Fairfield City Council v Damevski
[2015] NSWLEC 64
•1 April 2015
|
New South Wales |
Case Name: | Fairfield City Council v Damevski |
Medium Neutral Citation: | [2015] NSWLEC 64 |
Hearing Date(s): | 10 March and 1 April 2015 |
Date of Orders: | 1 April 2015 |
Decision Date: | 1 April 2015 |
Jurisdiction: | Class 4 |
Before: | Preston CJ |
Decision: | Orders as set out at [52] |
Catchwords: | CIVIL ENFORCEMENT – council order to put land in safe and healthy condition – landowner failed to comply with order – Court orders landowner to comply with council order – in default, Court orders council to perform works |
Legislation Cited: | Local Government Act 1993 ss 124, 132, 136, 193, 672, 674, 678 |
Category: | Principal judgment |
Parties: | Fairfield City Council (Applicant) |
Representation: | Counsel: |
File Number(s): | 40714 of 2014 |
Publication Restriction: | No |
JUDGMENT
Mr Borce Damevski is the owner of land at 1 Usher Close, Abbotsbury, being Lot 2102 in Deposited Plan 740825. The land is in the local government area of Fairfield City.
The land is a typical suburban allotment on the corner of Usher Close and Darling Street in the residential suburb of Abbotsbury. A brick dwelling house has been erected on the land fronting Usher Close. The rear yard is adjacent to Darling Street. Some irregular fencing and a brick wall of a partly constructed building divide the rear yard from the dwelling and a small curtilage of land. The rear yard is, and has been for many years, heavily overgrown with grass and other vegetation and contains an accumulation of building materials, including timber, plastic, metal, tiles, bricks, and other materials.
Fairfield City Council (‘the Council’) has received many complaints over the last 15 years about the condition of the land. The Council has issued at least ten orders under s 124 of the Local Government Act 1993 (‘the Act’), seven in relation to cutting and removing overgrown vegetation and removal of the accumulation of building materials, and three in relation to demolition and removal of an unsafe wall and roof-framed structure in the rear yard.
The Council has issued two penalty notices to Mr Damevski and prosecuted him once in the Local Court for failures to comply with the orders requiring cutting and removal of overgrown vegetation and removal of building materials, and issued one penalty notice and brought several enforcement proceedings in this Court for failures to comply with the orders requiring demolition and removal of part of the building in the rear yard.
The Council's efforts to have Mr Damevski cut and remove overgrown vegetation and remove the accumulated building materials have largely been unsuccessful.
The Council's most recent attempt to take action, by giving yet another order under s 124 of the Act, and Mr Damevski's lack of response, are the foundations for these proceedings by the Council for orders to ensure that the land is placed in a safe and healthy condition.
On 10 October 2013, as required under s 132 of the Act, the Council gave notice to Mr Damevski of its intention to give an order under s 124 of the Act, the terms of the proposed order, and the period proposed to be specified as the period within which the order is to be complied with. The notice under s 132 was served at Mr Damevski's last known place of residence, at 10 Marshall Street, Kogarah.
Mr Damevski did not respond, including by making any representations to the Council as to why the order should not be given or as to the terms of or the period for compliance with the order.
On 28 October 2013, the Council gave an order under item 21 of s 124 of the Act to Mr Damevski in his capacity as the owner of the land (‘the Order’). The Order was served on Mr Damevski by prepaid post sent to his last known place of residence in Kogarah and also was sent to the land.
The Order required Mr Damevski to do the things specified in Schedule 1 of the Order within 30 days of the date of the Order. The things specified were to:
Cut/slash the overgrown grass and vegetation, remove clippings from the premises and remove the accumulation of materials consisting of timber, plastic, metal brackets, broken tiles, broken bricks, wrought iron fencing, rubble, metal corner strips, carpet underlay, broken windows and other miscellaneous refuse to an approved waste management facility.
The circumstances giving rise to the making of the Order were stated in the Order to be that: "The premises are not in a safe and healthy condition".
As required by s 136 of the Act, the Council gave Mr Damevski the reasons for the Order, which were:
1. There is overgrown grass and vegetation which may afford a harbourage for vermin and is a potential fire hazard; and
2. There is also an accumulation of materials consisting of timber, plastic, metal brackets, broken tiles, broken bricks, wrought iron fencing, rubble, metal corner strips, carpet underlay, broken windows and other miscellaneous refuse, which may afford a harbourage for vermin and/or create conditions prejudicial to persons or property in the immediate vicinity, removal of which was required as outlined in Consent Orders of the Land & Environment Court in 2009 as referred to and highlighted in the attached document.
On 6 December 2013, after the expiry of the period of 30 days from 28 October 2013 within which the Order was to be complied with, Mr Collins, a senior investigation officer employed by the Council, inspected the land and saw that Mr Damevski had not complied with the Order. Vegetation was still overgrown and the accumulation of building materials remained.
On 8 January 2014, Mr Damevski telephoned the Council and had a conversation with Mr Collins in which Mr Damevski said:
I have received the Order sent by Council in October. I went to the property before Christmas and I intend to return there to sort out what is required to be removed in accordance with the Orders of the Land and Environment Court and Council's Orders.
Later that day, Mr Collins sent an email to Mr Damevski at the email address Mr Damevski had provided. In that email, Mr Collins noted Mr Damevski's advice that he intended to return to the land to sort out the materials that are required to be removed from the land. Mr Collins urged Mr Damevski to clean the land of stored materials and remove overgrowth in compliance with the Order. Mr Collins warned Mr Damevski that enforcement action would be taken if he did not comply with the Order, which would be costly for Mr Damevski. Mr Collins said that in another recent enforcement action by the Council, costs in excess of $27,000 were incurred, which costs were ordered by the Court to be paid by the owner. Mr Damevski did not reply.
On 30 January 2014, Mr Collins emailed Mr Damevski inquiring where he was up to with the intended sorting and clean-up of the property. Mr Damevski did not reply.
On 20 February 2014, Mr Collins again emailed Mr Damevski. Mr Collins advised that the Council is in receipt of a petition by neighbouring residents concerning the problems created by the condition of the land and the material occupying the land as well as the cats that are apparently breeding and sheltering under the material and overgrowth. Mr Collins lamented that Mr Damevski has not replied to his emails or seemingly taken any action to clean up the property. Mr Collins urged Mr Damevski to take action to address the problems outlined in the Order and again advised him of the cost consequences if court action is required to enforce the Order.
The next day, 21 February 2014, Mr Damevski replied by email saying, "I am taking this matter seriously and will have an answer in concrete within a 4 week period or have the matter sorted beforehand."
Four weeks came and went with no answer from Mr Damevski. On 20 March 2014 and again on 26 March 2014, Mr Collins emailed Mr Damevski seeking a reply and advice as to what definite action Mr Damevski has taken to comply with the Order, but there was no response from Mr Damevski.
On 11 April 2014 and 4 July 2014, Mr Collins inspected the land and observed on each occasion that the Order had not been complied with by Mr Damevski: the accumulation of materials remained in the rear yard, which was overgrown with grass and vegetation.
Two neighbours also deposed to the unsafe and unhealthy condition of the land. Mrs Dignam lives in Darling Street directly opposite the land and is able to observe the accumulated materials and overgrown vegetation on the land. In September 2014, Mrs Dignam said:
I can see high piles of bricks, roof tiles and various building materials which are visible above the fence line. There is also visible white building material which may contain asbestos. I have also noticed an old vanity unit and other building materials resting against the back wall of the partially demolished unfinished house.
The rear yard of the property is overgrown with high grass which is never cut. This acts as a harbour for mice and rats. I have also noticed that a large number of stray cats live on the property and appears to be a breeding ground for them.
Mrs Dignam also said that she and other neighbours organised a petition complaining about the condition of the land, which was sent to the Council on 18 December 2013. The petition attached photographs showing the condition of the land.
Mr Watts lives in Usher Close, next door to the land. He deposed in September 2014 that from his house he “can see half constructed walls and piles of old building materials including bricks and old fencing material piled up on the property as it towers over our boundary fence". He said that the adjacent land is a source of cockroaches and mice that come onto his property. On windy days, airborne pieces of insulation or carpet underlay stored on the land and which have deteriorated fly onto Mr Watt's property.
Mr Watts also has noticed that “there is a massive family of cats living on the property. They continually breed and produce kittens. The cats enter our yard and use our garden as a toilet."
Mr Damevski's failure to comply with the Order under s 124 of the Act, by doing the things required within the period specified in the Order, constituted a breach of the Act: s 672 of the Act.
On 8 September 2014, the Council commenced these proceedings under s 674 of the Act to restrain and remedy the ongoing breach of the Order and the Act. The Council seeks: an order that Mr Damevski comply with the Order within 30 days of the making of the Court order; should Mr Damevski fail to comply with the Court's order, an order pursuant to s 678 of the Act, that the Council do all things as are necessary and convenient to give effect to the terms of the Order dated 28 October 2013, including the carrying out of any work required by the Order and recovery of expenses and costs incurred in carrying out the work; and an order that Mr Damevski pay the costs of the Council.
Mr Damevski did not appear at the hearing of the proceedings, either on the first day 10 March 2015 or today 1 April 2015, being the date to which the hearing was adjourned.
The Council has adduced evidence proving that Mr Damevski was served personally on 12 November 2014 with the summons, points of claim, and the affidavits of Mr Collins, Mrs Dignam and Mr Watts. The Court made directions on 28 November 2014, including listing the matter for a directions hearing on 13 February 2015. On 13 February 2015, the proceedings were listed for final hearing on 10 March 2015. Mr Damevski did not attend court on either 28 November 2014 or 13 February 2015.
On 13 February 2015, the Court granted leave to the Council to notify Mr Damevski of the hearing date on 10 March 2015 by affixing a copy of the directions made securely to the front door of the house at the land and leaving it with an adult occupier at the land. The Court also noted that the Council would make attempts to contact Mr Damevski by telephone to advise him of the hearing date. The Council adduced evidence establishing that it gave notice of the hearing date to Mr Damevski in accordance with the Court's directions of 13 February 2015.
Mr Willenberg, a licenced process server, said that on 25 February 2015 he served a copy of the short minutes of order made by the Court on 13 February 2015 and a letter by the Council's solicitors advising Mr Damevski of the Court orders, the hearing date on 10 March 2015, and the fact that the matter will be heard in his absence if he does not appear on 10 March 2015.
Mr Willenberg said that he served the documents by leaving them with a resident male at the house at 1 Usher Close, Abbotsbury. The resident gave his name as John Roftopoulos. Mr Willenberg said that he also telephoned Mr Damevski on his mobile telephone number. Mr Damevski did not answer, but Mr Willenberg left a message requesting him to call back. Mr Willenberg said that he has received no response.
Finally, Mr Willenberg said he sent a text message to Mr Damevski's mobile telephone advising him of the short minutes of order, the Court hearing date being 10 March 2015, and the manner in which the documents were served. Mr Willenberg said that the text message was successfully transmitted.
I am satisfied that Mr Damevski has been properly served with the summons, points of claim and affidavits in support, and notified of the hearing of the proceedings to commence on 10 March 2015, but has elected not to appear.
At the hearing on 10 March 2015, Mr Damevski did not appear. Mr Thompson, the Council's solicitor, appeared for the Council. He said that a council officer had visited the premises the day before the hearing and had spoken to the tenant at the home. The Council officer had been informed that the Commonwealth Bank might be moving to enter into possession of the premises because of financial difficulties of Mr Damevski. Mr Thompson sought an adjournment of the hearing to allow the Council to make inquiries about whether Mr Damevski had been declared bankrupt and whether the Commonwealth Bank had entered into possession of the property. I granted that application and adjourned the hearing until today, 1 April 2015.
At the adjourned hearing today, Mr Thompson said that yesterday, 31 March 2015, he had endeavoured to telephone Mr Damevski on his mobile telephone number to advise him of the adjourned hearing today. However, the mobile telephone number had been disconnected.
Another council investigations officer, Mr Reuben Sinai, visited the premises yesterday, 31 March 2015. Mr Sinai observed a Nissan Patrol car with an attached trailer parked in the driveway. He knocked on the front door of the house several times, but got no reply.
Mr Damevski was therefore unlikely to have known of the adjourned hearing today. However, I find that he was given notice as required by the Court of the first day of the hearing on 10 March 2015 and had he attended the Court then he would have been aware of the adjourned hearing date today.
Mr Thompson also informed the Court that the Council's inquiries revealed that Mr Damevski had not yet been declared bankrupt and the Commonwealth Bank had not yet entered into possession of the property. The hearing therefore could proceed without those impediments.
At the hearing today, the Council read the affidavit of Mr Collins establishing the giving to Mr Damevski of the Order and Mr Damevski's failure to comply with the Order. Mr Collins described the observations he made on his various inspections, and attached photographs, of the unsafe and unhealthy condition of the land before and after the giving of the Order.
As earlier noted, Mr Collins observed on 11 April 2014 and 4 July 2014 that Mr Damevski had not complied with the Order: the accumulated materials specified in the Order remained on the land and the overgrown grass and vegetation had not been cut and removed.
The Council also read affidavits of two neighbours, Mrs Dignam and Mr Watts. They too described the accumulation of materials and overgrown vegetation, as well as the mice, cats, and cockroaches infesting the land, and observed that, as at September 2014, Mr Damevski had not removed the materials or overgrowth. I have summarised the evidence of Mrs Dignam and Mr Watts earlier.
Mr Sinai also gave evidence of the current condition of the land. Mr Sinai inspected the land on 31 March 2015. He observed:
In the southern corner of the Premises, behind the main dwelling there were the remains of a brick structure. Piles of building materials were scattered around the area such as bricks, roof tiles, and wood. The grass surrounding the remains of the structure and the building materials was extremely overgrown. I took 11 photographs of the Premises during the above visit. Copies of these photographs, endorsed with identifying captions prepared by me, are annexed and marked “B”.
The annexed photographs showed, as the identifying captions stated, stacks of roof tiles at the rear, overgrown vegetation at the northwest corner of the house, the rear yard with stacks of bricks, tiles, timber and other building materials, overgrown grass, building materials within the remains of a brick structure, and building materials and overgrown vegetation at the rear.
I am satisfied on the evidence before the Court that Mr Damevski is in breach of the Act by failing to comply with the terms of the Order. Mr Damevski has failed to do the things required by the Order, of cutting/slashing the overgrown grass and vegetation, removing the clippings from the land, and removing the accumulation of materials of the kinds specified in the Order from the land to an approved waste management facility, within the 30 day period after the giving of the Order on 28 October 2013. Thereafter, Mr Damevski was in breach of the Order and hence the Act.
I am satisfied that the breach has continued to date. Mr Damevski has failed to cut and remove the overgrown grass and vegetation and remove the accumulated materials from the land. The overgrown vegetation and accumulated materials still remain on the land today. The breach of the Order and the Act are therefore continuing.
The orders sought by the Council are appropriate to restrain and remedy Mr Damevski's ongoing breach of the Order and the Act.
Although I am not hopeful, having regard to his past inaction, Mr Damevski should be given one last opportunity to remedy the breach himself by carrying out the work required by the Order. The period of 30 days is reasonable, both in terms of the time required to carry out the work, and having regard to the time he has already been given in the past to carry out the work.
If, however, Mr Damevski still fails to carry out the work required by the Order, it is appropriate for the Court to order, under s 678(10) of the Act, that the Council exercise its functions under s 678(1) of the Act to carry out the work required by the Order. If the Council does this work, it may recover the expenses of doing so from Mr Damevski under s 678(6) of the Act.
Hence, either by Mr Damevski doing the work himself or by the Council doing the work, the breach of the Order and the Act will be remedied.
Section 193 of the Act requires the Council to give the owner or occupier of premises written notice before a person authorised to enter premises under Pt 2 of Ch 8 of the Act does so. It is therefore appropriate to also order the Council to give seven days notice to Mr Damevski of any time the Council intends to enter the premises and carry out the work required by the Order.
The Council seeks an order that Mr Damevski pay the Council's costs of the proceedings. The proceedings are in Class 4 of the Court's jurisdiction where the usual order is that costs follow the event. The Council has been successful in establishing that Mr Damevski has breached the Order and the Act and in obtaining relief to restrain and remedy that breach. There are no circumstances that would disentitle the Council to the usual order for costs.
Accordingly, I make the following orders:
(1)Order the respondent to comply with the terms of the order given by the applicant in terms of order 21 under s 124 of the Local Government Act 1993 (‘the Act’) dated 28 October 2013 (‘the Order’) in respect of land at 1 Usher Close, Abbotsbury, being Lot 2102 in Deposited Plan 740825 (‘the Land’), within 30 days of the date of this order by the Court.
(2)Order the applicant under s 678(10) of the Act, if the respondent fails to comply with order 1 by carrying out all work required by the Order within the time specified by order 1, to exercise the applicant’s functions under s 678(1) of the Act to enter the Land and do all such things as are necessary and convenient to give effect to the terms of the Order, including the carrying out of the work required by the Order.
(3)Order the applicant to give the respondent seven days written notice of any time that the applicant intends to enter the Land and give effect to the terms of order 2.
(4)Order the respondent to pay the applicant's costs of the proceedings as agreed or assessed.
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Fairfield City Council v Damevski [2015] NSWLEC 64
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