Georges River Council v Emanuel Mifsud

[2020] NSWLEC 149

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Georges River Council v Emanuel Mifsud [2020] NSWLEC 149

Hearing dates:

28 July and 13 October 2020

Date of orders:

30 October 2020

Decision date:

30 October 2020

Jurisdiction:

Class 4

Before:

Duggan J

Decision:

See paragraph 51

Catchwords:

LOCAL GOVERNMENT – s 672 Local Government Act 1993 – failure to comply with an order – premises not in a safe and healthy condition – premises in an unsightly condition – council granted power to do all things necessary to give effect to the order – orders deferred for 28 days

COSTS – usual order as to costs – exclusion of costs associated with joinder of the Second Respondent

Legislation Cited:

Local Government Act 1993

Uniform Civil Procedure Rules 2005

Texts Cited:

Macquarie Dictionary (revised Third Edition)

Category:

Principal judgment

Parties:

Georges River Council (Applicant)
Emanuel Mifsud (First Respondent)
Crystina Mifsud (Second Respondent)

Representation:

Counsel:
Mr M Astill (Applicant)
Mr E Mifsud in person (First Respondent)
Ms C Mifsud in person (Second Respondent)

Solicitors:
Georges River Council (Applicant)
N/A (First and Second Respondents)

File Number(s):

2019/383413

Publication restriction:

No

Judgment

Nature of proceedings

1. The Applicant (the Council) commenced these proceedings against Emanuel Mifsud (the First Respondent) alleging that he failed to comply with an order issued to him by the Council pursuant to s 124 of the Local Government Act 1993 (the LG Act), requiring the removal of items from his property at 5 Maclaurin Street, Penshurst (the Premises).

2. On 25 September 2020, Crystina Mifsud (the Second Respondent), also an owner of the Premises, was joined as a party to the proceedings. The Council does not seek any orders against the Second Respondent.

Facts

3. The First Respondent is one of the owners and is the present occupier of the Premises.

4. On 4 March 2019, the Council received a complaint from a resident in relation to an accumulation of items at the Premises. As a result, Council officers conducted inspections and took photographs of the Premises on the following dates:

1. 5 March 2019

2. 8 March 2019

3. 20 March 2019

4. 3 April 2019

5. 5 April 2019

5. Following these inspections, the Council formed the view that the Premises were not in a safe or healthy condition in accordance with s 124 of the LG Act.

6. On 17 April 2019, a Notice of Intention to Issue an Order in accordance with s 132 of the LG Act was served on the First Respondent.

7. On 13 May 2019, Council officers conducted an inspection of the Premises and determined that no action had been taken following the issuing of the April Notice of Intention. Accordingly, on 14 May 2019 the Council issued the First Respondent with an order pursuant to [10] and [21] of the Table to s 124 of the LG Act.

8. On 12 June 2019, Council officers inspected the Premises and determined that the 14 May 2019 order had not been complied with.

9. On 27 August 2019, the Council obtained a search warrant to inspect the Premises. After executing the search warrant on 29 August 2019, Council officers formed the opinion that the Premises were not in a safe or healthy condition and were unsightly pursuant to s 124 of the LG Act.

10. On 14 October 2019, the Council issued the First Respondent with a further Notice of Intention to Issue an Order.

11. On 28 October 2019, following an inspection that determined no action had been taken pursuant to the 14 October 2019 Notice of Intention, the Council issued the First Respondent with an order (the Order) pursuant to [10] and [21] of the Table to s 124 of the LG Act. The Order required the removal of articles and items from the Premises including the area of the front and rear yards, the driveway and the area between the house and the side boundaries of the Premises. The Order required compliance by 25 November 2019.

12. The articles and items to which the Order related included are those particularised in the Amended Summons as:

Remove the accumulation of articles and items from the Premises including, immediately adjacent to the public footpath, the front and rear yards, the area between the house and the side boundaries being:

Food (both putrescible and non-putrescible); and

Refuse including but not limited to:

Electrical garden tools including lawn mowers, whipper snippers, leave (sic) blowers - provision to retain 1 of each electrical garden tools on the premises is permitted;

Power tools including bench grinder, high pressure washers, air compressors, chainsaws, drills, compactor, blower and electric saws;

Household items including plastic storage boxes, buckets, chairs, fans, books, sofa, paint brushes, lights, shoes, cardboard boxes, wooden boxes, cables, glue, plastic covers, paint containers, plastic tubs, bicycles, backpack, pot pan covers, plastic stools, ropes, suit cases, leader cases, brief cases, carpets, drawers, baby wash tubs, step ladder, mop buckets, electrical cables, bird cages, cloths, metal ventilation - whirly birds, Aerosol cans, spray bottles and spray cans;

General electrical items including stereo speakers, vacuum cleaners, printer, coffee machines, televisions, toasters, cassette player, electric stove top, blender; CD/DVD players, portable stove, rice cookers, fans, fridges and washing machines;

Musical instruments including drums, electrical keyboards and guitars;

Toys including toy cars, scooters, dolls and motorised bike;

Garden hoses, hose reel and hose parts - provision for one garden hose for the front yard and one garden hose for the rear yard is permitted;

Garden tools including wheel barrow and garden rakes;

Tools including tool boxes, nails, hacksaw, saw and metal clamps;

Car parts including car tyres and car batteries;

Golf sticks and golf bags;

Gas tanks;

Jerry cans;

Barbeque stove;

Metal lockers;

Wooden plans (sic), wood logs and wood sheets;

High vis vests and hard hats;

Aluminium baskets, metal piping parts, metal rods and metal parts;

Street signs and corflu signs;

Loose pieces of metal and fabrics;

Styrofoam boxes and crates;

Plastic chests, plastic bins and plastic drums; and chemicals.

13. On 25 November 2019 and 4 December 2019, further inspections were undertaken, where it was evident that the Order had not been complied with. On 5 December 2019, the Summons commencing these proceedings was filed.

14. Prior to the commencement of the hearing of this matter on 28 July 2020, a further inspection of the Premises was undertaken which disclosed that the Order had not been complied with.

15. Further, after the hearing had been adjourned and before the recommencement of the hearing, a further inspection was undertaken on 22 September 2020 which disclosed that the Order had still not been complied with. Further accumulation of materials was observed.

Legislation

16. Section 124 of the LG Act gives the Council specified powers to make orders relating to land. Such orders include:

124 Orders

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.

Column 1	Column 2	Column 3
To do what?	In what circumstances?	To whom?
10	To remove or stack articles or matter, to cover articles or matter, to erect fences or screens or to plant trees	Land is in the immediate vicinity of a public place and is used for the storage of articles or matter so as to create or be likely to create unsightly conditions	Owner or occupier of land

…

21 To do or refrain from doing such things as are specified in the order to ensure that land is, or premises are, placed or kept in a safe or healthy condition The land or premises are not in a safe or healthy condition Owner or occupier of land or premises

17. Section 672 of the LG Act provides that it is a breach of the LG Act to fail to comply with such an order in terms:

672   What constitutes a breach of this Act for the purposes of this Part?

In this Part—

(a)   a breach of this Act means—

(i)   a contravention of or failure to comply with this Act,

(ii)   a threatened or an apprehended contravention of or a threatened or apprehended failure to comply with this Act, and

(b)   this Act includes—

(i)   an approval under Part 1 of Chapter 7, and

(ii)   an order under Part 2 of Chapter 7, and

(iii)   the regulations.

18. The proceedings were commenced to enforce the terms of the Order pursuant to s 674 of the LG Act which provides:

674   Remedy or restraint of breaches of this Act—other persons

(1)   Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act.

(2)     The proceedings may be brought by a person on the person’s own behalf or on behalf of the person and on behalf of other persons (with their consent), or a body corporate or unincorporated (with the consent of its committee or other controlling or governing body), having like or common interests in those proceedings.

(3)     Any person on whose behalf proceedings are brought is entitled to contribute to or provide for the payment of the legal costs and expenses incurred by the person bringing the proceedings.

(4)       (Repealed)

(5)     Subsection (1) does not apply in relation to anything done or omitted to be done under Division 3 of Part 1 of Chapter 14.

19. In addition, the Council seeks an order pursuant to s 678 of the LG Act that it be ordered to enter the Premises and do all work necessary and convenient to give effect to the terms of the Order.

Evidence

Council’s evidence

20. The Council adduced evidence by a number of affidavits of Council officers. That evidence disclosed formal proof of compliance with the statutory requirements for the giving of the Order together with the service of the Order.

21. The Council evidence also disclosed a number of inspections of the Premises both from the public land adjoining the Premises, namely Maclaurin Street, and from within the Premises on the occasions that the First Respondent consented to access or access was obtained by way of a search warrant. Photographs and videos of these inspections were provided to the Court.

22. The witnesses deposed to (and such matters could also be observed through the photographic and video evidence):

1. The accumulation of materials in a “haphazard fashion”, where the materials are stored on top of each other and reach a height in some places on the Premises in excess of one metre above ground level;

2. The storage of the material in such fashion was not secure such that the materials could move or shift, causing them to fall and damage persons or property. The material is stored so densely that it does not permit the free and safe movement of people or emergency services around the Premises;

3. That the storage of the material in this way provides both a harbourage for vermin, as both a rat and a large amount of maggots were observed at the inspection, and the likely presence of other vermin harbouring in the materials;

4. The presence of food scraps which were attracting insects and providing a potential food source for pests and vermin; and

5. The Council also gave evidence that the First Respondent is storing materials on the Council’s road reserve. This storage being no part of the claim in these proceedings has not been considered for the purposes of determining these proceedings.

23. Based upon the evidence to which they referred, the witnesses deposed as to the reason why they were of the view that the Premises in the present condition were both unsightly and not in a safe or healthy condition.

24. After the proceedings were adjourned part heard to enable the Council to join the Second Respondent, there was a period of 11 weeks before the matter returned for the conclusion of the hearing. By further affidavit relating to an inspection on 22 September 2020, evidence disclosed that during that period there had been no reduction in the amount of material or the manner in which the material was stored at the Premises.

First Respondent’s evidence

25. The First Respondent gave oral evidence outlining the history of his relationship with the Council going back many years which, in his view, indicated that the Council had a long standing vendetta against him and that it was trying to usurp his rightful entitlement as landowner to do what he wished with the Premises.

26. He indicated that in the past he had complied with the Council’s requirements including complying with the orders made by the Court (see below at [43(5)]) in the contempt proceedings.

27. He explained that materials stored on the Premises were obtained by him by purchase or by people donating goods to him for repair and reuse. In large part he collects machinery such as lawn mowers and whipper snippers and the like that require repair. He repairs the machinery and either sells it or gives it away to be used again. This is largely a hobby that the First Respondent uses to expend the leisure time he now has since retiring from full-time employment.

28. The First Respondent did not assert that the Council had failed to comply with any of the procedural preconditions to the giving of the Order, nor did he assert that the Order was not given or served otherwise than in accordance with the requirements of the Act.

Submissions

Council’s submissions

29. The Council submitted that the collection of materials on the First Respondent’s property was unsightly when viewed from a public place and that it was likely a place that harboured vermin. Therefore, it was in an unsafe and unhealthy condition.

30. The Council’s submission was founded upon a comprehensive traversing of the evidence contained in the affidavits outlined above.

31. The Council submitted that the Court should find that the First Respondent had not complied with the terms of the Order and that the Council should be ordered to enter the Premises and undertake the work as required by the terms of the Order.

32. The Council further submitted that on the evidence the Court would not be satisfied that if further time were given to the First Respondent to comply with the Order, that there would be a real likelihood he would do so. Accordingly, it submitted that the orders should be made with immediate effect.

First Respondent’s submissions

33. The First Respondent submitted that the Court would dismiss the Council’s application, or, in the exercise of its discretion, it would not make the orders sought for the following four reasons:

1. The First Respondent is the owner of the Premises and he should be able to do what he wants on his land. By taking the actions associated with these proceedings, and past actions relating to the Premises and motor vehicles owned by the First Respondent, the Council is acting as if it is the owner of his land. The First Respondent believes that the Council’s actions are “pay back” for a claim made against the Council by the First Respondent’s nephew who tripped over some lifted concrete on the footpath outside the First Respondent’s premises;

2. The Council refers to the materials on the First Respondent’s land as “refuse”, but they are not refuse, rather they are useful goods that the First Respondent has collected and paid money for. He proposes a number of the mechanical goods to repair to permit their reuse, such as: lawnmowers; whipper snippers; and the like;

3. The collection of the goods and materials at the First Respondent’s premises do not comprise a health hazard;

4. The Council’s actions are intended to intimidate and bully him in that if he does not do what they tell him to do they will take him to Court and he is only given two weeks to comply. The Council is lying in saying that he has a history of non-compliance with Council orders in the past.

34. In the event that the Court determined that orders should be made, notwithstanding his submissions that the proceedings should be dismissed, the First Respondent requested that the operation of the orders be deferred for a period of four weeks to enable him to comply with the orders without the need for the Council to enter his property and carry out the works.

Second Respondent’s submissions

35. The Second Respondent submitted that the First Respondent has been able to control the collection of material in the past and has complied with Council orders. She considers that the First Respondent suffers from anxiety which lead to him collecting a large volume of these materials. The process of Court proceedings is destructive to him as it only increases the anxiety. She is proposing to try and get help for the First Respondent to deal with the matters she considers contribute to the First Respondent collecting large numbers of items on the Premises.

36. The Second Respondent requested that the Court defer the operation of any orders for a period of four weeks to enable the First Respondent to “get assistance with his hoarding” and to undertake the necessary work himself.

Findings

37. On the evidence that is before me, I find that the First Respondent did not comply with the terms of the Order. The state of the Premises from the date of the giving of the Order to the date of the commencement of these proceedings is largely unchanged in the quantum and manner of storing, apart from some movement of some items around the Premises and some increase in the storage of materials. For that reason, I find that (subject to discretionary considerations) the Council is entitled to the declaration sought.

38. I also accept the Council’s submission that the evidence discloses that at present there are insects, a rat and maggots that indicate that there is vermin present and with the storing of putrescible waste in the open yard of the Premises the Premises remain likely to harbour vermin of the types already identified on the Premises. The presence of rats, insects such as mosquitoes and flies (larvae and adult) are at a level that would not be expected with the ordinary use of residential premises and that the presence of such observed infestations or individuals indicates a real risk to the health of persons on the Premises and in the residential premises surrounding it. That risk will be increased if the areas in which these vermin can remain, feed and breed are not removed through the management of the stored items at the Premises. For those reasons, I find on the evidence that the Premises are not in a safe and healthy condition.

39. Further, the manner of storage of the items is precarious in the manner of stacking and the height of the stacked goods. There is no indication in the evidence that the items stacked in that manner are secure such that they are unable to fall or move from the position that they are placed. The risk to both property and persons, particularly the First Respondent, of the unstable storage of the material is also sufficient of itself to render the condition of the Premises neither safe nor healthy.

40. The front yard, the driveway and a component of the rear yard is visible from locations within the public place known as Maclaurin Street. These areas can be seen as being stacked with goods in a haphazard fashion. Both the quantum of those goods and the manner of their storage is not the type of activity that would usually be expected in connection with a residential home. The Council’s order contends that the material is unsightly. Unsightly, according to the Macquarie Dictionary (revised Third Edition), means:

Not pleasing to the sight; forming an unpleasant sight.

41. In the context of a residential neighbourhood, keeping goods of this kind, the quantum and manner of storage where it is able to be viewed from the street, is unsightly. Accordingly, the Order properly identified the state of the Premises at the date of the giving of the Order. Further, the Premises remain in an unsightly state at the date of the hearing.

42. To the extent that the First Respondent indicated that the proceedings should be dismissed on the four grounds identified by him, for the reasons that follow there is no basis raised that would suggest either at law or in the exercise of the Court’s discretion that the orders and declarations sought by the Council should not be made, with the exception of the timing of the operation of the orders.

41. Dealing with the First Respondent’s submissions in the order in which they were expressed:

1. The First Respondent is the owner of his land and to a large extent he is able to do what he wants with it unless such activities are in breach of a law that limits his use of the Premises. In this case, the Parliament has enacted a law that prevents landowners from using their land in a way that: is unsightly when viewed from a public space; or the land or premises are not in a safe or healthy condition. For the reasons outlined above, the Premises are, in their present state, both unsightly when viewed from a public space and in an unsafe or unhealthy condition. Accordingly, the Council and now the Court have the power to require the landowner’s use of the land to be moderated so that such a state does not continue.

2. To the extent that the Council has referred in the terms of the Order to the collection of materials at the First Respondent’s premises as “refuse”, this does carry with it the implication that the materials are waste or of no worth. The concern about this descriptor is reminiscent of the adage that one man’s trash is another man’s treasure. In this case, the materials on the First Respondent’s premises are a mix of material that is likely to be of little value or utility to the First Respondent and material (particularly relating to the goods he has acquired through donation and paying money) that the First Respondent considers very valuable and potentially a source of income once repaired. However, it is not necessary for the goods to be defined as “refuse” in order for the goods and materials to be the subject of an order by the Council or the Court. In this case, as outlined above, the goods and materials, even if of intrinsic or actual value, have become unsightly when viewed from a public place and are rendering the land unsafe or unhealthy.

3. For the reasons outlined above, the Premises have been found to be in an unsightly condition when viewed from Maclaurin Street and that of itself is a sufficient basis to make the orders sought. The focus of the First Respondent’s submissions related to an assertion that the Premises were not a “health hazard”. That term is not one used in the particular legislation. The proper question is whether the Premises are in a safe or healthy condition. For the reasons outlined above, the manner of storage of the material, the quantum of items and the presence of vermin are all matters that indicate that the Premises are not in a safe or healthy condition.

4. The matter that this Court is required to determine is whether the state of the First Respondent’s land is such that, on the evidence, the Order is warranted and should be enforced by a Court order. In that context the past actions of the Council, the Council’s motivations for the past actions, or even the motivations for the present actions, are not matters that influence the determination of the issues in this case, except perhaps for a determination of the issue of discretion. The case is primarily an objective assessment based upon a consideration of the evidence advanced by all parties of the state of the Premises and whether such a state falls within the descriptions that permit an order to be made and enforced. In this case, on the evidence such a state objectively exists.

5. The issue raised by both parties as to whether the First Respondent has in fact complied with past orders issued by the Council and this Court is outlined in the evidence. On that evidence, it is plain that at least on one occasion the orders of the Court made on 9 January 2015 were not complied with and proceedings for contempt of the orders was brought before this Court. In those proceedings, the Court found that the First Respondent was in contempt of the Court’s orders – indicating that in the past the First Respondent has not acted in an appropriate manner to comply with orders made. This matter is only relevant to the exercise of discretion. In that respect, I take it into account in the determination that is the exercise of discretion the proceedings should not be dismissed, but I do not consider it to be a factor that would preclude the exercise of the discretion to defer the operation of orders for a short period of time. However, I do accept that the First Respondent did eventually comply with those Court orders.

44. Whilst I have found that the Council is entitled to the relief sought and that there is no legal or discretionary matter raised that would indicate that declarations and orders should not be made as sought in the Amended Summons, it is considered appropriate that the First Respondent be given a short further time to put the Premises in a state of compliance with the Order and the orders that are now made by the Court. The Premises have been in the present state for some time and there is no evidence before me that there is an imminent threat or risk that would preclude the exercise of the discretion to allow a further limited period for the First Respondent to take action. This, however, is not an open-ended chance. It is four weeks; after that date the orders of the Court will be in effect.

45. I truly hope that the First Respondent takes up this last opportunity now given to him. If the First Respondent does not take up this opportunity it will be the Council rather than him that makes the decisions and takes the actions in respect to the goods. It is entirely in the First Respondent’s hands as to whether he avails himself of this opportunity. If he chooses not to act within this time, he is, in effect, electing to allow the Council to remove his goods in accordance with these orders.

Costs

46. In proceedings such as these the general rule is that costs follow the event: rule 42.1 of the Uniform Civil Procedure Rules 2005. The First Respondent opposed the making of an order that he pay the Council’s costs of the proceedings as:

1. He had always intended to comply with the terms of the Order;

2. The Council was using its powers inappropriately to prevent him from living a free life;

3. The Council will ask for too much money for the costs.

47. In this case, the Council brought the proceedings in circumstances where the orders issued by it had not been complied with. The opportunity for the First Respondent to comply with the terms of the Order was either before the date for compliance had passed or at the very latest in the twelve months since the time for compliance and the conclusion of this Court hearing. The First Respondent has not complied and there is no evidence that would suggest that the Council, in the bringing of and conduct of these proceedings, has acted in any way that would disentitle it to the benefit of the usual order as to costs.

48. The other matters raised by the First Defendant are not matters that are considered relevant to the making of a costs order. If the First Respondent is concerned as to the manner in which the Council determines its costs there are procedures available to the First Respondent to challenge such determination of the quantum of the costs.

49. However, the costs associated with the joinder of the Second Respondent were not matters that arose because of the First Respondent’s conduct of these proceedings and he should not be liable for those costs. The costs order will exclude such costs from the terms of the order.

50. For those reasons, and in the exercise of the general discretion relating to costs in these proceedings, there is no reason why the usual order would not apply and the First Respondent will (subject to the exclusion above) be ordered to pay the Council’s costs.

Conclusion and orders

51. For the reasons outlined above, it is appropriate that the declarations and orders sought by the Council be made with the variations identified above. Accordingly:

1. The Court declares that contrary to the requirements of s 672 of the Local Government Act 1993, the First Respondent has failed to comply with the terms of the Order issued to him by the Council dated 28 October 2019;

2. The Court Orders that:

1. Pursuant to s 678(10) of the Local Government Act 1993 the Council, through its officers, employees, agents and contractors may do all things as are necessary or convenient to give effect to the terms of the Order including carrying out in the locations at the Premises and with respect to the items listed in Annexure A to these Orders;

2. Without limiting Order 2(a), the Council, through its officers, employees, agents and contractors may cut vegetation at the Premises if reasonably required to facilitate the works;

3. The operation of Orders (2)(a) and (b) is suspended for a period of 28 days from the date of these Orders;

4. The First Respondent is to pay the Council’s reasonable expenses incurred in its execution of Orders (2)(a) and (b) within 30 days of the Council providing the First Respondent with a tax invoice for the works; and

5. The First Respondent is to pay the Council’s legal costs excluding any costs incurred by the Council for the preparation, service and filing of the Amended Summons together with the appearances on 26 August 2020 and 25 September 2020 for the Notice of Motion for joinder of the Second Respondent.

Annexure A (16267, docx)

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Amendments

30 October 2020 - At [13] replace December 2020 with December 2019.

Decision last updated: 30 October 2020