Hornsby Shire Council v Saint-Ayres
[2012] NSWLEC 190
•10 August 2012
Land and Environment Court
New South Wales
Medium Neutral Citation: Hornsby Shire Council v Saint-Ayres [2012] NSWLEC 190 Hearing dates: 10 August 2012 Decision date: 10 August 2012 Jurisdiction: Class 4 Before: Biscoe J Decision: (1) Pursuant to s 678(10) of the Local Government Act 1993, Hornsby Shire Council is ordered to execute the Council's functions under s 678 by carrying out the work which is required to be carried out by paragraphs 1 and 2 of the Council's order dated 22 March 2012 given to the respondent pursuant to s 124 of the Local Government Act 1993. (2) Order 1 is to be stayed for a period of 14 days to enable the respondent to carry out the work described in Order 1. (3) The respondent is to pay the applicant's costs.
Catchwords: CIVIL ENFORCEMENT - respondent fails to comply with council statutory orders to remove items and waste at residential property - council seeks order to execute its functions by carrying out the works. Legislation Cited: Local Government Act 1993 ss 124, 193, 678 Category: Principal judgment Parties: Hornsby Shire Council (Applicant)
Lawrence William Saint-Ayres (Respondent)Representation: COUNSEL:
Mr I Woodward, solicitor (Applicant)
N/A (Respondent)
SOLICITORS:
Storey & Gough (Applicant)
N/A (Respondent)
File Number(s): 40709/12
EX TEMPORE Judgment
These are undefended civil enforcement proceedings brought by Hornsby Shire Council against Lawrence William Saint-Ayres. The relief claimed is as follows:
1. Pursuant to Section 678(10) of the Local Government Act, 1993, Hornsby Shire Council is ordered to execute the Council's functions under Section 678 by carrying out the work which is required to be carried out by paragraphs 1 and 2 of the Applicant's Order dated 22 March, 2012 given to the Respondent pursuant to Section 124 of the Local Government Act, 1993, within the timetable set out below.
2. Order 1 is to be stayed for a period of fourteen (14) days to enable the Respondent to carry out the work described in Order 1.
Section 124 of the Local Government Act 1993 provides:
124 What orders may be given, in what circumstances and to whom?
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.
...
A person who fails to comply with an order is guilty of an offence-see sec 628.
Order No 21 in that Table is in the following terms:
Orders requiring the preservation of healthy conditions
Column 1
To do what?Column 2
In what circumstances?Column 3
To whom?...
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
Section 678(1) and (10) 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 Council's order dated 22 March 2012 given to the respondent pursuant to s 124 defined the "premises" referred to therein as Lot 8 DP 251624 No 12 Helvetia Avenue, Berowra NSW 2081 and required him to:
1. Remove from the premises and appropriately dispose of all accumulated items and waste which are located in the front and rear yards, the area between the house and the side boundaries of the Premises as follows:- [the items and waste are then listed].
2. Remove from the premises and appropriately dispose of all accumulated items and waste that are listed in 1(a) - (g) above and that are located in the front and rear yards, the area between the house and the side boundaries as shown in the attached photographs.
The factual context is as follows.
The property is registered in the name of the respondent. It is zoned Residential A (Low Density) under the Hornsby Shire Local Environmental Plan 1994. It is located in a residential area surrounded by residential dwellings.
In November 2010, the Council received complaints that the property was overgrown with vegetation and had an accumulation of waste.
On 1 November 2010, council officers carried out an inspection of the property. On 12 November 2010, the Council wrote a letter to the respondent. It stated that the Council had been informed by a concerned resident that excessive amounts of household items were being stored at the front and rear yards of the property and that the premises were overgrown with excessive vegetation that was, or was likely to become, harbourage for vermin and snakes. The letter sought the respondent's cooperation in rectifying the matter by carrying out works within 28 days, including removing the accumulated items from the property.
On 17 January 2011, the Council sent a notice of intention to serve an order under s 124 to the respondent. The letter recorded that a council officer had observed that excessive amounts of household items were being stored at the front and rear yards and that the premises were overgrown with excessive vegetation that was, or was likely to become, a harbourage for vermin and snakes posing immediate health and safety risks to persons in the vicinity.
On 23 February 2011, an Order No 21 under s 124 of the Local Government Act was served on the respondent. That is not the s 124 order the subject of these proceedings.
On 15 April 2011, the Council sent a letter to the respondent noting that the period provided in the February 2011 order had expired and that the required work had not been carried out, and foreshadowing legal action.
On 17 October 2011, the Council sent to the respondent a notice of intention to enter the premises in accordance with the provisions of s 193 of the Local Government Act. The stated purpose was to determine the level of compliance with the order of 23 February 2011.
On 21 October 2011, two council officers inspected the property and prepared an inventory detailing the waste material they observed there. There was an unpleasant odour emanating from the rear of the property, which was overpowering. They could see rotten food and other waste in the rear yard. The photographs that they took show a large number of accumulated items and waste. One of the officers, based on his observations, formed the view that the premises were a serious risk to the health and safety of any person who entered the property, and those persons living in or entering the surrounding residences. He believed that the waste material, including perishable items such as food, would create a harbourage for and attract vermin.
On 22 February 2012, the Council served a notice of intention to issue another Order No 21 under s 124 on the respondent.
On 21 March 2012, a council officer inspected the property from the adjacent nature strip. The inspection revealed that the property was in the same state as shown in the photographs to which I have referred. She formed the view that no work had been undertaken to remove waste and clean up the vegetation on the property. She formed the opinion that based on the large quantity of waste on the property, the overgrown nature of the vegetation and the unpleasant odour, the property posed a significant risk to the health and safety of occupants and visitors to the property and surrounding residences. She considered that in its current state the property constituted a serious health risk.
On 22 March 2012, a second Order No 21 pursuant to s 124 of the Local Government Act was issued to the respondent. It is the subject of these proceedings.
On 1 May 2012, a council officer attended the property to inspect whether the March 2012 order had been complied with. To her observation, no work had been carried out to comply with that order. She took photographs which bear that out.
In my opinion, the Council has established its claim for relief. Accordingly, the Court makes the orders sought in paragraphs 1, 2 and 3 of the Council's summons, as follows:
(1) Pursuant to s 678(10) of the Local Government Act 1993, Hornsby Shire Council is ordered to execute the Council's functions under s 678 by carrying out the work which is required to be carried out by paragraphs 1 and 2 of the Council's order dated 22 March 2012 given to the respondent pursuant to s 124 of the Local Government Act 1993.
(2) Order 1 is to be stayed for a period of 14 days to enable the respondent to carry out the work described in Order 1.
(3) The respondent is to pay the applicant's costs.
Decision last updated: 14 August 2012
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