North Sydney Council v Wouters [2012] NSWLEC 94

Land and Environment Court New South Wales

Medium Neutral Citation: North Sydney Council v Wouters [2012] NSWLEC 94 Hearing dates: 30 April 2012 Decision date: 02 May 2012 Jurisdiction: Class 4 Before: Pain J Decision: See paragraph 28 Catchwords: CIVIL ENFORCEMENT - non-compliance with orders to remove waste and render premises safe - whether orders for removal of accumulated material and to enable entry by local council into residential premises to do so ought be made Legislation Cited: Civil Procedure Act 2005 s 98(1) Local Government Act 1997 s 124, s 678(10) Cases Cited: Council of the City of Sydney v The Estate of the Late Alfred Sulligoi care of The Public Trustee [2007] NSWLEC 778 Director-General of the Department of Environment, Climate Change and Water v Venn (No 2) [2011] NSWLEC 232 Kempsey Shire Council v Thrush (No 2) [2011] NSWLEC 130 Manly Council v Moffitt [2006] NSWLEC 184; (2006) 146 LGERA 215 Waverley Council v Bobolas (No 2) [2009] NSWLEC 211 Category: Principal judgment Parties: North Sydney Council (Applicant) Johannes Jacobus Lambertus Cornelis Wouters (Respondent) Representation: Ms K Gerathy (solicitor) (Applicant) Mr J Wouters (Respondent - in person) HWL Ebsworth Lawyers (Applicant) File Number(s): 41157 of 2011

Judgment 1These are civil enforcement proceedings relating to the failure of Mr Wouters to comply with two orders issued by North Sydney Council (the Council) under s 124 of the Local Government Act 1997 (the LG Act) being order 21 and order 22A. These required the removal of a large amount of accumulated material in Mr Wouters' home and that he maintain his home in a safe, clean and healthy condition. The orders were issued on 13 April 2011 and required compliance within 21 days. Mr Wouters occupies the lot on the ground floor of a two storey, two lot strata plan building in Cremorne. The Council seeks declarations of non-compliance with the two orders and consequential orders to achieve compliance. 2As the Council considers Mr Wouters is unlikely to be able to carry out the necessary work to comply with the orders it also seeks orders pursuant to s 678(10) of the LG Act that the Council be permitted to carry out the necessary works upon expiry of a specified period. 3The Council has filed extensive evidence of its dealings with Mr Wouters over an extended period in which it has tried through its officers, Mr Ellis in particular, to assist Mr Wouters in clearing up his property. The Council relies on the following affidavits: affidavit of Mr Brecht, clinical psychologist, dated 21 February 2012; affidavit of Ms Coculescu, solicitor for the Council dated 4 November 2011; affidavit of Ms Davy, tenant of upper unit, dated 23 February 2012; three affidavits of Mr Ellis, the Council's Director of Community and Library Services, dated 13 December 2011, 23 February 2012 and 27 April 2012; affidavits of Ms Mulcahy, Council's Environmental Health Team Leader, dated 5 December 2011 and 4 April 2012; affidavit of Ms Whitney, solicitor for the Council, dated 4 April 2012 and an affidavit of Ms Williams, owner of upper unit, dated 23 February 2012. 4Mr Brecht did not interview or assess Mr Wouters prior to writing the report dated 16 February 2012 attached to his affidavit. Based on the documents provided by the Council's solicitors, Mr Brecht opines that Mr Wouters suffers from senile squalor Diogenes syndrome. Characteristics of this syndrome include hoarding of rubbish and avoidance of discarding rubbish. Mr Brecht states that people suffering from this syndrome often end up living in squalid and unhealthy conditions which may present serious health and safety hazards for themselves and others living in the vicinity. 5Ms Coculescu's affidavit annexes a title search dated 22 September 2011 confirming Mr Wouters as the owner of the premises, copies of orders 21 and 22A and a letter from HWL Ebsworth Lawyers to Mr Wouters dated 5 October 2011 advising of the Council's intention to commence proceedings unless Mr Wouters provides a written undertaking that he will comply with the orders within a specified period. 6Ms Davy has been a tenant of the upper unit of the duplex, owned by Ms Williams, since 2001. Mr Wouters has occupied his premises all that time. To access her unit she must walk past unit 1 to enter the common stairwell. In or about 2003 through the broken panels in the front door, Ms Davy observed that Mr Wouters' apartment was full of refuse and rubbish stored in plastic bags and covering the entire floor. Ms Davy was concerned that the materials in Mr Wouters unit were a fire hazard. Photographs she took on that day were annexed to her affidavit. Ms Davy notices a urine smell on a daily basis in the stairwell and when she passes Mr Wouters' front door. In recent years, through Mr Wouters' kitchen window, Ms Davy has noticed flies around the plastic bags of material piled in the kitchen above the sill height. 7Mr Ellis' affidavit dated 13 December 2011 states that when he personally served Mr Wouters with the summons and affidavits, he explained that there would be a Court mention and an allocation of a hearing date. Mr Wouters said he would clean up before then. 8In his affidavit dated 23 February 2012 Mr Ellis states he has held his position with the Council since 1997. Mr Ellis came to know Mr Wouters in or around February 2010 when Ms Williams complained to the Council about the state of Mr Wouters' premises. Mr Ellis has had contact with Mr Wouters numerous times and has visited the premises several times. Mr Wouters has refused offers of help to clean up from Mr Ellis, has repeatedly insisted he will clean up himself and asked for extensions of time to comply with his written and oral undertakings. On 13 April 2011 Mr Ellis hand delivered the two Council orders issued under s 124 of the LG Act. In April 2011 Mr Ellis enlisted the involvement of the Specialised Mental Health Services for Older People within the Aged Care and Rehabilitation Service at Royal North Shore Hospital. On 12 October 2011 Mr Wouters handed Mr Ellis a letter requesting an extension up to 22 October 2011 to clean up the premises in response to HWL Ebsworth Lawyers' letter dated 5 October 2011. Mr Ellis granted the extension. Mr Ellis does not believe Mr Wouters will voluntarily remove the accumulated rubbish and he is concerned about Mr Wouters' welfare, health, and safety as well as those of his neighbours. 9Mr Ellis' affidavit dated 27 April 2012 states that he personally served Mr Wouters with documents including points of claim and affidavits and explained what they were. Mr Wouters told Mr Ellis he would complete cleaning up the premises by the end of April. 10Ms Mulcahy is an environmental health officer. In her first affidavit Ms Mulcahy states she has been employed in her current position since 2005. Ms Mulcahy identifies that Mr Wouters failed to comply with orders issued on 3 September 2010 and 13 April 2011 (an order 21 of which enforcement was not sought). She inspected the premises on five occasions in 2010 and 2011. Exhibited to her affidavit were photographs of the premises and the duplex building taken on 23 November 2011. She did not gain internal access to the premises but observed accumulated rubbish through the glazed panelling in the front door and noticed a urine smell. She does not believe any action has been taken by Mr Wouters to comply with the orders. In her opinion the premises are not in a safe and healthy condition. Much of the material is paper, boxes and combustible cloth or clothing and due to the accumulated material Ms Mulcahy is concerned that there is a real danger presented by fire hazards which pose a serious risk to Mr Wouters and Ms Davy. The accumulated rubbish is providing harbourage for vermin and pests and is consequently a health hazard. 11In her affidavit dated 4 April 2012 Ms Mulcahy states she inspected the premises on 2 April 2012 and noticed the strong smell of urine. Through the glazed panels in the front door Ms Mulcahy observed behind Mr Wouters' front door the build up of materials which she estimated to be above her head height. 12Ms Whitney's affidavit documents correspondence between the Council and the Council's solicitors and Mr Wouters' nephew, Mr Gibbons. It also attaches a letter to Mr Wouters dated 28 February 2012 advising him of options for legal assistance. 13Mr Leabon, a registered nurse with the Specialised Mental Health Services for Older People at Royal North Shore Hospital from Royal North Shore Hospital, is Mr Wouters' caseworker. He was invited to sit at the bar table and I asked for his opinion about Mr Wouters' circumstances. He is concerned about the effect on Mr Wouters if the Court makes an order allowing the Council and/or its contractors to enter the premises for a forced removal of the accumulated material.