Albury City Council v Reid

[2006] NSWLEC 748

Land and Environment Court

of New South Wales

CITATION:

Albury City Council v Reid [2006] NSWLEC 748

PARTIES:

APPLICANT
Albury City Council

RESPONDENT
Lucy Narda Reid

FILE NUMBER(S):

40786 of 2006

CORAM:

Jagot J

KEY ISSUES:

Civil Enforcement :- council order for demolition of dillapidated structures - order enforced

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979

DATES OF HEARING:

13/11/2006

EX TEMPORE JUDGMENT DATE:

11/13/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Rogers (solicitor)
SOLICITORS
Kell Moore Solicitors

RESPONDENT
Ms L Reid (in person)
SOLICITORS
N/A

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

13 November 2006

40786 of 2006

ALBURY CITY COUNCIL
Applicant

LUCY NARDA REID
Respondent

JUDGMENT

Jagot J:

1 These are class 4 proceedings in which Albury City Council seeks declarations and orders against Ms Lucy Narda Reid. In summary, the Council seeks a declaration that Ms Reid has not complied with an order that the Council issued under s 121B of the Environmental Planning and Assessment Act 1979 on 17 February 2006.

2 That order required Ms Reid to demolish two structures on premises which she owns, known variously as 270 or 272 Wantigong Street, North Albury, which is land within lot 101 in deposited plan 703319. The Council issued this order under s 121B of the Environmental Planning and Assessment Act 1979.

3 Section 121B provides that a council may give an order to a person to do or to refrain from doing a thing specified in the table which appears in the section if the circumstances specified in column two of the table exist, and if the person to whom the order is addressed comes within the description opposite that matter in column three of the table.

4 Item two in the table to s 121B provides that the Council may order a person to demolish or remove a building if that person is the owner of the building and if the building is “so dilapidated as to be prejudicial to its occupants or to persons or property in the neighbourhood”.

5 As part of the proceedings, the Council now seeks that the Court order Ms Reid to demolish two derelict building structures, namely a former dwelling and carport located on the property, and that she, following demolition, remove the demolished building materials from the property.

6 The Council also seeks orders that if Ms Reid fails herself to demolish those two structures within thirty days of the Court’s orders, the Council itself be ordered by the Court to enter upon the property and carry out the demolition, and consequential orders relating to how the Council should deal with the demolished materials.

7 The Council has read a number of affidavits, including in particular two affidavits from Mr John Brian Mulvey, who is employed by the Council, currently in the position of compliance team leader, and also from Mr Matthew Stephen Rogers, the solicitor for the Council.

8 Mr Mulvey has given evidence that Ms Reid is the owner of the property, and that Ms Reid resides on the property, but not in the derelict structures that are the subject of the Council’s proposed orders. Ms Reid lives on the property in a separate building and Mr Mulvey has satisfied himself that that separate building has all relevant facilities. Accordingly, he reached the opinion that the demolition of the two derelict structures would not have the effect of rendering Ms Reid homeless. Ms Reid who has given evidence before me today, does not suggest otherwise.

9 This is relevant because s 121G of the Environmental Planning and Assessment Act 1979 provides a special regime if the effect of any order would be to make any person homeless – however, as I have said, that consideration does not arise in this matter.

10 Mr Mulvey said that he first became aware of the property in or about May 2005 and that subsequent to May 2005 he made a number of attempts to reach a satisfactory resolution with Ms Reid resulting in the demolition of the derelict dwelling and carport on the property, and removal of building materials associated with that demolition from the property.

11 Mr Mulvey, in accordance with s 121H of the Environmental Planning and Assessment Act 1979, initially gave notice to Ms Reid of the Council’s intention to serve an order upon her in May 2005, and subsequently did serve an order on 21 June 2005. After that order was served on Ms Reid Ms Reid forwarded correspondence, the consequence of which was that the Council did not proceed on the first order which it subsequently revoked.

12 Mr Mulvey, after further inspecting the property and determining that the derelict structures had not been demolished, then again gave notice of intent to Ms Reid to serve an order on 20 September 2005. On 23 December 2005, Ms Reid responded in terms consistent with Ms Reid’s evidence before me today, that she was making arrangements for the derelict structures to be demolished. Thereafter, on 14 February 2006, Mr Mulvey carried out a further inspection and determined that the demolition works had not been carried out, and as a consequence, on 17 February 2006, Mr Mulvey prepared and caused the Council to serve a further order on Ms Reid requiring demolition of the two derelict structures.

13 That 17 February 2006 order is the order that the Council now seeks to enforce in these proceedings. That order, which is in evidence before me, identifies that it is made pursuant to item 2 of s 121B and requires Ms Reid, in her capacity as the owner of the property, to demolish or remove the derelict residence and carport on the basis that the buildings are so dilapidated as to be prejudicial to occupants or to persons of property in the neighbourhood.

14 As I have said, Ms Reid, I infer from all of the evidence, does not occupy the derelict building or indeed the carport, but occupies the property generally and another dwelling that is present on the property.

15 Subsequent to the serving of the 17 February 2006 order, various communications took place between the Council and Ms Reid and the Council’s solicitor and Ms Reid, culminating in the commencement of these proceedings by the Council, and the hearing of this matter today.

16 In particular, Mr Mulvey has sworn a second affidavit of 9 November 2006, which annexes a series of photographs that he took on 6 November 2006 and sets out his comments about the condition of the derelict dwelling, as well as the carport. Those observations included that a number of floorboards had broken away from their supports in the derelict dwelling, and in his view had the potential to fall through if weight was placed on them, and he also observed evidence of vermin having once nested in the walls of the building. He gave evidence to the effect that the weatherboard structure showed signs of rotting. He also gave evidence of the window frames with no glass, the numerous holes in the external walls on the northern side of the building, as well as the fact that the front entry and porch at the south-eastern corner of the building were in disrepair, the porch having collapsed and not being stable and otherwise that the carport structure, the subject of the order, itself had collapsed.

17 Mr Mulvey also gave evidence that his observations were that some demolition work had been carried out by Ms Reid, that he described as “minor progress towards the demolition of the derelict building”, being “cosmetic only”. Mr Mulvey has deposed to the fact that in his opinion the derelict dwelling is a safety hazard, observing that the building has the capacity to collapse and cause potential serious injury, that the derelict dwelling is not secure and that there is nothing stopping others from entering it, that it shows signs of having been used by vermin and other animals and that he is concerned that it is a fire hazard.

18 Mr Mulvey has also annexed to his second affidavit a quote obtained from a demolishing contractor, which the Council would use if it becomes necessary for the Council itself to carry out the demolition, being a total quote including all removal of demolished materials, in the sum of $6,050.00.

19 Ms Reid has given evidence before me. She has frankly explained that her physical and mental condition over the past few years has resulted in the delay in complying with the Council’s requirements. It is not necessary that I record in these reasons the details of the evidence which Ms Reid has given before me other than to note that she has disclosed the considerable degree of debilitating difficulty to which she has been subject over the last few years due to her mental condition.

20 I should also say that Ms Reid in all of her dealings with the Council and in her evidence before me has not suggested that the two buildings should not be demolished. Her evidence is that they are in the process of being demolished. She accepts that the steps she has taken to date have been very slow and has explained to me the reasons why those steps have been slow, given her condition, and she has otherwise accepted that the matter should be resolved. She also considers that the time periods which are contained within the class 4 application on which the Council relies, that is that there be a further period of thirty days for Ms Reid to complete the demolition activities, are reasonable.

21 I had the benefit of a view of the property this morning. Wantigong Street is a pleasant residential environment and the dwelling in which Ms Reid resides on the property appears, at least from the outside, in good repair and condition, in stark contrast to the derelict dwelling and the building materials left over from the collapsed carport.

22 I am satisfied that both of those buildings are so dilapidated as to be prejudicial to persons and property in the neighbourhood. Although the derelict dwelling has some vegetation in front of it providing some form of screening to some parts of the street, the derelict dwelling is visible from the street and neighbouring properties and is, on the evidence and on the view, clearly in a highly dilapidated state such as to satisfy the circumstances set out in item two, sub-item (c) of s 121B.

23 Relevant prejudice to persons, including Ms Reid herself I should say, and to property in the neighbourhood, exists both by way of the appearance of the very dilapidated structure but also I accept (having seen the structure) by way of Mr Mulvey’s evidence that there are real concerns, that are not ill founded, about the safety of the structure, given its current condition and the fact that it is not secure from other persons entering it.

24 For these reasons I am satisfied that the circumstances in s 121B, item two, were enlivened and that the Council properly served an order on Ms Reid under that section, ordering Ms Reid to demolish the buildings within thirty-one days from the date of the order, being 17 February 2006, and that such demolition has not been carried out.

25 Having heard all of the evidence and seen the property and the derelict structures, I am satisfied that it is an appropriate exercise of discretion to make orders generally as sought by the Council in terms of the derelict structures, and I propose so to do subject to some drafting amendments.

26 Before I formally make the orders of the Court, I should also deal with the issue of costs. By this I mean not costs associated with any demolition that the Council itself might have to carry out, but the costs of the proceedings.

27 The Council seeks an order that Ms Reid pay its costs on an indemnity basis. Mr Rogers for the Council frankly said to me that this was a matter of some regret, but those were his instructions. The reason that the Council seeks costs on an indemnity basis is that the evidence shows that the Council has indeed given Ms Reid very many opportunities to herself carry out the demolition which she accepts ought to be carried out, and as Ms Reid herself has acknowledged, Mr Mulvey of the Council has been reasonable and helpful to her on all occasions, attempting to bring this matter to resolution.

28 In all of the circumstances, particularly the evidence from Ms Reid which I accept, that her circumstances of life since approximately 2000 have subjected her to considerable personal difficulty, that although she has not achieved compliance with the terms of the Council’s order, she at all times has acknowledged that there was a proper basis for service of the order, that she has not at any time disputed the terms of the order, that she has done her best recognising the difficulties of her own personal circumstances to cooperate with the Council, and that she has taken at least some steps, albeit minor and cosmetic, to achieve compliance with the Council’s orders, I do not see this as an appropriate matter to make an indemnity costs order against Ms Reid. Rather, the appropriate order would be the usual order as to costs, to which I accept the Council is entitled in order to perform the function that costs orders are intended to perform in these proceedings, namely, to compensate the Council for having had to bring the proceedings and to come to Court to obtain orders. As such I do not propose to make an indemnity costs order.

29 It is now necessary for me to formulate the terms of the order that I will make. I will make the order now, but it will not be possible for obvious reasons for the order to be made available to either the Council or Ms Reid today. I will need to return to Sydney to have the order typed, sealed by the Registrar of the Court, and the sealed orders will then be posted down to both Mr Rogers and to you Ms Reid.

30 The orders that I am going to make will be as follows:

[Following discussions with Mr Rogers and Ms Reid, the Court made the following orders]

The Court declares that:
(1) The order issued by the applicant to the respondent (Lucy Narda Reid) pursuant to section 121B of the Environmental Planning and Assessment Act 1979 dated 17 February 2006 has not been complied with.
The Court orders that:
(2) Within 30 days from the date of these orders, the respondent, by herself, her servants, agents or contractors:
(a) Demolish the derelict building structures comprising the former dwelling and carport, the location of which is generally shown hatched on the photograph annexed and marked “A”, on the property at 272 Wantigong Street, North Albury (being lot 101 in DP 703319) (“the property”).
(b) Following the demolition, remove from the property all building materials resulting from the demolition in accordance with order 2(a) above.
(3) If the respondent fails to comply with the requirements of order 2, order that:
(a) The applicant, its servants and agents do those acts which by order 2 are required to be done by the respondent – namely, demolish the derelict building structures comprising the former dwelling and carport, the location of which is generally shown hatched on the photograph annexed and marked “A”, on the property.
(b) The applicant, its servants and agents for the purposes of the orders, now and until those orders have been carried out, shall be entitled to enter and remain on the property to carry out those orders at and between reasonable hours of the day during the week days.
(c) The applicant give to the respondent not less than 7 days notice in writing of its intention to carry out the demolition as referred to in orders 3(a) and (b), such notice to be given by letter to the respondent at the property address (272 Wantigong Street, North Albury).
(4) Order that the respondent, her servants and agents abstain from doing any act which might interfere with or impede the entry by the applicant, its servants and agents on the property and them remaining thereon pursuant to these orders, and which might interfere with or impede them in complying with these orders.
(5) Order that the respondent pay the costs incurred by the applicant in carrying out these orders, such costs not to exceed the sum of $6,050.00.
(6) Order that for the purpose of these orders:
(a) The applicant may sell the materials resulting from the demolition unless the costs of the applicant in giving effect to these orders are paid to it within 14 days after removal of the demolished materials.
(b) If the proceeds of such a sale exceed the costs incurred by the applicant in relation to the demolition and the sale of materials, the applicant:
(i) may deduct out of the proceeds of the sale an amount equal to those costs; and
(ii) must pay the surplus to the respondent on demand;
(c) If the proceeds of sale do not exceed those costs, the applicant:
(i) may retain the proceeds; and
(ii) may recover the deficiency (if any) together with the costs of recovery from the respondent as a debt;
(d) The applicant may otherwise destroy or dispose of materials from the demolition that are not saleable.
(7) Order that the respondent pay the applicant’s costs of the proceedings as agreed or as assessed.
(8) Stay orders 2 to 6 above for a period of 7 days from the date of these orders (namely, 13 November 2006).
(9) Return all exhibits, except exhibit “B”.

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