Auburn Council v Czopak [No 2]

[2005] NSWLEC 372

Land and Environment Court

of New South Wales

CITATION:	Auburn Council v Czopak [No 2] [2005] NSWLEC 372
PARTIES:	APPLICANT: Auburn Council RESPONDENT: Mr Mychajlo Czopak
FILE NUMBER(S):	40472 of 2005
CORAM:	Pain J
KEY ISSUES:	Injunctions and Declarations :- whether the Court should make orders for demolition of significantly dilapidated dwelling
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 121D
CASES CITED:	Auburn Council v Czopak [2005] NSWLEC 357
DATES OF HEARING:	21/06/2005
EX TEMPORE JUDGMENT DATE:	06/21/2005
LEGAL REPRESENTATIVES:	APPLICANT: Mr P Tomasetti (barrister) SOLICITORS: Matthews Folbigg RESPONDENT: Mr M Parasyn (solicitor) SOLICITORS: Michael Parasyn

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

21 June 2005

40472 of 2005 Auburn Council v Mychajlo Czopak [No 2]

EX TEMPORE JUDGMENT

1 Her Honour: These are Class 4 proceedings brought by Auburn Council (“the Council”) seeking numerous declarations and orders in relation to a dwelling located at 11 New Street, Lidcombe (“the site”) owned by the Respondent, Mr Mychajlo Czopak.

2 On 17 June 2005 I delivered an ex tempore judgment in Auburn Council v Czopak [2005] NSWLEC 357 and made a finding at [12] – [14] that the dwelling located on the site posed a considerable safety risk to the Respondent, his adjoining neighbours and members of the public. I also found that emergency orders made by the Council in relation to the dwelling were appropriately issued and made the declarations sought in prayers 1, 2 and 3 of the Class 4 Application. I also made the orders sought in prayers 4 and 5 of the Class 4 Application that the Respondent be restrained from using the dwelling house and any ancillary outbuildings erected on the premises after 24 June 2005 and that the Respondent evacuate the dwelling house and any other ancillary outbuildings erected on the premises on or before 24 June 2005.

3 On 17 June 2005 the Respondent, despite being invited by the Court to give evidence, did not wish to address the Court. While his solicitor is able to understand and speak Ukrainian, there was not an accredited interpreter available for the Respondent so I stood the matter over before me today to allow an accredited interpreter to be available if the Respondent chose to give evidence in relation to the remaining orders sought by the Council.

4 The issue before me today is whether or not I should make the orders in prayers 6, 7, 8 and 9 of the Class 4 Application dated 18 May 2005 which seek the following:

…

6. An order that the Applicant enter the premises Lot 14, DP 39372 (No.11) New Street, Lidcombe and do all such things as are necessary or convenient to give effect to the terms of Emergency Order No. 2 pursuant to s 121D of the Environmental Planning and Assessment Act 1979 given by the Applicant to the Respondent on 15 April 2005 to demolish the dwelling house and all other ancillary outbuildings erected on the premises within such time allowed by the Court;
7. An order that the Respondent pay any expense incurred by the Applicant in satisfaction of compliance with order (6);
8. An order that the Respondent pay the Applicant’s costs of, and incidental to, these proceedings;
9. Any other order or orders the Court deems fit and appropriate to make.

5 I have taken the opportunity today to ask the Respondent some questions with the aid of the accredited interpreter present. The Respondent did not give evidence under oath as he did not wish to give evidence from the witness box. The Respondent stated that he wished to remain and repair the dwelling house on the site. I asked the Respondent why he had not done work to comply with a Court order issued on 25 March 2003 to undertake works to demolish sections of the dwelling and undertake significant structural works to repair the dwelling and found his answers largely non-responsive.

6 I also asked the Respondent whether he would be able to obtain an engineer’s report detailing what work may need to be undertaken if the Court was minded not to make an order for demolition and instead give him the opportunity to rebuild his dwelling. Once again the Respondent’s answer was non-responsive and it appears that he would have great difficulty in undertaking what would be an extensive building project if the Court were minded to give him that opportunity.

7 I agree with the Council’s submissions that it is in the interests of the Respondent, the Respondent’s neighbours and anybody else in the vicinity of the dwelling that I make an order that the Council do all such things as are necessary or convenient to demolish the dwelling. This is consistent with the evidence of Mr Neil Walsh, a consultant civil and structural engineer engaged by the Council, contained in a report which is attached to the affidavit of Mr Michael Ryan, the Council’s Senior Health and Building Surveyor, sworn 17 May 2005 and relied on by the Council. If in the future, once demolition has taken place, the Respondent is able to organise his affairs, it is open to him to apply to the Council to re-build his dwelling. However, the Respondent has not indicated to the Court that he is able to do that in any reasonable time frame and I am not convinced that he would be able to undertake work within a time frame that would render the dwelling sufficiently safe.

8 I therefore make the order sought in prayer 6 of the Class 4 Application. This requires the Council to enter the dwelling at the site and do all such things as are necessary or convenient to give effect to the terms of Emergency Order No.2 pursuant to s 121D of the Environmental Planning Assessment Act 1979 relating to the demolition of the dwelling. Emergency Order No.2 was given by the Council to the Respondent on 15 April 2005 requiring the Respondent to demolish the dwelling house and all other ancillary buildings erected on the premises. This order is to take effect upon the Respondent complying with the order I made on 17 June 2005 that the Respondent evacuate the dwelling house and any other ancillary outbuildings erected on the premises.

9 The order sought in prayer 7 is an order that the Respondent pay any expense incurred by the Council in complying with the order in prayer 6. I consider it is appropriate to make the order sought in prayer 7.

10 The order sought in prayer 8 is an order that the Respondent pay the Council’s costs of and incidental to these proceedings. The Respondent has been unable to present any matters to the Court which suggest I should not exercise the usual discretion in these matters. I consider it is appropriate to award costs in the Council’s favour and I make the order sought in prayer 8.

11 I wish now to address the Respondent to emphasise the seriousness of these orders. I have already ordered that the Respondent must evacuate his premises by 24 June 2005. If he does not do so it is open to the Council to bring him back before the Court to seek an order that he is in contempt of Court. If the Council does bring contempt proceedings the Court has the power to order the removal of the Respondent from his house. It is very important that the Respondent complies with the Court’s orders or there are likely to be penalties against him.

12 The Court makes the following orders:

1. That the Applicant enter the premises Lot 14, DP 39372 (No.11) New Street, Lidcombe and do all such things as are necessary or convenient to give effect to the terms of Emergency Order No. 2 pursuant to s 121D of the Environmental Planning and Assessment Act 1979 given by the Applicant to the Respondent on 15 April 2005 to demolish the dwelling house and all other ancillary outbuildings erected on the premises upon the Respondent complying with order 5 of the Orders dated 17 June 2005;

2. That the Respondent pay any expense incurred by the Applicant in satisfaction of compliance with order 1; and

3. That the Respondent pay the Applicant’s costs of, and incidental to, these proceedings.