Inner West Council v Krelja [2018] NSWLEC 4

Land and Environment Court New South Wales

Medium Neutral Citation: Inner West Council v Krelja [2018] NSWLEC 4 Hearing dates: 30 January 2018 Date of orders: 30 January 2018 Decision date: 31 January 2018 Jurisdiction: Class 4 Before: Molesworth AJ Decision: See orders at [21]. Catchwords: CIVIL ENFORCEMENT- old and destabilised chimney on residence unsafe and posing risk to life and property- Council s 124 Local Government Act Order requiring urgent remedial repairs to avoid risk of collapse and injury- failure to comply with s 124 Order- safety of persons proximate to chimney given paramount consideration demanding precautionary approach by Court- s 678 Order made for the Applicant to carry out remedial work- continual absence of elderly Respondents from all stages of proceedings no reason to withhold necessary orders. Legislation Cited: Local Government Act 1993 ss 124, 678(10) Category: Procedural and other rulings Parties: Inner West Council (Applicant) Romano Krelja (First Respondent) Zora Krelja (Second Respondent) Representation: Counsel:

Solicitors: Mr Jonathon Ede of Wilshire Webb Staunton Beattie (Applicant) N/A (First and Second Respondents) File Number(s): 2017/213614 Publication restriction: N/A

Judgment 1. The subject land, owned by Mr Romano Krelja and Mrs Zora Krelja, ('the Respondents'), at 36 Thornley Street Leichhardt ('the Land') located on the western side of the street, has built upon it a duplex single-story late Victorian or early Federation house, the residence of the Respondents. This house will be referred to as 'the Premises'. The Premises are situated to the north of its adjoining neighbouring property (the other half of the duplex) at 34 Thornley Street, the Boehm family home, with which it shares a party wall. Towards the rear of the Premises, attached to the side wall of the house, is a tall brick chimney, which, (apparent from photographs annexed to an affidavit before the Court) appears to have always been part of the original house, servicing the Respondents' residence. It is this chimney, identified as being unsafe, which is the subject matter of this hearing. 2. By Summons filed 13 July 2017, Inner West Council ('the Applicant Council') sought the following relief: 1. An order pursuant to s 678(10) of the Local Government Act 1993 (LGA) that the Applicant (Council) exercise the Council's functions under s678 of the LGA by carrying out, on Lot A DP 440912 known as 36 Thornley Street, Leichhardt NSW 2040 (Premises), the works and actions required by and in accordance with the terms of the s 124 LGA order (order 21) issued to the Respondents dated 20 December 2016 within 14 days from the date of these orders. 2. An order that the Respondents pay the Council's expenses incurred in complying with order 1 of these orders pursuant to section 678(6) of the LGA. 3. An order that the Respondents pay the Council's costs of and incidental to these proceedings as agreed or assessed. 4. Such further or other orders as the Court sees fit. 1. The s 124 Order, dated 20 December 2016, to which the Summons refers, was issued pursuant to s 124 of the Local Government Act 1993 (NSW) ('LG Act') and falls within the category of an Order 21 in the Table to s 124 ('the s 124 Order'). The operative parts were as follows: TAKE NOTICE that Inner West Council, being of the opinion that there is an emergency, and therefore an urgent need to issue this Order without prior notice gives you the following Order in terms of Order No 21 in the Table to Section 124 of the Local Government Act 1993: The Emergency Order: To take such measures as required to repair and make safe the chimney that is located to the rear of the premises. From the date of the actual Emergency Order, you will have until Friday 30 December 2016, to comply. Circumstances giving rise to the issue of the Emergency Order: The chimney located to the rear of the premises, is not in a safe condition. Reasons for the Emergency Order: An inspection conducted by Council's Compliance Officer Andrew Zapantis and Alex Chen Wu on Tuesday 20 December 2016, revealed that the chimney located to the rear of the premises, is not safe and poses a potential safety risk to the occupants and the adjoining neighbours should the chimney collapse and fall. Failure to comply with this order is both an offence against the Act and a breach of the Act. In either case, the Council is entitled to take proceedings against you to recover a monetary penalty or for other appropriate orders The maximum penalty upon conviction of an offence is $2200 Alternatively, Council through its officers, agents or contractors, may enter the premises and carry out the necessary work and recover costs from you as a debt due to the Council. You may within 28 days of this order, appeal against this order to the Land & Environment Court of NSW. 1. The Respondents are an elderly couple (in fact described as "very" elderly by their neighbour) whose first language is not English. Given the passage of time since the s 124 Order was served on 20 December 2016 and the repeated efforts of the Applicant Council and/or its solicitors to communicate with the Respondents, all to no avail, it may be surmised that the Respondents are not fully cognizant of the ramifications of the s 124 Order and perhaps not capable of making the necessary rectification arrangements themselves in response to the s 124 Order.