Blue Mountains City Council v Anderson and Anor
[2008] NSWLEC 250
•28 August 2008
Land and Environment Court
of New South Wales
CITATION: Blue Mountains City Council v Anderson and Anor [2008] NSWLEC 250 PARTIES: APPLICANT
Blue Mountains City Council
FIRST RESPONDENT
Allan Neville Anderson
SECOND RESPONDENT
Rhonda Jean AndersonFILE NUMBER(S): 40409 of 2008 CORAM: Pain J KEY ISSUES: Civil Enforcement :- enforcement of s124 order issued under the Local Government Act 1973 requiring work on collapsed retaining wall; ex parte orders made LEGISLATION CITED: Land and Environment Court Act 1979 s20
Local Government Act 1993 s 124, s672, s673
Uniform Civil Procedure Rules 2005 Pt 36 r 36.16(2)(b)DATES OF HEARING: 28 August 2008 EX TEMPORE JUDGMENT DATE: 28 August 2008 LEGAL REPRESENTATIVES: APPLICANT
Ms Linkenbagh (solicitor)
SOLICITOR
Houston Dearn O'ConnorRESPONDENTS
No appearance
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESPain J
28 August 2008
EX TEMPORE JUDGMENT40409 of 2008 Blue Mountains City Council v Anderson and Anor
1 Her Honour: The Council commenced these Class 4 proceedings on 23 April 2008 to enforce an order issued under s 124 of the Local Government Act 1993 (the LG Act) requiring, inter alia, rectification of a collapsed retaining wall in front of the Respondents’ property at 16 Roberts Parade, Hawkesbury Heights. These proceedings are enabled by s 672 and s 673 of the LG Act and s 20(1)(d) of the Land and Environment Court Act 1979 (the Court Act). The order was issued on 12 July 2007 following the provisions of the requisite notice under the LG Act in May 2007. Both Respondents own the property as joint tenants. They received notice of the Council’s intention to commence proceedings from the Council’s solicitors in December 2007.
2 The First Respondent did not appear at Court today and sent a fax to the Registrar saying he was ill and unable to complete the work in time due to his personal circumstances, including ill health and limited finances. Nothing has been heard from Ms Rhonda Anderson, the Second Respondent.
3 The matter has been mentioned before the Court on several occasions including having the matter stood over on 13 June 2008 to allow time for the work required under the s 124 notice to be carried out on the advice of the First Respondent faxed to the Court on 12 June 2008 that the work would take a further four weeks. The order the Council is seeking to enforce is now well over 12 months old. The collapsed rock retaining wall has fallen across public land able to be used as a footpath and the Council is concerned about public safety if the wall is not properly repaired. The Council wishes to proceed with the matter ex parte in light of the time this matter has taken.
4 I consider I should determine the matter today in the absence of the First Respondent given the length of time the matter has taken and given that the order served by the Council has not yet been complied with. Amended orders appear necessary in light of the circumstances now before the Court as seen in the affidavit of Ms O’Regan, Council officer, dated 16 April 2008 relied on by the Council and the written report dated yesterday, and oral evidence of Ms Rix, Council officer, given today in Court. It is clear from photographs attached to Ms O’Regan’s affidavit and Ms Rix’s report based on her inspection of the property yesterday that work has been commenced by someone, probably the First Respondent, to commence repair of the collapsed wall. This has been partially reconstructed and sediment fences put in place, as required by the original s 124 order.
5 The Council officer Ms Rix has concerns about the structural stability of the work being undertaken by the First Respondent. The original LG Act order required that plans be prepared by an engineer and lodged with the Council prior to work commencing. This has not occurred and work on the collapsed section of wall has commenced in the absence of plans being supplied to the Council.
6 The orders sought in the Class 4 application which mirror the original order require greater clarification of what is required and also to take into account what has occurred since the order was issued. I consider amended orders need to be made, as provided for in s 23 of the Court Act. In light of the First Respondent’s personal circumstances a longer period for compliance with the orders should be specified than that in the original application so that he has at least six months to complete the work from the time the engineer’s report required by the orders is lodged with the Council. He must provide an appropriate report to the Council within two months so that the structural stability of the work he has already undertaken and will need to undertake can be ascertained.
7 I note that an alternative order is to be made (order 3) which allows for demolition of the whole retaining wall subject to 14 days notice being given to the Council. This is proposed as it may be a more economic alternative for the First Respondent. If pursued, the work must be completed within three months. Whether this order is pursued instead of orders 1 and 2 is entirely up to the First Respondent.
8 As I have made ex parte orders I note that under Pt 36 r 36.16(2)(b) of the Uniform Civil Procedure Rules 2005 it is open to the First Respondent to apply to have the orders set aside or varied. I do not consider I should make orders in relation to the Second Respondent, Ms Anderson, as I know nothing about her circumstances.
9 The Council is seeking its costs, which are generally ordered to be payable in Class 4 proceedings where a party is successful. In this case the Council has been successful in obtaining orders and is therefore entitled to its costs is the absence of disentitling conduct. The Council has made clear its intention to claim costs from the Respondents from the time when notice was given in December 2007 of the intention to commence these proceedings. I will limit the amount of costs and disbursements payable to the Council by the First Respondent to $2,000 and specify that these are not recoverable for six months. The actual costs and disbursements are higher than this amount in light of the numerous appearances made by the Council’s solicitor before this Court in this matter including at this hearing.
Orders
10 The Court makes the following orders:
- 1. That the First Respondent provide to Council within sixty (60) days of the date of service of this order a report from a structural engineer as to:
(a) The adequacy of the existing stone retaining wall along the front boundary of 16 Roberts Parade, Hawkesbury Heights and its components.
(b) The work necessary to repair and/or replace and/or reconstruct all or part(s) of the retaining wall along the front boundary of the property so as to achieve structural integrity of the retaining wall along the length of the boundary and to protect against failure of any part of the retaining wall in the future.
2. That within eight (8) months from the date of service of this order on the First Respondent he cause the work referred to in the report provided pursuant to order 1(b) to be done.
- 3. (a) In the alternative to compliance with orders 1 and 2 on the condition that the First Respondent give written notice to the Council within fourteen (14) days of service of these orders on him of his intention to demolish the whole of the retaining wall along the front boundary of the property known as 16 Roberts Parade, Hawkesbury Heights, the First Respondent shall demolish the retaining wall and remove all rocks, materials and other components of the wall and batter the slope to a ratio of three (3) horizontal to one (1) vertical.
(b) The work referred to in order 3(a) shall be completed within three (3) months of the date of the notice referred to order 3(a).
4. The First Respondent shall maintain adequate sediment control at all times until these orders are complied with.
5. The First Respondent shall provide an adequate barrier between any rocks, materials and equipment remaining on the nature strip relating to work being carried out pursuant to orders 2 or 3 so as not to obstruct pedestrian traffic.
6. That the First Respondent pay the Applicant’s costs and disbursements in the sum of $2,000. These costs are not payable until after six (6) months after the date of service of these orders on the First Respondent.
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