Allen v Campbelltown City Council

[2008] NSWLEC 1496

Land and Environment Court

of New South Wales

CITATION:

Allen v Campbelltown City Council [2008] NSWLEC 1496

PARTIES:

APPLICANT
Michael Allen

RESPONDENT
Campbelltown City Council

FILE NUMBER(S):

10653 of 2008

CORAM:

Hussey C - Taylor C

KEY ISSUES:

Section 124 Order :- Remove vegetation from organic garden, unsightly and likely health risk.

LEGISLATION CITED:

Local Government Act 1919

DATES OF HEARING:

14/11/2008 and 15/12/2008

 
DATE OF JUDGMENT: 

23 December 2008

LEGAL REPRESENTATIVES:

APPLICANT
Mr M. Allen, litigant in person

RESPONDENT
Mr D. Baird, solicitor
of Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C
Taylor C

23 December 2008

10653 0f 2008 Michael Allen v Campbelltown City Council

JUDGMENT

Background.

1 Mr Allen lodged this appeal against a Section 124 Order No 10 and No 21 served in respect of No 105 Belmont Road, Glenfield. The Order required:

1. Reduce to a maximum height of 100mm all dead and overgrown vegetative matter, and remove all associated waste material located on the premises.

Note: (i) The Order does not permit the removal of any living tree.
(ii) Disposal of waste material by burning is prohibited under the Protection of the Environment Operations (Clean Air) Regulation 2002.

2. Remove and lawfully dispose of, or properly store above the ground and away from public view all rubbish, refuse, timber, metal, building materials and other miscellaneous items on the premises.

2 The appeal commenced on-site and a complete property inspection undertaken. The council contends that the storage of various articles on the site create unsightly conditions and the retention of various vegetative matter and storage of other materials is likely to constitute a health risk.

The evidence

3 Mr Allen explained the components of his ‘biodynamic garden’, which produces various food crops for his consumption. This garden utilises many natural plants and whilst they may have an unkempt appearance, nevertheless they are an important part of the overall food cycle.

4 Mr Allen contends that the garden is not unsightly, instead it is a healthy carbon neutral eco-friendly exhibition garden that has been featured on various documentaries. The garden includes bird attracting, low water use garden plants, flora and nuts and fruits including prickly pears, South American fruits, native spinaches, parsleys and a self-sustaining herb garden.

5 In further support of the garden, Mr Allen says that the existing plant species render it fire resistant due to the foliage types grown. Whilst he acknowledges that some plants and grasses on the property exceed 100mm in height, these are purposefully utilised for the production of fruit, plant and seed generation. Also, some of the taller grasses are required as food for his goat.

6 Mr Allen submits that the organic garden utilises various urban materials such as a bathtub for a worm farm, metal drums for natural collection of water storage for plants. Also old tyres are used for planting pots for boundaries of garden areas and to store thermal heat to aid plant growth.

7 In summary, Mr Allen says that this has been the family property for many years over which time the gardening has been undertaken. He claims that while it has provided a refuge for native birdlife, butterflies, native frogs, this has never resulted in any complaints regarding vermin or other health risks.

8 Mr M Forlano, council’s environmental health officer since 2000, undertook an assessment of the property on 16 May 2008. He considered the location of the dwelling house, various outbuildings and sheds, together with the surrounding vegetation. This inspection apparently arose out some neighbourhood concerns about the overgrown state of the property, which is in relatively close proximity to the Glenwood Public School and also the Frank Widdon Masonic Homes.

9 At his site inspection, Mr Forlano observed what he considered “a large accumulation of rubbish and refuse strewn around the yard of the property”. This included a bathtub in the driveway, pieces of carpet, a 44 gallon drum, upturned large rectangular white metal tank, numerous timber panels leaning against the side of the house, a number of steel structures protruding from the overgrown grass, and an assortment of scrap metal and timber.

10 Accordingly, Mr Forlano says the property is within the residential 2(b) zone and it adjoins a road which is a public place and that:

“The overgrown vegetation and the accumulation of rubbish, refuse and other material described above can be seen from the adjoining roadway and the overgrown vegetation and accumulation of material is unsightly”.

11 Whilst he acknowledges the organic garden concept, he nevertheless considers the overgrown vegetative matter on the property is likely to create unhealthy conditions that provide harbourage for pests such as mosquitoes, vermin and cockroaches. Therefore he says that the intent of the order is to ensure that all waste material generated, as a result of reducing overgrown vegetative matter to an acceptable level, is disposed of appropriately so as to eliminate a shelter or harbourage for pests.

12 Following the site inspection on 14 November 2008, the parties with a view of resolving the matter undertook discussions. The Court understands that the council is not opposed to the organic garden concept. On the contrary it is supportive providing it satisfactorily fits into its urban context. Consequently Mr Allen agreed that the building materials stored in the carport area, which are visible from the street could be relocated to the back of the house and has taken action in this regard.

13 Insofar as Mr Allen insisted that the natural vegetation remain for feed, he conceded that the visual impact of the property could be improved, by the erection of an appropriate fence. This would also improve the security of his property.

14 Mr Allen subsequently presented a front fence proposal comprising a 2m high chain link fence in the style of the current fence. He also submitted a ‘”weed management plan” would keep under control the common and the seed setting grasses and remove any pampas grass and chiilean needle grass in the front of the property. Furthermore, he stated that during the adjournment of the matter he had removed some of the aforementioned materials. Photographic evidence was presented in support of his statements.

15 The Council’s response is that a revised order should now be made. This order is to formalise the weeds and aforementioned grasses removal along with the other unsightly and potentially unhealthy materials from public view.

Conclusions

16 Having considered the evidence, the submissions and undertaken a view, the Court considers it reasonable to issue a revised order. In doing so the Court accepts that there are environmental benefits from a well cared for organic garden. However such a garden should make a reasonable effort to fit into its locational context, particularly in a developed urban area.

17 Accordingly the Court considers the subject property has an undesirable presentation to the public domain and it is reasonable to require the various building materials stored on the property to be relocated out of public view, in accordance with the Order 21 provisions. This is not unreasonable considering the size of the subject land and the order is to ensure that the materials remain out of public view.

18 It also appears that the generous size of the property allows for more organised location of the various plants, which have a natural, bushy and unkempt appearance. Council raised no objection to these species around the side or in the rear garden, providing no adverse health situations are created. In this regard, the side yard is that area behind the front building alignment that would be substantially screened from the public domain.

19 The Court acknowledges that it is difficult to categorise “weeds” in the context of an organic garden. Nevertheless, Mr Allen has taken action to remove some of the identified unnecessary vegetation. In the circumstances of this case, the Court considers council’s revised order is reasonable to ensure that satisfactory street presentation is maintained and health risks are minimised by the permanent removal of this unnecessary vegetation.

20 The Court makes no order regarding the front fence proposal. This was not part of the original order and could be dealt with by way of a separate application to council. The Court does not, however, consider the proposed fence, with its ‘open chain link’ specification would screen effectively the property.

21 Consequently the Court makes the following orders.

1 The appeal is upheld in part.

2 Pursuant to Section 124 of the Local Government Act, the revised Order is made:


1. Reduce to a maximum height of 100mm all dead and overgrown common grasses and seed setting grasses including pampas grass and Chilean needle grass and all weeds including morning glory, trad, alligator weed and asthma weed in the front, side and rear yard of the premises and remove all waste material from the premises that is associated with such reduction.

Note: (1) The order does not permit the removal of any living tree.
(2) Disposal of waste material by burning is prohibited under the protection of the Environment Operations (Clean Air) Regulation 2002.

2. Remove from the premises and lawfully dispose of, or alternatively store above the ground and away from public view the scrap timber, scrap metal, unused building materials, rubbish, refuse and waste that is visible from the public road or likely to create a shelter or harbourage for cockroaches, vermin and mosquitoes.

Period for compliance with the order

The time for compliance with the order is to be with respect to the front yard of the premises twenty eight (28) days, the side yards of the premises to the rear building line fifty six (56) days and the rear yard of the premises eighty four (84) days from the date of the order.

___________________

R Hussey
Commissioner of the Court
ljr

___________________

Dr Mark Patrick Taylor
Commissioner of the Court