Council of the City of Sydney v Le
[2010] NSWLEC 78
•25 March 2010
Land and Environment Court
of New South Wales
CITATION: Council of the City of Sydney v Le [2010] NSWLEC 78 PARTIES: APPLICANT
Council of the City of Sydney
RESPONDENT
Tien Luy LeFILE NUMBER(S): 40951 of 2009 CORAM: Pain J KEY ISSUES: CIVIL ENFORCEMENT :- ex parte hearing - declaration of non-compliance with terms of order issued under Local Government Act 1993 to keep premises in safe and healthy condition - consequential orders to carry out removal of waste - costs LEGISLATION CITED: Local Government Act 1993 s124, s678(10) DATES OF HEARING: 25 March 2010 EX TEMPORE JUDGMENT DATE: 25 March 2010 LEGAL REPRESENTATIVES: APPLICANT
Mr A Hawkes (sol)
SOLICITOR
Council of the City of SydneyRESPONDENT
No appearance
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESPain J
25 March 2010
EX TEMPORE JUDGMENT40951 of 2009 Council of the City of Sydney v Le
1 Her Honour: The Council of the City of Sydney filed a summons on 11 December 2009 against Mr Le in which a declaration is sought concerning non-compliance with the terms of an order pursuant to s 124 Pt 21 of the Local Government Act 1993 (the LG Act) issued by the Council. The section allows the Council to issue an order requiring a person to do something or refrain from doing something as specified in an order to ensure that land is or premises are placed or kept in a safe or healthy condition. The order can be issued in a situation where the land or premises are not in a safe or healthy condition. Such an order may be issued to the owner or occupier of land or premises. Consequential orders are sought pursuant to s 678(10) of the LG Act in relation to carrying out the work in the absence of the Respondent carrying it out.
2 I should note for completeness that at the beginning of the hearing Mr Le did not appear before me, his name was called outside the Court and there was no response. In support of an application to proceed ex parte, that is without Mr Lee present, Mr Hawkes has provided to me exhibits that support that application. I note that Sheahan J made orders on 26 February 2010 for substituted service of the summons. By affidavit of Mr James Twigg sworn 19 February 2010, service in accordance with the order for substituted service has been effected on premises at 11 Cameron Street Banksia.
3 Further, I am informed by Mr Hawkes and I accept that he had a meeting with Mr Le on 17 March 2010 and he has provided in exhibit A, a handwritten letter from Mr Le given to him on that day. I accept his evidence, essentially from the bar table, that he made it clear to Mr Le on 17 March 2010, that the matter was listed for hearing today. I also note that I was provided in exhibit B with an email response from Mr Hawkes to Mr Le dated 18 March 2010 where he refers again to the letter which is exhibit A.
4 In light of the fact that it appears Mr Le is aware of the matter proceeding today and taking into account the matter has been going on for sometime, which evidence I will refer to shortly, I considered the matter should proceed ex parte. I therefore determined to hear the matter today.
5 In terms of the evidence the Council relies on in support of the orders and declaration sought in the summons, I have been provided usefully with a short chronology. This sets out the lengthy history in relation to the Council seeking to have rubbish and other material removed from the Respondent’s premises. I note those premises are for commercial use and have been used for a cafe. I also note from the chronology and from the affidavit of Jaskirin Kaur Bajwa, Environmental Health Officer at the Council of the City of Sydney, dated 18 March 2010 that a fire occurred at those premises at some time prior to 11 August 2008.
6 The affidavit of Ms Bajwa provides an extensive history of the matter, including all her many investigations in relation to the premises since 2008. She also identifies the correspondence and formal notices and orders sent to the Respondent, which are otherwise identified in the chronology handed up by Mr Hawkes.
7 The chronology provided by Council identifies that there has been an issue with the state of the premises from June 2008. This resulted in a notice of intended order being issued, a final order under s 124 of the LG Act being issued, a penalty infringement notice being issued, further warning letters being issued by the Council’s Environmental Health Department, a legal letter concerning court action being sent, resulting finally in the Class 4 proceedings before me today. The chronology is as follows:
20 June 2008 Fire on premises - abandoned
1 September 2008 Notice of Intended Order
6 November 2008 Order issued
31 March 2009 PIN issued
15 October 2009 Warning letter issued by Environmental health
23 November 2009 Legal letter before action
11 December 2009 Class 4 issued
10 February 2010 Orders for substituted service
15 February 2010 Substituted service effected
19 February 2010 Le email to Environmental health requesting adjournment
23 February 2010 Letter to Le refusing to adjourn
17 March 2010 Meeting with Le24 February 2010 Exchange of emails inviting le to enter into consent orders
8 At par 35 of Ms Bajwa’s affidavit she refers to inspections of the premises on 28 October and 2 and 10 November 2009. She sets out in a table, the various items of waste materials that remained on the premises at that stage. There are thirteen items set out in the table in par 35, where Ms Bajwa describes each item and states her view on the condition of the item. I should note for completeness that Ms Bajwa is providing this affidavit as part of her responsibilities as an Environmental Health Surveyor. I note that her duties are to investigate complaints made by the public in relation to nuisance, odour nuisance, air pollution, premises which are unsafe or unhealthy, a result of waste accumulation or excessive vegetation. The matters that she attests to in her affidavit fall squarely under the powers of the Council specified in s 124 of the LG Act to deal with accumulated waste on premises.
9 The observations in her affidavit about the subsequent inspections carried out by her confirm that there is still an accumulation of items of waste and other material on the premises. This represents in her opinion a health hazard which would result in harbourage of vermin and also create a fire hazard.
10 In light of that evidence I consider I should make the order, in slightly amended terms from those sought by the Council. The Council has satisfied me that I should make the declaration sought that there has not been a compliance with the order issued under s 124 of the LG Act to Mr Le and that there is a need for orders to ensure that the waste is removed, to be made under s 678(10) of the LG Act.
Orders
11 The Court makes the following Declaration:
- 1. A declaration that the Respondent has failed to comply with the terms of an Order dated 6 November 2008 and served on the Respondent by the Applicant pursuant to s.124.21 (“ the section 124 order ”) of the Local Government Act 1993 ( the Local Government Act ), copy attached hereto in relation to premises known as 5 Union Street, Pyrmont ( “the subject premises” ).
12 The Court makes the following orders:
- 1. Pursuant to s 678(10) of the Local Government Act 1993, the Council of the City of Sydney, by its servants, contractors and agents (“Council”) is ordered to execute Council’s functions under s 678 by carrying out the work which is required to be carried out upon premises known as 5 Union Street, Pyrmont (“the subject premises”) by the section 124 Order dated 6 November 2008 issued to the Respondent in accordance with the timetable and procedures set out below.
2. Order 2 is to be stayed for a period of 12 days (Tuesday 6 April 2010) to enable the Respondent to carry out the work required to be carried out by the section 124 Order.
- Timetable and Procedures
(i) Within 21 days (Tuesday 27 April 2010) after the above stay expires, Council’s Environmental Health Officer, and his or her nominee are to enter the subject premises for the purposes of identifying any items or material within the subject premises which, in their opinion, constitute a risk to health or may provide harbourage for vermin or pose a serious fire hazard. Council’s Environmental Health officer and his or her nominee are to take photographs of the subject premises, and the items and materials within the subject premises, at the time of entry.
(ii) Council’s Environmental Health Officer and his or her nominee are to prepare a list of items and materials based on their inspection in (i) and are to serve the list on the Respondent by affixing the list to the front door of the subject premises giving him a further period of 7 days (Tuesday 4 May 2010) to remove the listed items from the subject premises.
(iii) Failing the Respondent removing the said items in the list in the time stipulated, Council by its nominated officers, contractors and agents, will then enter the subject premises with the assistance of a locksmith if necessary and remove the items as set out in the said list.
(iv) Failing repair of the boundary fence by the Respondent, Council will then after removal of the aforesaid items, repair the boundary fence
(v) Council by its nominated officers, contractors and agents, shall be entitled to enter the subject premises between the hours of 7AM and 6PM Monday to Friday from the date first entered under these orders and Council shall be entitled to so enter the subject premises until the Order is complied with to Council’s satisfaction. Photographs are to be taken of materials as they are removed and of the subject premises, to the extent practicable, during the removal process.
4. The Applicant is to give the local Police 5 days’ written notice of its intention to enter the subject premises in accordance with these Orders for the purpose of carrying out the works.
5. The Respondent, by himself and by his servants and agents is restrained from doing any act which might interfere with or impede the entry by the Applicant, its servants, contractors and agents on the premises and then remaining on the subject premises pursuant to these orders and which might interfere with or impede them in complying with these orders.
6. The Respondent is to pay the Applicant’s costs of the proceedings as agreed or assessed.
7. The Court grants liberty to Council to apply for the Court to consider specifying the amounts in Orders Nos 3 and 6.
2
0
1