Council of the City of Sydney v The Estate of the Late Alfred Sulligoi care of The Public Trustee

[2007] NSWLEC 778

Land and Environment Court

of New South Wales

CITATION:

Council of the City of Sydney v The Estate of the Late Alfred Sulligoi care of The Public Trustee and Anor [2007] NSWLEC 778
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:

APPLICANT
Council of the City of Sydney

FIRST RESPONDENT
The Estate of the Late Alfred Sulligoi c/o The Public Trustee

SECOND RESPONDENT
Livio Sulligoi

FILE NUMBER(S):

40397 of 2006

CORAM:

Pain J

KEY ISSUES:

Section 121B Order :- Residential premises - order to repair dilapidated verandah not complied with - whether Council should be ordered to exercise its functions under s 121ZJ of the Environmental Planning and Assessment Act - power of Court to make order requiring Council to enter dwelling - whether order for forced entry into dwelling should be granted

Civil enforcement :- residential premises - order under s124 of the Local Government Act requiring removal of rubbish and discarded items not complied with - whether Council should be ordered to exercise its functions under s 678(10) of the Local Government Act - power of Court to make order requiring Council to enter dwelling - whether order for forced entry into dwelling should be granted

Practice and Procedure :- whether proceedings should proceed ex parte

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 4, s 118J, 121AJ(7), s 121B, s 121ZJ, s 121Y, s 151(1)
Land and Environment Court Rules 1996 Pt 2, Pt 6 r 1
Local Government Act 1993 s 124, s200, s 678(10)
Supreme Court Rules 1970 Pt 8 r 10, Pt 8 r 16
Wills, Probate and Administration Act 1898 s 61

CASES CITED:

CDJ v VAJ (1998) 197 CLR 172;
Deveigne & Anor v Askar [2007] NSWCA 45;
Knight v FP Special Assets Ltd (1992) 174 CLR 178;
Manly Council v Moffitt (2006) 146 LGERA 215;
PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301;
Shannon v Lithgow City Council (1995) 88 LGERA 253

DATES OF HEARING:

7 November 2007
14 November 2007 (written submissions)

 
DATE OF JUDGMENT: 

30 November 2007

LEGAL REPRESENTATIVES:

APPLICANT
Ms L Byrne (Solicitor)
SOLICITORS
Council of the City of Sydney

FIRST RESPONDENT
No appearance

SECOND RESPONDENT
No appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

30 November 2007

40397 of 2006 Council of the City of Sydney v The Estate of the Late Alfred Sulligoi and Anor

JUDGMENT

1 Her Honour: This Class 4 application seeks declarations and orders in relation to two separate statutory orders issued by the Council in relation to land in Lot B in DP 320793 known as 12 Arcadia Road Glebe (the premises).

2 The following issues are raised in the matter as follows:

(i) The first order was issued under s 121B of the Environmental Planning and Assessment Act 1979 (the EP&A Act) (the s 121B EP&A Act order) to Mr Alfred Sulligoi. The Council seeks a declaration it has not been complied with and an order under s 121ZJ(11) of the EP&A Act that it be authorised to enter the premises and conduct repairs and rubbish removal in order to effect the terms of the s 121B EP&A Act order. This may require forced entry to the premises.
(ii) The second order was issued under s 124 of the Local Government Act 1993 (the LG Act) (the s 124 LG Act Order) to Mr Livio Sulligoi. The Council seeks a declaration that the s 124 LG Act order has not been complied with. Further the Council seeks pursuant to s 678(10) of the LG Act an order that the Council execute its functions under s 678, requiring entry onto the premises by the Council’s environmental health officer for the purpose of itemising materials that constitute a risk to health and safety and the subsequent removal of these items by Council. This will require forced entry to the premises.

History of orders and proceedings

3 The Council relied on the following affidavits of:

(a) Bruce Ansted, Building Compliance Officer, sworn 6 July 2006, 17 July 2007, 7 August 2007 and 30 August 2007;

(b) Bradley Jones, Compliance Officer, sworn 14 August 2007, 30 August 2007, 20 September 2007, 28 September 2007, 6 November 2007;

(c) Boguslaw Robert Dudek, Environmental Health Surveyor, sworn 10 August 2007;

(d) Jonathon Hassett, neighbour at 10 Arcadia Road, Glebe, sworn 21 August 2007, 8 September 2007;

(e) Louise Byrne, Senior Solicitor, sworn 24 July 2007, 10 August 2007.

4 The Council’s solicitor has provided a useful chronology of events based on the affidavit material which is set out below.

DATE	EVENT	REFERENCE
2 May 2005	Service of Notice of Intention to make s121B EP&A Act order served on Alfred Sulligoi	Affidavit Bruce Ansted, 6/7/06
5 Aug 2005	Service of s121B EP&A Act order No 4 (EP&A Act Order) on Alfred Sulligoi	“ “
18 Jan 2006	Conversation of Bruce Ansted, Council officer, with Mr Alfred Sulligoi	“ “
May 2006	Class 4 proceedings commenced	Court record
22 Sep 2006	Orders made by Pain J	Court record
17 July 2007	Proceedings restored to the list by Notice of Motion	Court record
20 July 2007	Council obtains Births, Deaths and Marriages search and discovers Mr Alfred Sulligoi died on 2 February 2006	Affidavit LM Byrne, 24/7/07
24 July 2007	Service of s124 LG Act order No 22A on Livio Sulligoi	Affidavit BR Dudek, 10/8/07
25 July 2007	Order by Jagot J substituting the name of the Respondent to “Estate of the Late Alfred Sulligoi, c/o The Public Trustee”	Court record
9 Aug 2007	Time for compliance with s124 LG Act order No 22A expires	Affidavit BR Dudek, 10/8/07
17 Aug 2007	Personal service on Mr Livio Sulligoi by the neighbour, Mr Hassett, of motion for joinder and Council’s s124 LG Act order	Affidavit JF Hassett, sworn 21/8/07
5 Sept 2007	Order by Pain J joining Mr Livio Sulligoi as Second Respondent, leave to file in court “Further Amended Application Class 4”	Court record
21 Sept 2007	Order by Pain J that proceedings can continue against the Estate without representation of the Estate under SCR Pt 8 r16(1)(a)	Court record
28 Sept 2007	Matter listed for call-over before Registrar, set down for hearing on 7 November 2007	Court record
31 Oct 2007	Letter advising Mr Livio Sulligoi of court hearing enclosing “Further Amended Application Class 4” posted on door of 12 Arcadia Rd, Glebe and hand delivered to other Glebe addresses	Affidavit BS Jones, 6/11/07
5 Nov 2007	Observation that Council’s letter advising of hearing removed from front door	Affidavit BS Jones, 6/11/07

5 The Class 4 application was dated 16 May 2006. The original application listed Alfred and Valeria Sulligoi as Respondents but Valeria Sulligoi was later removed from the proceedings as she had died. On 22 September 2006 the Court declared that the Respondent had failed to comply with the s 121B EP&A Act order and the s 124 LG Act order. The Court also made orders that the s 121B EP&A Act order and the s 124 LG Act order be complied with. Subsequently the Council learned that Mr Sulligoi had passed away on 2 February 2006. On 25 July 2007 Jagot J ordered the substitution of the name of the Respondent with “The Estate of the Late Alfred Sulligoi, c/o the Public Trustee” under Pt 8 r 10 of the Supreme Court Rules 1970 (the Supreme Court Rules) which applies in this Court by virtue of the Land and Environment Court Rules 1996 (the Court Rules) Pt 6 r 1.

6 On 5 September 2007 the Court joined Mr Livio Sulligoi, son of Mr Alfred Sulligoi, as the Second Respondent to the proceedings under Pt 8 r 8 of the Supreme Court Rules. I also allowed the Council to rely on the Further Amended Class 4 Application which seeks orders enforcing the s124 LG Act order served on Mr Livo Sulligoi. On 21 September 2007 I ordered, pursuant to Pt 8 r 16(1)(a) of the Supreme Court Rules, that the proceedings could continue in the absence of a person representing the estate.

7 The Court had the benefit of a view of the premises and neighbouring properties during the hearing. The Class 4 application seeks costs of the proceedings. This part of the application is not pressed in this part of the proceedings.

Should hearing proceed ex parte?

8 As neither Respondent appeared at the hearing on 7 November 2007 it was first necessary to determine if the matter should proceed ex parte on the day of the hearing. The Council’s solicitor applied at the hearing for the matter to be heard ex parte.

9 As identified above, Mr Alfred Sulligoi is deceased and the proceedings are now brought against his estate. There was no appearance by the estate. The estate is vested in the Public Trustee under s 61 of the Wills, Probate and Administration Act 1898 until probate or letters of administration have been issued. The Public Trustee has not filed a Notice of Appearance. Correspondence dated 26 July 2007 and 31 July 2007 between the Council and the Public Trustee was tendered. The letter from the Council to the Public Trustee informed that office of progress in the matter and asked it to apply for letters of administration or probate. In its letter of 31 July 2007 the Public Trustee stated that it did not wish to participate in these proceedings. I ordered on 21 September 2007 that the matter could proceed in the absence of a representative of the estate of Mr Alfred Sulligoi. At the hearing I considered it was appropriate to proceed ex parte in relation to the estate of Mr Sulligoi in relation to the s 121B EP&A Act order.

10 The Second Respondent, Mr Livio Sulligoi, did not appear at any stage of these proceedings after he was joined as a party in relation to the s 124 LG Act order, including at the hearing.

11 The efforts made to bring the s 124 LG Act order and these proceedings to the attention of the Second Respondent are set out in the affidavits of Mr Dudek sworn 10 August 2007; Mr Ansted sworn 7 August 2007 and 30 August 2007; Mr Hassett sworn 21 August 2007; and Mr Jones, sworn 14 August 2007, 20 September 2007, 28 September 2007 and 6 November 2007.

Evidence of the address of the Second Respondent

12 The affidavit of Ms Byrne sworn 10 August 2007 annexed printouts from the Council's property records concerning rates. The records list Mr Livio Sulligoi as ratepayer for three other properties in Glebe, Unit 3,1 Charlton Way, Unit 9, 2-6 Sheehy Street, and Unit 13, 20-24 Sheehy Street. The premises at 12 Arcadia Road are listed as the mailing address for Mr Livio Sulligoi on each of these records.

Service of the s 124 LG Act Order

13 Mr Dudek stated that the s 124 LG Act order was posted to Mr Livio Sulligoi at the premises and at 3/1 Charlton Way on 27 July 2007, in accordance with Council’s standard procedures for service of notices by mail.

Service of Order for Substitution and Proposed Orders relating to s 121B EP&A Act Order

14 In his affidavit of 7 August 2007, Mr Ansted stated that he attended the premises on 6 August 2007 and knocked but received no answer. He affixed to the door the Court orders of 25 July 2007 substituting the estate for Mr A Sulligoi as Respondent, a draft of the orders sought by the Council for the carrying out of work by the Council under s 121 ZJ(11) and a letter from the Council advising of the next court date, 8 August 2007.

15 In his affidavit of 14 August 2007 Mr Jones deposed that he attended the premises on 13 August 2007. He then attended the address at Charlton Way and tried to use a security system to contact Mr Livio Sulligoi but was unsuccessful. After a conversation with a neighbour, he formed the view that Mr Sulligoi had not been seen recently at that address. He then attended Unit 9, 2-6 Sheehy Street Glebe and tried to contact the owner Mr Livio Sulligoi without success. After speaking with a neighbour he formed the view that Mr Livio Sulligoi did not reside there.

Service of Motion for Joinder of Mr Livio Sulligoi

16 In his affidavit of 30 August 2007, Mr Ansted stated that he attended the premises on 17 August 2007 and knocked but received no answer. He affixed to the door a letter from the Council advising that it sought to join Mr Livio Sulligoi to these proceedings and that the matter would next be before the Court on 24 August 2007 as a notice of motion dated 10 August 2007 seeking an order that Mr Livio Sulligoi be joined to these proceedings with supporting affidavit of Ms Byrne of 10 August 2007 annexing extracts from the Council's rates records as noted above, and Mr Dudek's affidavit of 10 August 2007.

17 Mr Ansted stated that on 30 August 2007 he attended the premises again and knocked but received no answer. He affixed to the front door a letter from the Council stating that it sought to join Mr Livio Sulligoi as a party and advising of the next Court date, 31 August 2007. He also put this letter into the letter box at Unit 3, 1 Charlton Way.

18 In his affidavit of 21 August 2007 Mr Hassett stated that he knows Mr Livio Sulligoi and he is the neighbour living next door at 10 Arcadia Road, Glebe. On 17 August 2007 he saw him in the front yard of the premises watering plants. He said to Mr Sulligoi that he had some papers which he had been given by the Council to serve on him concerning proceedings in this Court. Mr Sulligoi ignored him. Mr Hassett placed the documents on the boundary wall between 10 and 12 Arcadia Road, Glebe. They included a copy of the notice of motion of 10 August 2007 seeking an order that Mr Livio Sulligoi be joined in these proceedings with a supporting affidavit of Ms Byrne of 10 August 2007 annexing extracts from the Council's rates records as noted above and Mr Dudek's affidavit of 10 August 2007. The following day Mr Hassett observed that the papers were in the same position as he had left them. He took them and attached them to his affidavit.

Motion for proceedings to continue in absence of a person representing the estate

19 In his affidavit of 20 September 2007 Mr Jones stated that during his visit to the premises on 19 September 2007 he saw documents on the ground at the front door including his affidavit of 14 August 2007 which had previously been affixed to the front door. He photographed this. He knocked on the front door a number of times but did not hear anything or see anyone. He affixed the notice of motion dated 18 September 2007 to the front door. The notice of motion sought an order that service of the notice on him was effected by affixing it to the front door at 12 Arcadia Road, Glebe and that Mr Livio Sulligoi was appointed to represent the estate otherwise the proceedings may continue in absence of a person representing the estate. Mr Jones stated that he then attended unit 3, 1 Charlton Way, Glebe and tried to contact the owner/occupant Mr Livio Sulligoi, but was unsuccessful. He pushed the notice of motion under the door. He put copies of the notice of motion under the doors at both Sheehy Street, Glebe addresses also.

20 In his affidavit of 28 September 2007, Mr Jones stated that he attended the premises on 25 September 2007 and saw documents including his affidavit on the ground as before. He knocked on the door but could not raise anyone. He affixed to the front door the Court orders of 21 September 2007 (which set a callover date for the fixing of a hearing date and ordered that the proceedings continue in the absence of a person representing the estate) and a letter from the Council advising of the callover date. He then attended 1 Charlton Way, Glebe and attempted to contact Mr Livio Sulligoi without success. He saw a single letter in the letterbox and formed the opinion that the box was regularly cleared. He put the letter from the Council and the Court orders into the letterbox. He then attended the units at 20-24 Sheehy Street and 2-6 Sheehy Street, Glebe, but was unable to contact Mr Sulligoi. He put the letter and Court orders in the letterbox at each address. I infer that "Livio" and "Silvio" both referred to the same person in the affidavits of Mr Jones.

Notice of final hearing date

21 In his affidavit of 6 November 2007 Mr Jones stated that he made similar efforts on 31 October 2007 but was unable to raise anyone at any of the addresses above. He affixed to the front door of 12 Arcadia Road, Glebe a letter from the Council dated 30 October 2007 advising the Second Respondent of the hearing date and that orders could be made in his absence. A copy of the further amended Class 4 application was enclosed with the letter. On 5 November 2007 he attended the premises again and saw the documents of 30 October 2007 on the ground. Mr Jones then put the letter into the letterbox at each of the three other addresses in Glebe.

22 As identified in the summary of evidence above at par 12-21, extensive efforts had been made to notify Mr Livio Sulligoi of each step in these proceedings including the final hearing date. I held that the hearing should proceed ex parte on 7 November 2007. I will now consider the two orders the subject of this application.

EP&A Act s 121B order – Alfred Sulligoi/Estate of Alfred Sulligoi

23 An order may be issued by a council under s 121B order 4 of the EP&A Act which provides:

121B Orders that may be given by consent authority or by Minister etc
(1) An order may be given to a person by:
(a) a council

to do or to refrain from doing a thing specified in the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table.

Column 1	Column 2	Column 3
To do what?	In what circumstances?	To whom?
… 4 To repair or make structural alterations to a building	… (a) Building is or is likely to become a danger to the public (b) Building is so dilapidated as to be prejudicial to its occupants or to persons or property in the neighbourhood	… Owner of building

121ZJ Failure to comply with order—carrying out of work by consent authority
. . .
(11) In any proceedings before the Land and Environment Court that are brought by a person who gave an order against another person as a result of the other person’s failure to comply with the order, the Court may, at any stage of the proceedings, order the person who gave the order to exercise the person’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.

(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.

Evidence

24 The affidavit of Mr Ansted sworn 6 July 2006 sets out the early events relating to the s 121B EP&A Act order. Mr Ansted stated that on or about 14 April 2005, the Council received a complaint about rotting timber on the verandah at the rear of 12 Arcadia Road, Glebe. A Notice of Intention to Give an Order under s 121B of the EP&A Act was served on Mr and Mrs Alfred Sulligoi by Mr Ansted on 2 May 2005. The s 121B EP&A Act order was subsequently served on Mr Alfred Sulligoi on 5 August 2005 and is annexed to Mr Ansted's affidavit of 6 July 2006. Mr Sulligoi was at that time the owner and occupant of 12 Arcadia Road, Glebe.

25 The Council’s order stated:

The terms of the Order are :

Reason for the Order:

The time for compliance with the order was 28 days.

26 Subsequently Mr Ansted wrote to Mr Alfred Sulligoi to state that the compliance period had expired and the work had not been carried out. He also visited Mr Sulligoi at Unit 3, 1 Charlton Way, Glebe and advised him of the work needing to be carried out. He made various other attempts to contact Mr Sulligoi but received no response apart from a phone call on about 18 January 2006 in which Mr Sulligoi said he was waiting for quotes. As at 6 July 2006, the work required by the s 121B EP&A Act order had not been carried out and Mr Ansted had not received any further response from Mr Sulligoi.

27 Mr Ansted swore an affidavit of 17 July 2007. He stated that he inspected the premises on 5 July 2007 in response to a complaint from an adjoining neighbour. It did not appear to him that the work had been carried out. He also inspected the premises from the adjoining property on 11 July 2007 when he saw that the verandah had further deteriorated since 2006 as one of the posts had fallen away. He formed the view that the verandah was at risk of collapse and must be demolished as a matter of urgency. He stated that:

if the verandah collapses there is a risk of debris falling into the neighbour's property causing damage to the building and any persons who happen to be in the courtyard at the time.

The verandah was about 2m from the adjoining property at 10 Arcadia Road, Glebe. He obtained a structural engineer's report, annexed to his affidavit, which recommended works to be carried out urgently to assure the safety of the building.

28 The Council also relied on an affidavit of Mr Hassett, the occupant and owner of the adjoining property at 10 Arcadia Road, Glebe, sworn 8 September 2006. Mr Hassett stated:

it is apparent to me that the beams supporting the first-floor balcony have rotted through and have already partially collapsed. It is only a matter of time before those beams collapse, and when they do, the collapse will bring down sections of roofing and parts of the verandah. Those materials will fall, potentially, over the wall fence and onto my property.

29 He stated that his laundry door, through which his wife and children regularly pass, is directly in the line of potential collapse. He stated that the property at 12 Arcadia Road, Glebe was in an advanced state of disrepair when he began living next door in 1987.

Council’s submissions
(i) "Regularity" of proceedings against estate

30 The Council’s solicitor argued the orders sought should be made as the proceedings have been regularised and are now brought against the estate of Mr Alfred Sulligoi. The Council acted as soon as it became aware that Mr Sulligoi was deceased. This fact was unknown when proceedings were commenced (Byrne affidavit 24 July 2007). Property title searches showed Mr Alfred Sulligoi was the owner of the premises. Further, s 151(1)(a) of the EP&A Act provides that evidence that a person is rated in respect of any land is evidence that the person is owner of the land. Under s 121Y, orders made under s 121B continue to have effect against successors in title.

31 A decision which the Council considered should be brought to the Court’s attention was the Court of Appeal in Deveigne & Anor v Askar [2007] NSWCA 45. Mr Deveigne was deceased at the time proceedings were commenced against him in the District Court on 9 February 2000. The appeal concerned inter alia the efficacy and enforcement of a costs order brought in the name of the deceased the entitlement to which was claimed by the NRMA as insurer.

32 The Council’s solicitor submitted that this decision is authority for the proposition that although proceedings which are commenced against a deceased person are irregular, they are not a nullity where the deceased is not the sole defendant but merely a nominal defendant and a “real” defendant exists, per McColl JA at [176-180]. Irregularity can be cured prior to the making of orders such that the orders have legal force and effect: McColl JA [176] – [180]. However orders that are made in the name of a deceased person, or orders giving effect to an application in the name of a deceased person, are a nullity where the Court could not make the orders of its own volition: McColl JA [173] – [175]. McColl JA noted at [185] that NRMA may be joined as a party. However the Court did not exercise its discretion to regularise the proceedings because the NRMA had not acted promptly to discover or inform the Court of Mr Deveigne’s death.

33 The Council submitted that proceedings commenced against a deceased person can be regularised but the court in its discretion might not make such an order in that party’s favour if they have not acted promptly on discovering the fact that the proceedings were irregularly commenced. In this case the Council did act promptly to regularise the proceedings once it knew Mr Alfred Sulligoi was deceased.

(ii) Exercise of Court’s discretion to make orders

34 In relation to the exercise of the Court’s discretion to make the orders sought there is clear evidence in the Council’s affidavits of the dangers posed by the verandah in its present state, and this danger has worsened over time.

35 The Council wishes to restore the verandah rather than demolish it as the building is in a heritage conservation area identified in the relevant local environmental plan. The terms of the orders sought include painting, rubbish removal and other activities likely to be incidental to the repair work the subject of the original order so that the works are described in slightly broader terms than the s 121B EP&A Act order. This it to overcome any uncertainty where work consequential on the repair work is undertaken.

(iii) “Forced entry” under the EP&A Act and the LG Act

36 The Council does not have a key to the locked house on the premises and it will be necessary to force the door open to enter the house. Both the EP&A Act Pt 6 Div 1A and the LG Act Ch 8 Pt 2, make provision for council’s powers of entry for the purposes of a council exercising its functions. Both contain fairly restrictive powers of entry to any part of any premises that are being used for residential purposes, in similar terms: see s 118J EP&A Act and s 200 LG Act as follows:

118J In what circumstances can entry be made to a residence?
The powers of entry and inspection conferred by this Division are not exercisable in relation to that part of any premises being used for residential purposes except:
(a) with the permission of the occupier of that part of the premises, or
(b) if entry is necessary for the purpose of inspecting work being carried out under a development consent (including a complying development certificate), or
(c) under the authority conferred by a search warrant, or
(d) if an application for a building certificate has been made under section 149B in respect of premises used for residential purposes and entry is necessary for the purpose of inspecting the premises in order to issue a building certificate in accordance with sections 149A–149E.
200 In what circumstances can entry be made to a residence?
The powers of entry and inspection conferred by this Part are not exercisable in relation to that part of any premises being used for residential purposes except:
(a) with the permission of the occupier of that part of the premises, or
(b) if entry is necessary for the purpose of inspecting work being carried out under an approval, or
(c) under the authority conferred by a search warrant.

37 “Premises” is similarly broadly defined in both Acts to mean a building or any part of it or land: s 4 EP&A Act; Dictionary to the LG Act.

38 However these proceedings are not concerned with a council’s powers of entry as limited by Pt 6 Div 1A of the EP&A Act. They concern the power of the Court to order the Council to give effect to the terms of an order pursuant to s 121ZJ. If in making such an order the Court is in effect ordering a council to force entry to residential premises, it is not pursuant to a power of entry under Part 6 Division 1A but is pursuant to the power of the Court under Pt 6 Div 2A – Orders. Clearly an order by the Court for the Council to carry out the terms of a s 121B EP&A Act order may require the Council, by its servants, contractors and agents, to enter “part of premises that is used for residential purposes”. Such a court order may also require the Council, by its servants, contractors and agents, to employ force to enter residential premises.

39 It is a fundamental rule of construction that a grant of power to a court should be liberally construed and not limited by implication: PMT Partners Pty Ltd (in liq) v Australian National Parks and Wildlife Service (1995) 184 CLR 301 at 312 per plurality; Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 185 per Mason CJ and Deane J; at 205 per Gaudron J; CDJ v VAJ (1998) 197 CLR 172 at [110].

40 The power of the Court to order the council to “carry out its functions” under s 121ZJ(1) of the EP&A Act, that is, “to 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”, would be unduly constrained and frustrated if it did not imply the Court has power to order the Council to enter residential premises, by force if necessary. That does not mean that the Court (and the Council as a party to any such proceedings) ought not be mindful of the scope and seriousness of this power. However orders can be framed in such a way that appropriate notice is given to a party who may be living in any part of the premises the subject of the order.

41 Alternatively, there is no evidence that any person is actually living in any part of the terrace house at 12 Arcadia Road, Glebe, and therefore there may be no part of the premises that “is being used for residential purposes” within the terms of s 118J of the EP&A Act and s 200 of the LG Act. Although Mr Alfred Sulligoi is now deceased, he was alive at the time of service of the s121B EP&A Act order and a neighbour, Mr Hassett, deposed in his affidavit of 8 September 2006 at paragraph 6, that Mr Alfred Sulligoi had not regularly lived there since his wife died (which was on 4 July 2003, see affidavit Byrne, 24 July 2007, par 2).

42 True it is that Council served the s 124 LG Act Order on Mr Livio Sulligoi, the Second Respondent, in his capacity as occupier of the subject premises at 12 Arcadia Road, Glebe and the order is directed to “residential premises”. However the definition of “occupier” under the LG Act does not require the person to be in residence but merely have ‘the charge, management or control of the premises’: see also Shannon v Lithgow City Council (1995) 88 LGERA 253.

43 Biscoe J has held that none of the provisions in Ch 8 Pt 2 of the LG Act (with respect to power of entry) limit the power of the Court to make an order under s678(10): Manly Council v Moffitt (2006) 146 LGERA 215 at [5]. Biscoe J concluded that a council can only obtain such an order in respect of residential premises by approaching the Court: Moffitt at [6]. The textual similarities between s 121ZJ of the EP&A Act and s 678 of the LG Act and the provisions of each Act with respect to a council’s powers of entry support a similar finding to that of Biscoe J in Moffitt in this case. Although the Court is not bound to follow a decision of another judge, judicial comity supports this consistent approach.

44 In contrast to the s124 LG Act order, the s 121B EP&A Act order is not specifically directed to residential premises. It is specifically directed to a “building”. To constrain the Court’s power to order a council to give effect to the terms of that type of order by limiting entry to the premises to the backyard, for example, and not allowing entry to the building, would unduly constrain the council’s contractors, servants or agents in giving effect to the terms of the order and to carry out any of the work required by the order: s121ZJ(1) and s121ZJ(11) EP&A Act.

Finding on s 121B EP&A Act order

45 The Council seeks an order to enable it to carry out its functions enforcing the terms of the s 121B EP&A Act order. The terms of the order are set out above. The effect of the order if made is that the Council would engage a contractor to undertake the building repair works at a cost of approximately $60,000 according to the quotation tendered by the Council’s solicitor at the hearing. The amount spent by the Council will become a debt payable to the Council under s 121AJ(7) of the EP&A Act.

(i) Proceedings against the estate of Mr Alfred Sulligoi

46 These proceedings were commenced against Mr Alfred Sulligoi who, unknown to the Council, was then deceased. As identified in the Council’s submissions at par 25 the Council acted promptly to ensure the proceedings were amended by Court order on 25 July 2007 to be brought against his estate. It is appropriate that I determine the matter. Deveigne to the extent it applies supports this approach. That decision can be distinguished to some extent because it involves the relationship between an insured and an insurer under the Motor Accidents Act 1988.

(ii) Exercise of discretion

47 There is non-compliance with the s 121B EP&A Act order and it is clear from the Council’s evidence identified at par 27-29, which includes an engineering report, that the structural work on the verandah is essential given that an important supporting column for the upstairs verandah has fallen over. This could be seen clearly on the view conducted by the Court. The building has been allowed to fall into an advanced state of disrepair and the verandah is now so dilapidated that it is prejudicial to its occupants or to persons or property in the neighbourhood, the circumstances referred to in item 4 column 2 in s 121B. I consider that I should exercise my discretion to make orders enabling work to be undertaken.

48 Given that the work required is extensive and will involve the removal of a large number of items from private property and work by a private contractor, a suitable regime for access and supervision of the work is needed in the Court’s orders. The issue also arises of whether the Court can or should order forced entry to the premises. Access to the rear yard of the premises does not require forced entry but if access to the house were needed then forced entry through a door or window would be needed.

(iii) Forced entry

49 I set out above at par 36-44 the Council’s submissions in relation to forced entry for both the LG Act and EP&A Act as the two are closely connected and both arise in this case as an order under each Act is sought to be enforced. This appears to be the first case where the Court is being asked to make orders enabling forced entry into a house pursuant to s 121ZJ(11) of the EP&A Act. Access to the backyard to do work on the verandah is somewhat similar to the facts in Moffit which considered s 200 and s 678(10) of the LG Act. That case was concerned with the removal of rubbish from around a house. Biscoe J held that it was necessary to approach the Court for orders to enter residential premises in order to enforce a s 124 LG Act order unless one of the exceptions in s 200 applied but that the Court’s powers were not limited by s 200. In Moffit there was no forced entry to any residence required as access was only necessary to the yard area and there is no reference to it being locked in the judgment.

50 I am considering the equivalent section of s 200 of the LG Act in the EP&A Act, s 118J, which states that powers of entry and inspection under “Division 1A - Local Enforcement Powers” are not exercisable in relation to the part of premises used for residential purposes unless in specified circumstances which do not include the enforcement of s 121B orders. The Council is seeking to enforce the s 121B order in this Court as provided for by s 121ZJ(11).

51 I accept the Council’s submissions on the existence of the Court’s powers to make orders which enable a forced entry into residential premises because the scope of the Court’s powers to enforce s 121B orders must be broadly interpreted if the orders able to be issued under s 121B are to be given effect. While the cases referred to by the Council in par 39 concerning the desirability of giving broad scope to the Court’s powers in different circumstances, I agree that failing to apply a broad interpretation of the Court’s power to enable forced entry may render enforcement of a s 121B EP&A order ineffective. As identified by the Council at par 44 a s 121B EP&A order can be made in relation to a building. In this case, for the s 121B EP&A Act order to be enforced a forced entry could be necessary and should be provided for. I find that the limitation in s 118J of the Council’s powers to enter residential premises does not limit the Court’s powers to make orders under s 121ZJ(11).This reasoning is analogous to that in Moffit concerning the Court’s powers to enforce s 124 LG Act orders. The circumstances of this case requires additional orders to allow forced entry. The Council has provided detailed orders and further clarification of these is necessary in light of the need for forced entry. Appropriate orders must allow for supervision of access and notification to the relevant police station of what is to occur.

52 While orders allowing forced entry are on one view somewhat draconian I agree with the Council’s submissions at par 41-42, based on the affidavit evidence of the Council’s officers and the neighbour at 10 Arcadia Street, that it does not appear that anyone is living at the premises. Forced entry is therefore likely to have less impact than if someone were living there.

The s 124 LG Act Order

53 The s 124 LG Act order served by the Council on Mr Livio Sulligoi relates to the accumulation of waste in and around the premises. Section 124 of the LG Act provides:

A council may order a person to do or to refrain from doing a thing specified in Column 1 of the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table.
…

Orders requiring the preservation of healthy conditions

Column 1	Column 2	Column 3
To do what?	In what circumstances?	To whom?
… 22A To remove or dispose of waste that is on any residential premises or to refrain from keeping waste on those premises …	… The waste is, in the opinion of an environmental health officer (within the meaning of the Public Health Act 1991), causing or is likely to cause a threat to public health or the health of any individual …	… Owner or occupier of the premises …

54 The Council seeks an order enabling it to exercise its functions under s 678 of the LG Act . Section 678 (10) provides:

678 Failure to comply with order—carrying out of work by the council
(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.

Evidence

55 Mr Dudek, Council's Environmental Health Surveyor, swore an affidavit of 10 August 2007 and gave oral evidence. In his affidavit Mr Dudek stated that on 23 July 2007 he attended the premises and observed items accumulated on the front porch including old computers, microwaves and other electrical equipment. There were household items such as books, empty plastic bottles, and baskets stacked to a height of about 2m. There were toasters, bags, pillows and other items including clothing, as well as empty and half empty food containers. He took a series of photographs which were attached to his affidavit. He also spoke to the neighbour at 10 Arcadia Road and took photographs from that property's backyard. At the back of the premises he observed accumulation of rubbish on the back verandah and disused cars, car parts and batteries. It appeared that some rooms had rubbish stacked from the floor to at least half the window height including bedding, rugs, timber plastic bags and household refuse. He took further photographs.

56 He then issued an order under s124 of the LG Act, Order 22A, dated 23 July 2007, to Mr Livio Sulligoi. He stated that from the Council’s records and evidence from the neighbours, the Council reasonably believed that Mr Livio Sulligoi was the occupier of the premises. The Order stated:

Terms of the Order:
1. Within 14 days you are to remove or cause removing from inside the residential premises located at 12 Arcadia Road GLEBE NSW 2037:

(a) all of newspapers, carton boxes, cardboard and paper and cardboard packaging, including food packaging;
(b) all rugs, old curtains, old bedding and linen, all disused clothes and materials that are filling the space of habitable rooms and corridors;
(c) all of plastic bags whether empty or full, all accumulation of plastic containers, crates, tubs and other plastic waste;
(d) all disused white goods, waste building materials, timber and all other items not normally forming part of residential or household furnishing.

2. Within 14 days, you are to remove or cause removing from the front porch and back yard of the premises located at 12 Arcadia Road GLEBE NSW 2037:

(e) all putrescible waste such as old food and food containers whether full or empty;
(f) all plastic bags whether empty or full; and all accumulation of plastic containers, crates, tubs and other plastic waste;
(g) all disused white goods, electric and electronic implements, computer parts, electric cables and accessories;

(h) all car bodies, car parts and car accessories including an accumulation of disused car batteries;
(i) all any loose combustible material such as wood, timber, plastic pots, boxes and paper.

3. Refrain from accumulating any further materials such as those specified in Item 1 and Item 2 above, at the residential premises and at the land forming part of those premises.

Reason for the Order:
1. The waste is, in the opinion of an environmental health officer (within the meaning of the Public Health Act 1991 ), causing or is likely to cause a threat to public health and the health of any individual by:

(a) providing harbourage for vermin; and/or
(b) posing a fire hazard,
(c) posing a safety hazard,
(d) causing the spread of disease by micro-organisms

57 The time for compliance with the order was 14 days. Mr Dudek stated that on 9 August 2007 he inspected the premises and took further photographs. He saw that the materials at the front had not been removed. There was more material including food containers that obstructed access to the front door. These appeared to contain rotten food. As environmental health surveyor, he was concerned that this presented an imminent risk to public health.

58 In his oral evidence Mr Dudek stated that he issued the s 124 LG Act order to prevent the risk to public health for four reasons: to prevent the harbouring of vermin; to prevent a fire hazard from the accumulation of rubbish; to prevent a safety risk to the occupants of the premises; and to prevent the spread of disease. He stated that the entry to the premises was unsafe due to the accumulation and stacking of items in a haphazard manner. He pointed to putrescible food matter visible in the photographs taken by him, which could harbour vermin, flies and cockroaches. He stated that these could spread microorganisms such as E. coli. He noted that other photographs showed a fire hazard caused by the accumulation of newspaper, rugs, curtains and other things mixed with food containers containing putrescible matter.

59 In his affidavit of 8 September 2006, Mr Hassett stated that a large colony of rats lives amongst the rubbish and regularly invade his property. He has been setting traps to combat this problem for two years. There are also wild bees on the premises which fly over his backyard. He stated that he had observed Mr Sulligoi collecting rubbish from bins, which he then stacked at the front and back of his property.

60 The Council also relied on an affidavit of Mr Jones, Council Compliance Officer, sworn 6 November 2007. Mr Jones stated that on 31 October 2007 he attended the premises and saw an extensive quantity of discarded items including microwaves, computer drives, recyclable plastic bottles and foodstuffs on the front patio and in front of the main entrance. He annexed photos showing these items to his affidavit. The presence of extensive rubbish is also set out in each of Mr Jones' earlier affidavits.

Council’s submissions

61 Mr Livio Sulligoi, the occupier of the premises, has been served with the s 124 LG Act order and has not complied with it. The order has been issued due to concern about the impact of the premises on public health given the accumulated rubbish outside and inside the residence which attracts vermin, is a fire risk, and unsafe because it is unsecured. The Court has power to make orders pursuant to s 678(10) which require forced entry into residential premises in order to comply with a s 124 LG Act order. These submissions are set out above at par 36-44.

Finding

62 Mr Livio Sulligoi is an occupier of the premises as defined in the EP&A Act, s 4. Section 4 defines occupier to include “ a tenant or other lawful occupant of premises, not being the owner”. The Council’s rates records attached to the affidavit of Ms Byrne sworn 10 August 2007 list 12 Arcadia Road, Glebe as his mailing address. He has been seen on the premises watering the garden by his neighbour Mr Hassett. It is clear from the photographs attached to the numerous affidavits of the Council’s officers that someone is attending to the premises as some of the items left around the front door change. That person is, I infer, likely to be Mr Livio Sulligoi.

Exercise of discretion

63 The evidence that the s124 LG Act order has not been complied with is clear from the Council’s affidavit evidence as set out above at par 55-60. It was also clear from the view taken by the Court of the premises. The build up of rubbish and various accumulated items inside the house and outside the house on the premises is substantial. The affidavit and oral evidence of Mr Dudek set out at par 55 emphasised that there are public health and safety risks as a result of the state of the premises. The neighbour Mr Hassett’s evidence raised concerns about rats coming onto his property from the premises. I consider the s 124 LG Act order should be enforced.

Forced entry

64 Forced entry to the house on the premises is necessary as the door is locked and the Council does not have a key. The circumstances are similar to those in Moffit except that the orders to be enforced did not require forced entry in order to be given effect. The Council’s submissions in relation to forced entry are set out above at par 36-44 as the same issue arises under both the s 124 LG Act and the s 121B EP&A Act. It is appropriate for the same reasons as I gave in relation to the s 121B EP&A order at par 51 that I also make orders which allow forced entry of the premises in order to give effect to s 124 LG Act order. My comments are par 52 above also apply.

65 The Council has provided detailed orders it asks the Court to make. The orders require a Council officer to catalogue the items in the house and remove those items and rubbish in the house. While the Council has provided detailed orders for access these require further amendment and I will discuss these with the Council’s legal representative before finalising the orders.

19/12/2007 - extra catchword "s 96 modification" inadvertently included - Paragraph(s) coversheet