Land and Environment Court New South Wales Medium Neutral Citation: Canterbury-Bankstown Council v O'Connell [2020] NSWLEC 19 Hearing dates: 11 and 12 February 2020 Date of orders: 12 February 2020 Decision date: 12 February 2020 Jurisdiction: Class 4 Before: Moore J Decision: See orders in Annexure A Catchwords: CIVIL ENFORCEMENT - Respondent ordered by Council to cease providing food and shelter to multiple stray cats - order made to remedy environmental impact on neighbours of odour of cat faeces and urine - Respondent fails to obey order - evidence that proceedings drawn to attention of Respondent psychiatric certificate concerning Respondent did not provide a proper basis for adjourning the proceedings - consideration of the proper basis to make court orders requiring compliance - Respondent's premises subject to contract for sale - appropriate to provide opportunity for purchaser to seek to be joined to proceedings if desired - limited substituted performance order in favour of the Council appropriate - orders made COSTS - costs should follow the event - Council's actual costs of the order of $20,000 - preferable to make a gross sum costs order - appropriate basis is 65% to 75% of actual costs - Council proposes gross sum order in amount of $13,000 - Respondent ordered to pay the Council's costs in the gross sum of $13,000 Legislation Cited: Civil Procedure Act 2005, s 98 Local Government Act 1993 Category: Principal judgment Parties: Canterbury-Bankstown Council (Applicant) Phillip O'Connell (Respondent) Representation: Counsel: Mr M Cottom, solicitor (Applicant) No appearance (Respondent) Solicitors: Pikes & Verekers (Applicant) File Number(s): 310327 of 2019 Publication restriction: No EXTEMPORE JUDGMENT 1. HIS HONOUR: These proceedings arise out of endeavours by Canterbury‑Bankstown Council (the Council) to address a social problem of difficulties for neighbours of a residence in Revesby that arise from the fact that the occupant of the premises has kept, and succoured, a number of feral cats on the premises over some considerable period of time. 2. It is unnecessary for me to recite a deal of the history. It is sufficient that I note that the Council had a Local Orders Policy (which is in evidence before me as part of Exhibit D) that enables the Council to take appropriate action under the Local Government Act 1993 (the Local Government Act) if there are, as is here the position, adverse impacts from the keeping of animals in an urban setting where Mr O'Connell (the Respondent) is feeding and watering up to 30 feral cats on his residential premises. 3. Those who have complained to the Council are neighbours of the property where the Respondent has resided, and for which, at least at the present time, he is the legal proprietor. The complainants are the residents of one half of the duplex that shares a party wall with the Respondent's property. 4. I am satisfied, on the basis of affidavits from Mr Dean O'Mara of 15 January and 8 February 2020, together with a bundle of documents that were exhibited to Mr O'Mara's affidavit of 15 January 2020 (and which became Exhibit B), that there is remaining, and has been for some considerable time, an adverse impact on the neighbours to the Respondent's premises occasioned by urine and faeces deposited by the feral cats to which the Respondent provides succour. 5. One of the matters that I raised with Mr Cottom, solicitor appearing for the Council, arose out of the title search of the property that was behind Tab 1 in Exhibit B. That title search, which had been undertaken on 13 September 2019, disclosed that the Respondent was the proprietor of the property, and that there were no unregistered dealings with respect to it. 6. This position that was disclosed was contrary to the position that had been conveyed to the Court in several e-mails to the Court from Ms Howard, the Respondent's sister, who indicated that there was at least some prospect that her brother (whether of adequate testamentary disposition to do so or not, this not being a matter arising for my consideration in these proceedings) had potentially entered into a contract for sale of the property. 7. I proposed to Mr Cottom that it was desirable under the circumstances, given the nature of the declaration and orders sought by the Council in the Summons commencing these proceedings, that the current status of the property ought to be properly before me for my consideration. 8. As a consequence, during an adjournment of the proceedings on 11 February 2020, work was undertaken, under Mr Cottom's instruction, resulting in an affidavit of Mr Thomas Ward of 11 February 2020 being read in the proceedings. That affidavit disclosed that not only was there an unregistered dealing with the property - that is, a caveat which had been lodged in the very recent past - but that there was a contract for sale of the property that had been entered into by the Respondent. That contract for sale contemplated completion prior to the hearing this week, but completion has not been effected, and solicitors now acting for the putative purchaser of the property have served a Notice to Complete on the Respondent. 9. It is not necessary for me in these proceedings (nor do I have any statutory basis upon which I could, should I feel it appropriate) to address the question of whether that contract is valid in light of a certificate from a psychiatrist who is treating the Respondent - a certificate to the Court indicating that the Respondent suffers from mental impairment and that he is likely to benefit from psychiatric treatment and psychotherapy "to help him adjust to the changes required in his home environment". 10. Although that certificate was tendered (together with its covering e-mail, becoming Exhibit H), that was not a proper basis for me to adjourn these proceedings. It was a proper basis requiring me to draw its attention to Mr Cottom, and to have Mr Cottom contemplate, under the circumstances of that certificate and the material that had been discovered and come into evidence as a result of Mr Ward's affidavit, what was the nature of the relief appropriate to be sought by the Council. 11. This morning, the Council has filed in Court, and tendered (becoming Exhibit G), orders which the Council now seeks in lieu of the orders that were proposed to be imposed as a result of its Summons. I am satisfied that it is appropriate that those orders in the revised terms be made. 12. I have this morning, given that Ms Howard, the Respondent's sister, has attended the Court (and had been permitted, without objection from the Council, to explain some matters to me concerning her brother's position), taken an adjournment to enable the orders to be explained to her. I had already foreshadowed to Mr Cottom, when the matter was before me on 11 February 2020, that I considered it appropriate that Ms Howard be advised of the proposed outcome of the proceedings, and the fact that the Respondent was also advised that the proceedings were adjourned until this morning. 13. Having outlined that procedural history, it is appropriate that I turn, but briefly, to the facts of the matter. In the material that is part of Exhibit B, there is a range of photographic evidence over a period of time disclosing the presence of a large number of cats, up to 30, on the Respondent's premises, and the fact that he provides food and water to them. The photographic evidence on that point is incontrovertible. 14. There is also evidence given in the affidavit evidence of Mr O'Mara (and in the photographs derived from it that form various parts of Exhibit B) that there is a significant odour issue arising for the neighbours sharing the party wall with the Respondent's premises, with that odour arising from cat urine and cat faeces. 15. Despite the fact that it is not contested the Respondent has had on one occasion a cleaning contractor attend his premises in order to undertake a clean-up, that clean-up has been unsuccessful. 16. It also appears incontrovertible that, after that clean-up was effected, the Respondent is, or has been, continuing to provide food and water to the cats - leading to the fact that the number of cats on the premises has not been reduced in the fashion sought by the Council. 17. On the basis of that evidence, I am satisfied, on the balance of probabilities as is required in these proceedings, that the impact of the cats, and particularly their urine and faeces, on the neighbours is entirely unacceptable and that the orders issued by the Council in July 2019 seeking to address that impact, by requiring both a cleaning up of the urine and faeces on the premises and the lowering of the number of cats to be provided assistance by the Respondent to a maximum of three, were entirely appropriate. 18. That order, I am satisfied on the evidence, was served on the Respondent. 19. I should also indicate, for completeness and caution, that I am satisfied that all the relevant documents relating to these proceedings have been served on the Respondent, with the exception of the affidavit of Mr Ward of 11 February 2020 and possibly the affidavit of Mr O'Mara of 8 February 2020. Even if there has been a failure to serve those two documents on the Respondent, it provides no bar to me continuing to deal with the matter on the basis of the evidence contained in Mr O'Mara's original affidavit and in the bundle of documents that are exhibited to it which became Exhibit B. 20. The relief that is now sought by the Council in these orders is, in effect, a contingent substituted performance order. It is proposed that a modified obligation be imposed on the Respondent and that he be granted 14 days from the date of the service of these orders on him (that service to be effected by personal service and in a number of other fashions outlined in the orders appended to this judgment) to require him to clean up the property and to lower the number of cats on the premises to not more than three. 21. It is the position that I make that order, but that I stay, for 14 days, the ability of the Council to give effect to the order to enable the Respondent to carry out the obligations. 22. If, at the end of 14 days, he has failed to do so, then the Council will be permitted, by the terms of the order, to enter the property and carry out substituted performance. 23. The orders also provide that the nominated purchaser of the property be granted leave to apply to the Court for any of the relevant orders, or for any other orders that might be made in the proceedings, including joinder as a party within 14 days of the service of these orders on her solicitor. 24. There are then a number of procedural matters concerning service and the like contained in Orders 2(b), 4 and 5. There is a schedule to the orders that modifies the terms of what were Orders 1 and 3, in the orders served on the Respondent in July 2019. I propose to make the orders in those terms. 25. There are two further matters to which it is appropriate that I refer. First is the fact that, if the Respondent does not carry out the work that is to be required of him as a result of the modification to the July 2019 orders in the fashion that I will now make as orders of this Court this morning, the Council becomes empowered to (and if it takes advantage of its ability to) enter the premises and give effect to the orders, the expenses incurred by the Council in undertaking those activities will become a debt to the Council payable by the Respondent and capable of being recovered by the Council in a court of competent jurisdiction, if it is necessary to do so. 26. The second matter that it is appropriate I note is that the Council also seeks an order that the Respondent pay the Council's costs of the proceedings on the ordinary basis, as agreed or assessed. 27. Although the Respondent has not appeared and has not taken any part in these proceedings, and although I am aware from the certificate provided by Dr Singh that the Respondent may have a potentially significant mental impairment that acts as a barrier to the carrying out of the works himself, I am satisfied that the nature of the interaction between the Respondent and the Council, as set out in the affidavits of Mr O'Mara and the history of material set out in Exhibit B, demonstrates that Mr O'Connell has had a significant period of time, both formally and informally, within which his attention has been drawn to the unsatisfactory nature of his interaction with the cats, and the need to rectify their impact on the residents of the neighbouring property. This has been provided since July 2019, after the time of the service of the order on him requiring correction of the unsatisfactory nature of the premises, to carry that out. 28. As a consequence, I am satisfied that it has been necessary for the Council to commence these proceedings to operate in a protective fashion of the environmental health of the residents of the premises that share the party wall with the Respondent. The one exception (that I now propose to raise with Mr Cottom) is that it would be my preference, with respect to proposed Order 3, to make a gross sum costs order, rather than letting the matter go to assessment and the like. Now, the conventional position, as I understand it, is that an assessed costs order for proceedings such as these is likely to be somewhere in the range of 65% to 75% of the costs actually incurred on behalf of your client. 29. I adjourned for a short period of time to permit Mr Cottom to address me as to whether his client opposed the concept of a gross sum costs order and, secondly, what might be an appropriate gross sum to be so ordered and the basis for that. 30. As a consequence of the information provided to me by Mr Cottom, after that adjournment, that the Council's costs to date (excluding GST) are of the order of $20,000, and as, on a conventional basis for the purposes of making a gross sum costs order pursuant to s 98 of the Civil Procedure Act 2005 (the Civil Procedure Act), it is appropriate to make such an order at somewhere between the range of 65% to 75% of those actual costs. 31. Mr Cottom indicated to me that, under the circumstances, the Council seeks a costs order in its favour of $13,000, being at the lowest end of that conventional range. 32. I am satisfied that Order 3 of the Council's proposed orders, as presently framed, should be deleted and that an order should be made in lieu of it, that is, that the Respondent is to pay the Applicant's costs of the proceedings in the gross sum of $13,000 pursuant to s 98 of the Civil Procedure Act. ********** Annexure A - 310327 of 2019 - Canterbury-Bankstown Council v O'Connell - O - 12 Feb 20 (198 KB, pdf) 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: 03 April 2020