Fairfield City Council v Phan & Anor

[2008] NSWLEC 145

Land and Environment Court

of New South Wales

CITATION:

Fairfield City Council v Phan & Anor [2008] NSWLEC 145

PARTIES:

APPLICANT:
Fairfield City Council

FIRST RESPONDENT:
Thi Nguyen Phan

SECOND RESPONDENT:
Minh Ai Tran

FILE NUMBER(S):

40965 of 2007

CORAM:

Lloyd J

KEY ISSUES:

Civil Enforcement :- residential dwelling - serious structural distress - unsafe for occupation - non-compliance with an order issued under s 121B of the Environmental Planning and Assessment Act - necessary repairs - personal circumstances - not sufficient for non-compliance - public safety is paramount

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 121B

DATES OF HEARING:

3 March 2008

EX TEMPORE JUDGMENT DATE:

3 March 2008

LEGAL REPRESENTATIVES:

APPLICANT:
A J J Thompson (solicitor)
SOLICITORS:
Richie & Castellan

RESPONDENTS:
In person
SOLICITORS:
N/A

JUDGMENT:

- 2 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

Monday, 3 March 2008

LEC No. 40965 of 2007

FAIRFIELD CITY COUNCIL v PHAN & ANOR [2008] NSWLEC 145

EX TEMPORE JUDGMENT

1 HIS HONOUR: In this case the applicant, Fairfield City Council, seeks an order that the respondents, Mr Thi Nguyen Phan and Ms Minh Ai Tran, comply with an order issued under s 121B of the Environmental Planning and Assessment Act 1979 upon them by the council on 8 November 2006. The relevant facts may be briefly described.

2 On 1 November 2001, the council granted development consent to the respondents’ development application to erect a two storey residence at No. 124A Hughes Street, Cabramatta. That consent was subsequently modified by the council. The respondents are the registered owners of the property and subsequently applied for a construction certificate from the council, the council having been nominated by them as the principle certifying authority. The council issued a construction certificate on 13 February 2002. As the principle certifying authority, the council inspected the building works on a number of occasions, but no occupation certificate has been issued. The building has been substantially erected and it is now apparent that there are a number of serious defects within the building.

3 On 22 April 2004, a letter was sent by the builder, Full Brick Homes Pty Limited, to the council advising it that they are the builders who constructed the building and that “the owners have not paid us the final payment and there is legal action taking place”.

4 According to the evidence I have heard this morning from the respondents, the legal action is still continuing and is pending in the Supreme Court.

5 On 29 September 2006, the council served the respondents with notice of intention to serve an order specifying things that had to be done to put the premises into a safe condition. There was no response to the notice of intended order. On 8 November 2006, the council served an order on the respondents under s 121B of the Environmental Planning and Assessment Act 1979, which enables an order to be issued upon the owner of the building requesting to undertake repairs or make structural alterations to the building in specified circumstances. The reasons for the order in the present case are that the premises are not in a safe condition and need to be made safe for the occupants.

6 The order required the doing of three things within thirty days of the service of the order:

1. Provide temporary props to the overhead lintel of the opening between the family and living room.
2. The steel member that supports the outer leaf of the first floor brick wall over the store room shall be temporarily propped in an approved manner.
3. Submit a certificate from suitable [sic] qualified structural engineer certifying all works completed to comply with Order once completed.

7 I have heard evidence this morning from each of the respondents. They are in what can be described as dire financial circumstances. They borrowed, as I understand the evidence, some $500,000 from the bank and are making repayments of $1,000 per week. It is difficult to see how they are making these repayments. Ms Tran is on social security benefits of $250 a week, is living with her sister and relies upon her family to assist her to meet her living expenses. Ms Tran says that she is in debt to her family to the extent of some $50,000. She apparently shares the debt with Mr Phan who, it seems, is also unemployed and, I understand, is also on social security benefits.

8 Mr Phan and Ms Tran no longer live together. As I have noted, Ms Tran lives with her sister and Mr Phan lives in a caravan. Mr Phan apparently is also receiving some assistance from family members. According to the evidence of Ms Tran, the family members are willing to help with the mortgage, but they are not prepared, it appears, to assist with any necessary repairs to the building.

9 I accept the fact that it is not either of the respondent’s fault that the building requires repairs. It seems that the builder has left the job and has left the building in an unsatisfactory condition. However, matters of safety are paramount and where a building is in an unsafe condition it needs to be made safe. The order in effect requires two temporary props to be installed. These, I would expect, be timber props. It is self evident that the placing of two temporary timber props would not be extremely expensive in the overall scheme of things.

10 Mr Phan says that he is concerned that if he does any work on the building that it will jeopardise his proceedings against the builder in the Supreme Court. However, if the temporary props are simply there to support what is already built then it is difficult to see how that would prejudice his proceedings against the builder.

11 In my view the principle consideration is one of safety. The council issued the order because the structure is unsafe - the order should be complied with. The formal orders of the Court, therefore, are:

(1) The respondents, and each of them, within thirty days of today:

(a) Provide temporary props to the overhead lintel of the opening between the family and living room at the property No. 124A Hughes Street, Cabramatta.

(b) The steel member that supports the outer leaf of the first floor brick wall over the storeroom at the said property shall be temporarily propped in an approved manner.

(c) Submit a certificate from a suitably qualified structural engineer certifying all works completed to comply with the order once completed.

(2) The respondents must pay the council’s costs.

(3) The exhibits may be returned.

12 HIS HONOUR: This means that you have to put the props in within thirty days. If you do not do so you may be in contempt of court and the court can either fine you or put you in gaol. Do you understand that?

PHAN: I understand that, your Honour.

I hereby certify that the preceding 12 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

Associate

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