Council of the City of Sydney v Kneisser
[2013] NSWLEC 211
•11 December 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Council of the City of Sydney v Kneisser [2013] NSWLEC 211 Hearing dates: 11 December 2013 Decision date: 11 December 2013 Jurisdiction: Class 3 Before: Craig J Decision: Orders as set out at [26]
Catchwords: CIVIL ENFORCEMENT - failure to comply with order given pursuant to s 121B(1) of the Environmental Planning and Assessment Act 1979 - brick fence required to be demolished - fence cracked and leaning into public street - likely that fence would collapse - likely to become a danger to the public - history of failed endeavours to contact respondent justify order that Council be permitted to demolish fence if order for demolition not obeyed by respondent Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW)
Local Government Act 1993 (NSW)Category: Principal judgment Parties: Council of the City of Sydney (Applicant)
Abraham Kneisser (Respondent)Representation: A Singh (solicitor) (Applicant)
No appearance (Respondent)
Council of the City of Sydney (Applicant)
No appearance
File Number(s): 40661 of 2013
EX TEMPORE JUDGMENT
By an amended summons filed on 27 September 2013, the Council of the City of Sydney (the Council) seeks orders against Abraham Kneisser concerning a fence erected on the boundary of a property known as 518 Cleveland Street, Surry Hills (the Property). Mr Kneisser is said to be the owner of the Property. When the matter was called today there was no appearance by or on behalf of Mr Kneisser.
The proceedings are brought under s 123 of the Environmental Planning and Assessment Act 1979 (the EPA Act). The Council claims that Mr Kneisser has failed to comply with an order given to him under s 121B(1) of the EPA Act, requiring that a brick wall or fence standing on the boundary of the Property with Ridge Lane, Surry Hills, be demolished. Failure to comply with an order given under that section constitutes a breach of the EPA Act: s 122(a).
Attempts at personal service of the summons and supporting affidavits upon Mr Kneisser were unsuccessful. On 27 September 2013, Sheahan J made an order for substituted service. Having read the affidavits sworn by James Twigg on 21 September 2013, 9 October 2013 and 11 November 2013 respectively, I am satisfied that the original summons, the amended summons and copies of all supporting affidavits relied upon by the Council have been served upon Mr Kneisser in accordance with the order for substituted service made on 27 September.
Bruce Ansted is a building inspector employed by the Council, a position he has held and exercised for the past 16 years. Part of his function as a building inspector has been the investigation of complaints relating to defective buildings. Mr Ansted has affirmed an affidavit on 6 November 2013, deposing to facts in support of the Council's proceedings.
Mr Ansted inspected the Property on 8 February 2012. While the Property has frontage to Cleveland Street, Surry Hills its rear boundary adjoins Ridge Lane, which is a public street in this State. Mr Ansted observed that a brick wall or fence was constructed on what appeared to be the common boundary between the Property and Ridge Lane. A large crack appeared to run for almost the full height of the wall or fence close to the adjoining property known as 516 Cleveland Street. Further, the wall or fence was observed to be leaning into Ridge Lane and, in the opinion of Mr Ansted, appeared as though it would collapse "as a result of the destabilising influence of the cracking and the lean."
Having made that observation, Mr Ansted went to the front of the Property and knocked on the front door of the dwelling in an endeavour to speak to the occupant. There was no response to his knock and so he left a card indicating his name and contact telephone number.
Upon return to his office, Mr Ansted formed the opinion that as the wall or fence was likely to collapse at some time in the future, demolition was required, as he could not determine any means by which it could be repaired satisfactorily to protect the safety of pedestrian and vehicular traffic in Ridge Lane.
On 21 February 2012 notice of an intention to issue an order under s 121B(1), Item 2 for demolition of the wall on Ridge Lane was sent to Mr Kneisser at the Property address. No response was received from Mr Kneisser to that notice. The notice of intention to give that order was sent to Mr Kneisser so as to meet the requirements of s 121H of the EPA Act.
In the absence of any response from Mr Kneisser, an order under s 121B(1), requiring that the wall or fence on the Property boundary with Ridge Lane be demolished, was forwarded by post to Mr Kneisser on 14 March 2012. The Council received no response as a result of this order being given.
The Property was again inspected by Mr Ansted on 2 April 2012. On that inspection Mr Ansted observed that no work had been undertaken on the wall or fence and that its lean into Ridge Lane appeared to be slightly more pronounced than he had observed to be the case in February of that year. Once again, contact with the occupant of the Property was attempted but there was no response to Mr Ansted's doorknock.
On 4 April 2012 Mr Ansted wrote to Mr Kneisser on behalf of the Council, drawing Mr Kneisser's attention to the order that had been given and the apparent failure to comply with it. Urgent attention was requested. The letter was addressed to Mr Kneisser at a post office box number in Surry Hills that was recorded on the Council's rate record for the Property. That letter was returned to the Council on about 1 May 2012 "in an open envelope marked 'return to sender' ".
On 2 May 2012 Mr Ansted attempted to contact Mr Kneisser on a mobile telephone number which he records in his affidavit. The call was not answered by Mr Kneisser but a message was left on an answering service to which the call was directed, with the request that Mr Kneisser contact Mr Ansted. Regrettably, no such contact was made.
A further notice of intention to issue an order under s 121B(1), requiring demolition of the boundary wall or fence between the Property and Ridge Lane was forwarded by post to Mr Kneisser on 1 August 2012. The notice indicated that if an order was issued, it would require compliance within 28 days. A response to the notice of intention to issue the order was sought within 14 days.
In the absence of any response from Mr Kneisser, an order under s 121B(1), Item 2(b), of the EPA Act was sent to Mr Kneisser by pre-paid post on 23 August 2012. This order was addressed to him at the post office box number recorded in the Council's records (cf s 710(2)(c) Local Government Act 1993). The order then given required, in terms, that the "brick fence fronting Ridge Lane" be demolished. The reasons expressed for the order were that the wall or fence was in a "defective/unsafe condition", showing "considerable lean and is at risk of falling onto Ridge Lane." Compliance was required within 28 days from 23 August.
Mr Ansted returned to the Property on 27 September 2012. He observed that the brick wall or fence on the Ridge Lane boundary had not been demolished and that the lean of the wall or fence into Ridge Lane appeared to have increased. As a consequence, he arranged for the Council to install barricades around the fence in Ridge Lane in order to protect Lane users in the event of fence collapse.
Further inspections of the wall or fence were carried out by Mr Ansted on 11 March 2013 and again on 29 October 2013. No work appeared to have been undertaken on the wall on either occasion, with the lean of the wall into Ridge Lane appearing to increase in that time. Photographs taken by Mr Ansted on each occasion appear to show a significant cracking with separation of the wall at the crack adjacent to 516 Cleveland Street. The barricade is shown to be in place in the vicinity of the wall or fence in Ridge Lane.
Observations made by Mr Ansted on his last visit indicated that the wall or fence in question appeared to retain a raised garden bed with a palm tree growing in that garden against the wall. That garden bed appeared to be about 1m in height and was being retained by the boundary wall or fence leaning into Ridge Lane.
Andrew McMillan is an Area Manager employed by the Council. In an affidavit affirmed by him on 7 November 2013, he stated that the rating records kept by the Council in respect of the Property included an email address for Mr Kneisser. On 2 October 2012 Mr McMillan forwarded an email to Mr Kneisser at that address, drawing attention to the order that had been served, requiring demolition of the wall or fence in question, and requesting that Mr Kneisser contact the Council concerning that work. No response was received by Mr McMillan nor did he receive any report indicating that the email had not been delivered.
Finally, I have read affidavits affirmed on 7 November 2013 and 10 December 2013 by Alexander Singh, the Council's solicitor, attaching letters addressed to Mr Kneisser concerning the order given by the Council and also advising of the date fixed for hearing of these proceedings. No response has been received to any of Mr Singh's correspondence. He has also annexed to his earlier affidavit a title search indicating Mr Kneisser to remain the registered proprietor of the Property. However, the rate record to which Mr McMillan referred, indicating Mr Kneisser to be the owner of the Property is, in the absence of evidence to the contrary, sufficient to prove that fact: s 151(1)(a) of the EPA Act. That position has been confirmed in evidence given before me today by Mr Ansted who deposes to the fact that he has searched the Council's rate records which reveal that Mr Kneisser was and remains the owner of the Property.
Having regard to this evidence, I am satisfied that an order made under s 121B(1), Item 2(b), of the EPA Act has been given by the Council to Mr Kneisser, requiring demolition of the brick wall or fence on the boundary between the Property and Ridge Lane and that Mr Kneisser has failed to comply with that order. The entitlement to give that order is predicated upon the Item to which it relates being a building. The brick fence or wall to which I have referred is clearly a structure and therefore is comprehended by the definition of "building" found in s 4 of the EPA Act. Although it may be unnecessary to do so, on the evidence provided by Mr Ansted, I am also satisfied that the wall or fence is in a condition such that it is likely to become a danger to the public using Ridge Lane.
A breach of the EPA Act has therefore been established. Conformably with the power available to the Court under s 124 of the EPA Act, it is appropriate that orders be made remedying that breach.
The Council is concerned that Mr Kneisser's failure to engage with it concerning the wall or fence may well result in a failure on the part of Mr Kneisser to comply with any remedial orders that I make. The history of failed endeavours to make contact with Mr Kneisser provides justification for that concern. By reason of the potential danger presented by the wall or fence, the Council seeks an order that in the event of non-compliance by Mr Kneisser, the Council be permitted to demolish the wall or fence and to recover its costs in so doing from Mr Kneisser.
I am satisfied that there is legal foundation for the Court to make an order of the kind sought by the Council. That foundation is found in s 121ZJ of the EPA Act, subsection (1) of which provides:
"(1) If a person fails to comply with the terms of an order given to the person under this Division, the person who gave the order 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."
The succeeding subsections of s 121ZJ then address the entitlement of the Council to deal with the materials removed, in the event of demolition, and to recoup the cost of work it undertakes. Importantly, subsection (11) of that same section enables the Court to order "the person who gave the order to exercise the person's functions under this section." I propose to make an order giving effect to the latter subsection.
The Council also seeks an order for costs in its favour. That order should be made.
For these reasons, I make the following orders:
1. Declare that the Respondent, as owner of the buildings on land known as 518 Cleveland Street, Surry Hills (the Property), has failed to comply with an order given to him on or about 23 August 2012 pursuant to s 121B(1) of the Environmental Planning and Assessment Act 1979 requiring demolition of a brick fence erected on or near the boundary of the Property with an adjoining public road known as Ridge Lane, Surry Hills, contrary to the provisions of that Act.
2. Order that, within 28 days from the date of this order, the Respondent by himself, his servants, agents or contractors demolish the brick fence erected on or near the rear boundary of the Property known as 518 Cleveland Street, Surry Hills, being the brick fence erected on or near the boundary of that Property with Ridge Lane, Surry Hills.
3. Order pursuant to s 121ZJ(11) of the Environmental Planning and Assessment Act 1979 that if the Respondent fails to comply with Order 2 of these orders, the Applicant, by itself, its servants, agents or contractors may enter the property known as 518 Cleveland Street, Surry Hills for the purpose of carrying out the work required by Order 2.
4. If the Applicant exercises the right to carry out demolition work pursuant to Order 3 of these orders:
(i) the Applicant may remove all debris, plants, soil and other material that is affected or destabilised by the removal of the brick fence and to dispose of that debris, plants, soil and other materials as it, in its discretion, sees fit;
(ii) the Respondent must pay the Applicant's reasonable costs of carrying out those works, such costs to be recoverable by the Applicant from the Respondent as a debt due by him to the Applicant.
5. Order that the Respondent pay the Applicant's costs of these proceedings.
6. Order that service of these orders may be effected by:
(i) forwarding a sealed copy of the orders in an envelope addressed to the Respondent and sent by pre-paid post to him at XXXXX X, Surry Hills NSW 2010;
(ii) affixing a sealed copy of the orders to the front door of the building at 518 Cleveland Street, Surry Hills; and
(iii) scanning a sealed copy of the Court's orders and forwarding that scanned copy for the attention of the Respondent to the email address XXXXX XXXX.
7. Reserve liberty to either party to apply on two working days' notice.
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Decision last updated: 13 December 2013
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