Burwood Council v Baron
[2023] NSWLEC 10
•16 February 2023
Land and Environment Court
New South Wales
Medium Neutral Citation: Burwood Council v Baron [2023] NSWLEC 10 Hearing dates: 16 February 2023 Date of orders: 16 February 2023 Decision date: 16 February 2023 Jurisdiction: Class 1 Before: Pain J Decision: [43]
Catchwords: CIVIL ENFORCEMENT- failure to comply with order issued by local council under Local Government Act requiring clean-up of residential property due to unsafe and unhealthy condition – declaration of failure to comply with LG order made – consequential orders made including that council can undertake work if LG order not complied with in 30 days – costs order made in favour of council
Legislation Cited: Local Government Act 1993
Uniform Civil Procedure Rules 2005
Category: Principal judgment Parties: Burwood Council (Applicant)
Carolina Dragica Baron (Respondent)Representation: Solicitors:
Wiltshire Webb Staunton Beattie (Applicant)
No Appearance (Respondent)
File Number(s): 2022/00207662
JUDGMENT
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The Summons filed by the Council seeks a declaration and an order that the Respondent comply with the terms of the Order issued by Burwood Council (Council) to the Respondent under s 124 of the Local Government Act 1993 (LG Act) dated 12 January 2022 (the LG Order) in respect of the land at 33 Beresford Avenue, Croydon Park (the property).
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The Council is a Council constituted under the LG Act for the local government area of Burwood. The Respondent is the owner of the property which is located within the local government area of the Council, as is clear from title searches attached to affidavits read by the Council.
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The Respondent did not appear at the hearing today and leave to proceed in her absence was given in light of the efforts made to contact her in relation to the hearing today, as identified in the affidavit of Mr Ede solicitor dated 15 February 2023 read today.
Summons
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The declaration and orders sought in the summons are:
In these orders:
"LG Order" means the Order No. 21 dated 12 January 2022 given by the Applicant to the Respondent pursuant to section 124 of the Act requiring the Respondent to carry out the Works at the Premises.
"Premises" means the premises at 33 Beresford Avenue, Croydon Park NSW 2133.
"the Act" is the Local Government Act 1993.
"Works" means the works required to be carried out at the Premises by the LG Order.
A declaration that the Respondent has not complied with the terms of the LG Order within the time specified for compliance with the LG Order.
An order that the Respondent shall carryout and complete the Works required by the terms of the LG Order at the Premises within 30 days of these orders.
If the Respondent does not comply with Order (3), an order that pursuant to s 678(10) of the Act, the Council, its servants and agents execute the Council’s functions under s 678 of the Act by carrying out the Works which were required to be carried out at the Premises by the LG Order.
An order that the Respondent pay the Council’s legal costs of or incidental to these proceedings as agreed or assessed.
Such further or other orders as the Court deems appropriate.
The Order sought by Council
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The terms of the LG Order sought by the Council are annexed to Mr McClure’s affidavit dated 17 November 2022.
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Pursuant to section 124 of the LG Act, the Council may order a person to do or to refrain from doing a thing specified in Column 1 of the table set out at section 124 of the LG Act ("Table") if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table. Order 21 is the source of the Council’s order which refers to premises being in an unhealthy condition.
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The LG Order specifies that the Respondent is required to do the following:
Remove any overgrown grass and vegetation at the premises to a height not exceeding 10 centimetres above the finished ground level;
Maintain any grass and vegetation at the premises to a height not exceeding 10 centimetres above finished ground level;
Submit a management plan to Council for approval, outlining the steps to be taken to ensure that any overgrown grass and vegetation is maintained as per point 2. The Management plan must include a proposed maintenance schedule over the next 12 months. The management plan must be submitted to Council within twenty-eight (28) days of the date of the Order;
Comply with the approved management plan.
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The purpose of, and the consequence of compliance with, the terms of the LG Order is to ensure that the Land is placed and kept in a safe and healthy condition.
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The LG Order specifies the reasons for the issue of the Order, having regard to the circumstances of this case, are specified in the Order as follows:
The property is overgrown with weeds and vegetation and is not in a healthy condition;
Council is concerned that the condition of the premises is having a detrimental effect on the amenity of the surrounding premises;
The overgrown vegetation on the premises, by way of its nature and density, is likely to harbor vermin or insects and/or give rise to the proliferation of vermin or insects;
Council is responsible for ensuring the health and safety of the public is maintained.
Legislation
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The relevant provisions of the LG Act state:
Chapter 7 What are the regulatory functions of councils?
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Part 2 Orders
Division 1 Giving of orders
124 Orders
A council may order a person to do or to refrain from doing a thing specified in Column 1 of the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table.
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Order 21
To do or refrain from doing such things as are specified in the order to ensure that land is, or premises are, placed or kept in a safe or healthy condition
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Division 2 Procedures to be observed before giving orders
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130 Effect of compliance with this Division
A council that complies with this Division is taken to have observed the rules of natural justice (the rules of procedural fairness).
131 Criteria to be considered before order is given
If the council has adopted criteria in a local policy under Part 3 on which it is to give an order, the council is required to take the criteria into consideration before giving the order.
…
132 Notice to be given of proposed order
(1) Before giving an order, a council must give notice to the person to whom the order is proposed to be given of its intention to give the order, the terms of the proposed order and the period proposed to be specified as the period within which the order is to be complied with.
(2) The council’s notice must also indicate that the person to whom the order is proposed to be given may make representations to the council as to why the order should not be given or as to the terms of or period for compliance with the order.
(3) The notice may provide that the representations are to be made to the council or a specified committee of the council on a specified meeting date or to a specified councillor or employee of the council on or before a specified date being, in either case, a date that is reasonable in the circumstances of the case.
133 Making of representations
(1) A person may, in accordance with a notice under section 132, make representations concerning the proposed order.
(2) For the purpose of making the representations, the person may be represented by an Australian legal practitioner or agent.
134 Hearing and consideration of representations
The council or a specified committee, or the specified councillor or employee of the council, is required to hear and to consider any representations made under section 133.
135 Procedure after hearing and consideration of representations
(1) After hearing and considering any representations made concerning the proposed order, the council, the committee, or the councillor or employee concerned, may determine—
(a) to give an order in accordance with the proposed order, or
(b) to give an order in accordance with modifications made to the proposed order, or
(c) not to give an order.
(2) If the determination is to give an order in accordance with modifications made to the proposed order, the council is not required to give notice under this Division of the proposed order as so modified.
Division 3 Orders generally
136 Reasons for orders to be given
(1) A council must give the person to whom an order is directed the reasons for the order.
(2) The reasons may be given in the order or in a separate instrument.
(3) The reasons must be given when the order is given, except in a case of urgency. In a case of urgency, the reasons may be given the next working day.
137 Period for compliance with order
(1) An order must specify a reasonable period within which the terms of the order are to be complied with, subject to this section.
(2) An order may require immediate compliance with its terms in circumstances which the council believes constitute a serious risk to health or safety or an emergency.
138 Notice of right to appeal against order
(1) A council must, in giving a person notice of an order—
(a) state that the person may appeal to the Land and Environment Court against the order or a specified part of the order, and
(b) specify the period within which an appeal may be made.
(2) This section does not apply in relation to order No 22A in the Table to section 124.
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Chapter 8 What ancillary functions does a council have?
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Part 2 Entry on to land and other powers
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193 Notice of entry
(1) Before a person authorised to enter premises under this Part does so, the council must give the owner or occupier of the premises written notice of the intention to enter the premises.
(2) The notice must specify the day on which the person intends to enter the premises and must be given before that day.
(3) This section does not require notice to be given—
(a) if entry to the premises is made with the consent of the owner or occupier of the premises, or
(b) if entry to the premises is required because of the existence or reasonable likelihood of a serious risk to health or safety, or
(c) if entry is required urgently and the case is one in which the general manager has authorised in writing (either generally or in the particular case) entry without notice, or
(d) if entry is made solely for the purpose of reading a meter or other device for measuring—
(i) the supply of water to the premises from the council’s water mains, or
(ii) the discharge of sewage or other waste matter from the premises into the council’s sewer mains.
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Chapter 17 Enforcement
Part 1 General
Division 1 Legal proceedings
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678 Failure to comply with order—carrying out of work by the council
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(10) In any proceedings before the Land and Environment Court that are brought by a council against a person as a result of the person’s failure to comply with an order under Part 2 of Chapter 7, the Court may, at any stage of the proceedings, order the council to exercise the council’s functions under this section. Having made such an order, the Court may continue to hear and determine the proceedings or may dismiss the proceedings.
Evidence
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Mr Andrew McClure, Compliance Investigation Officer, affirmed an affidavit dated 17 November 2022. He has been employed by the Council since 2010. He was assigned investigation of the complaint about the state of the rear yard of the property. He photographed the rear yard during an inspection on 24 November 2021. He deposed the land was overgrown with a large volume of grass and Morning Glory covering the rear yard and structures. The affidavit traversed the history of the Council’s correspondence and inspections related to this matter as set out in the chronology. After the proceedings were commenced on 15 July 2022 the Respondent contacted the Council’s solicitors Wilshire Webb Staunton Beattie indicating she has been away from Sydney for an extended period and would comply with the order by 11 November 2022. On the 16 November 2022 Mr McClure inspected the land and observed no action to comply with the LG Order had been carried out. On the same day Mr Tom Ilievski on behalf of the Respondent requested leniency for a further 7 days to comply with the order.
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Ms Vittoria Serratore neighbour affirmed an affidavit dated 7 February 2023. She confirmed the Respondent owns the property. No one has occupied the land for over 20 years. Ms Serratore deposed that the lack of maintenance and overgrown vegetation has caused pest issues in her neighbouring property and created a hazard along the footpath at the front of the land. No maintenance has occurred on the land in approximately 5 years. What was done five years ago did not include rubbish removal and was therefore inadequate.
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Mr Ede affirmed an affidavit dated 1 December 2022. Service with Service a company effected the service of a letter enclosing the Affidavit of Andrew McClure affirmed 17 November 2022 on the Respondent on 24 November 2022. Service was effected on the Respondent pursuant to Rule 10.4 of the Uniform Civil Procedure Rules 2005 enabling substituted service. Mr Ede requested Mr McClure undertake a further inspection of the land. On 1 December 2022 McClure confirmed he attended an inspection and supplied photographs of the Respondent’s property depicting overgrown vegetation.
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Mr Ede’s affidavit dated 15 February 2023 was also read (as referred to above in [3]).
Chronology prepared by the Council based on affidavit evidence
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On 31 October 2021, the Council received a submission to its "report an issue to Council" page on its website from Ms Judy Demos on behalf of Mr and Ms Serratore of 31 Beresford Avenue, Croydon Park concerning the maintenance and state of the backyard at the site.
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On 22 November 2021, Mr McClure, a Compliance Investigation Officer employed by the Council was assigned the investigation of the complaint concerning the site.
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On 24 November 2021, Mr McClure attended to an inspection of the site and observed that the site was overgrown with a large volume of grass and Morning Glory covering the rear yard and structures. The site was unoccupied at the time of the inspection.
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On 24 November 2021, Mr McClure, on behalf of the Council, sent a letter to the Respondent directing the Respondent to take action to remedy the overgrown vegetation at the site to be done by 8 December 2021.
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The Council did not receive a response to the letter dated 24 November 2021.
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On 9 December 2021, Mr McClure attended to a further inspection of the site and observed that Respondent had not taken any action to address the overgrown vegetation on the site in response to the letter dated 24 November 2021.
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On 9 December 2021, Mr McClure, on behalf of the Council, sent a notice of proposed order pursuant to s 132 of the LG Act to the Respondent.
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The Council did not receive any representations from the Respondent in response to the notice of proposed order.
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On 23 December 2021, Mr McClure attended to a further inspection of the site and observed that Respondent had not complied with the terms of the notice of proposed order.
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On 12 January 2022, Mr McClure, on behalf of the Council, sent a notice of order pursuant to the LG Act to the Respondent.
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The Council did not, and has not, received a response to the LG Order.
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On 14 February 2022, Mr McClure attended to a further inspection of the site and observed that Respondent had not complied with the terms of the LG Order.
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On 14 February 2022, Mr McClure, on behalf of the Council, sent a letter to the Respondent providing a final notice to comply with the LG Order and advising the Council would commence court proceedings if necessary.
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The Council did not, and has not, received a response to the letter dated 14 February 2022.
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On 16 March 2022, Mr McClure, on behalf of the Council, attended to a further inspection of the site and observed that Respondent had not complied with the terms of the LG Order.
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On 30 May 2022, the Council instructed its solicitors, Wilshire Webb Staunton Beattie ("WWSB"), to send a letter to the Respondent giving notice of the commencement of court proceedings on behalf of the Council.
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The Council did not, and has not, received a response to the letter dated 30 May 2022.
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On 8 June 2022, Mr McClure attended to a further inspection of the site and observed that Respondent had not complied with the terms of the LG Order.
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On 15 July 2022, the Council commenced these proceedings.
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The Council submitted that the Respondent has not carried out any works at the property as required by the LG Order. The site is not in a safe and healthy condition as the overgrown vegetation has resulted in a significant problem with pests such as rats, mice, cockroaches and spiders, and has overgrown the front footpath, which causes a trip hazard for elderly neighbours.
Finding
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Based on the affidavit evidence of the Council the Court is satisfied that the Council had a proper basis to form the view that the Respondent’s property was and is not in a safe and healthy condition given the evidence of McClure and the neighbour Ms Serratore and has been in an unsatisfactory condition for a number of years.
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The requirements in Div 2 Procedures to be observed before giving orders, including affording natural justice, considering relevant criteria, service of a preceding notice of intention to issue an order and providing reasons for the issuing of an order have been complied with.
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The terms of the LG Order comply with Div 3 which specifies the requirements for an order in terms of providing reasons, specifying a period for compliance and notifying of the right of appeal.
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The evidence establishes that the Respondent has been properly served at all stages of the proceedings including pursuant to orders made in 2022 for substituted service.
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The evidence establishes that the LG Order was not complied with by the Respondent, the most recent evidence to that effect being in the latest affidavit of Mr Ede referring to an inspection of the property by McClure on 15 February 2023.
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The Council also seeks an order relying on s 678(10) of the LG Act enabling the Council to enter the property and carry out the work the subject of the LG Order if it is not complied with within 30 days. Such an order ought be made in the circumstances given the lengthy history of the matter as identified in the chronology above.
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The Council seeks an order that its costs of the proceedings be paid as agreed or assessed. The Respondent has been advised on multiple occasions of the intention of the Council to commence proceedings to enforce the LG Order and seek its costs of doing so. These are Class 4 proceedings where the usual rule is that costs follow the event. The Council has been successful in obtaining a declaration and orders and there is no disentitling conduct on its part. A costs order in the Council’s favour is appropriate.
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The declaration and orders sought in the summons (see above in [4]) are made with an amendment to prayer four requiring notice to be given in accordance with s 193 of the LG Act.
Declaration and orders
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The Court makes the following declaration and orders:
In these orders:
“LG Order” means the Order No.21 dated 12 January 2022 given by the Applicant to Respondent pursuant to section 124 of the Act requiring the respondent to carry out the Works at the Premises.
“Premises” means the premises at 33 Beresford Avenue, Croydon Park NSW 2133.
‘’The Act’’ is the Local Government Act 1993.
“Works” means the works required to be carried out at the Premises by the LG Order.
A declaration that the Respondent has not complied with the terms of the LG Order within the time specified for compliance with the LG Order.
An order that the Respondent shall carryout and complete the Works required by the terms of the LG order at the Premises within 30 days of these orders.
If the Respondent does not comply with the Order 3, an order that pursuant to s 678(10) of the Act, the Council, its servants and agents execute the Council's functions under s 678 of the Act by carrying out the Works which were required to be carried out at the Premises by the LG order provided notice is given in accordance with s 193 of the Act.
The Respondent pay the Council's legal costs of or incidental to these proceedings as agreed or assessed.
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Decision last updated: 16 February 2023
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