Kjoller v Orange City Council

[2008] NSWLEC 1297

Land and Environment Court

of New South Wales

CITATION:	Kjoller v Orange City Council [2008] NSWLEC 1297
PARTIES:	APPLICANT Sophia Kjoller RESPONDENT Orange City Council
FILE NUMBER(S):	20707 of 2008
CORAM:	Brown C
KEY ISSUES:	Appeal :- Order to carry out work to rectify unhealthy and unsafe premises
LEGISLATION CITED:	Local Government Act 1993
DATES OF HEARING:	17/07/08
EX TEMPORE JUDGMENT DATE:	17 July 2008
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT Mr J Taylor, solicitor SOLICITORS McIntosh McPhillamy & Co

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

17 July 2008

20707 of 2008 Sophia Kjoller v Orange City Council

JUDGMENT

1 COMMISSIONER: This is an appeal against an Order (Order 21) dated 11 March 2008 served by Orange City Council under s 124 of the Local Government Act 1993 (the LG Act) on Mrs Sonja Kjoller for her property at 8 Windred Street, Orange (the site).

2 The relevant parts of the Order state:

Order 21
1. To remove all boxes, foam boxes, newspapers, pots and pot plants, bags, junk and rubbish from the front and back yard of the subject premises.
2. Cut and maintain all grass and other vegetation at a height of no more than 5 cm at all times in all parts of the front and back yard of the subject premises.

Reason for Order
The land or premises are not in a safe or healthy condition.

3 Section 180(4) of the LG Act provides that:

(4) On hearing an appeal, the Court may:
(a) revoke the order, or
(b) modify the order, or
(c) substitute for the order any other order that the council could have made, or
(d) find that the order is sufficiently complied with, or
(e) make such order with respect to compliance with the order as the Court thinks fit, or
(f) make any other order with respect to the order as the Court thinks fit .

4 The proceedings were conducted as an On Site Hearing and the judgment reflects the documentation provided to the Court and the findings given on site.

5 The site is within a residential area consisting of single dwellings and some higher density style residential development. It has a two-storey brick dwelling located near the Windred Street frontage and numerous sheds of varying condition in the backyard. The site is a relatively large lot with a frontage of 20.9 m and a depth of 81.3 m and a site area of 1699.17 sq m.

6 The site was inspected with Mrs Kjoller, Mr James Taylor, the council’s solicitor and Mr Martin Hebold, an officer of the council. Mr Hebold helpfully prepared a document that provided a sketch of the site identifying different areas and the specific areas of concern for each area (see Attachment 1). This can be summarised as:

Area 1 : the front yard containing newspapers,
Area 2 : the front yard containing boxes, including foam boxes, glass jars, newspapers and other miscellaneous materials,
Area 3 : the front yard containing boxes with books, newspapers, clothes, fruit and vegetables and other miscellaneous materials,
Area 4 : the western side of the dwelling containing boxes with glass jars, car wheels and tyres, lawnmower parts and other miscellaneous materials,
Area 5 : the rear of the dwelling containing boxes with various materials, miscellaneous furniture items and some plant and equipment,
Area 6 : the rear yard containing foam boxes lined with plastic sheeting containing pot plants and water and empty pots,
Area 7 : the eastern side of the rear yard containing rabbit cages, garden furniture, children's play equipment, lawnmowers, ladders and some boxes with plants,
Area 8 : the eastern side of the rear yard being generally overgrown and containing some rabbit cages and building materials,
Area 9 : the rear yard containing a large pile of vegetative material and being generally overgrown,
Area 10 : the rear yard being a previous vegetable patch but now in an overgrown state, and
Area 11 : along the rear property boundary containing piles of grass clippings, vegetative material, shredded newspaper and overgrown vegetation.

7 Mrs Kjoller stated that she was a pensioner and had limited resources to maintain her property. Additionally she had been in ill health and potentially may have further ongoing health issues. She had attempted to remove some of the material and mow the lawn with the help of her son however this could not always be achieved due to the unavailability of her son and the ongoing problem of leaves dropping and the lawn growing and her ill health. Mrs Kjoller also stated that the collection of glass jars was required for her hobby of bottling food and the potted plant and pots were associated with her hobby of plant propagation.

8 I accept that attempts have been made to remove some material based on my observations and the description of the material stored on the site in Mr Hebold document however the site still remains in an unacceptable condition. Following the site inspection, Mrs Kjoller was advised that the concerns of the council that the site was not in a safe or healthy condition was largely proved from the site view. Because the opportunities for the harbourage of vermin still remain and accepting the difficulties she expressed in maintaining her property, a timetable should be prepared with her involvement for the progressive reinstatement of her property to an acceptable level.

9 It was agreed at the On Site Hearing that the timetable should relate to the date of the findings, being 17 July 2008, however I accept that it would be more reasonable to extend this by 7 days so that Mrs Kjoller has the written judgment that contains the specific requirements contained in the agreed timetable.

10 The discussion resulted in an agreed timetable that provided for:

1) Areas 1, 2, 3 and 4 shown on Attachment 1 – rubbish to be removed and the areas left in a clean and tidy condition within 3 weeks from the date of this Order (that is by, 7 August 2008).
2) Area 4 shown on Attachment 1 - the glass jars are to placed in foam boxes and stacked in a single row against the western wall of the dwelling to a height not exceeding 1.5 m above natural ground level within 4 weeks from the date of this Order (that is by, 14 August 2008). All other glass jars are to be removed from the site.
3) Area 6 shown on Attachment 1 – the plants and pots are to be located within an area defined by the existing clothes line and the three trees located to the south and east of the existing clothes line and the western boundary as shown as Area A (hatched) on Attachment 1 within 7 weeks from the date of this Order (that is by, 28 August 2008). All other potted plants and pots are to be removed from the site.
4) Areas 5, 6 and 7 shown on Attachment 1 - rubbish to be removed and the areas left in a clean and tidy condition within 8 weeks from the date of this Order (that is by, 4 September 2008).
5) Areas 8, 9 and 10 shown on Attachment 1 – rubbish, including the disused water tank is to be removed and the areas left in a clean and tidy condition the within 10 weeks from the date of this Order (that is by, 4 September 2008).
6) Area 11 shown on Attachment 1 – this area may be maintained as a compost area subject to there being no increase in width or height.
7) All buildings or structures in the rear yard are to be made good and repaired to a safe condition or removed from the site within 13 weeks from the date of this Order (that is by, 18 September 2008).
8) All lawns are to be cut regularly and kept in a neat and tidy condition.
9) All normal domestic articles such as ladders etc are to be stored in a neat and orderly fashion and in an unobtrusive location.
10) The council may inspect the property at the conclusion of each target date and if so, the council is to advise the applicant of whether compliance has been achieved, or what is required to achieve compliance.

11 At the hearing it was pointed out that the appeal number was incorrectly identified as a Class 1 appeal (10441 of 2008) rather than a Class 2 appeal. I did not understand there to be any disagreement by the parties to the appeal number being changed (and consequential jurisdictional requirements for the appeal).

12 The Orders of the Court are:

1) The appeal is dismissed.
2) In accordance with s 180(4)(b) of the Local Government Act 1993 , the Order dated 11 March 2008 served by Orange City Council under s 124 of the Local Government Act 1993 on Mrs Sonja Kjoller for the property at 8 Windred Street, Orange is modified by:
• the deletion of the requirements under the heading “Order 21” and the replacement with those requirements set out on par 7 of this judgment, and
• the deletion of the “Time Period for Compliance”.
3) The exhibits are retained.

____________
G T Brown
Commissioner of the Court