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. The relevant evidence 1. As the s 124 Order recites, an inspection conducted by the Applicant Council's Development Compliance Officers Mr Andrew Zapantis and Mr 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. 2. Concerns regarding the chimney on the Premises were first raised with the Applicant Council in an email dated 19 December 2016 from Mr Kent Boehm of 34 Thorley Road ('Boehm property') (being Annexure A to the affidavit of Andrew Zapantis affirmed on 22 September 2017). Mr Boehm stated that he was writing to: "..make council aware of an extremely dangerous situation and request council's assistance in removing the hazard". He went on to state: "…the chimney overlooks both my neighbours and my own backyard. There is a large crack around the circumference of the chimney and the top part of the chimney is now tilted toward my house and yard. There is a large branch pushing against the chimney". Further: "The situation is critically hazardous and it is not hard to imagine the top of the chimney falling on someone, which would surely result in serious injury or death". 3. As alluded to above, on 20 December 2016 Mr Zapantis and Mr Chen Wu visited the Premises and observed the subject chimney from the Boehm property, forming the opinion that it was damaged and in need of urgent remedial works. In Mr Zapantis' affidavit of 22 September 2017 he gives his account of a conversation, which took place during that 20 December inspection, with the Second Respondent who, it is said, stated: "Yes, I am aware that the chimney is damaged and I am happy to get the chimney fixed but I do not know anyone capable of fixing it". When advised by Mr Zapantis as follows: "Given the potential dangers associated with the chimney, the Council are going to issue an emergency order requiring you to urgently take steps to fix the chimney. Do you understand?" The Second Respondent is then said to have replied: "Yes, I understand. We will repair the chimney". 4. In circumstances where the Respondents have failed to appear at any hearing in this matter, most particularly the final hearing, nor have they provided any communication of any kind since the service of the s 124 Order or the commencement of proceedings and so have foregone many opportunities to take issue with any of the evidence or documentation of the Applicant Council, I accept the purport of Mr Zapantis' evidence. The relevant statutory provisions 1. Section 124 of the LG Act empowers a Council to make any number of orders, in specified circumstances, to compel a person to do or to refrain from doing a specified thing. Relevantly, Order 21 of that section provides: Orders requiring or prohibiting the doing of things to or on premises Column 1 Column 2 Column 3 To do what? In what circumstances? To whom? 21 To do or refrain from doing such things as are specified in the order to ensure that land is, or premises are, placed or kept in a safe or healthy condition The land or premises are not in a safe or healthy condition Owner or occupier of land or premises 1. Section 678 of the LG Act applies in circumstances where a person fails to comply with the terms of an Order made under s 124, and provides (relevantly): 678 Failure to comply with order—carrying out of work by the council (1) If a person fails to comply with the terms of an order given to the person under Part 2 of Chapter 7, the council 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. … (6) Any expenses incurred by the council under this section (less the proceeds, if any, of any sale under this section) together with all its associated costs may be recovered by the council in any court of competent jurisdiction as a debt due to the council by the person concerned. … (8) A reference in subsection (4) or (6) to costs is a reference to costs incurred by the council in seeking to recover the deficiency or expenses otherwise than by proceedings in a court, but nothing in this section prevents the council from receiving costs as between party and party in respect of those proceedings. … (10) In any proceedings before the Land and Environment Court that are brought by a council against a person as a result of the person's failure to comply with an order under Part 2 of Chapter 7, the Court may, at any stage of the proceedings, order the council to exercise the council'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. Consideration 1. In this case the evidence of Mr Zapantis satisfied the Court that the brick chimney on the Respondents' house was in a state of disrepair, with perimeter cracking being clearly apparent from vantage points in neighbouring properties. Relevantly, Mr Zapantis' specific area of responsibility over a period of five years has been, inter alia, the investigation of dangerous and unsafe structures and buildings. Mr Ede, appearing for the Applicant Council, assured the Court that Mr Zapantis' experience enables him to make such assessments. (Tcpt 30 January 2018, p 3 (41-40) and Tcpt 30 January 2018, p 4 (2-3)) The Court accepts that Mr Zapantis is an officer of the Applicant Council who has the skills and knowledge to identify a dangerous and unsafe structure. Given that the Respondents' house is not a new one, and that branches of a substantial tree growing on the property had, until some months back, been brushing the chimney, it is not surprising that the chimney had been destabilised. 2. As earlier explained, the state of the chimney had been drawn to the attention of the Applicant Council by the neighbour Mr Boehm. Given the Boehm property adjoins the subject premises, sharing a party wall, it is understandable, living in such proximity, that the Boehms would be concerned for their safety, pointing out in the initial email to the Applicant Council of 19 December 2016 that they may well be vulnerable to injury or even death should the top of the chimney collapse into their property. Although no evidence from a structural engineer was before the Court, given the expertise and responsibilities of Mr Zapantis, I accept that his assessment of the risk of a chimney collapse is plausible. 3. The other property near the Premises, to the south at 32 Thornley Street, is a childcare centre, known as 'Little Ark Preschool'. The situation with respect to the neighbouring chimney has also been known to the operators of the childcare centre as the evidence from the Applicant Council's officers indicates that at times those officers needed to enter the centre in order to access a vantage point to view the chimney at No 36. As the childcare centre abuts the Boehm property, and so not the Respondents' Premises, it is most probably at little risk to being damaged by the chimney should it fall. Clearly, apart from the Respondents themselves, it is the Boehm property which is at greatest risk. Nevertheless, it is conceivable that in circumstances of a catastrophic collapse of the chimney, pieces of masonry might become airborne. Given that No 32 is a childcare centre, a land use at the most sensitive end of any vulnerability scale, I must be mindful that it is undesirably proximate to the Premises should the destabilised tall brick chimney suddenly start to collapse. I consider this is a relevant factor providing me with an additional reason as to why the orders sought should be made. 4. It is no light matter to, by order of this Court, empower a public authority, in this case the Applicant Council, to enter upon private property and carry out structural work to a private residence. Such structural work may conceivably turn out to be substantial, potentially involving the demolition of the current aged chimney and replacing it with a complete rebuild. The Court orders must necessarily allow full access, entry through locked gates, removal of obstacles such as any private car, the trimming of any tree branches in the way, the temporary disconnection of electricity and such other steps as are necessary to facilitate the urgent works to proceed unhindered. Further, the orders sought also include a financial impost: the urgent works to be carried out by the Applicant Council, in lieu of the Respondents themselves having carried out those works specified by the s 124 Order, will be paid for by the Respondents. Consequently, given the serious ramifications of the Court orders, the Court must be satisfied of a number of preconditions before exercising its power. 5. First, the power to make the order pursuant to s 678(10) of the LG Act empowering the Applicant Council to carry out the remedial works follows a failure by the Respondents to carry out those works as required by the s 124 Order ('the Remedial Works'). I am satisfied from the evidence before the Court that the Respondents have indeed failed to carry out the requisite Remedial Works to the chimney. Mr Zapantis' affidavit of 22 September 2017 confirms that no remedial works of any kind had been carried out as at the date of Council officer inspections on: 6 January 2017; on 30 January 2017; and on 11 August 2017. Finally, in the further affidavit of Mr Zapantis affirmed 30 January 2018, a further Council officer inspection is described as having occurred on 25 January 2018. He stated that: "I observed that no remedial work had been undertaken on the chimney at the Premises and the damage identified in the earlier inspections was still clearly evident". 6. Next it is necessary, in the circumstances of the Respondents having not carried out the Remedial Works, to be satisfied that it is still warranted that the Applicant Council be authorised to carry out the requisite works on the basis that it is urgent to do so in order to avoid an unsafe situation. How, it might be asked, could more than thirteen months have been allowed to pass since the s 124 Order was issued "in the case of an emergency" (as the title of the Order also confirms) and the situation still remain urgent? Does the same urgent situation prevail or have there been intervening occurrences removing some of the urgency? Potentially relevant, Mr Zapantis in his first affidavit referred to the Respondents' neighbour Mr Boehm securing the assistance of the fire brigade who sensibly cut off and removed tree branches that had been pushing against the chimney and further that Mr Boehm had reported that the fire brigade had expressed the view that a strong wind would be unlikely to cause the chimney to collapse. Clearly, whilst acknowledging the laudable assistance of the fire brigade in the circumstances so described, the untested hearsay observations of some fire brigade officer recounted through the reported words of an intermediary, cannot be given much, if any weight. Further, the Court, quite legitimately, ought to query whether the structural integrity of an aged brick chimney showing severe cracking, is a matter falling within the expertise of an officer of the fire brigade. 7. The Court is of the view that in circumstances where a s 124 Order, of the order 21 category in the Table to s 124 LG Act, has issued "To do or refrain from doing such things as are specified in the order to ensure that the land is, or premises are, placed or kept in a safe or healthy condition" in circumstances where "The land or premises are not in a safe or healthy condition", it is essential that the Court adopt a precautionary approach. Of course the Court cannot conclude with any certainty that the chimney has been so destabilised by its cracking that it will actually collapse at a given point in time, however no one, most of all this Court, wants to be wise after the event. In circumstances where parts of a collapsing chimney might conceivably crush a person in the neighbouring Boehm property, caution must prevail. Accordingly, the Court must be mindful of and is persuaded by the best evidence available to it: being the evidence of the professional opinion of Mr Zapantis. In his latest affidavit of 30 January 2018, the day of the final hearing, he concluded: "I am of the opinion that the Premises is not in a safe or healthy condition as a result of the condition of the chimney and the chimney requires urgent remedial repairs as it is a risk of collapsing and causing injury". The Court therefore accepts that, given the failure of the Respondents to carry out the Remedial Works, the Applicant Council must do so. 8. In making the orders I must be satisfied that the Respondents are the registered owners of the Land so that they are properly subject to the orders. I am satisfied from evidence contained within the affidavit of Mr Jonathon Ede, affirmed on 29 January 2018, that a title search was carried out the day before the hearing and that it confirmed that the Respondents are indeed the registered proprietors of Lot A DP 440912, being the Land. 9. Further, in circumstances where there was no appearance before me by the Respondents, it is also necessary that I be satisfied that they were properly served with the notice of this hearing and all documents filed with the Court. I am aware that when this matter came before Court for preliminary directions, before me on 11 August 2017, before Pain, J on 27 October 2017 and before Assistant Registrar Anastasi also on 27 October 2017, there were no appearances by the Respondents. The Court file reveals that since the commencement of the proceedings there had been no communication of any kind received from the Respondents in response to the service of any notice or document. On all previous occasions the Court was satisfied that the Respondents had been properly served. I am satisfied that, for the final hearing, on the evidence contained within the affidavit of Jonathon Ede affirmed on 29 January 2018, the Applicant Council via its solicitors took all reasonable steps to ensure that the Respondents were fully informed of the hearing and were properly served with the Court Book and Evidence Book. 10. Accordingly, in all the circumstances, I am satisfied that it is appropriate for me to proceed to judgment and to make the orders I consider to be necessary, despite the non-participation of the Respondents at all stages in the proceedings culminating in their non-appearance before me in the final hearing. The risks are too great for the Applicant Council to be denied the orders it seeks. Orders 1. The Court: 1. orders that pursuant to s 678(10) of the Local Government Act 1993 (NSW) the Applicant Council, its servants and agents execute the Council's functions under s 678 by carrying out the Remedial Works which were required to be carried out at the Land by the Order being works which the Respondents were required to do but failed to do; 2. orders that subject to compliance with order 4 below, the Applicant Council, its servants and agents, shall be entitled to commence the Remedial Works and for the purposes of these orders, now and until these orders have been carried out, to enter and remain on the Land to carry out the Remedial Works during weekdays between the hours of 7am to 3pm; 3. orders that: 1. a sealed copy of these orders be served on each of the Respondents by affixing the orders in sealed clear soft plastic pockets to the front door of the Premises within 3 working days of the date of these orders; and 2. not less than 3 days before the Remedial Work commence, the Applicant Council shall give notice in writing to each of the Respondents of the date of intended commencement of the Remedial Works by affixing such notice in sealed clear soft plastic pockets to the front door of the Premises; 1. orders that a structural engineer or other appropriately qualified expert employed or engaged by the applicant shall be entitled to enter and remain on the Land whilst the Remedial Works are carried out in order to assess the structural integrity of the Chimney and make any recommendations to the applicant, its servants and agents as to the carrying out of Remedial Works in a safe and effective manner; 2. orders that the Applicant Council, its servants and agents be permitted during the Remedial Works, if in their opinion it is prudent to do so, to disconnect the electricity or other utility services to the Land. Where such a disconnection has occurred it must be reconnected as soon as reasonably practicable and in any event at the conclusion of the day's work; 3. orders that the Applicant Council, its servants and agents be permitted during the Remedial Works, to forcefully unlock and remove any gates on the Land interfering with or impeding the entry by the applicant, its servants and agents onto the Land. Any locks or gates removed shall be replaced by the Applicant Council so as to restore the locks and gates to the condition prior to removal by Applicant Council or its servants and agents; 4. orders that the Respondents, their servants and agents abstain from doing any act which might interfere with or impede the entry by the applicant, its servants and agents onto the Land and then remaining on the Land pursuant to these orders and which might interfere with and impede the applicant, its servants and agents in complying with these orders, and that the Respondents, their servants and agents stay a safe distance of at least 10 meters away from any operating machinery and trucks on or in the vicinity of the Land; 5. orders that the applicant, its servants and agents may cut vegetation at the Land if that is reasonably required to facilitate the Remedial Works; 6. orders that any motor vehicle (registered or otherwise) which is parked in the driveway in front of the Land or on the road in front of the driveway and which impedes or poses a danger to the Remedial Works may be removed by an appropriate towing company a sufficient distance from the Land to allow the Remedial Works to proceed in an efficient and safe manner; 7. orders that the Respondent pay the Applicant Council's reasonable expenses incurred by the applicant in its execution of these orders; 8. orders that the Respondent pay the Applicant Council's legal costs of or incidental to these proceedings as agreed or assessed; and 9. the parties are to have liberty to apply on two days' notice in respect of the "working out" of the Court's orders. ********** 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: 31 January 2018