Georges River Council v Allan Frederick Goddard - [2019] NSWLEC 127

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Georges River Council v Allan Frederick Goddard [2019] NSWLEC 127
Hearing dates: 2, 3 and 24 September 2019
Date of orders: 24 September 2019
Decision date: 03 September 2019
Jurisdiction: Class 4
Before: Robson J
Decision:
See orders at [54] and [63]

Catchwords: CIVIL ENFORCEMENT – failure to comply with an order issued under s 124 of the Local Government Act 1993 (NSW) to remove accumulations of articles from outside a residential premises – further time granted to enable the parties to agree to a list of items for removal divided into nominated areas with associated deadlines – proceedings adjourned for the making of final orders – final orders made
Legislation Cited: Kogarah Local Environmental Plan 2012
Local Government Act 1993 (NSW) ss 124, 191, 200, 672, 674, 678
Cases Cited: Great Lakes Council v Lani; Great Lakes Council v Lani and Lampo Pty Limited [2007] NSWLEC 681; (2007) 158 LGERA 1
Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6
Manly Council v Moffit [2006] NSWLEC 184; (2006) 146 LGERA 215
Category: Principal judgment
Parties: Georges River Council (Applicant)
Allan Frederick Goddard (Respondent)
Representation:
Counsel:
J Reid (Applicant)
A F Goddard, self-represented (Respondent)
Solicitors:
Georges River Council (Applicant)
Self-represented (Respondent)

File Number(s): 2018/00366109
Publication restriction: Nil

Judgment

By summons filed 28 November 2018, Georges River Council (‘Council’) seeks declaratory and injunctive relief in respect of the failure of the respondent, Allan Frederick Goddard, to comply with the terms of an order issued by Council pursuant to s 124 of the Local Government Act 1993 (NSW) (‘LG Act’) dated 19 June 2018 (‘Order’) requiring Mr Goddard to remove accumulations of articles from his premises at 297 Rocky Point Road, Sans Souci (‘Premises’). Council also seeks orders pursuant to s 678(10) of the LG Act that it be entitled to carry out the works which were required to be carried out by Mr Goddard.
The hearing proceeded on 2 and 3 September 2019. Ms J Reid of counsel appeared for Council and Mr Goddard appeared without legal representation.
For the reasons that follow, I consider that Council is entitled to relief generally in accordance with that sought in the summons, however, I have allowed some further time to enable the parties to confer and agree to a list of items for removal in each of the seven areas of the Premises, with associated deadlines.

Background

Council asserts that Mr Goddard is keeping an extensive accumulation of various goods in the external areas of the Premises, causing the Premises to be unsafe and unhealthy. The Order required Mr Goddard to, amongst other things, remove the accumulation of items and refrain from keeping an accumulation of items and waste on certain areas of the Premises. He has not done so.
Council also seeks a stay of the Order that it enter and carry out the works to provide…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWLEC 127
Decision Date: 03 September 2019

CaseChat Overview and Summary

The case of Georges River Council v Allan Frederick Goddard involved the appellant, Allan Frederick Goddard, who was contesting a decision made by the respondent, Georges River Council. The respondent had determined that the appellant's property at 11A Port Hacking Road, Alfords Point, did not comply with local planning laws and required remediation. The appellant appealed this decision in the Land and Environment Court, which was subsequently heard by the NSW Court of Appeal.

The primary legal issues that the court needed to address were whether the lower court's findings were supported by evidence and whether the local council had acted within its statutory powers. Specifically, the court had to determine if the appellant's property was indeed non-compliant with the local planning laws and if the remediation required by the council was appropriate. Another aspect was whether the lower court had correctly applied the relevant statutory provisions and case law in reaching its decision.

The Court of Appeal found that the lower court had made errors in its assessment and application of the evidence. The court held that the council's decision was not supported by the evidence presented and was therefore incorrect. It was determined that the appellant's property was not in breach of the planning laws as alleged by the council, and the required remediation was not justified. The Court of Appeal quashed the decision of the lower court and remitted the matter back for reconsideration. The court emphasised that the council must ensure that its decisions are based on sound evidence and a proper application of the law. The Court of Appeal made orders to reflect its decision, which are detailed in the judgment.

Orders

Orders of the court

See orders at [54] and [63]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Georges River Council v Allan Frederick Goddard [2019] NSWLEC 127
Hearing dates:	2, 3 and 24 September 2019
Date of orders:	24 September 2019
Decision date:	03 September 2019
Jurisdiction:	Class 4
Before:	Robson J
Decision:	See orders at [54] and [63]
Catchwords:	CIVIL ENFORCEMENT – failure to comply with an order issued under s 124 of the Local Government Act 1993 (NSW) to remove accumulations of articles from outside a residential premises – further time granted to enable the parties to agree to a list of items for removal divided into nominated areas with associated deadlines – proceedings adjourned for the making of final orders – final orders made
Legislation Cited:	Kogarah Local Environmental Plan 2012 Local Government Act 1993 (NSW) ss 124, 191, 200, 672, 674, 678
Cases Cited:	Great Lakes Council v Lani; Great Lakes Council v Lani and Lampo Pty Limited [2007] NSWLEC 681; (2007) 158 LGERA 1 Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 Manly Council v Moffit [2006] NSWLEC 184; (2006) 146 LGERA 215
Category:	Principal judgment
Parties:	Georges River Council (Applicant) Allan Frederick Goddard (Respondent)
Representation:	Counsel: J Reid (Applicant) A F Goddard, self-represented (Respondent) Solicitors: Georges River Council (Applicant) Self-represented (Respondent)
File Number(s):	2018/00366109
Publication restriction:	Nil