Hurstville City Council v Jacobs (No 2)

[2008] NSWLEC 240

Land and Environment Court

of New South Wales

CITATION:

Hurstville City Council v Jacobs (No 2) [2008] NSWLEC 240

PARTIES:

APPLICANT:
Hurstville City Council

RESPONDENT:
Kevin Roy Jacobs

FILE NUMBER(S):

40013 of 2006

CORAM:

Biscoe J

KEY ISSUES:

Civil Enforcement :- respondent failed to comply with council order and Court consent orders to remove refuse and overgrown vegetation from premises - order made under s 678(10) of Local Government Act 1993 that council execute its function by carrying out those works.

LEGISLATION CITED:

Local Government Act 1993 (NSW), ss 124, 193, 199, 678

CASES CITED:

Hurstville City Council v Jacobs [2007] NSWLEC 630

DATES OF HEARING:

5 August 2008

EX TEMPORE JUDGMENT DATE:

5 August 2008

LEGAL REPRESENTATIVES:

APPLICANT:
Dr S. Berveling, barrister
SOLICITORS
HWL Ebsworth

RESPONDENT:
Mr K. R. Jacobs (in person)
SOLICITORS
N/A

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

5 August 2008

40013 of 2006

HURSTVILLE CITY COUNCIL v KEVIN ROY JACOBS

EX TEMPORE JUDGMENT

1 HIS HONOUR: The respondent, Kevin Jacobs, owns residential premises at 75 Clarke Street, Peakhurst. They are formally described as Lot 160 in Deposited Plan 11124. There is currently, and has been since at least 2004, an accumulation of a great deal of material and overgrown vegetation at the premises.

2 On 3 November 2004, the relevant local government authority, Hurstville City Council, issued an order under s 124 of the Local Government Act 1993 (NSW) (council order) directing Mr Jacobs within 28 days of the date of that order to:

1. Remove all miscellaneous refuse and extraneous items from the premises including but not limited to rusting and unused metal, unused timber, broken and disused plastic, unused ricks [sic], broken concrete slabs, scattered rubble etc.
2. Cut back, remove and dispose of all overgrown vegetation (alive and dead) from the premises to an approved waste facility.

Reason for order

1. The accumulation of miscellaneous refuse, extraneous items and overgrown vegetation is providing a likely harbourage or likely breeding place for insects and vermin.

3 Mr Jacobs did not comply with the order.

4 In 2006, the council commenced Class 4 proceedings in this Court seeking relief to remedy the breach of the Local Government Act1993 by reason of non-compliance with the council order. On 21 April 2006, this Court made consent orders requiring Mr Jacobs to comply with terms 1 and 2 of the council order by removing all miscellaneous refuse, extraneous items, building materials and overgrown vegetation from the property to an approved waste facility in accordance with the timetable of up to sixteen weeks, subject to certain exceptions.

5 On 18 September 2007, Jagot J dismissed Mr Jacobs’ application to set aside the consent order: Hurstville City Council v Jacobs [2007] NSWLEC 630. The Court of Appeal dismissed Mr Jacobs’ application for leave to appeal from her Honour’s decision. Mr Jacobs has filed an application for special leave to appeal in the High Court. That application is pending. It does not act as a stay of any of the orders to which I have referred.

6 The council’s further amended notice of motion filed on 2 June 2008 principally seeks an order under s 678(10) of the Local Government Act1993, that the council, its servants and agents, be ordered to execute the council’s functions under s 678 by carrying out the works which were required to be carried out at the premises by paras 1 and 2 of the council order as modified by this Court by the consent order, being work the respondent was required to do but failed to do as set out in a schedule to that notice of motion.

7 Sections 678(1) and (10) of the Local Government Act 1993 provide:

(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.

8 Section 124 is within Part 2 of Chapter 7 of the Local Government Act1993.

9 The council’s evidence comprises three affidavits by Julie Kisa sworn on 27 February 2006, 8 August 2006 and 17 June 2008; the affidavit of Andrew Ainsworth of 23 November 2006; and a bundle of photos which are Exhibit A.

10 Julie Kisa is an environmental health officer employed by the council. On 6 October 2004, in the course of her employment, she attended the subject property to carry out an inspection. Upon entering the property, she observed that there were substantial amounts of used building materials, including old bricks and timber, rusted metal, rubble, broken plastic pipes as well as general refuse hoarded at the property, among overgrowing weeds and other vegetation. Photographs of the property taken by her during the inspection illustrate what she saw.

11 Ms Kisa then prepared and issued a council notice of intention to serve an order advising that a complaint “regarding the accumulation of miscellaneous refuse, extraneous items and overgrown vegetation located throughout the premises which is in an unsafe and unhealthy condition”, had been investigated and that it had been found that a sufficiently reasonable basis existed for serving an order under Part 2 of Chapter 7 of the Local Government Act1993. The letter stated that its purpose was to inform Mr Jacobs that the council intended to serve an order on him. It then set out the reason for doing so and the proposed terms. The letter also said that it was proposed that he would be given twenty-eight days to comply with the order when served.

12 On 7 and 25 October 2004, Ms Kisa carried out further inspections of the property and observed that no action had been taken by Mr Jacobs to remove the offending material the subject of the notice, or to clear the overgrowing vegetation.

13 That led to the issue of the council order to which I have earlier referred. In December 2004, the council received a letter from Mr Jacobs which said that 90 percent of the work required by the council order had been carried out and requested an extension of time in which to fully comply. The council consented to that extension of time, giving a new deadline for compliance to 30 March 2005.

14 In mid 2005, Ms Kisa sent a letter to Mr Jacobs requesting consent for the council to carry out an inspection of the property to determine if the order had been complied with. There was no response. On 6 July 2005, she undertook a view of the rear of the property from the balcony of a neighbouring property. She observed that the grass had been mowed in the clearing to the front yard. However, the rear area of the property contained substantial amounts of used building materials, including old bricks and timber, rusted metal, rubble, broken plastic pipes as well as general refuse hoarded among overgrowing weeds and other vegetation. She took photographs which bear out this description.

15 On 21 September 2005, she undertook a view of the rear of the property from the balcony of a neighbouring property. She observed that the grass had started to grow back in the clearing to the front yard area, however the rear of the property remained unchanged from her previous visit. She took photographs which bear out that description.

16 On 14 December 2005, she again viewed the property from the balcony of a neighbouring property for the purpose of determining whether the order had been complied with. She observed that the property remained unchanged from her previous visit. She took photographs which bear out that description.

17 On 20 July 2006, Ms Kisa attended the premises in the company of another council officer who was her manager. They viewed the premises from the adjoining property and also by looking through the fence. She had a clear view of the yard except for an area on the south-eastern side of the house thereon. She observed that Mr Jacobs had not complied with para 1(a)(i) of the consent orders, as there was still a large amount of material in the area referred to as area A in the consent orders. She took photographs of the premises which bear out this description.

18 On 21 July 2006, the council issued Mr Jacobs with a notice of intention to inspect the premises under s 193 of the Local Government Act. Pursuant to that notice, Ms Kisa and another council officer attended the premises on 26 July 2006 to ascertain whether Mr Jacobs had complied with the consent orders. Mr Jacobs also attended the premises on that day, along with three community representatives. Ms Kisa observed that Mr Jacobs still had not complied with the consent order 1(a)(i) as various materials were still present in area A. She also observed that he had not complied with consent orders 1(c)(i) which required the removal of material from area C within twelve weeks of the consent orders. There was still a large amount of material in the area referred to as area C. Ms Kisa took a number of photographs of area C which support that description.

19 On 21 November 2006, Mr Andrew Ainsworth, the Health and Building Regulations Officer for the council, viewed the premises over the fence from the road reserve at the front of the premises. He observed areas B, D and E as referred to in the consent orders and took a series of photographs. He also entered the property at 73 Clarke Street where he viewed the subject premises over the adjoining boundary fence at intermittent locations and observed those areas B, C and D. He took a series of photographs. He then moved to another location at 73 Clarke Street, observed area A and took further photographs. It was his opinion, and I accept, that Mr Jacobs had not complied with consent orders 1(a)(i), 1(b)(i), 1(c)(i), 1(d)(i) and 1(e)(i), as there were still large amounts of materials in those areas which had been required to be removed under the terms of the consent orders. The photographs that he took are in evidence (Exhibit A) and bear out his descriptions.

20 During the course of his inspection on 21 November 2006, he also observed that some, although not all, of the bricks on the premises had been stacked in a hazardous manner. He observed that certain works had been carried out, including excavation of a large trench, erection of a plastic mesh safety barricade fencing on the adjoining land, extensive hand excavation of the sandstone rock situated on adjoining land, the erection of a cyclone fence and gate, the erection of shade cloth on the north-western boundary fence and the construction of makeshift storage bins which appeared to have been filled with soil.

21 On 1 April 2008, Ms Kisa undertook inspections of the premises in the company of another council officer and on 27 May 2008 undertook such an inspection in the company of Mr Ainsworth. The inspections were undertaken to ascertain whether Mr Jacobs had complied with the consent orders. She viewed the premises from the National Park which runs along the rear boundary of the premises, from the rear of the premises at 73 Clarke Street, Peakhurst, which adjoins the premises, and from the road reserve at the front of the premises over a wide gate. During the inspection she and Mr Ainsworth took a number of photographs which are in evidence. The photographs bear out her opinion that Mr Jacobs had not complied with the consent orders in various respects which are detailed in her affidavit of 17 June 2008. In her opinion, which I accept, the property was, at the time of issuing the order in November 2004 and at the time of the making of the consent orders in April 2006 and at the time of her inspections, a threat to public health and safety as neither the consent orders nor the council order had been complied with. It is also her opinion, which I accept, that the property has become even more overgrown and therefore a further ongoing concern to the council.

22 No evidence was tendered by Mr Jacobs. Mr Jacobs submitted that no order should be made, as I understand it, for the following reasons:

(a) he removed some of the vegetation the subject of the council order but it grew back. There may not be any evidence of such removal but, even assuming that it had occurred, I do not think that it is a sufficient reason to grant relief now;
(b) he has complied to an extent with the consent orders. There is some evidence of partial compliance;
(c) he relocated a garden shed to his property. It does not seem to me that is of any significance for the present purposes;
(d) council representatives unlawfully entered his property to take photographs without the authority required by s 199 of the Local Government Act and he therefore owns the copyright in any photographs that they took. I do not accept the submission. The evidence before me establishes that the photographs in question were not taken on his property.

23 I am satisfied on the evidence that Mr Jacobs has not complied with all the terms of the council order as amended by the consent orders and that the council may do all such things as are necessary or convenient to give effect to the terms of the order. I consider that an order should be made under s 678(10). The council order is now almost four years old and the consent orders are more than two years old. The property is still covered with a substantial amount of material and vegetation and, on the evidence, is a health hazard.

24 It was submitted by Mr Jacobs that he should be appointed to oversee any council work which the council is ordered to do. I do not think that that is appropriate in the circumstances. The short minutes of order proposed by the council contemplate that the operation of the principal order should be suspended until twenty-eight days after the date of service of those orders upon the respondent. Mr Jacobs seeks six months in lieu of that time. I think that, given the long and unfortunate history of this matter, I should accede to the council’s proposal that it be limited to 28 days.

25 The orders of the Court will be in accordance with the short minutes of order dated 5 August 2008, initialled by me and placed with the papers. The exhibit may be returned.