Council of the City of Sydney v Perette

[2010] NSWLEC 133

Land and Environment Court

of New South Wales

CITATION:

Council of the City of Sydney v Perette [2010] NSWLEC 133

PARTIES:

APPLICANT
Council of the City of Sydney

RESPONDENT
Marino Perette

FILE NUMBER(S):

40341 and 40514 of 2010

CORAM:

Sheahan J

KEY ISSUES:

INJUNCTIONS AND DECLARATIONS :- failure of owner-occupier to comply with Council orders under two statutes in respect of unhealthy and unsafe premises; respondent notified of proceedings, but failed to attend

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Local Government Act 1993

DATES OF HEARING:

27 July 2010

EX TEMPORE JUDGMENT DATE:

27 July 2010

LEGAL REPRESENTATIVES:

APPLICANT
Mr A Hawkes, Solicitor
SOLICITORS
Council of the City of Sydney

RESPONDENT
No appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Sheahan J

27 July 2010

40341 and Council of the City of Sydney v
40514 of 2010 Perette

EXTEMPORE JUDGMENT

1 His Honour: The Council has commenced three sets of proceedings against the respondent, Mr Marino Perette, who owns two residential properties in Council’s area – 13 Norton Street, Surry Hills, in which he appears to reside, and 88 Arthur Street, Surry Hills, which appears to be vacant and locked up.

2 Both are understood to be freehold and unencumbered, and to have been owned by the respondent since the 1960s.

3 There is some overlap in the evidence filed in all three matters, but only two of the three matters are today before the court for determination (Matters 40341 and 40514 of 2010), both of which concern 13 Norton Street.

4 The third proceedings (Matter 40340 of 2010) concern unanswered orders under s 124.21 and s124.22A of the Local Government Act 1993 in respect of vegetation and rubbish at 88 Arthur Street, Surry Hills. Those proceedings currently stand adjourned for further attention by the List Judge on 10 September 2010.

5 In respect of 13 Norton Street, Matter 40341 was commenced on 5 May 2010, and concerns a revised s 124.22A order in respect of rubbish (dated 21 December 2009 – Exhibit C1). Matter 40514 was commenced on 30 June 2010, and concerns an order under s 121B.4(a) and (b) of the Environmental Planning and Assessment Act 1979 in respect of the allegedly unsafe structure at 13 Norton Street (order dated 8 December 2009 – Exhibit C2).

6 Both sets of proceedings seek the usual orders regarding Council carrying out the necessary work at the respondent’s expense and restraining the respondent from impeding them.

7 The affidavits and a statutory declaration filed with the court across both these matters establish the following.

8 The respondent is the registered owner of the Norton Street premises, lives in them, pays the rates, and is aware of both proceedings, and of their listing today. He apparently collects his mail, and relevant communications have been forwarded to him in both Italian and English.

9 Russell Stone of 15 Norton Street hears Mr Perette daily and sees him every few days. He deposes that he has conversed with him in English. He has noted the accumulation of rubbish floor to ceiling. The house is infested with mice and rats and constitutes “an enormous fire risk” about which he is “genuinely concerned” for the health and safety of Mr Perette and the safety of the property and neighbouring properties. It was apparently Mr Stone who brought the problems with these premises to Council’s notice in March and/or April 2008.

10 Marie De Bella, a tertiary teacher, affirms that she lives at 11 Norton Street with her husband and two young children. Her husband Guissepe was also an early complainant to the Council. She also sees Mr Perette on a regular basis and frequently hears him. He spends most of his time on the enclosed balcony at the front of the premises. He chants and raises his voice in Italian, and has his radio on in the early mornings and late afternoons. She has seen the accumulated “rubbish”. The back rooms are also visible from the balcony of No.14 Griffin Street and also contain “rubbish”. He can’t completely open his front door because of “rubbish” in the corridor. He has been seen leaving home with mail in his hands. She has found dead mice, rats and pigeons outside the home, and has never seen him leave out a garbage bin for collection. She witnessed the police knocking on the door without success.

11 Nichola Hooker is an Environmental Health Surveyor formerly employed by the applicant Council. She has a Bachelor of Science (Microbiology) degree. She went to Norton Street on 23 October 2009 with a Council Building Surveyor, Joe Pignone, and engaged on the telephone an Italian speaking translator, Mr Tony Libero, who interpreted her conversation with Mr Perette. She deposes that he appeared to be very old, was holding a walking stick, but was very coherent, despite being a little hard of hearing on the left side. He was talkative, but she also observes (in par 8 of her affidavit) that he reeked of alcohol. Mr Perette gave permission for Mr Pignone and herself to enter the premises. The front door could be opened only about 50cm and she took photographs from the doorway. Mr Pignone ventured into the property and took photographs up the stairway. Mr Perette said he had been “waiting for Council to clear up for me”. He confirmed that the house was serviced by electricity. He said he was too sick to do the work himself. He said he had had a heart operation at St Vincents, and had problems with his eye. When told that Council could do the work, but not for free, he said he would rather shoot himself than pay Council to clean up. When told that Council had resorted to legal proceedings he threatened to “get a rope and hang myself on the tree in the front”. (They also conversed on that occasion about 88 Arthur Street).

12 Joseph Pignone’s affidavit of 19 May 2010 records that he is a Building Surveyor employed by the Council since October 2006. He describes his visit on 23 October 2009 with Ms Hooker. He spoke basic Italian, and Mr Perette gave him permission to go inside and he took photographs of the staircase. He observed “numerous items such as clothing, light fittings, pieces of furniture, electrical cables, kitchen utensils, books, food containers and plastic bags which obstructed access and made entry to the house very difficult”. Mr Perette was reluctant to let Mr Pignone go upstairs to his bedroom, but Mr Pignone opines “that would have been difficult in any event because the stairs was (sic) littered with numerous items which I considered made it too dangerous to walk up, because I could not even see the treads of the stairs”. Photographs taken by Mr Pignone are annexed to Ms Read’s affidavit of 10 June.

13 Adrian Mihaila, a former policeman now working as a compliance investigator, is the Council’s principal witness in Matter 40514. He took photographs of the premises on 1 July, which are annexed to his affidavit of 5 July. The roof guttering had dislodged and there was a dilapidated small awning on the attic window, partly dislodged. The supporting beam of the front balcony appears to have changed shape and was starting to give way. The window frames are off-alignment. Mr Mihaila gave sworn oral evidence today and explained the threats and dangers visible in his photographs. Roof iron, glass louvres, and much of an attic window structure appear in imminent danger of falling on to the public footpath.

14 Denise Read (Council’s specialist Health Surveyor since December 2008) attended the premises on 4 May 2010. She could hear a radio playing inside, but no-one answered the door. She shouted through the letterbox and still no-one responded. She detected an offensive odour. Her search of Council records confirmed that Mr Perette owns and resides there.

15 Council documents annexed to Ms Read’s second affidavit dated 10 June 2010 show that Council officers have been trying without success to establish contact with Mr Perette to negotiate a resolution of their concerns about the premises since the original complaint on 28 March 2008.

16 The meeting with him on 23 October 2009 was achieved only by happenstance, but Mr Perette confirmed he had received all Council’s orders (see Read affidavit, fol 32).

17 I am satisfied that the current situation concerning these premises constitutes serious risks to Mr Perette himself, to his property, to his neighbours, to their property, to passers-by, and to public health.

18 The declaration and orders proposed by Mr Hawkes in each matter are entirely appropriate, including the costs orders, but I would add a requirement that when entry is obtained the Council officers should be accompanied not only by police personnel, but also by community health personnel (as was proposed by Council in July 2009).

19 I will hand down to Mr Hawkes his two draft sets of orders, with my amendments endorsed upon them, so that he might re-engross them and submit them to me in Chambers later today for my signature and sealing. If any non-substantive refinement is needed, it can be attended to in Chambers.

20 The two exhibits should remain in the respective court files, unless required to facilitate copying for attachment to the orders.

21 [Discussion about how to secure attendance of health, or perhaps welfare, workers].

22 I shall add the words “if possible” to the amendment I made in that regard.