 678(1) - (9). Section 678(10) provides: 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. 8 The orders sought by the Council require that the Respondent undertake the work required under the order within 60 days after which the Council seeks an order from the Court under s 678(10) of the LG Act that Council officers enter onto the property to undertake specified work. 9 I was referred to the decision of Manly Council v Moffit (2006) 146 LGERA 215 in which Biscoe J held that s 200 of the LG Act does not limit the Court's powers to make an order under s 678(10) of the LG Act and I apply that decision here. 10 I consider that the evidence concerning the state of the property and the history of the matter suggests that an order under s 678(10) ought be made. 11 The form of orders sought by the Council has been modified in the course of the hearing and I propose to make the order sought as set out below. Costs 12 The Council is seeking its costs. It has been successful in obtaining an order from the Court in relation to the enforcement of the s 124 order the subject of these proceedings. It has incurred legal costs in doing so. Under s 69 of the Court Act I have wide discretion to award costs. In Class 4 proceedings the usual order is that costs follow the event in the absence of any disentitling conduct by the successful party. The Council has been successful. Further, the Council has made substantial efforts to advise the Respondent what was required to be done by him and he has had more than adequate opportunity to undertake all the work required by the order. The Council should have its costs paid by the Respondent. 13 I also note that following delivery of my ex tempore judgment an email from the Respondent was received in my chambers which referred to lattice on a fence being a fire risk and also that a vine (location unspecified) was not the Respondent's. I asked the Council's solicitor to return to Court to make submissions on this late material and he submitted that the orders to be made do not require any work to be done in relation to the vine on the northern boundary. Orders 14 The Court makes the following orders: 1 Pursuant to section 678(10) of the Local Government Act 1993, Canterbury City Council is to execute Council's functions under s.678 of the Local Government Act 1993 by carrying out of the works which remain to be carried out as set out in the attached Schedule of Works pursuant to the Order dated 20 March 2007 given to the Respondent pursuant to s 124 of the Local Government Act 1993 in accordance with the timetable and procedures set out in paragraph 4 below. 2 Order 1 is to be stayed for a period of sixty (60) days to enable the Respondent to carry out the work required to be carried out by paragraphs 1, 2 and 3 of the Order dated 20 March 2007. 3 The Respondent is to pay the Applicant's costs as agreed or assessed. 4 Timetable and procedure: 4.1 Within seven (7) days after the above stay expires, Council's Manager of Environmental Compliance and Administration and Council's Environmental Health Officer are to inspect the premises the subject of Council's Order namely 70A Hay Street, Ashbury, for the purpose of identifying any works remaining to be done as set out in the schedule of works. 4.2 Council's Manager of Environmental Compliance and Administration and Council's Environmental Health Officer are to prepare a schedule for the removal of the items identified in paragraph 4.1 and present a copy to the Respondent together with a timetable for the removal of those items. 4.3 Council will then enter the subject premises and remove the items as set out in the said schedule and timetable. 5 Service of Court sealed Order 5.1 Canterbury City Council is to ensure postal service of the Court sealed orders upon the Respondent within 24 hours of receipt of the sealed orders. 5.2 Canterbury City Council is to ensure personal service of the Court sealed orders upon the Respondent within seven (7) days of receipt of the sealed orders. SCHEDULE OF WORKS 1 All rubbish within each of the vehicles on the premises is to be removed from the vehicles and disposed of to an appropriate waste disposal depot. 2 All accumulated disintegrating rubbish in the shed at the rear of the yard of the premises is to be removed to an appropriate waste disposal depot. 3 All material stored in cardboard boxes open to the elements are to be stored in an appropriate manner safe from the weather. 4 All material stacked along the northern boundary at the front of the premises next to the driveway including under the carport is to be removed from the northern side boundary and stacked so as to provide access for maintenance of vegetation along that boundary. 5 Remove all textiles including blankets, sheets and old clothing which is stored in the open. 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.