Burwood Council v Wanless

[2025] NSWLEC 10

Land and Environment Court

New South Wales

Medium Neutral Citation:

Burwood Council v Wanless [2025] NSWLEC 10

Hearing dates:

24 February 2025

Date of orders:

26 February 2025

Decision date:

26 February 2025

Jurisdiction:

Class 4

Before:

Pritchard J

Decision:

The Court orders that:

(1)   The respondent must, within 14 days of the date of service of these Orders, trim, prune or otherwise cut all grass and weeds at the front, sides and rear of 22 Austin Avenue, Croydon, NSW (the subject premises) so that the said grass and weeds do not exceed the height of 10 centimetres above the finished ground level and must remove from the subject premises the said trimmed, pruned and cut grass and weeds.

(2)   If the respondent fails to comply with Order 1 above, the applicant may, pursuant to s 678(1) of the Local Government Act 1993 (NSW) (the LG Act), undertake the works specified in Order 1 and the applicant shall be entitled to recover its expenses and costs thereof from the respondent in accordance with s 678(6) of the LG Act.

(3) Prior to the applicant’s employees and contractors attending the subject premises for the purpose specified in Order 2, the applicant must comply with the notice requirements of s 193 of the LG Act.

(4)   The respondent must thereafter maintain all grass and vegetation at the front, sides and rear of the subject premises so that the grass and vegetation does not exceed a height of 10 centimetres above ground level.

(5)   The respondent is to pay the applicant’s costs as agreed or assessed.

Catchwords:

CIVIL ENFORCEMENT – alleged failure to comply with order made pursuant to s 124 of the Local Government Act 1993 (NSW) – ex parte hearing – Council seeks civil enforcement orders in relation to grass and weeds – orders made

Legislation Cited:

Local Government Act 1993 (NSW) ss 124, 130, 131, 131A,132, 133, 134, 135, 193, 676, 678

Category:

Principal judgment

Parties:

Burwood Council (Applicant)
Susan Wanless (Respondent)

Representation:

Counsel:
H Woods (solicitor) (Applicant)

Solicitors:
Houston Dean O’Connor (Applicant)

No appearance (Respondent)

File Number(s):

2024/00412367

Publication restriction:

Nil

JUDGMENT

1. Susan Wanless (the respondent) is the registered owner as sole proprietor of land located at 22 Austin Avenue, Croydon NSW 3136 (Lot 11 in deposited plan 11258) (the subject premises).

2. By summons filed on 6 November 2024 the applicant, Burwood Council (Council), alleges that the respondent failed to comply with an order made pursuant to s 124 of the Local Government Act 1993 (NSW) (LG Act) given to the respondent on 28 April 2023, and seek the following orders:

ORDERS - The Court orders that:

1. The Respondent must, within 14 days of the date of service of these Orders, trim, prune or otherwise cut all grass and weeds at the front, sides and rear of 22 Austin Avenue, Croydon, NSW (the subject premises) so that the said grass and weeds do not exceed the height of 10 centimetres above the finished ground level and must remove from the subject premises the said trimmed, pruned and cut grass and weeds.

2. If the Respondent fails to comply with Order 1 above, the Applicant may, pursuant to s 678(1) of the Act, undertake the works specified in Order 1 and the Applicant shall be entitled to recover its expenses and costs thereof from the Respondent in accordance with s 678(6) of the Act.

3. Prior to the Applicant's employees and contractors attending the subject premises for the purpose specified in Order 2, the Applicant must comply with the notice requirements of s 193 of the Act.

4. The Respondent must thereafter maintain all grass and vegetation at the front, sides and rear of the subject premises so that the grass and vegetation does not exceed a height of 10 centimetres above ground level.

5. The Respondent is to pay the Applicant's costs as agreed or assessed.

6. Any other order that the honourable Court deems fit to make in the circumstances.

3. The terms of the order made by Council on 28 April 2023 pursuant to s 124 of the LG Act (the s 124 order) were:

1. Remove any overgrown grass and vegetation at the premises to a height not exceeding 10 centimetres above the finished ground level;

2. Maintain any grass and vegetation at the premises to a height not exceeding 10 centimetres above the finished ground level;

3. 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; and

4. Comply with the approved management plan.

4. The respondent did not appear at directions hearings on 6 December 2024 or 7 February 2025, nor did she comply with the orders and directions made by the Court at those directions hearings. The respondent did not appear at the substantive hearing of Council’s Class 4 civil enforcement proceedings before me on 24 February 2025.

5. At the hearing on 24 February 2025, Mr Woods, solicitor for Council, read the affidavits of service of: Joseph Khoury dated 19 December 2024; Ashlee Dib dated 18 February 2025; and Anthony Henderson dated 24 February 2025, as set out below at [12(3)]-[12(6)]. The Court also had before it the affidavit of service of Joseph Khoury sworn on 18 November 2024, as set out below at [12(2)]. On that basis of that material, I was satisfied that the respondent had been served with: the summons, affidavit and points of claim filed in this Court on 6 November 2024 in proceedings number 2024/00412367; the short minutes of order dated 6 December 2024; Exhibit AH01 to the affidavit of Anthony Henderson dated 6 November 2024; the notice of orders made by Duggan J on 7 February 2025; the evidence book; and the court book, and proceeded to hear the matter ex parte.

Legislative framework

6. In pt 2, titled “Orders”, of ch 7, titled “What are the regulatory functions of councils?”, s 124 of the LG Act provides relevantly in relation to things a council may order a person to do or refrain from doing, as follows:

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.

Note.

This section does not affect the power of a council to give an order (or a notice or direction) under the authority of another Act.

Orders requiring or prohibiting the doing of things to or on premises

Column 1	Column 2	Column 3
To do what?	In what circumstances?	To whom?
….
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	The land or premises are not in a safe or healthy condition	Owner or occupier of land or premises

7. The “thing” specified in column 1 of the Table to s 124 upon which Council relied in the summons was that in number 21 of column 1, namely “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”, in the circumstances set out in column 2, namely “The land or premises are not in a safe or healthy condition”.

8. Division 2, titled “Procedures to be observed before giving orders”, contains the following provisions:

Division 2 Procedures to be observed before giving orders

129   Circumstances in which compliance with this Division is required

(1)  Before giving an order, a council must comply with this Division.

(2)  This section does not apply to—

(a) an order in terms of order No 15 in the Table to section 124, or

(a1) an order in terms of order No 22A in the Table to section 124 (except to the extent that this section would otherwise require compliance with section 131A), or

(b)  an order given, and expressed to be given, in an emergency.

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.

131A   Orders that make or are likely to make residents homeless

(1)  If an order will or is likely to have the effect of making a resident homeless, the council must consider whether the resident is able to arrange satisfactory alternative accommodation in the locality.

(2)  If the person is not able to arrange satisfactory alternative accommodation in the locality, the council must provide the person with—

(a)  information as to the availability of satisfactory alternative accommodation in the locality, and

(b)  any other assistance that the council considers appropriate.

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.

9. In chapter 8, titled “What ancillary functions does a council have?”, s 193 provides in relation to the provision by the council to the owner or occupier of the premises written notice of the intention to enter the premises before a person authorised to enter the premises under pt 2 of ch 8 does so:

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.

10. In ch 17, titled “Enforcement”, s 676 provides in relation to the functions of the Land and Environment Court if satisfied that a breach of the LG Act has been committed or that a breach of the LG Act will, unless restrained by order of the Court, be committed:

676   Functions of the Land and Environment Court

(1)  If the Land and Environment Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach.

(2) If a breach of this Act would not have been committed but for the failure to obtain an approval under Part 1 of Chapter 7, the Court on application being made by the defendant, may—

(a) adjourn the proceedings to enable an application to be made under Part 1 of Chapter 7 to obtain that approval, and

(b)  in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned.

(3)  The functions of the Court under this section are in addition to and not in derogation of any other functions of the Court.

11. Section 678 provides relevantly in relation to a failure to comply with the terms of an order under pt 2 of ch 7:

678   Failure to comply with order—carrying out of work by the council

(1) If a person fails to comply with the terms of an order given to the person under Part 2 of Chapter 7, the council may do all such things as are necessary or convenient to give effect to the terms of the order, including the carrying out of any work required by the order.

…

(6)  Any expenses incurred by the council under this section (less the proceeds, if any, of any sale under this section) together with all its associated costs may be recovered by the council in any court of competent jurisdiction as a debt due to the council by the person concerned.

(7)  Nothing in subsection (3), (4) or (6) affects the owner’s right to recover any amount from any lessee or other person liable for the expenses of repairs.

(8)  A reference in subsection (4) or (6) to costs is a reference to costs incurred by the council in seeking to recover the deficiency or expenses otherwise than by proceedings in a court, but nothing in this section prevents the council from receiving costs as between party and party in respect of those proceedings.

(9)  A council may exercise its functions under this section irrespective of whether the person concerned has been prosecuted for an offence under section 628.

(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.

Note.

Section 193 requires the council to give the owner or occupier of premises written notice before a person authorised to enter premises under Part 2 of Chapter 8 of the Act does so.

Evidence

12. At the hearing, Council’s solicitor Mr Woods read the following affidavits (and tendered the following Exhibit):

1. Affidavit of Anthony Henderson dated 6 November 2024. Council also tendered Exhibit AH01 to the affidavit of Anthony Henderson dated 6 November 2024. Mr Henderson, a Community Safety Officer employed by Council, having worked in that and similar roles for about 20 years, relevantly deposed that:

1. On 1 March 2023, he inspected the subject premises and observed the following:

1. In the rear yard, the ground was “completely covered in weeds, most of which were higher than 10 centimetres … Climbing weeds covered much of the fences, a water tank and a shed”.

2. In the side yard, “weeds had grown amongst the shrubbery and were higher than 10 centimetres. I also observed climbing weeds”.

3. The front yard was maintained “to some extent”.

2. Mr Henderson formed the view that the subject premises “was not in a safe or healthy condition. It was in such an unkept condition that it very likely could be harbouring pests and vermin, such as mice, rats and cockroaches ... such pests and vermin pose serious risk to the health and safety of the subject premises and the surrounding residences”.

3. On 6 April 2023, Council received a letter from the respondent. In relation to the “yard clearance”, the respondent said, “perhaps you’d better see to it yourselves”.

4. On 17 April 2023, Mr Henderson attended the subject premises and observed that the sides and rear “remained in the overgrown state as I observed on my previous attendance on the land on or about 1 March 2024”. Mr Henderson took photographs of what he saw at the subject premises on that occasion. These photographs are included in Exhibit AH01 to Mr Henderson’s affidavit.

5. On 28 April 2023, having considered the representations made by the respondent in accordance with s 134 of the LG Act, Council gave the s 124 order. The s 124 order provided the respondent 28 days to comply.

6. Following the issuing of the s 124 order on 28 April 2023, Mr Henderson deposed that correspondence was exchanged between Council and the respondent. This correspondence is summarised in Council’s written submissions dated 18 February 2024:

1. 5 May 2023: The respondent indicated she did not understand why Council is “going over old ground”. She reiterated that Council “organise it all as your original advice suggested you could do”.

2. 22 December 2023: Council provided the respondent with details of service providers to facilitate “a service provider to clean your yard”.

3. 16 January 2024: Council requested consent to provide the respondent’s personal details to the Newtown Neighbourhood Centre to assist the respondent arranging “a service provider to maintain your yard”.

4. 29 January 2024: Council reiterated the need for the respondent’s consent to provide her details to “an agency to assisting in the cleaning of your property”.

7. On 11 September 2024, Mr Henderson attended the subject premises and observed the subject premises to still be in an overgrown and unkept state. Mr Henderson took photographs of what he saw at the subject premises on that occasion. These photographs are included in Exhibit AH01 to Mr Henderson’s affidavit. He maintained his belief that the subject premises was a serious health and safety risk to the residents of the subject premises and to surrounding residences.

2. Affidavit of service of Joseph Khoury dated 18 November 2024. Mr Khoury, a licensed process server, deposed that he personally served the respondent on 7 November 2024 with the following documents: summons, affidavit and points of claim filed in this Court on 6 November 2024 in proceedings number 2024/00412367.

3. Affidavit of service of Joseph Khoury dated 19 December 2024. Mr Khoury, a licensed process server, deposed that on 16 December 2024 he served the respondent with a letter from Houston Dearn O’Connor Lawyers dated 11 December 2024, short minutes of order made by Robson J dated 6 December 2024 and Exhibit AH01 to the affidavit of Anthony Henderson dated 6 November 2024, by personally delivering them to the respondent. Mr Khoury said, “At the time of service, I asked: “Are you Ms Susan Wanless, the person referred to in these document(s)?”. The female said: “Yes, I am”. I handed the document(s) to the female”.

4. Affidavit of service of Ashlee Dib dated 18 February 2025. Ms Dib, a receptionist employed by Houston Dearn O’Connor Lawyers, Council’s lawyers, deposed that on 14 February 2025, the notice of orders made by Duggan J on 7 February 2025 were sent by registered post to the respondent at the subject premises.

2. Affidavit of Tai Trinh dated 21 February 2025. Mr Trinh, Coordinator Community Safety at Council, deposed that he was employed by Council in the role of Coordinator Community Safety and held delegations and authorisations to give notices of proposed orders pursuant to s 132 of the LG Act and to give orders pursuant to s 124 of the Act. Mr Trinh said that on 31 March 2023, he gave a notice of proposed order to the respondent pursuant to s 132 of the Act. Mr Trinh said that on 28 April 2023, he gave the s 124 order the subject of these civil enforcement proceedings pursuant to s 124 of the Act.

3. Affidavit of service of Anthony Henderson dated 24 February 2025. Mr Henderson deposed that on 19 February 2025 he served the respondent with a copy of the evidence book, court book and a covering letter from Houston Dearn O'Connor, all dated 19 February 2025.

Submissions

13. In his written submissions dated 18 February 2024, Council’s solicitor Mr Woods’ submitted:

On 31 March 2023, in compliance with s 132 of the Act, the Applicant gave notice to the Respondent of the proposed order to be given. The proposed terms of the order were identical to the Orders.

…

[the] observations made by Mr Henderson, and the photographs taken by him, on 11 September 2024 demonstrate clear non-compliance with the Order.

…

The Court can be satisfied that the Respondent is aware of the proceedings and that they are due to be heard on 24 February 2025.

14. In his oral submissions on 24 February 2025, Mr Woods submitted that Council’s power to give the s 124 order was contained in s 124 of the LG Act, and that if the Court is satisfied that a breach of the Act has been committed or will, unless restrained by order of the Court, be committed, it may make such an order as it thinks fit to remedy or restrain the breach in s 676 of the Act.

Conclusions and orders

15. I am satisfied having regard to the affidavits of service read by Council’s solicitor that the respondent is aware of the Class 4 civil enforcement proceedings commenced by Council on 6 November 2024, and that they were set down to be heard on 24 February 2025.

16. I am satisfied that on 31 March 2023, Council gave notice to the respondent of its intention to give the proposed order, the terms of proposed order and the period proposed to be specified as the period within which the s 124 order is to be complied with, in accordance with s 132 of the LG Act.

17. I am likewise satisfied that Council gave the s 124 order to the respondent in accordance with s 124 of the LG Act and otherwise complied with the relevant natural justice requirements contained in divs 2 and 3 of pt 2, ch 7 of the LG Act.

18. The affidavit of Mr Henderson dated 6 November 2024 and the Exhibit to that affidavit establish that the respondent failed to:

1. remove any overgrown grass and vegetation at the premises to a height not exceeding 10 centimetres above the finished ground level;

2. maintain any grass and vegetation at the premises to a height not exceeding 10 centimetres above the finished ground level;

3. 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; and

4. comply with the approved management plan

within the required 28 days of the s 124 order being given on 28 April 2023. Mr Henderson attended the subject premises on 1 March 2023, 17 April 2023 and again on 11 September 2024. Mr Henderson included photographs of “what [he] saw” at the subject premises on 17 April 2025 and 11 September 2024 in the Exhibit to his affidavit dated 6 November 2024.

19. On 11 September 2024, when he attended the subject premises, Mr Henderson observed the sides and rear of the subject premises “to be in an overgrown state. It appeared no work had been undertaken to comply with the Order. The land was still in a very unkept state and I still held concerns that the land could be harbouring pests and vermin, which posed a serious health and safety risk to the occupant and nearby residences”. In light of the evidence contained in Mr Henderson’s affidavit dated 6 November 2024 including the photographs of the subject premises taken by Mr Henderson on 17 April 2025 and 11 September 2024 in the Exhibit to his affidavit, I am satisfied that the respondent has failed to comply with the s 124 order.

20. As I am satisfied that the respondent has failed to comply with the s 124 order made pursuant to s 124 of the LG Act given to the respondent on 23 April 2023, I make the following orders in accordance with s 676 of the LG Act.

21. The Court orders that:

1. The respondent must, within 14 days of the date of service of these Orders, trim, prune or otherwise cut all grass and weeds at the front, sides and rear of 22 Austin Avenue, Croydon, NSW (the subject premises) so that the said grass and weeds do not exceed the height of 10 centimetres above the finished ground level and must remove from the subject premises the said trimmed, pruned and cut grass and weeds.

2. If the respondent fails to comply with Order 1 above, the applicant may, pursuant to s 678(1) of the Local Government Act 1993 (NSW) (the LG Act), undertake the works specified in Order 1 and the applicant shall be entitled to recover its expenses and costs thereof from the respondent in accordance with s 678(6) of the LG Act.

3. Prior to the applicant’s employees and contractors attending the subject premises for the purpose specified in Order 2, the applicant must comply with the notice requirements of s 193 of the LG Act.

4. The respondent must thereafter maintain all grass and vegetation at the front, sides and rear of the subject premises so that the grass and vegetation does not exceed a height of 10 centimetres above ground level.

5. The respondent is to pay the applicant’s costs as agreed or assessed.

**********

Decision last updated: 26 February 2025