Canterbury City Council v Burslem (No 2)

[2016] NSWLEC 12

Land and Environment Court

New South Wales

Medium Neutral Citation:	Canterbury City Council v Burslem (No 2) [2016] NSWLEC 12
Hearing dates:	24 February 2016
Date of orders:	24 February 2016
Decision date:	24 February 2016
Jurisdiction:	Class 4
Before:	Craig J
Decision:	Refer to [23]
Catchwords:	CIVIL ENFORCEMENT - exercise of discretion to enforce Order given under s 124 of the Local Government Act 1993 - Order to remedy unsafe and unhealthy condition of Property - failure to comply with Order - continuing breach - orders made for respondent to carry out work required by Order but, in default, for applicant to carry out that work – s 678(10) of the Local Government Act - costs
Legislation Cited:	Local Government Act 1993 (NSW)
Cases Cited:	Canterbury City Council v Burslem [2007] NSWLEC 737
Category:	Principal judgment
Parties:	Canterbury City Council (Applicant) Roy Frank Burslem (Respondent)
Representation:	Counsel: P Jackson (solicitor) (Applicant) Self represented (Respondent)   Solicitors: Pikes & Verekers Lawyers (Applicant) Self represented (Respondent)
File Number(s):	40963 of 2015

EX TEMPORE Judgment

1. These proceedings seek to address a problem that regrettably is one with which the Court is all too familiar. The problem is the accumulation of old, discarded and waste materials deposited around the curtilage of residential premises. Not only does such an accumulation of materials render the premises unsightly but in many cases, of which the present case is one, the accumulated materials both pose a public health risk and also impede easy access to and egress from the premises in the event of emergency, particularly one created by fire.

2. As the present proceedings demonstrate, civil remedies available to a local authority to address the problem may offer a short term solution. However, these remedies may not necessarily prevent a recurrence of the problem. So much is apparent from the present case because orders not dissimilar from those presently sought were previously given to Mr Burslem, the respondent in these proceedings, and enforced by orders made in this Court on 8 October 2007 (Canterbury City Council v Burslem [2007] NSWLEC 737).

3. In these proceedings Canterbury City Council (the Council) seeks to enforce an order given to Mr Burslem under s 124 of the Local Government Act 1993. It seeks mandatory orders from this Court requiring Mr Burslem to remove waste material from the yard of his premises. In default, it seeks an order allowing the Council to carry out that work.

4. The evidence that I have received, directed to the substantive claim of the Council, is that found in the affidavits of the Council’s Environmental Health Officer, Michael Saunders. He has sworn two affidavits, relevantly on 18 December 2015 and 9 February 2016. A further affidavit sworn by him on 19 February 2016 is directed to corrections made to his earlier affidavits.

5. The evidence of Mr Saunders establishes that in April 2015, following a complaint to the Council, the property occupied by Mr Burslem and known as 70A Hay Street, Ashbury (the Property) were inspected by him. The inspection revealed that there was a considerable volume of waste material stacked across the front yard of the Property. The observation recorded by Mr Saunders at that time was that the front yard, to the extent that it was not covered by waste material, was overgrown with grass and vegetation that was both alive and dead. The materials he observed in the front yard were described as disused furniture of all sorts, bicycles, mattresses, boxes, bags, travel cases, cloth, metal goods, two motor vehicles which themselves contained a number of waste items, associated vehicle parts, umbrella, plastic goods, barbeques, unused white goods, cardboard boxes, building materials and garden utensils. He also observed a carport at the side of the dwelling on the Property that appeared to be “crammed”, with disused furniture. A number of photographs were taken by Mr Saunders at that time. Those photographs appear to bear out the description of the items that were observed from the street.

6. A notice was given to Mr Burslem following that inspection, stating the Council’s intention to issue an order requiring steps to be taken in respect of the materials observed in the yard of the Property. For reasons that do not presently matter, no reliance is placed upon that notice. However, the Property was subsequently inspected on 28 April and again on 1 June by Mr Saunders. As a result of those inspections the Council gave written notice to Mr Burslem on 2 June of its intention to issue an order pursuant to s 124 of the Local Government Act, being an order in accordance with Order No 21 in the Table to that section. In short, the proposed order then notified to Mr Burslem required that the ground surface of the Property be cleared “to within 75mm of the ground surface” of overgrown grass and vegetation that did not comprise trees, shrubs and plants under cultivation. The notice also notified that the proposed order would require the removal of all items that generally fell within the description of the items that I have earlier recorded as having been observed on the Property by Mr Saunders.

7. According to the evidence, there was no response to the Council’s notice, as a consequence of which on 23 June the Council issued an order in the form foreshadowed, being an order under s 124 of the Local Government Act. That order allowed Mr Burslem 28 days from the date of its service with which to comply. The document set out the reasons for the order, essentially stating that the Property was not in a safe or healthy condition, with particulars being given as to why that was the case. That was important because those circumstances enliven the power to give such an order by reference to Column 2 of the Table to s 124, as that Column relates to Order No 21.

8. Subsequent inspections of the Property by Mr Saunders on 3 August, 7 September, 2 October and 11 December 2015 revealed that the Property remained in a state whereby the yards continued to be substantially covered with items falling within the description of materials that I have earlier given. On each of those occasions Mr Saunders took photographs of the front yard. Those photographs appear to substantiate the observations recorded by him.

9. The consequence of those observations was that no steps had been taken, at least as at 11 December, in response to the Council’s order. The materials of a kind that engendered the need to give that order remained on the Property. As the evidence of Mr Saunders states, the continuing accumulation of those materials gave rise to the potential for the health and safety problems that he described. Those potential problems are encapsulated in his affidavit affirmed 18 December 2015 where at paragraph 4 he said:

“ … There was vegetation growing through the accumulated material which would act as a harbourage for vermin. It was not possible to safely navigate the front yard due to the accumulation of material. Waste and materials were stacked in the carport to a height which I considered to be unsafe as there was a risk of the items falling and causing injury to people on the Premises. The accumulation of material would have made it difficult to exit the Premises in a prompt and safe manner in the event of a fire. Some of the vegetation and disused furniture would have acted as a source of fuel in the event of fire.”

10. I should interpolate that annexed to Mr Saunders’ first affidavit was a copy of his resume. Not only has he held for some years occupations that would by experience, equip him with the capacity to express the opinions that he gave, but also indicate that his tertiary qualifications, as an expert, include a Bachelor of Science Degree in Food Technology, a Master of Science (Agriculture) Degree in Food Science as well as a Graduate Diploma in Environmental Health. His degrees were obtained from universities in Ireland, while his qualification in Environmental Health was obtained from the Queensland University of Technology in Brisbane. I accept that he is able to express the opinions that I have recorded as to the likely public health and safety consequence of the materials described being deposited in the yard of the Property occupied by Mr Burslem.

11. In preparation for the hearing of this matter the Property was again inspected by Mr Saunders on 2 February 2016, a little less than three weeks ago. At that time he observed and I accept that there appeared to be areas of overgrown grass and vegetation both alive and dead; that there was deposited in the yard of the Property “disused furniture of all sorts including bicycles, mattresses, boxes, bags, travel cases, cloth, metal goods, three (3) motor vehicles full of miscellaneous items, associated vehicle parts, umbrella, plastic goods, barbeques, unused whitegoods, cardboard boxes, building materials, garden utensils” together with the carport earlier described, still apparently crammed with disused furniture.

12. Once again photographs were tendered to record the observations made at that time. While the photographs do not allow precise identification of the individual items identified in Mr Saunders’ affidavit, to the extent that one can discern materials of different kinds within those photographs at a level of generality, those photographs appear to accord with the description given in Mr Saunders’ affidavit.

13. When the matter came for hearing before me today Mr Burslem appeared. Regrettably he had not attended any of the prior occasions upon which the matter was called before the Court when directions for preparation of the matter for hearing were given. Those directions included a direction that he should file a response to the Council’s points of claim, as well as file any evidence upon which he would seek to rely. The evidence before me establishes that copies of the Court’s directions, including the date fixed for hearing, were sent to Mr Burslem at the Property. All documents including the Council’s points of claim and affidavits, including those of Mr Saunders, were, according to the evidence of Alistair Knox, the solicitor having the day to day carriage of the matter, provided to Mr Burslem in advance of today’s hearing. That was not denied by Mr Burslem.

14. Despite the fact that Mr Burslem had not addressed any of the Court’s directions, I did hear his submissions and gave him the opportunity to ask questions of Mr Saunders. The only matter that arose of any substance in the questions posed by Mr Burslem to Mr Saunders was the depiction in a photograph taken on 2 February 2016 of a third motor vehicle, apparently in the front yard of the Property. Mr Saunders was adamant that the photograph which bears that date was in fact taken on the date of his visit, recording his observations made at that time. Mr Burslem has stated from the bar table that at the time the vehicle was in storage in some other location but he has not given evidence to that effect. I accept the evidence of Mr Saunders.

15. The power of the Court to intervene in circumstances of the present kind is found in provisions of the Local Government Act. Section 673 of that Act enables, amongst others, the Council to bring proceedings in this Court for an order to remedy or restrain a breach of that Act. Section 672 defines a breach of the Act which by that definition, includes a contravention of or failure to comply with the Act. Reference to “the Act” includes an order under Pt 2 of Ch 7 of the Act. The order made under s 124 and given to Mr Burslem in June 2015 was an order made under Pt 2 of Ch 7. As a consequence, the Court has the power, at the instance of the Council, to make orders that seek to remedy the breach of the Act. The breach in the present case is the failure by Mr Burslem to have complied, within 28 days, with the order given to him under s 124 on 23 June 2015.

16. In framing the orders that the Council asks the Court to make, it invokes the provisions of s 678 of the Local Government Act. In particular, subs (10) of that section provides:

“(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.”

17. As I have said, these proceedings are brought as a result of the failure to comply with an order under Pt 2 of Ch 7.

18. Based on the evidence that I have heard, I am satisfied that Mr Burslem has breached the Local Government Act by failing to comply with the Order given to him on 23 June 2015. I am also satisfied that in the exercise of its discretion the Court should make an order requiring that the Council’s order of June 2015 be observed. Further, it also seems appropriate that in making such an order, Mr Burslem should be given one further opportunity to meet the requirements of the order. Against the possibility that he may fail to do so, the Court should exercise the power that it is given under s 678 of the Local Government Act to direct the Council to carry out any work in respect of which Mr Burslem defaults. The making of the latter order seems to be particularly appropriate, given that there is a history, to which I have earlier referred, of the necessity for the Council to approach the Court to enforce an order directed to the removal of waste materials from the Property so as to address problems of public health and safety.

19. In making the submissions that he felt able to make to the Court, I did not understand Mr Burslem strenuously to oppose the orders I have foreshadowed but rather to request the Court to give him sufficient time to perform the work rather than authorise the Council to carry out that work in the first instance. I think that is appropriate. The question is how long should he be given? The Council has sought to give to Mr Burslem a period of 60 days in which to carry out the work required to be undertaken under the Court’s order whereas Mr Burslem seeks a period of 90 days. Both accept that after the period nominated, should the work not have been completed then the Council should have a capacity to enter and carry out what remains to be done.

20. I am not persuaded that it is appropriate to extend the time beyond the 60 day period that the Council proposes for the work to be carried out. Part of the reason for that is the absence of any real or substantial effort by Mr Burslem to address the Council’s order of June 2015. Secondly, I pay heed to the prior history of similar difficulties with the Property and more particularly to the need for enforcement action to have waste materials removed from the yard of the Property in 2007.

21. Undoubtedly, if the stage has been reached at the expiration of the 60 day period where substantial work has been undertaken and some indication or demonstration given to the Council by Mr Burslem that he has the means and the capacity to complete the removal work within a reasonable period after that 60 day period, any request by him for some extension of time will receive appropriate consideration on the part of the Council. What is appropriate, so it seems to me, is to require the work to be done within the 60 day period and then if that work is not completed by that time, to provide the Council with power to enter the Property for the purpose of completing the work if an appropriate arrangement cannot be made for its completion directly with Mr Burslem.

22. As the Council has been successful in obtaining orders, I propose to make an order for costs. That order is opposed by Mr Burslem on the basis that he intends “to appeal” concerning a vine which grows on his fence from a neighbour’s property. I have made no order and make no finding about the vine. The orders that I make will be directed to the clearing of both vegetation and materials from the yard of the Property. If there is a vine growing over the fence from a neighbouring property, that is a matter to be dealt with between Mr Burslem and his neighbour or between the Council and the owner of that property. It is not a matter in respect of which I have any power to intervene.

23. His application in respect of costs was that, subject to his appeal in relation to the vine, there should be no order for costs. On the assumption that an appeal is to be taken, it is appropriate that this Court make all necessary orders for disposition of proceedings so that those orders can be dealt with and addressed by the Court of Appeal should such an appeal be taken. As a consequence, I propose to order that Mr Burslem pay the Council’s costs of the proceedings.

24. For the reasons that I have expressed, I make the following orders:

1. Order that by 5.00pm on 26 April 2016 the respondent must, at the property known as 70A Hay Street, Ashbury (the Property) undertake the work and carry out the tasks listed in the Schedule to this Order.

2. On a date that is not later than 3 May 2016 the applicant’s Manager of Environmental Compliance and Administration and the applicant’s Environmental Health Officer must inspect the Property so as to identify what, if any, of the works or tasks listed in the Schedule remain to be completed.

3. Should the inspection referred to in Order 2 reveal work and tasks that remain to be undertaken a list of the incomplete work or tasks must, within 14 days from the date of inspection, be sent by ordinary post to the respondent addressed to him at the Property.

4. The list of outstanding work or tasks referred to in Order 3 must be accompanied by a notice of entry specifying the time and date or dates on which officers of the applicant, together with the names of those officers, will enter the Property so as to complete the work or tasks identified in that list.

5. For the purpose of giving effect to Order 4, pursuant to s 678(10) of the Local Government Act 1993 the Council is ordered to execute the functions given to it under that section by entering the Property and completing the work and tasks that remain to be completed as listed in the notice given to the respondent in accordance with Order 3.

6. The entry upon the Property and the carrying out of the works ordered pursuant to Order 5 must occur at the time and on the date or dates specified in the notice of entry given in accordance with Order 4.

7. The applicant must send a sealed copy of these orders to the respondent by ordinary post within 3 days of receipt of the sealed orders.

8. The applicant must endeavour to effect personal service of a sealed copy of these orders upon the respondent within 7 days of the date upon which the orders are sealed.

9. The respondent is ordered to pay the applicant’s costs of these proceedings.

10. Exhibits may be returned.

11. Schedule

1. Clear to within 75mm of the ground surface of the yard of the Property and dispose appropriately of all overgrown grass, vegetation and vegetative matter whether alive or dead, but excluding trees, shrubs and plants under cultivation including any vine growing across the northern fence from the property adjoining to the north which grass vegetation and vegetative matter are upon the Property;

2. Remove from the yard of the Property all waste and rubbish and without limiting the generality of that description including the following: paper, cardboard, plastic, timber, metal, batteries, flyscreens, tyres, chairs, hoses, electrical goods, suitcases, cloth, tins, mattresses, lawn mowers, crockery, pots and pans, baskets, hoses, pvc piping, glass, trollies, toys, empty bottles, lawnmower parts, boxes, plastic buckets, bicycles, metal trusses and general household refuse; and

3. Ensure that all waste and materials/items removed are disposed of in a lawful manner or otherwise stored in or on an appropriate storage site.

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Decision last updated: 03 March 2016