Maitland City Council v Khalil [2012] NSWLEC 58

Land and Environment Court New South Wales

Medium Neutral Citation: Maitland City Council v Khalil [2012] NSWLEC 58 Hearing dates: 29 February 2012 Decision date: 29 February 2012 Jurisdiction: Class 4 Before: Preston CJ Decision: Orders as set out at [44] Catchwords: CIVIL ENFORCEMENT - failure to repair or make structural alterations to a building in accordance with statutory orders - failure to remove waste from a building in accordance with council order - orders to remedy breaches of statute - applicant council sought court order for it to carry out work required by statutory orders - respondent building owner sought for court to extend time in statutory orders to carry out works himself - variation of statutory orders not within Court's Class 4 jurisdiction - respondent provided no clear timeframe for work to be carried out - order that council carry out work required by statutory orders Legislation Cited: Environmental Planning and Assessment Act 1979 ss 121B, 121H, 121U, 121ZJ, 122 Local Government Act 1993 ss 124, 132 144, 672, 676, 678 Category: Principal judgment Parties: Maitland City Council (Applicant) Mr Andre Khalil (Respondent) Representation: Dr J F Kildea (Barrister) (Applicant) Mr A Khalil (Respondent in person) MRM Thompson Norrie Lawyers (Applicant) File Number(s): 40832 of 2011

EX TEMPORE Judgment

A building owner fails to comply with statutory orders to repair a building 1On the main street of Maitland, at 324 High Street, stands a derelict and dilapidated three-storey building. It once was a hotel, last called the Carrington Hotel, but later it was a pet shop called, with consonantal alliteration, Bob's Bird Barn. This business was not successful. 2By 1994 the building became vacant. Vandalism increased over the next two decades. Glass windows were broken, doors removed, brick walls demolished, an awning over the footpath damaged and internal fittings and fixtures broken. Intruders, birds and vermin have occupied the building leaving rubbish and excrement. Fire, rain and other elements have damaged the building. The building has not been repaired or maintained. 3Over the last decade the local council, Maitland City Council ("the Council"), has repeatedly requested and directed the building owner, Mr Khalil, to repair the building. One such direction was on 25 August 2009 when the Council issued a statutory order requiring the owner to repair the building within three months. Mr Khalil did not do so. Two other statutory orders were given on 12 October 2010. These are the orders that give rise to these proceedings. 4The first order, issued on 12 October 2010, was an order No 4 under s 121B of the Environmental Planning and Assessment Act 1979 ("EPA Act") requiring Mr Khalil, as the owner of the building, to repair or make structural alterations to the building as specified in the order. The work specified included repairs to the awning over the footpath, the window and door openings on the lower, middle and upper levels, the brickwork at the side and rear of the building, the gutters and downpipes, and the internal stairway, and sealing openings, windows and doorways to prevent unauthorised entry to the building. The reasons stated for giving the order were that the building was or was likely to become a danger to the public and was in a dilapidated state so as to be prejudicial to its occupants or to persons or property in the neighbourhood. The works specified were to be completed within 60 days of the order. 5The second order, issued on 12 October 2010, was an order No 22 under s 124 of the Local Government Act 1993 ("LG Act") requiring Mr Khalil, as the owner of the building, to remove from the building and dispose of the waste specified in the order, including debris, materials, droppings, rubbish, faecal matter and the like. The reasons given were that the waste provided or was likely to provide harbourage for vermin, posed or was likely to pose a fire and safety hazard, and caused or was likely to cause the spread of disease by micro organisms. The action specified was required to be done within 30 days of the order. 6Mr Khalil did not comply with either order by undertaking the works or actions specified within the period specified or at all. Mr Khalil says he cannot afford to pay for the work. 7Since these orders, the building has continued to be vandalised and damaged. The Council has carried out some emergency work, including sealing openings, windows and doorways to prevent unauthorised entry by intruders. However, such works do not prevent ingress of rainwater, birds or vermin to the building. The current state of disrepair of the building is worse than when the two statutory orders were issued on 12 October 2010.