Blacktown City Council v Pearce

[2012] NSWLEC 270

Land and Environment Court

New South Wales

Medium Neutral Citation:	Blacktown City Council v Pearce [2012] NSWLEC 270
Hearing dates:	30 October 2012
Decision date:	30 October 2012
Jurisdiction:	Class 4
Before:	Preston CJ
Decision:	Orders as set out at [21]
Catchwords:	CIVIL ENFORCEMENT - failure to remove waste and overgrown vegetation from land in accordance with council orders - failure to demolish dilapidated single storey dwelling in accordance with statutory order - applicant council sought declarations that respondent landowner's failure to comply with orders constituted breaches of statutes and orders that respondent remedy breaches by complying with orders - applicant and respondent agreed on consent orders - applicant established occurrence of statutory breaches - declarations appropriate - proposed orders in consent orders appropriate to remedy statutory breaches
Legislation Cited:	Environmental Planning and Assessment Act 1979 Local Government Act 1993
Category:	Principal judgment
Parties:	Blacktown City Council (Applicant) Mr Leonard Brian Pearce (Respondent)
Representation:	Mr D A Loether, Solicitor (Applicant) Mr J F Merewether, Solicitor and city agent for Mr D J Sayer (Respondent) Bartier Perry (Applicant) Helliars (Respondent)
File Number(s):	40346 of 2012

Judgment

1. For over 20 years the house and land at 141 Piccadilly Street, Riverstone had been unsafe and unhealthy. The house is so dilapidated as to be prejudicial to any occupants or neighbours. The land is unkempt and overgrown, filled with discarded rubbish and abandoned vehicles. Mr Pearce is the owner of the land.

1. Blacktown City Council ('the Council') has issued notice after notice on Mr Pearce to fix the problem, but to no avail. The first of the notices was issued in 1989 under the then Ordinance No 39 of the LocalGovernmentAct1919 to remove rubbish and waste materials from the premises. Five more notices under Ordinance No 39 followed over the next three years all requiring Mr Pearce to remove overgrown vegetation and waste from the premises. Mr Pearce did not comply with any of these notices.

1. There was then a lull in bureaucratic activity broken by the Council serving in 2005 a notice of proposal to issue an order, followed by an order under s 124 of the LocalGovernmentAct1993 ('LG Act'), to remove overgrown vegetation and waste from the premises. Six more pairs of notices - first, a notice of proposal to issue an order, then an order under s 124 of the LG Act - followed over the next five years until 2010, each requiring removal of overgrown vegetation and waste from the premises. From 2006 to 2008, the Council issued three penalty notices to Mr Pearce for failure to comply with various s 124 orders.

1. In 2010, the Council also issued its first notice under s 121B of the EnvironmentalPlanningandAssessmentAct1979 ('EPA Act') to demolish the dilapidated single storey dwelling on the land.

1. Mr Pearce was not moved by these various notices under s 124 of the LG Act or s 121B of the EPA Act or the penalty notices to take action specified in the orders to remedy the problems with the house or land.

1. So, in 2011, the Council issued yet again notices and orders under s 121B of the EPA Act and s 124 of the LG Act. The order under s 121B of the EPA Act, served on Mr Pearce on 14 April 2011, required Mr Pearce to 'Demolish the dilapidated single storey dwelling in accordance with the provisions of AS 2601-2001, Demolition of Structures and remove all waste materials from the site', within 30 days of the date of the order (which was 14 April 2011). The order under s 124 of the LG Act, served on Mr Pearce on 20 June 2011, required Mr Pearce to '[r]emove all overgrown vegetation and waste from the property and ensure that the land and premises are maintained in a safe and healthy condition', within 28 days of the date of the order (which was 20 June 2011).

1. Mr Pearce has not complied with either of these orders. These are the orders that are the subject of these proceedings.

1. As a consequence of Mr Pearce's failure to comply with these orders, the Council commenced these Class 4 proceedings seeking declarations that Mr Pearce's failures to comply with the orders constitute breaches of the EPA Act and LG Act, and orders that Mr Pearce remedy the breaches by complying with the orders, including demolishing the dilapidated house and removing vegetation and waste materials from the land.

1. The proceedings have been heard today. In preparation for the hearing, the Council and Mr Pearce have had settlement negotiations, which have been successful. They have agreed on declaratory and injunctive relief which will acknowledge and remedy the statutory breaches by Mr Pearce. Consent orders, signed by the Council's solicitor and Mr Pearce's solicitor, have been provided to the Court.

1. The Court does not grant declarations of breaches of statutes or mandatory and prohibitive injunctions merely because the parties consent. The Court must be satisfied that the statutory breaches have indeed

occurred and the orders sought are appropriate to remedy those established breaches.

1. Accordingly, the Council has put evidence before the Court to establish the breaches and the appropriateness of the relief agreed. Mr Merewether, the city agent for Mr Sayer, the solicitor for Mr Pearce, informed the Court of his discussions with Mr Sayer in which Mr Sayer said he had carefully and thoroughly explained to Mr Pearce each of the declarations and orders in the consent orders and that Mr Pearce understands what he is required to do and the consequences (such as punishment for contempt) if he fails to comply with the orders. Mr Pearce has put in place funding and obtained quotes to undertake the works required by the consent orders.

1. The parties seek that the Court make three declarations being that Mr Pearce has failed to comply with the s 121B order and the s 124 order and that by reason of such breaches Mr Pearce has breached the EPA Act and the LG Act.

1. The Council read an affidavit of Ms Relph, a building surveyor with the Council, and tendered the bundle of documents exhibited to her affidavit. Photographs taken by Ms Relph in 2010, 2011 and, more recently, on 23 March and 5 October 2012 of the state of the house and land were tendered. Mr Pearce did not contest any of this evidence. Ms Relph's evidence, the documents and the photographs establish:

• Mr Pearce is the owner of the land;

• the s 121B order and the s 124 order on Mr Pearce were properly issued;

• the s 121B order required Mr Pearce, by 14 May 2011, to demolish the dilapidated house;

• the s 124 order required Mr Pearce, by 18 July 2011, to remove the overgrown vegetation and waste from the premises;

• Mr Pearce has not done all of the things required in either the s 121B order or the s 124 order by the time required in the orders;

• the house continues to be so dilapidated as to be prejudicial to any occupants or to persons or property in the neighbourhood; and

• the land continues to have dense overgrown vegetation and rubbish and abandoned vehicles, as well as another dilapidated structure (a shed), so that the land is not in a safe and healthy condition.

1. The Council and Mr Pearce also agreed on the fact that Mr Pearce does not reside in the house on the land.

1. This evidence establishes that Mr Pearce has failed to comply with each of the s 121B order and the s 124 order. A failure to comply with the orders issued under s 121B of the EPA Act or s 124 of the LG Act constitutes a breach of the EPA Act and the LG Act respectively.

1. The Council has therefore established its case as to the statutory breaches and it is appropriate to make the declarations sought in the consent orders.

1. The Council also seeks mandatory orders that:

• Mr Pearce vacate the land and there be no residential use of the land until it is cleared to the satisfaction of the Council;

• Mr Pearce erect perimeter fencing around the land to prevent intruders;

• Mr Pearce demolish all buildings and remove all materials from the land;

• the materials removed be disposed of at a landfill and licensed waste facility and, if they contain asbestos or other hazardous material, they be disposed of in an appropriate manner and by an appropriate licensed contractor;

• the work be done within 120 days of the date of these orders; and

• Mr Pearce follow a specified procedure if he proposes to sell the land.

1. Mr Pearce, by his solicitor, consents to the Court making each of these orders. As I have indicated, the city agent of Mr Pearce's solicitor has indicated to the Court that Mr Pearce has explained to him and he understands the terms of the orders, what he is required to do under the orders and the consequences if he fails to comply with the orders.

1. I consider the orders proposed in the consent orders are appropriate to remedy the statutory breaches caused by Mr Pearce's failures to comply with the s 121B order and the s 124 order.

1. Mr Pearce has also agreed to pay the Council's costs of the proceedings in the agreed amount of $6,000 within 60 days of the date of these orders.

1. Accordingly, I make the following orders:

(1) Declare that the respondent has failed to comply with the terms of an order dated 14 April 2011 given to him by the applicant under s 121B of the EnvironmentalPlanningandAssessmentAct1979.

(2) Declare that the respondent has failed to comply with the terms of an order dated 20 June 2011 given to him by the applicant under s 124 of the Local Government Act 1993.

(3)   Declare that the respondent has breached the Environmental Planning and Assessment Act 1979 and the LocalGovernmentAct1993 by reason of the matters referred to in orders (1) and (2).

(4)   The respondent is to vacate Lot B in Deposited Plan 398427 otherwise known as 141 Piccadilly Street, Riverstone (the subject site) forthwith and there shall be no residential use of any kind on the subject site until it is cleared to the satisfaction of the applicant.

(5)   The subject site shall forthwith be secured by perimeter fencing to the satisfaction of the applicant in a manner that will permit no intruders.

(6)   The buildings on the subject sites shall be demolished and all materials removed, and any material removed from the subject site shall be disposed of at a lawful and licensed waste facility.

(7)   Any material removed from the subject site which may contain asbestos or any other hazardous material or waste must be removed and disposed of in accordance with WorkCover requirements by appropriately licensed contractors who must hold a valid appropriate demolition licence issued by the NSW WorkCover Authority under the Occupational Health and Safety Act 2000 (and any relevant regulation thereunder). Any demolition works must be carried out in accordance with the conditions and terms of that licence and Australian Standard 26012001 - Demolition of Structures, and any asbestos removal must be carried out in accordance with NOHSC - 2002 - Code of Practice for Safe Removal of Asbestos.

(8)   All work required to be carried out pursuant to the terms of these orders is to be carried out within 120 days of the date of these orders.

(9)   In the event that the respondent within that time seeks to sell the subject site, the following timetable shall apply:

(a)   an agent shall be engaged immediately or within 24 hours of the date of these orders;

(b)   within seven days, a valuation must have been sought, a survey carried out and a building report obtained;

(c)   a copy of the building report must be made available in the contract for sale;

(d)   a copy of these orders shall be contained in any contract for sale prior to exchange; and

(e)   if not sold beforehand, an auction is to take place prior to the expiry of 100 days of the date of these orders

(10)   The respondent shall pay the applicant's costs of this appeal in the agreed amount of $6,000 within 60 days of the date of these orders.

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Decision last updated: 21 December 2012