Land and Environment Court New South Wales Medium Neutral Citation: Waverley Council v Walsh [2014] NSWLEC 195 Hearing dates: 18 December 2014 Decision date: 19 December 2014 Jurisdiction: Class 4 Before: Pepper J Decision: See orders at [31]. Catchwords: CIVIL ENFORCEMENT - failure to comply with a s 121B order issued under the Environmental Planning and Assessment Act 1979 - dilapidated house - risk to human safety - declaratory and remediation orders made - legal costs and repair expenses awarded. Legislation Cited: Environmental Planning and Assessment Act 1979, ss 121B, 121ZJ Cases Cited: Council of the City of Sydney v Galanis [2012] NSWLEC 263 Maitland City Council v Khali [2012] NSWLEC 58 Waringah Council v Ulrich [2012] NSWLEC 234 Category: Principal judgment Parties: Waverley Council (Applicant) William John Walsh (Respondent) Representation: Mr S Nash (Applicant) No appearance (Respondent) Sparke Helmore Lawyers (Applicant) No appearance (Respondent) File Number(s): ex tempore Judgment The Council Seeks Orders in Relation to a Dilapidated House 1In a summons filed on 1 October 2014, the applicant, Waverley Council ("the council"), seeks a declaration that the respondent, Mr William Walsh, has failed to comply with an order dated 23 October 2013 issued to him under s 121B of the Environmental Planning and Assessment Act 1979 ("the EPAA") ("the order"). 2The order required Mr Walsh to rebuild timber framing members and replace tiles to the roof of his two-storey dwelling located at 37 Bondi Road, Bondi Junction, described as Lot 2 in DP 201822 ("the premises"). When the works were completed, a certificate of structural adequacy was to be submitted to the council by a certified structural engineer. 3The reasons for the order were noted as: The timber framing members and tiles to sections of the roof to the two storey dwelling are rotted and tiles have become loose and are in danger of falling. The roof is in an unstable state and the safety of occupants and the public may be at risk. 4Time for compliance with the order was 28 days after service, that is, by 20 November 2013. 5The council also seeks an order that it be permitted to enter on to the premises for the purpose of carrying out the works specified in the order, together with any works of an ancillary nature that it determines are necessary so that the premises can be made safe. 6Based on the material before the Court, I have determined that it is appropriate to grant the relief sought by the council. The Proceedings Were Heard Ex Parte 7The council has been unable to locate Mr Walsh. 8Between July 2013 and June 2014, the council made extensive enquiries of various State and federal agencies in an attempt to ascertain his whereabouts for the purpose of these proceedings. These enquiries included, as deposed to in an affidavit of Ms Catherine Morton, the council's solicitor, sworn 29 October 2014: (1)a request to the Eastern Suburbs Local Area Command at Waverley Police Station that the police investigate Mr Walsh's whereabouts, to which the police responded that it had no information; (2)enquiries to Centrelink as to whether it had any record of Mr Walsh's current address, information which Centrelink declined to provide; (3)an enquiry to the New South Wales Trustee and Guardian, to which it replied that it had no information relating to Mr Walsh; (4)an enquiry to the Wills Administration Department that resulted in a statement that it had no record of Mr Walsh having died or left a will; (5)an enquiry to the New South Wales Registry of Births, Deaths and Marriages. It replied that it had no record of Mr Walsh's death; (6)an enquiry to the mortgagee for the premises, Endeavour Advantage Credit Union, as to whether it had any information relating to Mr Walsh - it did not reply; (7)an enquiry to the Freedom of Information team at the Department of Immigration and Border Protection, to which the council received no response; and (8)a search of the current electoral roll for any alternate address for Mr Walsh, which proved unsuccessful. 9As a result of the failure to locate Mr Walsh, the council applied for an order for substituted service in relation to the service of the summons, which the Court granted on 7 November 2014. 10Pursuant to the substituted service order, as the affidavits of service of Mr Mark Slater, sworn 19 December 2014, and the affidavits of service of Mr Malcolm Hill, sworn 13 November, 26 November and 15 December 2014 demonstrate, Mr Walsh was properly served with a copy of the summons, copies of the relevant affidavits that the council relied upon at the hearing, and critically, a copy of the orders of the Court made on 14 November 2014, order 4 of which stated: The proceedings are listed for hearing on: 19 December 2014. 11In light of this evidence, I have no hesitation in proceeding to hear the matter on an ex parte basis in the absence of Mr Walsh. The Premises are Dilapidated and Dangerous 12On the premises is a two-storey semi-detached brick dwelling, with a timber fibro-clad extension around the veranda at the southern elevation, that is, at the back of the house ("the extension"). The extension has a number of windows facing into the back yard. 13The council relied upon an affidavit sworn by Mr Geoffrey Doble, a structural engineer, on 4 December 2014, and an affidavit of Mr Mark Featherstone, the Manager of Building and Compliance, sworn 17 December 2014, to demonstrate the dilapidated and dangerous nature of the premises. 14The affidavit of Mr Doble annexed a number of reports that he had provided to the council in which he set out his opinion, based on various inspections of the premises, as to: the structural condition of the premises; whether the order had been complied with; and what works were required to be carried out in order to make the premises safe. The reports were dated 15 May, 30 June, 21 July, 27 October and 30 November 2014. 15The 15 May 2014 report observed that roof tiles and flashings were missing in many places on the dwelling and that water inundation had damaged the roof and floor structure over a considerable period of time. Given that timbers that have been exposed to water over a long period of time tend to deteriorate, Mr Doble recommended that an inspection of the internal timber structure be undertaken immediately. 16The 30 June 2014 report found that there was extreme water damage throughout the building, that the first floor was unsafe, and that the ceilings were badly damaged and required removal. 17In the 21 July 2014 report, Mr Doble listed a number of structural changes that needed to be made to the premises in order to make it safe, including the removal of pieces of timber, the refixing of sheeting on the veranda, the removal of the tiles on the main roof, and the securing of all doors and windows. 18In the 27 October 2014 report, Mr Doble and council representatives compiled a schedule of essential works to be made to the premises in order to make it safe. The schedule included the boarding up of windows and door openings, the fixing and locking of fences and gates, the removal of windows at the first floor on the front elevation, the demolishment of the rear wall of the dwelling, and the thorough examination of the roof to establish the scope of the repairs required. 19The report of 30 November 2014 found that, apart from some new fencing that had been installed by the council to secure the premises, the building appeared to be in the same structural condition as it was at the time of the inspection on 27 October 2014. 20In relation to compliance with the order, the 30 November 2014 report noted that: The inspection revealed that there is no obvious evidence that the timber framing members and the tiles to the roof of the two storey building have been rebuilt. The roof tiles and timber framing appear to be in about the same condition as they were when last inspected by Geoff Doble on 27.10.2014. 21The affidavit of Mr Feathersone attached two emergency orders issued by the council to Mr Walsh. The first order required the immediate demolishment and removal of the timber fibro-clad extension at the rear of the dwelling, which had detached from the rear wall and was at risk of collapse. The order also required any opening in the rear wall to be boarded up with plywood. The second order required that all windows, doors and any other openings in the external walls of the dwelling be boarded up with plywood, or something similar, to prevent further water damage and unauthorised access, and that the eastern face of the common wall of the dwelling be waterproofed. 22Mr Featherstone's affidavit also recorded his observations during several inspections of the premises that the rear extension was gradually collapsing. It noted his concern that if not demolished, the collapsing wall could cause damage to persons or property nearby. It was for these reasons that he caused the two emergency orders referred to above to be served on Mr Walsh. The orders were, according to Ms Morton, a response to the dwelling's "severe state of dilapidation and structural disrepair", "extensive water damage" and consequent risk to the neighbouring dwellings. The Relief Should be Granted 23The council's evidence demonstrates beyond all doubt that the order has not been complied with. Furthermore, the evidence overwhelmingly proves that the premises are not safe either to anyone who might inhabit the premises, neighbouring dwellings or to the general public. The premises remain in a degraded and dangerous state. 24In my view, it is appropriate that I make the declaration sought in the summons. Doing so serves the public interest. 25Moreover, the council ought to be permitted to enter on to the land to allow it to carry out the works prescribed in the order. The evidence of the council demonstrates that Mr Walsh, as the registered owner of the premises, is highly unlikely to carry out the works prescribed in the order himself. 26The Court's power to permit the council to enter on to the premises to carry out the prescribed work is contained in ss 121ZJ(1) and 121ZJ(11) of the EPAA. Those provisions respectively state that: (1) If a person fails to comply with the terms of an order given to the person under this Division, the person who gave the order may do all such things as are necessary or convenient to give effect to the terms of the order, including the carrying out of any work required by the order. ... (11) In any proceedings before the Land and Environment Court that are brought by a person who gave an order against another person as a result of the other person's failure to comply with the order, the Court may, at any stage of the proceedings, order the person who gave the order to exercise the person'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. 27These provisions permit the Court to allow the council to carry out any necessary work to give effect to the order (Waringah Council v Ulrich [2012] NSWLEC 234, Council of the City of Sydney v Galanis [2012] NSWLEC 263 and Maitland City Council v Khali [2012] NSWLEC 58). Costs and Expenses 28As the successful party, the council also seeks its costs of the proceedings. It is usual in Class 4 of the Court's jurisdiction that costs follow the event. I am persuaded to make a costs order in favour of the council. The council has successfully demonstrated that Mr Walsh is in breach of the order of 23 October 2013 and has engaged in no disentitling conduct that would displace the general rule. 29The council further asks for an order that Mr Walsh pay its associated costs and expenses of carrying out all necessary works to make the premises safe. Section 121ZJ(7) of the EPAA empowers the Court to make such an order. It provides that: (7) Any expenses incurred under this section by a person who gave an order (less the proceeds, if any, of any sale under this section or the amount of any security provided in respect of development to which the order relates) together with all associated costs may be recovered by the person in any court of competent jurisdiction as a debt due to the person by the person required to comply with the order. 30In my opinion, it is appropriate in the circumstances of this case to make this order. Mr Walsh has been afforded ample time and opportunity to comply with the order and remediate the damage to the premises and has not done so. As the council is now required to carry out these repairs, it should be entitled to recoup its expenses of doing so. Orders 31In conformity with the reasons above, the Court therefore: (1)declares that the order given under item 4(a) in the Table to s 121B of the Environmental Planning and Assessment Act 1979 ("the EPAA") in respect of the dwelling located on land at 37 Bondi Road, Bondi Junction, described as Lot 2 in DP 201822 ("the premises"), dated 23 October 2013 and addressed to the respondent ("the order"), has not been complied with; (2)orders, pursuant to s 121ZJ(11) of the EPAA, that the applicant exercise its functions under s 121ZJ(1) of the EPAA in respect of the premises, namely, to do all such things as are necessary or convenient to give effect to the terms of the order, including the carrying out of any work required by the order; (3)orders that the respondent pay the applicant's costs of the proceedings; (4)orders that the respondent pay the applicant's associated costs and expenses of carrying out these orders pursuant to s 121ZJ(7) of the EPAA; and (5)the applicant has liberty to relist the matter on 48 hours' notice. ********** 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: 19 December 2014