Ku-ring-gai Council v Safwen Hijazi

[2023] NSWLEC 102

Land and Environment Court

New South Wales

Medium Neutral Citation:

Ku-ring-gai Council v Safwen Hijazi [2023] NSWLEC 102

Hearing dates:

29 September 2023

Date of orders:

4 October 2023

Decision date:

04 October 2023

Jurisdiction:

Class 4

Before:

Moore J

Decision:

See declaration at [49] and orders at [50].

Catchwords:

CIVIL ENFORCEMENT – on 31 March 2021, the Applicant serves a clean-up order on an owner of a property – clean-up order results from police notification that premises were used as a clandestine drug laboratory – owner of the property required to effect clean-up by 15 April 2021 – no appeal against the terms of the order – the owner has not carried out the mandated clean-up operation as required by the order – Class 4 civil enforcement proceedings commenced against the owner of the property (First Respondent) seeking court orders for compliance with the clean-up requirements – co-owner of the property joined as Second Respondent – relief sought by the Applicant amended to encompass both owners of the property – no appearance by either respondent at the hearing – Applicant proves service of Amended Summons, Court Book and Evidence Book on each respondent – evidence establishes proper basis for making original order against the First Respondent – evidence establishes that the clean-up order has not been complied with by the First Respondent – no clean-up order served on the Second Respondent – absence of clean-up order being served on the Second Respondent removes basis for making orders against the Second Respondent – failure to comply with the clean-up order by the First Respondent and the evidentiary basis founding that order (with the continuing failure to comply with it) provides a proper basis to make the declaration and orders sought by the Applicant against the First Respondent – declaration and orders made against the First Respondent – Amended Summons dismissed to the extent it sought orders against the Second Respondent

COSTS – costs ordinarily follow the event in Class 4 proceedings – no valid basis upon which the Second Respondent was joined to the proceedings and orders sought against him – appropriate to exclude costs of joinder application and amendment to the summons from the costs order to be made against the First Respondent – no costs order to be made against Second Respondent – First Respondent ordered to pay the Applicant's costs (other than the costs associated with the application for joinder of the Second Respondent and the application to rely on the Amended Summons seeking orders including orders against the Second Respondent) as agreed or assessed

Legislation Cited:

Local Government Act 1993, s 124

Cases Cited:

Ross v Lane Cove Council [2014] NSWCA 50

Category:

Principal judgment

Parties:

Ku-ring-gai Council (Applicant)
Safwen Hijazi (First Respondent)
Bahjet Hijazi (Second Respondent)

Representation:

Counsel:
Ms C Rose, solicitor (Applicant)
No appearance (First Respondent)
No appearance (Second Respondent)

Solicitors:
Wilshire Webb Staunton Beattie (Applicant)

File Number(s):

2022/101221

Publication restriction:

No

JUDGMENT

Introduction

These Class 4 proceedings

The relevant legislative provision

The Council’s Notices of Motion

Service on Mr Bahjet Hijazi

Orders for joinder and leave to rely on the Amended Summons

Judgment references

The hearing

The evidence

The submissions

The proposed orders against Safwen

The proposed orders against Bahjet

Costs

Declaration and orders

JUDGMENT

Introduction

1. On 31 March 2021, Ku-ring-gai Council (the Council) served an order on Mr Safwen Hijazi. The order was issued pursuant to s 124 of the Local Government Act 1993 (the Local Government Act). The section and the terms of item 21 of the orders table to the section are later reproduced. The order commenced by identifying the premises (22 Church Street Pymble 2073 – Lot 2 in DP 415318) to which the order applied.

2. The circumstances relied upon by the Council for issuing the orders were set out in the following terms:

CIRCUMSTANCES

1   You are the registered owner of the premises known as 22 Church Street Pymble 2073 (Premises).

2   On 29 October 2019, the NSW police issued a Clandestine Drug Laboratory Notification to Ku-ring-gai Council advising they had attended the Premises and removed hazardous chemicals and other contaminated materials.

3   The NSW Police notification advised of the likelihood of substances being present within the Premises that are potentially harmful to health and safety, namely methamphetamine.

4   In the circumstances, it is likely that the Premises are not in a safe or healthy condition.

3. The operative terms of the order required Mr Safwen Hijazi to:

1   Engage a suitably qualified and experienced professional, such as an occupational hygienist, to undertake a Preliminary Assessment or ‘Screening Assessment’ in accordance with section 3.4.3 of the NSW Remediation Guidelines for Clandestine Drug Laboratories and Hydroponic Drug Plantation and in line with the Australian National Clandestine Drug Laboratory Remediation Guidelines for the Premises; and

2   Based on the findings of the Report outlined in Point 1 above, undertake the necessary remediation works and provide the Applicant with a copy of the Clearance Certificate/Report prepared by a suitably qualified and experienced professional, such as an occupational hygienist, confirming that the area (identified in the Police Report as the contaminated area)*, has been remediated and is suitable for ongoing residential occupation.

The Certificate/Report shall outline the results of the post clean validation sampling, including results for the quantitative analysis of surface samples, correlating to locations of suspected or confirmed contamination (area decontaminated), from a NATA accredited laboratory.

4. The matter referenced by the * above was the following notation:

Please Note – the Police Report identify the location of the drug activity to the lower/ground level of 22 Church Street, Pymble only.

5. The order then set out the reasons for it being given – these replicating the formal matters set out under the heading “Circumstances” reproduced above at [2].

6. The period for compliance with the order was set as being by Thursday, 15 April 2021.

7. It is not necessary to set out the matters in the formal information contained in the remaining paragraphs of the order. The order also had attached to it a document setting out the relevant sections of the Local Government Act.

These Class 4 proceedings

8. On 8 April 2022, the Council commenced these Class 4 proceedings against Mr Safwen Hijazi. The Summons commencing the proceedings set out the relevant definitional elements in the following terms:

1   In these orders:

“Premises” means the premises at 22 Church Street, Pymble

“Remedial Order” means the Order issued by the Applicant on 31 March 2021 pursuant to section 124 of the Local Government Act 1993

“the Act” is the Local Government Act 1993

9. The relief sought in the Summons was:

2 A declaration that the Respondent has not complied with the terms of the Remedial Order dated 31 March 2021 given by the Applicant to the Respondent pursuant to section 124 of the Act, requiring the respondent to engage a professional to undertake an assessment of the Premises and then undertake necessary remedial works;

3   An Order that the Respondent comply with the Remedial Order, in particular by:

a)   Engaging a suitably qualified and experienced professional, such as an occupational hygienist to undertake a Preliminary Assessment of ‘Screening Assessment’ in accordance with section 3.4.3 of the NSW Remediation Guidelines for Clandestine Drug Laboratories and Hydroponic Drug Plantation and in line with the Australian National Clandestine Drug Laboratory Remediation Guidelines for the Premises; and

b)   Based on the findings of the Report arising from Order 3a above, undertake the necessary remediation works and provide the Respondent with a copy of the Clearance Certificate / Report prepared by a suitably qualified and experience professional, such as an occupational hygienist, confirming that the area (identified in the Police Report as the contaminated area), has been remediated and is suitable for ongoing residential occupation. Any certificate / Report is to outline the results of the post clean validation sampling, including results for the quantitative analysis of surface samples, correlating to locations of suspected or confirmed contamination (area decontaminated) from a NATA accredited laboratory.

2   Orders 3a and 3b above must be completed within a timeframe imposed by the Court.

3   An Order that the Respondent pay the Council’s legal costs of or incidental to these proceedings as agreed or assessed.

10. Evidence of service of the Summons on Mr Safwen Hijazi was demonstrated by the reading of an affidavit of Mr Michael Guest, licensed commercial agent, dated 27 April 2022. The affidavit said, at paragraphs (4) to (6), the following:

4.   On the 19th day of April 2022 at 7.00am, I served Safwen Hijazi with the following documents –

a.   Summons

5.   I served these documents upon Safwen Hijazi personally at 24 Station Street Pymble in State of New South Wales.

6.   At the time of service, I asked “Are you Safwen Hijazi?” to which he replied “Yes, I am”. I then handed him the documents.

11. On 29 June 2022, the Council, filed its Points of Claim. The Points of Claim were in the following terms:

The parties

1. The applicant is the local council for the local government area of Ku-Ring-Gai, constituted under the Local Government Act 1993 (LG Act).

2.   The respondent is one of the registered proprietors of Lot 2 in DP 415318 known as 22 Church Street, Pymble, NSW, 2073 (site).

Description of the site and contamination

3.   The site is a residential premises that contains a single dwelling house, a swimming pool and private open space to the rear of the dwelling house.

4.   On 29 October 2019, NSW Police issued a Clandestine Drug Laboratory Notification to Ku-Ring-Gai Council advising they had attended the site and removed hazardous chemicals and other contaminated materials. The notification advised the likelihood of substances being present that are potentially harmful to health and safety, namely methamphetamine.

5.   The nature of the contamination is likely to be localised and able to be adequately removed by a suitably qualified and experience cleaning contractor.

The order

6. On 9 March 2021 the applicant issued a Notice of Intention to Issue an Order (Item 21) under section 124 of the LG Act to:

a.   “Engage an appropriately experience commercial cleaner to decontaminate the Premises in accordance with the NSW Remediation Guidelines for Clandestine Drug Laboratories and Hydroponic Drug Plantation 2015 and the Australian Government Clandestine Drug Laboratory Remediation Guidelines 2011.

b.   Provide Ku-Ring-Gai Council with a copy of the Clearance Certificate confirming that the Premises has been remediated and is suitable for going residential occupation.”

7. On 30 March 2021 the applicant issued an Order pursuant to Item 21 of section 124 of the LG Act, in the same terms as the Notice of Intention to Issue and order issued on 9 March 2021 (Order). The Order required compliance by 15 April 2021.

8. No remediation at the site has been carried out and the Order has not been complied with, contrary to section 124 of the LG Act.

9.   A failure to comply with an Order is deemed to be a breach of the LG Act pursuant to section 672 of that Act.

The relevant legislative provision

12. The Council's order was issued pursuant to item 21 in the table to s 124 of the Local Government Act. That provision is in the following terms:

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.

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

The Council’s Notices of Motion

13. On 1 February 2023, a Notice of Motion was filed for the Council, seeking the joinder of Mr Bahjet Hijazi as the Second Respondent. The affidavit in support of this Notice of Motion was deposed on 1 February 2023 by Ms Cecilia Rose, the Council’s legal representative. This affidavit demonstrated that Mr Safwen Hijazi and Mr Bahjet Hijazi held the title to 22 Church Street, Pymble (Lot 2 DP 415318) as tenants-in-common.

14. The second of the Council’s Notices of Motion filed on 1 February also sought leave to rely on an Amended Summons. That Amended Summons was, relevantly, in the following terms:

Amended Summons

The Orders sought are:

1   In these orders:

“Premises” means the premises at 22 Church Street, Pymble

“Remedial Order” means the Order issued by the Applicant on 31 March 2021 pursuant to section 124 of the Local Government Act 1993

“the Act” is the Local Government Act 1993

2 A declaration that the Respondents have not complied with the terms of the Remedial Order dated 31 March 2021 given by the Applicant to the First Respondent pursuant to section 124 of the Act, requiring the First Respondent to engage a professional to undertake an assessment of the Premises and then undertake necessary remedial works;

3   An Order that the Respondents comply with the Remedial Order, in particular by:

a.   Engaging a suitably qualified and experienced professional, such as an occupational hygienist to undertake a Preliminary Assessment of ‘Screening Assessment’ in accordance with section 3.4.3 of the NSW Remediation Guidelines for Clandestine Drug Laboratories and Hydroponic Drug Plantation and in line with the Australian National Clandestine Drug Laboratory Remediation Guidelines for the Premises; and

b.   Based on the findings of the Report arising from Order 3a above, undertake the necessary remediation works and provide the Applicant with a copy of the Clearance Certificate / Report prepared by a suitably qualified and experience professional, such as an occupational hygienist, confirming that the area (identified in the Police Report as the contaminated area), has been remediated and is suitable for ongoing residential occupation. Any certificate / Report is to outline the results of the post clean validation sampling, including results for the quantitative analysis of surface samples, correlating to locations of suspected or confirmed contamination (area decontaminated) from a NATA accredited laboratory.

4   Orders 3a and 3b above must be completed within a timeframe imposed by the Court.

5   An Order that the Respondents pay the Council’s legal costs of or incidental to these proceedings as agreed or assessed.

Service on Mr Bahjet Hijazi

15. On 20 April 2023, a Notice of Motion was filed for the Council, seeking the making of orders for substituted service of the joinder motion on Mr Bahjet Hijazi. On 21 April, Pritchard J made the order for substituted service which had been sought in the Notice of Motion.

16. The documents which were served on Mr Bahjet Hijazi included the Notice of Motion filed on 1 February 2023 seeking to join him as the Second Respondent to the proceedings and a copy of the Notice of Motion filed on 20 April 2023 seeking the orders for substituted service. The letter from the Council's solicitors attaching these documents also noted that the matter was further listed before the Court on 5 May 2023 and advising Mr Bahjet Hijazi that he was required to attend in person on that date. An affidavit of service of 1 May 2023 read on the Council’s motions attested, at (4) to (6): that:

4.   On the 28th day of April, 2023 at 3:30pm, I served Safwen Hijazi with the following documents –

Notice of Motion filed 1 February 2023, affidavit of Cecilia Rose sworn and filed 1 February 2023 and Notice of Motion filed 20 April 2023.

5.   Service was effected by leaving the documents in a sealed envelope, under cover of a letter addressed to Bahjet Hijazi in the mailbox at the addresses known as 22 Church Street, Pymble NSW 2073, and also 24 Church Street, Pymble, NSW, 2073.

6.   Further copies were also affixed to the front doors of the addresses known as 22 Church Street, Pymble NSW 2073 and 24 Church Street, Pymble, NSW, 2073.

Orders for joinder and leave to rely on the Amended Summons

17. Mr Bahjet Hijazi was joined as the Second Respondent by order made by Robson J on 5 May 2023.

18. His Honour also granted leave for the Council to rely on its proposed Amended Summons. The terms of the Amended Summons have earlier been set out. The only functional difference between the Summons commencing these Class 4 proceedings and the Amended Summons is that the Council seeks to have the declaration and orders made in terms that reference both respondents and, with respect to the orders, impose on both respondents the obligation to effect the clean-up in the fashion prescribed in the s 124 order originally served on the First Respondent by the Council in March 2021.

19. The Council also proposes that I set what I consider to be the appropriate timeframe within which compliance with the clean-up requirements are to be carried out and the mandated certificate of satisfactory compliance with the order provided to the Council.

Judgment references

20. As can be seen from the cover sheet of this judgement, Mr Safwen Hijazi and Mr Bahjet Hijazi are the First and Second Respondents in these proceedings. For convenience, and without meaning disrespect to either of them, I will refer to them as Safwen and Bahjet as appropriate for the purposes of the remainder of this judgement.

The hearing

21. The hearing was held on 29 September 2023. The Council was represented by Ms C Rose, its solicitor. Although called outside the courtroom three times, there was no attendance by Safwen or Bahjet. As I was satisfied by the evidence of service on each respondent that they had been made aware of the hearing, I dealt with the matter on an ex parte basis. The hearing was able to be completed prior to what would ordinarily have been the morning adjournment.

The evidence

22. The Council relied on the following affidavit evidence read at the commencement of this hearing:

1. two affidavits by Joanna Assad, the Council’s Coordinator Environmental Health Services - affidavits deposed on 30 June 2022 and 30 January 2023;

2. four affidavits of service deposed by Michael Guest – these being dated 27 April 2022, 3 February 2023, 2 March and 25 May 2023; and

3. two affidavits of Cecilia Rose, the Council’s solicitor, deposed on 31 January and 1 February 2023.

23. The documentary evidence tendered on behalf of the Council was:

1. a bundle of documents comprising Exhibit JA–1 exhibited to Ms Assad's affidavit of 30 June 2022 (Exhibit A);

2. a Contamination Assessment Report prepared by JMB Environmental Consulting dated 7 March 2023. This document had been commissioned by Safwen and was procured by the Council's legal representatives by the service of a subpoena on the authoring organisation. This document became Exhibit B; and

3. a document entitled NSW Remediation Guidelines for Clandestine Drug Laboratories and Hydroponic Drug Plantation, dated September 2015. This document became Exhibit C.

24. It is to be noted that no documentary material had been filed on behalf of either Safwen or Bahjet.

The submissions

25. Ms Rose took me to the Order which had been served on Safwen, an order in the documents behind tab 12 of Exhibit A.

26. Ms Rose also took me to page 6 of Exhibit B, a page which set out an overview of the findings of the contamination assessment and the recommendations made as a consequence of its findings. With respect to these two matters, Exhibit B said:

Overview

•   Excessive contamination of Methamphetamine is present throughout the property, except for Bedroom 1 on the ground floor.

•   Amphetamine contamination is also found throughout the property.

•   Significant contamination was discovered in the house drain lines (Laundry sink drainage pipe), this indicates that contamination may exist in the house drainage and should be flushed with an abrasive drain cleaning product.

•   The sample [sic] taken throughout the property are representative and it can be assumed that contamination may also be present on other surfaces within the rooms.

•   The property has not been decontaminated to a satisfactory    standard.

Recommendations

Based on the assessment findings, current best practices and Regulatory requirements, the following recommendations are made.

•   The Residence must be remediated in accordance with the requirements of the Clandestine Drug Laboratory Remediation Guidelines 2011. If unexpected contamination is identified during the remediation, works must cease pending further investigation

•   Contaminated areas will require further cleaning as per the RAP to fully remove the remaining contamination before reinspection and testing for methamphetamine.

•   Consideration should be given to removing or intensively cleaning the ducting, drainage pipings and flat surfaces (Cabinetries).

•   Following completion of the remediation works, validation sampling must be conducted by a suitably qualified Occupation Hygienist to ensure that no residual contamination remains above the HILs. If validation sampling fails to meet the required standard, further cleaning must be undertaken, and additional validation samples collected.

•   At the successful completion of the remediation works a validation certificate must be issued confirming that the works have been conducted to a satisfactory standard in accordance with the relevant guidelines.

27. She next took me to email correspondence between Ms Assad and Safwen (behind tab 28 of Exhibit A). This email correspondence demonstrated, Ms Rose submitted, that the Council had continued to endeavour to assist Safwen understand his obligations under the order and what was required of him to comply with its terms.

28. Ms Rose also took me to a letter of 18 March 2021 from Mr Newell, an employee of an organisation called the Chemical Operations Group which was a response to a request from Ms Assad concerning various types of clandestine drug laboratories and risks associated with them. Mr Newell, the author of the letter attached a summary of his qualifications and experience including noting that:

I am an Australian and internationally recognised expert in illicit drug manufacture and drug contamination and served as a subject matter expert for the United Nations Office on Drugs and Crime.

29. The letter advised the Council that the steps proposed in its notice of intention to give an order to Safwen (reflected in the s 124 Order actually given to Safwen) were appropriate, under the circumstances.

30. In response to a question from me, Ms Rose said the Council proposed that a period of three months should be allowed for compliance with any orders I might make.

31. In the context of the order given to Safwen and proposed to be replicated in the orders sought by the Council from me, Ms Rose enquired of me whether I was prepared to accept, for the purposes of these proceedings, that the contamination assessment (Exhibit B) would satisfy the requirements in order 1(a) of the orders which the Council asked me to make, being that Safwen comply with the remedial order by:

Engaging a suitably qualified and experienced professional, such as an occupational hygienist, to undertake a Preliminary Assessment or ‘Screening Assessment’ in accordance with section 3.4.3 of the NSW Remediation Guidelines for Clandestine Drug Laboratories and Hydroponic Drug Plantation and in line with the Australian National Clandestine Drug Laboratory Remediation Guidelines for the Premises

32. I indicated to Ms Rose that I had no technical competence that would enable me to respond to her enquiry (even if making such an enquiry of me was appropriate).

33. I indicated that, as the Council was the body which had proposed the terms of the order, it was open to the Council to conclude that Exhibit B satisfied the terms of that element of the order or the orders that I would make. However, it was exclusively a matter for the Council and not for this Court.

34. Having considered the material to which Ms Rose took me and the terms of the various affidavits of service, I am satisfied that Safwen is sufficiently and appropriately informed both of his obligations under the order served on him by the Council pursuant to s124 of the Local Government Act and of the orders which the Council proposes that I make in these proceedings.

The proposed orders against Safwen

35. I have considered whether the Council's evidence provides a satisfactory basis upon which I should make those orders against Safwen. I now turn to explain why I am satisfied that I should do so.

36. The evidence clearly establishes that:

1. the order made by the Council requiring Safwen to clean-up the drug laboratory contamination on the site was validly served on Safwen;

2. Safwen has failed to have carried out the clean-up required to be effected by that order;

3. Safwen has had communications with representatives of the Council concerning the order – thus demonstrating unequivocally that he is aware of the requirement to give effect to the order, and continues to fail to carry out the required clean-up; and

4. no valid reason has been advanced to me as to why Safwen ought not be required to carry out the clean-up of the site in the fashion required by the Council’s order of 31 March 2021.

37. It is, therefore, appropriate that I make the declaration and orders sought by the Council – orders requiring that Safwen clean-up the site in the fashion originally required by the Council in the order pursuant to s 124 of the Local Government Act served on Safwen on 31 March 2021.

The proposed orders against Bahjet

38. Although Robson J ordered, on 5 May 2023, that Bahjet be joined as the Second Respondent to the proceedings, the Council has never served an order pursuant to s 124 of the Local Government Act on Bahjet imposing the same obligations on Bahjet as have been imposed on Safwen.

39. During the course of the hearing, I enquired of Ms Rose as to how I had any legitimate jurisdiction to make any orders binding Bahjet and on what basis had the Council considered that it was appropriate to seek to join Bahjet as the Second Respondent to the proceedings and to seek to rely on an Amended Summons that sought operative clean-up court orders against Bahjet where there was no foundational Local Government Act order with which Bahjet had not complied.

40. Ms Rose was unable to give me any satisfactory explanation as to how I had any jurisdiction to make any orders against Bahjet in these proceedings. I understood her to concede that there was no proper basis which would permit me to do so.

41. Although Bahjet is a co-owner of the site, the absence of any order having been served on him seeking to require him to clean-up the site in the fashion proposed in the order which was served on Safwen, means there is no basis upon which I can make any orders in these proceedings imposing any clean-up obligations on Bahjet.

42. In addition, as Bahjet and Safwen are co-owners of the site, the circumstances requiring to be addressed by the Court of Appeal in Ross v Lane Cove Council [2014] NSWCA 50 do not here arise as Safwen has a continuing legal right, as an owner of the property, to access the property for the purposes of effecting the clean-up required of him. As a consequence, there is no necessity to make any order against Bahjet in order to ensure that Safwen can carry out the clean-up activities required by the Council's order and which will be imposed on Safwen by the orders that I make in these proceedings.

43. It therefore follows that, to the extent that the Amended Summons sought a declaration and orders against Bahjet, the Amended Summons must be dismissed.

Costs

44. In Class 4 proceedings, costs ordinarily follow the event. As the Council has succeeded and will obtain the declaration and orders that it sought against Safwen as a consequence of Safwen 's failure to clean up the site as required by the order served on him pursuant to s 124 of the Local Government Act to do so, it is appropriate that Safwen be ordered to pay the Council's costs of the proceedings to the extent that the proceedings have sought relief against Safwen.

45. However, for the reasons earlier explained, there has never been any valid basis upon which the Council could seek to have Bahjet joined to the proceedings and, as a consequence, for the Council to seek leave to rely on an Amended Summons seeking orders against Bahjet.

46. These procedural deficiencies were not caused by Safwen and there is no proper basis upon which any of the costs associated with the joinder application and the amendment to the summons should be borne by Safwen.

47. It therefore follows that the costs order which I will make will require that Safwen pay the Council's costs of the proceedings, other than those costs associated with the joinder application and the amendment to the Summons.

48. It is also self-evident that there is no possible basis to make any costs order against Bahjet.

Declaration and orders

49. For the reasons set out above, the Court makes the following declaration:

1. The Court declares that Safwen Hijazi (the First Respondent) has not complied with the terms of the Remedial Order dated 31 March 2021 given by the Applicant to the First Respondent pursuant to s 124 of the Local Government Act 1993, requiring the First Respondent to engage a professional to undertake an assessment of contamination of Lot 2 DP 415318 - known as 22 Church Street, Pymble, NSW, 2073 (the Premises) resulting from the use of the Premises as an illegal drug laboratory and then undertake works necessary to remediate any contamination of the Premises; and

50. The Court orders that:

1. The First Respondent is to comply with the Remedial Order, in particular by:

1. Engaging a suitably qualified and experienced professional, such as an occupational hygienist, to undertake a Preliminary Assessment or ‘Screening Assessment’ in accordance with section 3.4.3 of the NSW Remediation Guidelines for Clandestine Drug Laboratories and Hydroponic Drug Plantation and in line with the Australian National Clandestine Drug Laboratory Remediation Guidelines for the Premises; and

2. Based on the findings of the Report arising from Order 1(a) above, undertake the necessary remediation works and provide the Applicant with a copy of the Clearance Certificate/Report prepared by a suitably qualified and experienced professional, such as an occupational hygienist, confirming that the area (identified in the Police Report as the contaminated area), has been remediated and is suitable for ongoing residential occupation. Any Certificate/Report is to outline the results of the post clean validation sampling, including results for the quantitative analysis of surface samples, correlating to locations of suspected or confirmed contamination (area decontaminated) from a NATA accredited laboratory.

2. Orders 1(a) and 1(b) above must be completed within 90 days of the date of the service of a sealed copy of these orders on the First Respondent;

3. To the extent that the Amended Summons sought orders against Bahjet Hijazi (the Second Respondent), the Amended Summons is dismissed;

4. The First Respondent is to pay the Applicant's costs of the proceedings (other than those costs incurred by the Applicant in seeking the joinder of the Second Respondent and the costs of the preparation of, and service of the Amended Summons on, either the First or the Second Respondent) as agreed or assessed; and

5. The exhibits are returned.

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Decision last updated: 04 October 2023