Land and Environment Court New South Wales Medium Neutral Citation: Fairfield City Council v Dobrucki [2013] NSWLEC 167 Hearing dates: 19 September 2013 Decision date: 19 September 2013 Jurisdiction: Class 4 Before: Preston CJ Decision: Orders as set out at [30] Catchwords: CIVIL ENFORCEMENT - Council order to remedy unsafe and unhealthy condition of premises - premises contains overgrown vegetation, accumulated rubbish and other miscellaneous refuse - failure to comply with order - continuing breach - orders made to carry out work required by order but, in default, for Council to carry out work required - costs order made in favour of Council Legislation Cited: Local Government Act 1993 ss 124, 132, 136, 672, 674, 678 Category: Principal judgment Parties: Fairfield City Council (Applicant) Jan Dobrucki (Respondent) Representation: Mr A J J Thompson (Solicitor) (Applicant) No appearance for Respondent Ritchie & Castellan (Applicant) No representation for Respondent File Number(s): 40478 of 2013 Publication restriction: No Judgment 1Mr Jan Dobrucki is the owner of land at 15 Hill Street, Cabramatta, being Lot 8 in Deposited Plan 7721. The land is in the local government area of Fairfield City. The land is a typical suburban allotment. A single storey, red brick building is erected on the land. The house is, and has been for at least a year, unoccupied and locked up. Mr Dobrucki lives elsewhere in Blacktown. There is an eastern facing frontyard and a western facing backyard. A driveway runs along the northern boundary and to the north of the house. 2The premises are and have been for many years overgrown by vegetation and filled with accumulated rubbish. 3The frontyard is overgrown with long grass and weeds. At least three cats roam the yard. Food scraps and cat food have been placed by persons inside the front fence, presumably to feed the cats. 4Three unregistered motor vehicles are parked in the driveway next to the house. Next to these vehicles are several rusted metal cabinets, washing machines and refrigerators piled on top of each other. 5A large fibro shed and other lesser sheds are located in the backyard. The yard around these sheds is overgrown with bushes, trees and bamboo. The bamboo is over three metres in height in some places and is growing into a neighbouring property. The foliage of the vegetation in the backyard is so thick that it would be difficult to walk through it, and represents a fire hazard. 6At the rear door of the dwelling and in the backyard are accumulated milk crates, disused refrigerators, washing machines and dryers, metal, wood and plastic panels, pieces of old carpet and miscellaneous refuse, including several containers filled with water, which could give rise to the breeding of mosquitoes. 7The backyard smells of cat faeces and urine, which is strong, foul and offensive. 8Fairfield City Council ('the Council') has received many complaints over the last ten years about the condition of the premises. The Council has issued an order and seven penalty notices under the Local Government Act 1993 ('the LG Act') in the last decade in an endeavour to have the premises cleaned up, but to no avail. 9The Council's most recent attempt to take action, by giving an order under s 124 of the LG Act, and Mr Dobrucki's lack of response, are the foundations for these proceedings by the Council for orders to ensure the premises are placed in a safe and healthy condition. 10After inspections of the premises by Mr Reuben Sinai, an investigation officer with the Council, who made observations of the unsafe and/or unhealthy condition of the premises as I have described, the Council gave notice to Mr Dobrucki of its intention to give an order under s 124 of the LG Act, as the Council was required to do under s 132 of the LG Act. The notice under s 132 was served personally on Mr Dobrucki. Mr Sinai gave evidence that he had spoken to Mr Dobrucki a few days before giving this notice, advising him of the unsafe and/or unhealthy condition of the premises and of the Council's intention to send him a notice of proposed order. Mr Dobrucki advised that the notice should be sent to his residential address in Blacktown which he gave to the officer. This was the address to which the notice was sent by Mr Sinai. 11Mr Sinai also gave evidence that, after giving Mr Dobrucki the notice of proposed order, he inspected the premises on 8 February 2013 to ascertain the condition of the premises. Mr Sinai observed that no work had been done at the property to cut or slash the overgrown vegetation or to remove the accumulated rubbish. Mr Sinai telephoned Mr Dobrucki thereafter noting that Mr Dobrucki had not made any representations to the Council about the proposed order and enquiring why Mr Dobrucki had not done any work at the premises. Mr Dobrucki advised that he had been sick but that he would get started soon. 12On 13 February 2013, the Council issued an order under s 124, item 21, of the LG Act and served it on Mr Dobrucki at the residential address in Blacktown that Mr Dobrucki had given to Mr Sinai. The order was given to Mr Dobrucki as the owner of the premises. 13The order required Mr Dobrucki to do the things specified in schedule 1 of the order within 21 days of the date of the order. The things specified were to: ... place and keep the premises in a healthy condition by carrying out the following directions: 1.Cut/slash the overgrown vegetation (grass, bamboo & weeds) and remove the clippings from the premises. 2.Remove the accumulation of rubbish consisting of milk crates, old fridges, dryers, & washing machines, metal sink, plastic drums, and other miscellaneous refuse from the premises to an approved waste facility. 14The circumstances giving rise to the making of the order were stated in the order to be that '[t]he premises are not in a safe and/or healthy condition'. 15As required by s 136 of the LG Act, the Council gave Mr Dobrucki the reasons for the order which were: The premises contain severe overgrown vegetation (grass, bamboo & weeds), and contains an accumulation of rubbish consisting of milk crates, old fridges, dryers, & washing machines, branches, metal, plastic, metal sink, plastic and metal drums, and other miscellaneous refuse, which may afford a harbourage for vermin and is a potential fire hazard. 16On 11 March 2013, after the 21 day period for compliance with the order had expired, Mr Sinai inspected the premises. He observed that no visible work had been done to comply with the order and that the condition of the premises appeared and smelt to be the same as that on Mr Sinai's previous visits. 17Mr Sinai expressed the opinion that the premises were not in a safe and healthy condition because: (a) The miscellaneous items, rubbish, refuse and overgrown vegetation are likely to harbour vermin; (b) The overgrown vegetation will provide sustenance for vermin; (c) The miscellaneous items, rubbish, refuse and overgrown vegetation are likely to be a fire hazard; (d) Containers in these areas are holding water which will provide a suitable habitat for mosquitoes to breed; (e) Cat faeces and urine will continue to omit a strong offensive odour; (f) The presence of a class 3 noxious weed under the Noxious Weeds Act 1993, being Green Cestrum, and the potential for it to spread to neighbouring properties. 18Mr Dobrucki's failure to comply with the s 124 order constituted a breach of the LG Act: s 672 of the LG Act. 19The Council brings these proceedings under s 674 of the LG Act to restrain and remedy the ongoing breach of the s 124 order and the LG Act. The Council seeks by these proceedings a declaration that Mr Dobrucki has not complied with the s 124 order, an order of the Court that Mr Dobrucki comply with the s 124 order within a specified period (the Council now seeks a period of 40 days), and an order of the Court, pursuant to s 678(10) of the LG Act, in the event that Mr Dobrucki still does not comply with the s 124 order, that the Council exercise its functions under s 678(1) of the LG Act to enter the premises and carry out the works required by the s 124 order. 20Mr Dobrucki did not appear at the hearing of the summons today. The Council has adduced evidence proving that Mr Dobrucki was served personally with the summons (affidavit of service of Mr J P White of 8 July 2013) and with the affidavit of Mr Sinai, the interlocutory orders made by the Court giving directions for Mr Dobrucki to file evidence and the date of the directions hearing at which a hearing date would be fixed, and a letter from the Council solicitors advising Mr Dobrucki of these matters (affidavit of service of Mr D E Willenberg of 23 July 2013). The Council also sent a letter to Mr Dobrucki's residential address in Blacktown advising of the date fixed for hearing (letter dated 16 August 2013 from the Council's solicitors proven to be posted by the oral evidence of Ms Townsend who typed the letter, arranged for it to be signed and posted it). The Court itself also sent a notice on 20 August 2013 to Mr Dobrucki advising that the matter had been listed for hearing on 19 September 2013. I am satisfied that Mr Dobrucki has been properly served and notified of these proceedings and of the hearing today, but has elected not to appear. 21At the hearing, the Council read the affidavit of Mr Sinai establishing the giving to Mr Dobrucki of the s 124 order and of Mr Dobrucki's failure to comply with the order. Mr Sinai described the observations he made on his various inspections, and attached photographs, of the unsafe and/or unhealthy condition of the premises. These observations were made between 4 October 2012 to 11 March 2013. Mr Sinai also gave oral evidence at the hearing of the current condition of the premises. Mr Sinai inspected the premises yesterday, 18 September 2013. He observed that the front lawn had been mown. Mr Sinai spoke to a neighbour living in a townhouse to the north of the premises who said that three to four people had carried out work at the premises about three to four weeks ago. The work involved mowing the frontyard and cutting some of the bamboo in the backyard and stacking the cut bamboo in piles in the backyard. 22Mr Sinai also observed food scraps (rice and chicken) in takeaway food containers inside the front fence, presumably for the cats. Mr Sinai observed three cats in the frontyard, another four cats in the backyard, and a further cat at the back of the house. 23On the northern side of the house, Mr Sinai observed that the three vehicles and the accumulated rubbish were in the same condition as he had observed on previous visits. 24In the backyard, Mr Sinai observed that some of the bamboo had been cut and stacked in piles in the backyard. Otherwise, the remaining vegetation had not been cut or removed. The accumulated rubbish at the rear of the house was unchanged. Mr Sinai also observed the backyard from a townhouse to the north that overlooks Mr Dobrucki's backyard. 25In summary, the only work done and the only change in the condition of the premises were the mowing of the front lawn and the cutting and stacking in piles of some of the bamboo. Such work did not cause Mr Sinai to change the opinion he had earlier expressed that the premises are not in a safe and/or healthy condition. 26I am satisfied on the evidence before the Court that Mr Dobrucki is in breach of the LG Act by failing to comply with the terms of the s 124 order. Mr Dobrucki has failed to do the things required by the s 124 order, of cutting/slashing the overgrown vegetation and removing the clippings from the premises, and removing the accumulation of rubbish of the kind specified in the s 124 order from the premises to an approved waste facility, within the 21 day period specified in the s 124 order after the giving of the order (on 13 February 2013). Thereafter, Mr Dobrucki was in breach of the s 124 order and hence the LG Act. 27I am satisfied that the breach has continued to date. The actions of mowing the front lawn and cutting some of the bamboo but then stacking it in piles on the premises does not affect compliance with the s 124 order. The clippings and the bamboo were required by the s 124 order to be removed from the premises. Furthermore, much overgrown vegetation remains, particularly other bamboo and the Green Cestrum. None of the accumulated rubbish has been removed from the premises. The breach of the s 124 order and the LG Act is therefore continuing. 28The orders sought by the Council are appropriate to restrain and remedy Mr Dobrucki's ongoing breach of the s 124 order and the LG Act. The declaration should be made to formally pronounce to Mr Dobrucki that he is in breach of the s 124 order and the LG Act. Mr Dobrucki should be given one last opportunity to remedy the breach himself by carrying out the work required by the s 124 order. The period of 40 days is reasonable, both in terms of the time required to carry out the work, and having regard to the time Mr Dobrucki has already been given in the past to carry out the work. If, however, Mr Dobrucki still fails to carry out the work required by the s 124 order, it is appropriate for the Court to order, under s 678(10) of the LG Act, that the Council exercise its functions under s 678(1) of the LG Act to carry out the work required by the s 124 order. If the Council does do this work, it may recover the expenses of doing so from Mr Dobrucki under s 678(6) of the LG Act. Hence, either by Mr Dobrucki doing the work or by the Council doing the work, the breach of the s 124 order and the LG Act will be remedied. 29The Council seeks an order that Mr Dobrucki pay the Council's costs of the proceedings. The proceedings are in Class 4 of the Court's jurisdiction where the usual order is that costs follow the event. The Council has been successful in establishing that Mr Dobrucki has breached the s 124 order and the LG Act, and in obtaining relief to restrain and remedy that breach. There are no circumstances that would disentitle the Council to the usual order for costs. 30Accordingly, I make the following orders: (1)Declare that the respondent is in breach of the Local Government Act 1993 ('the Act') by failing to comply with the order given by the applicant in terms of order 21 under s 124 of the Act dated 13 February 2013 ('the s 124 order') in respect of the premises at 15 Hill Street, Cabramatta, being Lot 8 in DP 7721. (2)Order the respondent to comply with the terms of the s 124 order within 40 days of the date of this order by the Court. (3)Order the applicant, under s 678(10) of the Act, if the respondent fails to comply with order 2 by carrying out all work required by the s 124 order within the time specified by order 2, to exercise the applicant's functions under s 678(1) of the Act to enter the premises and do all such things as are necessary and convenient to give effect to the terms of the s 124 order, including the carrying out of the work required by the s 124 order. (4)Order the applicant to give the respondent seven days written notice of any time that the applicant intends to enter the premises and give effect to the terms of order 3. (5)Order the respondent to pay the applicant's costs of the proceedings as agreed or assessed. ********** 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. Decision last updated: 02 October 2013