Burwood Council v Wanless
[2011] NSWLEC 248
•14 December 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: Burwood Council v Wanless [2011] NSWLEC 248 Hearing dates: 14/12/2011 Decision date: 14 December 2011 Jurisdiction: Class 4 Before: Biscoe J Decision: Orders to remove overgrown vegetation
Catchwords: CIVIL ENFORCEMENT:- to restrain breaches of Local Government Act 1991 being failure to comply with council order for removal of overgrown vegetation on respondent's property. Legislation Cited: Local Government Act 1993, ss 124, 132, 673, 678 Category: Principal judgment Parties: Burwood Council (Applicant) Representation: COUNSEL:
Mr S Shneider, solicitor (Applicant)
N/A (Respondent)
SOLICITORS:
Houston Dearn O'Connor (Applicant)
N/A (Respondent)
File Number(s): 40831 of 2011
Judgment
Burwood Council brings civil enforcement proceedings in Class 4 of the Court's jurisdiction, pursuant to s 673 of the Local Government Act 1993 ( LG Act ), to remedy or restrain alleged breaches of the LG Act, being the failure of the respondent, Miss Susan Wanless, to comply with an order it issued for the removal of overgrown vegetation on her property in Croydon. Miss Wanless has not appeared in the proceedings.
FACTUAL BACKGROUND
Miss Wanless is the owner and occupier of residential premises located at 22 Austin Ave, Lot 11 Deposited Plan 11258, Croydon. The subject premises are overgrown with grass and other vegetation, and beset with a quantity of weeds, refuse and litter which the Council seeks to have removed. The Council is particularly concerned that the subject premises are a harbourage for vermin including mice, rats and cockroaches.
In December 2008 Council received a complaint which asserted that the garden of the subject premises was overgrown and that cockroaches and rats were nesting therein.
The Council's Senior Environmental Health Officer, Mr John Mills, subsequently attended the subject premises to investigate the complaint. He described Miss Wanless as "very agitated and defensive". She refused Mr Mills access to the subject premises, so Mr Mills gained access to a neighbouring property. From this vantage point he observed that the back of the subject premises was "overgrown and had weeds and the like growing very high in it."
From this inspection Mr Mills formed the view that the premises harboured pests and vermin such as mice, rats and cockroaches.
By letter of 22 December 2008 Mr Mills wrote to Miss Wanless to inform her that Council was in receipt of a complaint regarding the overgrown condition of her property, and that she was required to:
"Remove from the subject premises overgrown vegetation and vegetative matter whether alive or dead which is or is likely to become a harbourage for rubbish and vermin and maintain the property in a neat and tidy manner."
Council requested that Miss Wanless complete the required work within 14 days in order that the matter be "amicably resolved".
By letter of 30 December 2008 Miss Wanless confirmed receipt of the Coucil's letter, requesting that the Council disclose the source of the complaint and stating that:
"There certainly can be no amicable resolution under these set of circumstances and goodwill does not and cannot exist by underhand tactics."
From the evidence it appears that Council made no further attempts to resolve the situation until 8 February of 2011 when the Council received a further complaint concerning the state of the subject premises.
On 2 March 2011 the Council's Law Enforcement Officer, Mr Anthony Henderson , attended the subject premise s in an attempt to inspect the premises. Mr Henderson knocked on the front door but there was no answer. He observed that there was an amount of significantly overgrown grass and vegetation at the front of the premises.
Following Mr Henderson's inspection of the property, the Council issued Miss Wanless with a Notice of Proposed Order of 2 March 2011, pursuant to s 132 of the LG Act. The Notice of Proposed Order stated: Order in terms of Order No 21 in the Table to Section 124 of the Act.
" Local Government Act 1993 Notice of Proposed Order Premises: 22 Austin Avenue Croydon NSW 2132 Lot 11 on DP11258 Pursuant to Section 132 of the Act, Council advises that it intends to give you the following Order in terms of Order No 21 in the Table to Section 124 of the Act. The Proposed Order: To do such things as are specified below so as to place the abovementioned premises in a healthy condition: 1. To remove all overgrown grass and vegetation at the FRONT, SIDES and REAR of the premise to a height of 10cm above the finished ground level as well as all weeds, refuse and litter from the above mentioned property. 2. To maintain all grass and vegetation at the FRONT, SIDES and REAR of the premise to a height not exceeding 10cm above ground level. From the date of the order, you will have 14 days to comply. ... You may, if you wish, make representation to Council yourself, or by your Barrister, Solicitor or Agent as to why the order should not be given or as to the terms of or period for compliance with the Order. Any representation must be made to the Manager, Compliance within fourteen (14) days of the date of this letter. After hearing the considerations, the Council may determine to give the Order in accordance with the Proposed Order, or to give an Order with modifications made to the Proposed Order of to given no order at all."
There is no record of Miss Wanless making any such representations to Council within the time period stipulated by the notice.
On 16 March 2011 Mr Henderson again attended the subject premises for the purposes of ascertaining whether Miss Wanless had complied with the Notice of Proposed Order of 2 March 2011. My Henderson attempted again to gain entry to the property, again the door was not answered. Mr Henderson formed the view, from the visible portions of the subject premises he observed, that the proposed order had not been complied with.
On 16 March 2011 the Council issued Miss Wanless with a Notice of Order pursuant to s 124 of the LG Act, which relevantly provides as follows:
" 124 What orders may be given, in what circumstances and to whom?
...
Orders requiring the preservation of healthy conditions
| Column 1 | Colum 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" |
The order in the Notice of Order was in the following terms and stipulated that she had until 14 April 2011 to comply:
"To do such things as are specified below so as to place the abovementioned premise in a healthy condition:
1. Remove all overgrown grass and weeds at the front, sides and rear of the premise to a height of 10cm above the finished ground level;
2. To maintain all grass and vegetation at the FRONT, SIDES and REAR of the premise to a height not exceeding 10cm above ground level."
The order in the Notice of Order was in substantially the same terms as the proposed order in the Notice of Proposed Order (above at [11]), except that the words "as well as all weeds, refuse and litter from the above mentioned property" which appeared in paragraph 1 of the latter did not appear in former. This omission may well have been an oversight because the Notice of Order went on to state that the circumstances giving rise to the order included not only that the premises were overgrown with vegetation and weeds and not in a healthy condition, but that there was rubbish and waste litter in the front yard that was likely to blow onto the public road.
On 15 April 2011 Mr Henderson attended the subject premises for inspection, again without answer. In order to inspect the rear of the subject premises, Mr Henderson attended a neighbouring property. He observed that there had been some attempt to clear the grass and vegetation at the front of the property but, in his opinion, the order had not been complied with because "the attempt fell short of what was required under the Notice of Order."
In light of the attempt, albeit limited, that Miss Wanless had made to clear the front portion of her property the Council extended the time for compliance with the Notice of Order to 2 May 2011, and then again to 16 May 2011. On this day, and again on 17 May 2011, Mr Henderson attended the subject premises. On both occasions he knocked on the front door and was met with no answer. He observed that no further work had been undertaken.
The Council subsequently took steps to arrange for work to be carried out to remove the refuse and overgrown vegetation. By letter dated 18 May 2011 the Council informed Miss Wanless of its intention to seek quotations from contractors to undertake that work. The Council received estimates for the clean up and removal of overgrown vegetation on the premises ranging between $1,698.50 and $4,067.50. The Council proceeded to engage contractors to remove the refuse, overgrown plants and otherwise attend to the premises as required.
The Council received a letter from Miss Wanless on 27 May 2011 stating several conditions under which that work could be undertaken, including that no heavy machinery or whipper snippers be used and that none of the shrubs or plants be pruned. Miss Wanless required an account "to be itemised and payment will not include any jobs not done correctly ... "
By letter of 30 May 2011 the Council responded to these various conditions, stating that:
"Council wishes to reiterate that the Order issued on the 16 March 2 0 11 and the extension given by Council on the 2 May 2011 have still not be complied with. Upon review of your letter dated 26 May 2011, Council will now seek legal proceedings to enforce the provisions of the Order."
On 14 September 2011 the Council instituted these proceedings which were duly served upon Miss Wanless. Miss Wanless informed the Court, by letter of 20 September 2011, that she would not attend as she was of the opinion it would be "a waste of my time". Miss Wanless has chosen not to appear before the Court on the previous occasions the matter has been mentioned before the Registrar and list judge. She did not appear today. However, Miss Wanless has sporadically communicated with the Court, and Council, by letter including to confirm receipt of correspondence and identify Council's various alleged shortcomings.
I am satisfied that Miss Wanless has not complied with the Council' s Notice of Order and that it is appropriate to grant relief under s 678.
The Council seeks orders that Miss Wanless within 14 days:
(a) Trim, prune or otherwise cut all overgrown grass and vegetation at the front, sides and rear of the subject premises so that the said grass and vegetation does not exceed the height of 10cm above the finished ground level; and
(b) Remove from the subject premises all weeds, refuse and litter.
I consider that the terms of those orders should more precisely reflect the terms of the Council order in the Notice of Order: see [15] above. Since the Council order did not extend to refuse and litter, I consider that the Court 's power under s 678 to make an order in respect of refuse and litter is not enlivened.
The Council foreshadows that Miss Wanless will not comply with these orders. The Council seeks an order pursuant to s 678(10) of the LG Act that, in that event, the Council be ordered to undertake the works specified in the Council order after complying with the notification procedures set out in s 193 and that the council shall be entitled to recover its expenses and costs under s 678(6). Sections 678 and 193 relevantly provide:
" 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.
...
(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.
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."
The Council also seeks order s that thereafter (a) Miss Wanless 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 10cm above ground level, and (b) she must not thereafter allow weeds, refuse and litter to accumulate on the subject premises. I do no t propose to make the second of those proposed orders for two reasons. First, as previously stated, I consider that the Court' s power to make an order under s 678 in respect of refuse and litter is not enlivened because the order in the council's Notice o f Order did not extend to refuse and litter: see [25] above. Secondly, a n order to not allow weeds "to accumulate " seems to me to be too vague a description.
ORDERS
The Court makes the following orders:
(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 is ordered pursuant to s 678(10) of the Local Government Act 1993 to 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).
(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 Local Government Act 1993.
(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.
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Decision last updated: 10 January 2012
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