Fairfield City Council v Michael Patrick Keogh
[2013] NSWLEC 90
•20 June 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Fairfield City Council v Michael Patrick Keogh [2013] NSWLEC 90 Hearing dates: 11 April and 20 June 2013 Decision date: 20 June 2013 Jurisdiction: Class 4 Before: Pepper J Decision: The Court orders that:
(1) that within a period of forty (40) days from the date of this order, the respondent place and keep the premises at 8 Barkley Street, Carramar, NSW, in a healthy condition by cutting and/or slashing and removing the overgrown vegetation (grass) from the premises;
(2) an order that if the respondent does not comply with order 1 within the time referred to in that order, then pursuant to s 678(1) of the Local Government Act 1993 that the applicant enter the land and 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;
(3) an order that the applicant give the respondent seven (7) days written notice of any time that the applicant intends to enter the land and give effect to the terms of order 2; and
(4) an order that the respondent pay the applicant's costs of the proceedings as agreed or assessed.
Catchwords: CIVIL ENFORCEMENT: non-compliance with orders by council to cut and remove overgrown grass - whether order breached - whether appropriate to order compliance with order - whether appropriate to make further order for council to carry out the work required in the event of non-compliance by the respondent. Legislation Cited: Local Government Act 1993, ss 124, 132, 627, 672, 678 Cases Cited: Council of the City of Sydney v The Estate of the Late Alfred Sulligoi care of The Public Trustee [2007] NSWLEC 778
Manly Council v Moffit [2006] NSWLEC 184; (2006) 146 LGERA 215
North Sydney Council v Wouters [2012] NSWLEC 94
Waverley Council v Bobolas (No 2) [2009] NSWLEC 211Category: Principal judgment Parties: Fairfield City Council (Applicant)
Michael Patrick Keogh (Respondent)Representation: Mr J Thompson (Solicitor) (Applicant)
N/A (Respondent)
Ritchie & Castellan Solicitors (Applicant)
N/A (Respondent)
File Number(s): 40072 of 2013
Judgment
Mr Keogh Fails to Comply with an Order Issued by the Council to Cut and Remove Overgrown Grass On His Property
By summons filed 1 February 2013, the applicant, Fairfield City Council ("the council"), seeks to enforce the terms of an Order 21 dated 2 October 2012, issued under s 124 of the Local Government Act 1993 ("the LGA") ("the Order"). The Order was to, in effect, cut and remove overgrown grass on the property of the respondent.
The respondent, Mr Michael Keogh, is the registered proprietor of Lot 6 DP 13649, namely, 8 Barkley Street, Carramar, New South Wales 2163 ("the property").
On 3 August 2012, pursuant to s 132 of the LGA, the council served a Notice of Proposed Order on Mr Keogh to cut and remove the overgrown grass on his property. He did not reply to the Notice.
Thus on 2 October 2012, the Order was served on Mr Keogh by the council. It required him to:
Within a period of FORTY (40) DAYS from the date of the Order, place and keep the premises [at 8 Barkley Street, Carramar] in a healthy condition by cutting or slashing and removing the overgrown vegetation (grass) to avoid possible harbourage for vermin and remove the potential of a fire hazard.
The Order was not complied with.
Accordingly, the council commenced civil enforcement proceedings seeking compliance with the Order.
The proceedings have ultimately been resolved by Mr Keogh consenting to the orders sought by the council. However, given the history of these proceedings, as recorded below, it is nevertheless appropriate to provide brief reasons explaining why the relief sought by the council ought to be granted by the Court, even if agreed to by the parties.
History of the Proceedings
The council's process server attempted personal service of the summons and the council's affidavits on Mr Keogh on three separate occasions, namely 6, 7 and 8 February 2013. These attempts were unsuccessful.
On 1 March 2013 the Court ordered substituted service. Also on that day the council's solicitors served on Mr Keogh, by prepaid post addressed to the property, a letter informing Mr Keogh of the Court's orders made on 1 March 2013 together with sealed copies of the council's points of claim and the affidavits they relied upon.
On 4 March 2013, substituted service of the summons was effected by the council's process server on Mr Keogh.
Mr Keogh was ordered to file and serve any evidence and any points of defence of the claim by 20 March 2013. The Orders were not complied with and no documents had been filed by him as at the date of the hearing on 11 April 2013.
When the matter was initially before the Court on 11 April 2013, Mr Keogh was not present. This was unsurprising given his failure to attend Court on each of the previous occasions when these proceedings have been listed before the Court (on 1 and 8 March 2013).
The hearing was, however, required to be adjourned on that day because while the council was able to prove that he had been served with the summons, points of claim and the affidavits relied upon by it, the council was not able to prove that Mr Keogh had been made aware of the actual hearing date. The hearing was therefore vacated and a new date of 20 June 2013 was set down.
On 20 June 2013, when the hearing resumed, Mr Keogh was present.
Mr Keogh is in Breach of the Order
The evidence relied upon by the council as the basis for seeking relief demonstrates that no action whatsoever has been taken by Mr Keogh to comply with the terms of the Order. Failure to comply with the Order constitutes a breach of the LGA pursuant to s 672 of that Act.
In addition to an order compelling compliance, the council also seeks an order pursuant to s 678(1) and (10) of the LGA permitting it to enter onto the premises to undertake the works necessary in the event of Mr Keogh failing to comply.
Section 678(1) and (10) of the LGA provides:
678 Failure to comply with order-carrying out of work by the council
(1) If a person fails to comply with the terms of an order given to the person under Part 2 of Chapter 7, the council 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.
...
(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.
The Court has the power to make such an order (Waverley Council v Bobolas (No 2) [2009] NSWLEC 211 at [2]-[3]; Manly Council v Moffit [2006] NSWLEC 184; (2006) 146 LGERA 215 at [48]-[56]; Council of the City of Sydney v The Estate of the Late Alfred Sulligoi care of The Public Trustee [2007] NSWLEC 778 at [43] and North Sydney Council v Wouters [2012] NSWLEC 94 at [22]).
The current state of the premises, together with the prior history of non-compliance with the Order and similar orders by Mr Keogh, justifies the making of the orders sought by the council, for the reasons given below.
The Council Inspects Mr Keogh's Property
The council inspected Mr Keogh's property both during and following the completion of the 40 day compliance period specified in the Order dated 2 October 2012.
The council's Senior Investigations Officer, Mr Kenneth Collins, in his affidavit sworn 30 January 2013, gave evidence of:
(a) the council's land title search for Lot 6 DP 13649, confirming Mr Keogh as the registered owner of the property;
(b) the history of unsatisfactory maintenance of the premises, including overgrown vegetation and long grass dating back several years, and evidence of potential health and safety concerns detailed in written complaints made to council;
(c) the history of previous orders issued to Mr Keogh in the terms of the present Order, as well as two penalty infringement notices issued between 2008 and 2009 for similar reasons. Mr Keogh was convicted, fined $1,800 and ordered to pay costs in Local Court proceedings on 31 August 2010, at which there was similarly no appearance by Mr Keogh;
(d) most recently, prior to the issuing of the Order, the issuing of a Notice of Proposed Order under s 124 of the LGA was hand delivered on 7 May 2012 to the property. Mr Collins' evidence was that when he knocked on the door of the residence there was no response, notwithstanding the evidence of current residence at the property during this period (current newspapers and recent food wrappers in waste bins, and vehicles parked in the driveway) and of internal noises within the residence on 7 May 2012. Mr Collins spoke through the door and advised Mr Keogh of the seriousness of the issue, the ability of council to assist in finding someone to do the work for Mr Keogh and the consequences of not responding. A further attempt to make direct contact on 11 July 2012 was similarly unsuccessful, despite vehicles in the driveway suggesting current occupancy; and
(e) after issuing the Order, Mr Collins' inspected the property on 17, 24, 25 and 29 October 2012. On 17 and 24 October 2012 Mr Collins noticed that the grass had still not been cut and the vegetation remained overgrown. On 24 October 2012, Mr Collins requested the council's Acting Open Space Coordinator to cut the grass on the nature strip in front of the property. On 25 October 2012, Mr Collins again left a note on a council business card requesting Mr Keogh contact him and warning of the possibility of the matter being taken to Court and offering council's assistance in facilitating the clean up. When Mr Collins again inspected the property on 29 October 2012, he observed that the front footpath grass had been cut, but that grass on the property had not been cut and the property was still overgrown.
Photographs taken by Mr Collins of his observations were annexed to his affidavit.
The council's Environmental Investigations Officer, Mr Roger Kwan, in his affidavit sworn 31 January 2013, gave the following evidence, namely, that:
(a) on 24 July and again on 1 August 2012, he had undertaken inspections of Mr Keogh's property. On both occasions he observed that the property was heavily overgrown with long grass;
(b) on 3 August 2012 he issued and served a Notice of Proposed Order on Mr Keogh; and
(c) on 2 October 2012 no representations having been received by the council from Mr Keogh, he issued the Order.
Mr Kwan also deposed to the fact that he had inspected the premises on 12 November 2012, following the expiry of the 40 day compliance period. On that date, he inspected the property twice. He observed that the property was still overgrown with long grass and vegetation, as depicted in photographs annexed to his affidavit. By contrast he observed that neighbouring premises were kept in a clean and tidy condition.
Thus there had been no compliance by Mr Keogh with the council's Order by the expiry of the time specified within it.
Mr Roger Kwan provided a further updated affidavit sworn on 21 May 2013. The affidavit attached photographs of inspections of the property on 9 and 16 May 2013. On both occasion, Mr Kwan noticed that the grass had still not been cut. The photographs showed the grass to be long and unkempt. Attached were photographs of dead rats caught in traps laid in the adjoining property at 6 Barkley Street.
The Overgrown Grass is a Health Hazard
An affidavit sworn 21 May 2013 of Mr Nelson Mok, a Senior Environmental Health Officer at the council, was to similar effect. On 9 May 2013 he visited the property and inspected the front and rear yards of it from adjoining premises. Both the back and front yard areas were overgrown with grass to a height of about 0.7m. The foliage was dense. It was Mr Mok's opinion that the overgrown vegetation would provide habitat for rats, cockroaches and snakes. This was a problem because rats and cockroaches could infest nearby buildings, including other residential dwellings, and could be carriers responsible for the transfer of harmful bacteria and diseases to humans.
Mr Justin Back also swore an affidavit of 15 May 2013. Mr Back is employed by the New South Wales Rural Fire Service as an Inspector and Community Safety Officer for the Cumberland Zone, which covers the property. On 7 May 2013 he inspected the property. Relevantly, he observed grass growing to a height of approximately 0.7m close to the residential dwelling located on the property and within 2m of neighbouring dwellings. The grass was described by him as "very dense foliage". In his opinion this was problematic because this posed a safety concern not only for residents in the dwelling located on the property but also for neighbouring properties in the event of a fire occurring on any part of the property. It was Mr Back's opinion that in order to minimise the risk of human harm to the occupants of the property and those in close proximity, that the vegetation should be maintained by mowing the grass to ground level.
The Overgrown Grass is Affecting the Neighbours
The council further relied on affidavits from two adjoining property owners, namely, Mr Ahmed Aweida and Ms Anna Bergamin both sworn 16 May 2013.
Mr Aweida is the owner of the premises at 6 Barkley Street. He observed that the grass of the property is "now knee to waist high and is continuing to grow". He has observed insects, ants, cockroaches and rats coming from the property onto his premises. Specifically, he has observed rats running underneath the dividing fence between his property and Mr Keogh's property. As a consequence, he has had to put baited rat traps in his backyard to deal with the infestation. He has also noticed a bad smell emanating from the property. Finally, he is concerned that, during the summer when the grass dries, it may be a fire hazard.
Ms Bergamin is the daughter of Mrs Elizabeth Orlando. Mrs Orlando is the owner of premises at 6 McLaren Street, Carramar. Mrs Orlando is Ms Bergamin's elderly mother. Ms Bergamin visits her mother every day to care for her. Commendably, she usually stays between one to six hours with her mother during visits. The premises at 6 McLaren Street back onto Mr Keogh's property. Consequently, Ms Bergamin has a full view of the rear yard of the property. Ms Bergamin deposed that for the past four or five years the backyard of the property has been overgrown with long grass. That state is continuing. She has noticed ants and cockroaches coming onto her mother's property from 8 Barkley Street. This has required spraying of her mother's property approximately every two months. Similar to Mr Aweida, Ms Bergamin is concerned about the grass constituting a fire hazard, particularly in summer. She is particularly concerned because her mother's house is a weatherboard structure.
Mr Keogh Must Remove the Overgrown Grass on his Property
As stated above, it is clear that Mr Keogh has failed to comply with the Order served on him by the council on 2 October 2012. The evidence of the council demonstrates, in my view, that in its overgrown and unkept state, the long grass on Mr Keogh's property presents a risk to human health and safety insofar as it constitutes a potential, but nevertheless very real, fire hazard and it is harbouring vermin. Neither are acceptable.
In these circumstances, it is appropriate to make the consent orders, namely, that Mr Keogh be compelled to comply with the terms of the original Order. Furthermore, given Mr Keogh's long history of failing to comply with similar orders, that the council be permitted to do all things reasonably necessary to give effect to the terms of the relief, including the carrying out of any work required by the order, in the event of non-compliance.
It is therefore appropriate that the Court make, as agreed by the parties, an order compelling Mr Keogh to cut and remove the overgrown grass and as a precaution, as stated above, to make further orders pursuant to s 678(1) and (10) of the LGA.
Orders
The orders of the Court are as follows:
(1) that within a period of forty (40) days from the date of this order, the respondent place and keep the premises at 8 Barkley Street, Carramar, NSW, in a healthy condition by cutting and/or slashing and removing the overgrown vegetation (grass) from the premises;
(2) an order that if the respondent does not comply with order 1 within the time referred to in that order, then pursuant to s 678(1) of the Local Government Act 1993 that the applicant enter the land and 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;
(3) an order that the applicant give the respondent seven (7) days written notice of any time that the applicant intends to enter the land and give effect to the terms of order 2; and
(4) an order that the respondent pay the applicant's costs of the proceedings as agreed or assessed.
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Decision last updated: 20 June 2013
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