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

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.

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.

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.

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NSWLEC 270
Decision Date: 30 October 2012

CaseChat Overview and Summary

The case of Blacktown City Council v Pearce was heard by the Supreme Court of New South Wales. The dispute involved the Council and a resident, Mr Pearce, over an issue related to the enforcement of a development application and the associated conditions. The Council sought to enforce certain conditions attached to a development application made by Mr Pearce, which related to the construction of a house on his property. The legal issues before the court included whether the Council had the authority to enforce the conditions and whether the conditions were valid and enforceable.

The court examined the statutory framework governing development applications and the powers of local councils. It considered whether the Council had acted within its statutory authority and whether the conditions were reasonable and necessary for the protection of the area. The court also evaluated the extent to which the Council had followed proper procedural steps in enforcing the conditions. Ultimately, the court concluded that the Council had acted within its powers and that the conditions were valid and enforceable. The court found that Mr Pearce had not complied with the conditions and ordered him to do so within a specified timeframe.

Orders

Orders of the court

Orders as set out at [21]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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