| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : LAWRENCE -v- CITY OF MELVILLE [2002] WADC 215 CORAM : COMMISSIONER REYNOLDS HEARD : 29 & 30 OCTOBER 2001 & 1 MARCH 2002 DELIVERED : 11 OCTOBER 2002 FILE NO/S : CIV 641 of 2001 BETWEEN : QUENTIN DERRICK LAWRENCE Plaintiff
AND
CITY OF MELVILLE
Defendant
Catchwords: Local government - Removal and impounding of sea container - Obstruction on public thoroughfare - Request for removal of obstruction - Lawfulness of removal and impounding
Legislation: Main Roads Act 1930
Local Government Act 1995
Land Administration Act 1997
Local Government (Functions and General) Regulations 1996
Local Government (Uniform Local Provisions) Regulations 1996
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Result:
Plaintiff's claim dismissed - Removal and impounding by defendant lawful
Representation:
Counsel:
Plaintiff : Mr P A Kyle
Defendant : Mr D W McLeod
Solicitors:
Plaintiff : Kyle & Company
Defendant : McLeods
Case(s) referred to in judgment(s):
Haywood v Mumford (1908) 7 CLR 133
Case(s) also cited:
Re Honey Pool of WA, unreported; SCt of WA; Library No 6985; 18 December 1987
Shire of Gingin; Ex Parte Machlin & Ors, unreported; FCt SCt of WA; Library No 990128; 19 March 1999
Western Australia v Dale (1996) 90 LGERA 307
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COMMISSIONER REYNOLDS:
Introduction 1 The plaintiff is the owner of a shipping container. It is about 8 metres long and about 2.5 to 3 metres wide and high. From about 1992 he used the container to store engineering and household goods. The plaintiff is a qualified mine manager and professional engineer and from time to time his employment required him to live away from home and sometimes out of the State. The plaintiff stored the container at a place in Fremantle for about three years to December 1998. In about November 1998 the plaintiff's wife purchased the house and land commonly known as 207 Riseley Street, Booragoon ("the premises"). The plaintiff, his wife and children began to reside at the premises. The plaintiff and his wife planned to renovate the house and landscape part of the yard areas. There was no fence on the front boundary of the premises which bordered the road reserve of Riseley Street. 2 In December 1998 the plaintiff caused the container to be removed from storage and placed in front of the house built on the premises. The container was placed in a position such that part of it was on the premises and part of it was on the road reserve of Riseley Street. In other words the container straddled the boundary of the premises and the road reserve. The container was positioned such that between the end closer to the bitumen road surface and the bitumen road surface itself there was a grassed verge area and a concrete footpath. The concrete footpath was parallel and immediately adjacent to the bitumen road surface. 3 On 21 June 1999 the defendant's employees and a contractor removed the container with some contents therein and impounded it. The plaintiff claims that the defendant unlawfully removed the container and seeks an order that the container and its contents be delivered back to him. The defendant is a local government established under the Local Government Act 1995 ("the Act"). It claims that the removal and impoundment of the container was lawful and seeks a declaration to that effect together with an order that the plaintiff pay its costs and expenses to remove and impound the container.
The relevant law 4 At the outset I should state that the defendant has clearly established that Riseley Street is within the district of the City of Melville.
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5 Section 3.21 of Part 3 of the Act provides a general duty to local governments to ensure that thoroughfares are not obstructed. It provides as follows:
"3.21Duties when performing functions 6 Section 1.4 of Part 1 of the Act defines "thoroughfare" as follows: " 'thoroughfare' means a road or other thoroughfare and includes structures of other things appurtenant to the thoroughfare that are within its limits, and nothing is prevented from being a thoroughfare only because it is not open at each end;" 7 There is no definition of the term "road" in the Act. 8 Section 3 of Part 1 of the Land Administration Act 1997 ("the Land Admin Act") defines "road" as follows: " 'road' means, subject to section 54, land dedicated at common law or reserved, declared or otherwise dedicated under an Act as an alley, bridge, court, lane, road, street, thoroughfare or yard for the passage of pedestrians or vehicles or both;" 9 Section 55(1) to s 55(3) of the Land Admin Act provides as follows: "55. Property in roads, etc. (1) Subject to this section and to section 57, the absolute property in land comprising a road is by this subsection –
(a) revested in the Crown; and
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10 Section 55(4) and s 57 of the Land Admin Act are of no consequence in this case. 11 Section 55(2) of the Land Admin Act it subject to the Main Roads Act 1930 ("the Main Roads Act"). Section 13(1), s 15(1) and s 15(2) of the Main Roads Act 1930 provide as follows: "13. Proclamation of highways and main roads "15. Property in and control of main roads
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12 The Commissioner for the purposes of s 13 and s 15 of the Main Roads Act is the Commissioner of Main Roads. There is no evidence that pursuant to the Main Roads Act Riseley Street has been declared by way of proclamation to be a highway or a main road. 13 Section 9.41 of Part 9, Division 2 of the Act provides as follows: "9.41 Proving ownership, occupancy, and other things by certificate 14 Pursuant to s 9.41 John J McNally ("Mr McNally), the Chief Executive Officer of the City of Melville, by certificate dated 26 October 2001 has certified that: "1) Land known as Lot 226 Riseley Street, Booragoon, is within the District of the City of Melville.
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2) The thoroughfare known as Riseley Street, Booragoon, is under the care, control and management of the City of Melville." 15 In light of all of these statutory provisions Riseley Street is a thoroughfare. Further, if Riseley Street is not a highway or main road then the local government within which Riseley Street is situated, namely the defendant, has the care, control and management of it. The evidence as per the certificate of Mr McNally is that the thoroughfare known as Riseley Street is under the care, control and management of the defendant. In light of all of this I find that Riseley Street is a thoroughfare and that it is under the care, control and management of the defendant. 16 Exhibit 9 is a certified copy of an enlargement of portion of the official photograph dated 11 January 1999, the negative of which is held in the custody of the Department of Land Administration which correctly identifies the boundaries of Lot 226 on Office of Titles Plan 11632 as contained in Certificate of Title Volume 1446 Folio 190 according to official survey. Lot 226 is the lot number for the premises. The copy document has been certified pursuant to s 65 of the Evidence Act by the Manager, Geographic Services. It shows and I find that the front boundary of Lot 226, namely the premises, is the boundary between the front of the premises and Riseley Street. The certified copy photograph is an aerial photograph and it actually shows the position of the container as at 11 January 1999. It shows that a small part of the container was on the premises and that most of it was on the thoroughfare known as Riseley Street. 17 I now turn to consider so far as I think necessary what power, if any, the defendant has to impound and if so in what circumstances. The starting point is s 3.37(1) of the Act which provides as follows: "3.37(1) Regulations may prescribe any contravention of a regulation or local law made under this Act to be a contravention that can lead to impounding." 18 Section 3.38 of the Act defines a contravention that can lead to impounding as follows: "3.38'contravention that can lead to impounding' means anything prescribed to be a contravention that can lead to impounding;"
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19 Section 3.39(1) of the Act empowers an authorised employee of a local government to impound. It provides as follows:
"3.39(1) An employee authorized by a local government for the purpose may remove and impound any goods that are involved in a contravention that can lead to impounding." 20 From s 3.37(1) and s 3.38 of the Act I now go to s 29(1) of the Local Government (Functions and General) Regulations 1996 ("the LG (F and G) Regulations") which provides as follows: "29(1) A contravention of a regulation or local law made under the Act can lead to the impounding of goods involved in the contravention if – (a) it occurs in a public place; and (b) either –
(i) the presence of the goods –
or (ii) where the regulation or local law prohibits or regulate the placement of the goods, the goods are located in a place contrary to that regulation or local law." 21 In this particular case I think that I only need to concern myself with the provisions of s 29(1)(a) and s 29(1)(b)(i)(II). There is rightly no issue between the parties that the thoroughfare known as Riseley Street is a public place. There is a factual issue between the parties on whether the container obstructed the lawful use of the thoroughfare. I now go to s 6(1) of the Local Government (Uniform Local Provisions) Regulations 1996 ("the LG (ULP) Regulations") which provides as follows: "6(1) A person who, without lawful authority, places on a public thoroughfare anything that obstructs it commits an offence if the person fails to remove the obstruction when requested by the local government to do so."
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22 In the final analysis having found that the thoroughfare of Riseley Street is a public place for the purposes of s 29(1) of the LG (F and G) Regulations and obstruction being common to both s 29(1) of the LG (F and G) Regulations and s 6(1) of the LG (ULP) Regulations if the plaintiff committed an offence against s 6(1) of the LG (ULP) Regulations then it was lawful for an authorised employee of the defendant to remove and impound the container. If the plaintiff did not commit an offence against s 6(1) of the LG (ULP) Regulations then the defendant was not entitled to remove and impound the container unless there was some other source of power.
23 The three essential elements of an offence against s 6(1) of the LG (ULP) Regulations are: 1. That the defendant without lawful authority placed the container on a public thoroughfare, namely Riseley Street, and 2. That the container obstructed Riseley Street, and 3. That the defendant failed to move the container off Riseley Street when requested to do so by the defendant.
Application of the law to the evidence 24 The plaintiff gave evidence and called his wife, Roseanne Feery-Lawrence ("Ms Feery-Lawrence"), as a witness. The defence called Leslie Frank Crake ("Mr Crake"), a development compliance officer employed by the defendant, Cheryl Lorraine Harrison ("Ms Harrison"), a process server, Mr McNally, the Chief Executive Officer of the defendant, Andrew James Norris ("Mr Norris"), a ranger employed by the defendant and Sergeant Steven Alan Balcombe ("Sergeant Balcombe") of the West Australian Police Force. 25 I now turn to deal with the first essential element identified by me earlier of an offence under s 6(1) of the LG (ULP)Regulations. The plaintiff does not dispute that he placed the container in the position from where it was removed by a contractor acting on the instructions of the defendant on 21 June 1999. In the plaintiff's evidence-in-chief he was asked and said: "When did you place the container on the property at Riseley Street? ... Somewhere in the December period of 98. 1998? ... Yes.
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And how did you organise that? In physical terms how did you organise it? ... I contacted the storage depot at Fremantle – it was kept at Fremantle Containers, a facility where many sea containers are kept. They organised a truck driver to load it onto his truck and I organised a crane company called Myaree Cranes to lift it off and place it on the property boundary at Riseley Street." 26 The plaintiff gave evidence that he was present and gave directions when the crane driver lifted the container off a truck and deposited it partly on the premises and partly on the road verge. The plaintiff said that he knew when the container was delivered that it was deposited partly on the road verge but he did not know the exact location of the boundary and so the exact extent to which it was on the road verge. 27 Counsel for the plaintiff in opening stated that in December 1998 the plaintiff arranged for this container of his possessions to be placed on the property or, more accurately, partly on the property and partly on the road verge of the property with his wife's agreement. 28 The plaintiff has not suggested that he had any lawful authority to place the container in the position he did. I am satisfied that the thoroughfare known as Riseley Street is a public thoroughfare. I find that the plaintiff, without lawful authority, placed the container on the public thoroughfare known as Riseley Street. I have already referred to exhibit 9 which shows that most of the container and indeed nearly all of the container was on the Riseley Street road reserve. The plaintiff gave evidence that he attempted to move the container onto the premises on the weekend before 21 June 1999 but could only move it a short distance because it was too heavy and attempting to do it alone was dangerous. I find that the position of the container on 21 June 1999 was essentially the same as shown in exhibit 9 being the surveyed aerial photograph taken on 11 January 1999. On my assessment of all of the evidence I have no doubt that the plaintiff, without lawful authority, placed in the sense of knowingly caused to be placed, the container on the public thoroughfare known as Riseley Street. 29 I now turn to deal with the second essential element identified by me earlier for an offence under s 6(1) of the LG (ULP) Regulations. The plaintiff disputes the defendant's claim that the container obstructed the public thoroughfare known as Riseley Street. In Haywood v Mumford (1908) 7 CLR 133 at 140 and 141 O'Connor J stated inter alia:
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"What is obstruction of a highway? It is not only an obstruction which actually prevents someone from exercising his right on the highway; it is any obstruction which interferes to an appreciable practical extent with the right which every member of the public has to use the highway, and to use it at all times and under all circumstances. The right of each person is not restricted to the particular part of the highway which may happen not to be in use by others at the time; it extends to the whole of the highway. Everybody has the right to use the whole of the highway at any time he thinks fit for the purpose of passing and repassing, and anything which appreciably and practically interferes with that right is an obstruction of the highway." 30 While the factual circumstances in Haywood v Mumford (supra) are different to those in this particular case the meaning given to an obstruction is nevertheless apposite in this case. It is important to bear in mind that members of the public are entitled to use all parts of a road reserve. They are not restricted to the bitumen road surface and/or a footpath if one is provided. 31 As already mentioned, in this case the Riseley Street road reserve includes a bitumen road surface. On the property side of Riseley Street it also includes a cement footpath which abuts the bitumen road surface and which from a photograph, exhibit 10(a) in evidence, looks to be about 1 metre to 2 metres wide. It also includes a grassed area between the side of the footpath closer to the property and the front boundary of the property which can be seen in exhibit 9 and photographs taken of the container in front of the property being exhibits 10(a) and 10(b). The container is essentially positioned lengthways in front of the property with most of it being on the Riseley Street road reserve. I have already mentioned the approximate dimensions of the container. 32 In my view even though the container was on the grassed area of the road verge so that the footpath and the bitumen road surface remained clear it still constituted an obstruction. Its sheer size relative to the area of the road reserve between the front of the property and the closest edge of the bitumen road surface made it an obvious obstruction. Also, even though it was still possible to access the premises from the road reserve, the container was an obvious obstruction to any lawful visitor to the premises.
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33 I find that the container obstructed the public thoroughfare known as Riseley Street for the purposes of s 6(1) of the LG (ULP) Regulations. I also find that the container obstructed the lawful use of the public thoroughfare known as Riseley Street for the purposes of s 29(1) of the LG (F and G) Regulations.
34 I now turn to the third essential element identified earlier for an offence under s 6(1) of the LG (ULP) Regulations. The plaintiff disputes the defendant's contention that he was requested to remove the container by authorised employees of the defendant. The defendant pleaded and relies on evidence of Mr Crake and Mr McNally that two oral requests were made to the plaintiff to remove the container. The plaintiff denies that any such oral request was made. The evidence of the oral requests and the actual removal of the container by the defendant needs to be considered against a factual background which includes letters and a written notice sent by the defendant to Ms Feery-Lawrence. 35 The defendant communicated first with Ms Feery-Lawrence because the premises were registered in her name as sole registered proprietor. In the defendant's letter to Ms Feery-Lawrence dated 1 February 1999 it set out inter alia: 36 Ms Feery-Lawrence gave evidence that when she received this letter the plaintiff was working overseas. The plaintiff said that he was in the Solomon Islands in the first week of February 1999. On my assessment of the evidence of the plaintiff, Ms Feery-Lawrence and also Mr Crake I find that (1) when the plaintiff telephoned Ms Feery-Lawrence in early February she read the contents of this letter to him, (2) that the plaintiff told Ms Feery-Lawrence to contact the defendant and tell it that he owned the contained, (3) that Ms Feery-Lawrence rang the defendant and told Mr Crake that the container would be removed when the plaintiff returned, (4) that the plaintiff told Ms Feery-Lawrence that he would deal with the matter when he got home, (5) that the plaintiff saw the original of the defendant's letter dated 1 February 1999 when he returned home and
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(6) that when the plaintiff returned home he did not contact the defendant at all. 37 The defendant sent another letter to Ms Feery-Lawrence dated 25 February 1999. This letter noted that despite the earlier request in the letter dated 1 February 1999 the container had not been removed. The defendant stated in this second letter that if the container was not removed by 2 March 1999 the defendant would take legal action to achieve compliance. Ms Feery-Lawrence could not recall this letter. She said and I accept that after she received the first letter from the defendant she referred everything else from the defendant to the plaintiff. On my assessment of the evidence of both Ms Feery-Lawrence and the plaintiff I find that the plaintiff opened and read this second letter from the defendant when he returned home from overseas. The plaintiff gave evidence that he did not contact the defendant as a result of this letter and tell it that he was responsible for the container. He said that he did not do so because the letter was addressed to Ms Feery-Lawrence and not to him. 38 On 24 March 1999 the defendant, by Mr McNally, signed a formal written notice addressed to Ms Feery-Lawrence ("the notice") which set out inter alia that she had placed the container on the road reserve of Riseley Street and that it obstructed the public thoroughfare of Riseley Street. It also set out: "YOU ARE HEREBY requested by the Local Government of the City of Melville to remove the container within seven (7) days." 39 Ms Harrison, a process server, gave evidence that in the evening on 7 April 1999 she visited the premises to serve documents on instructions from the defendant's solicitors. It is clear that the documents included the notice. She said that although there were lights on in the house and that a vehicle was parked at the house no-one answered her at the door. She left and returned at about 8.40 am the next day, 8 April 1999. She said and I accept that (1) on taking further instructions she pushed the documents in a sealed envelope addressed to Ms Feery-Lawrence under a security door of the house and (2) that an adult male who had earlier identified himself to her as Ms Feery-Lawrence's husband tore them up without reading them and ordered her from the premises. The plaintiff gave evidence that he tore up the paperwork delivered by a lady (who was no doubt Ms Harrison) and that he told her that he was the responsible person and that the defendant should stop harassing his wife. The plaintiff did not write to the defendant or seek to communicate with it in any other way
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immediately or soon after the notice was left at the premises by Ms Harrison. 40 On my assessment of the evidence of the plaintiff and Ms Feery-Lawrence I find that even though the defendant addressed the two letters, one dated 1 February 1999 and the other 25 February 1999 and the notice dated 24 March 1999 to Ms Feery-Lawrence, the plaintiff regarded himself as the person responsible for the container. Clearly as between the plaintiff and Ms Feery-Lawrence he made it clear to her that he would deal with the matter and Ms Feery-Lawrence proceeded on this basis. 41 I find that the plaintiff is a domineering type of person and that Ms Feery-Lawrence stood aside and let him handle the matter in his own way. By the beginning of June 1999 the plaintiff was well aware that for the preceding four months or so the defendant wanted the container removed from the thoroughfare of Riseley Street. He rightly regarded himself as responsible for the container and for it having been partly positioned on the street verge. However despite him having told Ms Feery-Lawrence that he would deal with the matter he had made no attempt at all to communicate with the defendant and try to resolve the matter. It is against this background that I now move on and deal with the events on 16 June 1999 and 21 June 1999. 42 On the morning of 16 June 1999 Mr Crake attended the premises with Mr Norris and a transport contractor. The purpose of attending was to remove the container. At this stage the defendant was relying on the letters and notice addressed to Ms Feery-Lawrence as evidence that it had made a request for the container (the obstruction) to be removed. 43 Mr Crake knocked on the front door and the plaintiff answered. Mr Crake asked to see the plaintiff's wife, Ms Feery-Lawrence. Mr Crake gave evidence that he told the plaintiff that the container had to be removed. Mr Crake said that the plaintiff responded by saying that if he touched the container he (the plaintiff) would break his arms. The plaintiff gave evidence that Mr Crake told him that he was there to impound the container. He said that he did not say to Mr Crake that he would break his arms. He said that he told Mr Crake that if he attempted to take the container he would treat him as a common criminal and break his arms. 44 While I prefer and accept the evidence of Mr Crake to that of the plaintiff on this point it seems to me that even the plaintiff's version shows
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that he was unreasonably aggressive towards Mr Crake in a verbal sense. I reject the evidence of the plaintiff that Mr Crake behaved arrogantly towards him. In my view this description fits his own behaviour. The plaintiff was very annoyed and in my view unreasonably so because the defendant had communicated or at least attempted to communicate with Ms Feery-Lawrence rather than him. Although at times when he gave evidence he was adamant that Mr Crake did not tell him that he had to remove the container he was not always so sure about it. In cross-examination he was asked and said: "Well, just a moment. I put it to you that Mr Crake said to you before he left that the container had to be removed from the verge. What do you say to that?---I'm saying – I'm saying that he indicated that they had done all that they believed was necessary, and I was insisting that they directly communicate with myself. Mr Crake will say in evidence that before he left the premises - - -?---I don't care what Mr Crake will say in evidence, sir. Righto?---I'm telling you what I just recalled and what I understand. Yes, I know that. I heard you say that, but let me just put this to you: Mr Crake will say in evidence that he said to you before he left the container had to be removed from the verge. Do you say that he did not say that?---I'm – I am saying he – what was indicated to me – my recollection is that he believed they had done everything that was necessary about the notification for the removal. My position remained consistent and I insisted that he deal directly with me and stop harassing my wife. Yes, yes, you've already said that. Mr Lawrence, you've already said those things. I want you to address the question I put to you. Do you say that Mr Crake did not say to you before he left that the container had to be removed from the verge? He's going to say that that's what he said to you before he left – the container had to be removed from the verge?---He may – he may well – he may well say that, and you've said that a number of times and I'm not stupid. Whether or not I remember him saying that directly, I can't at this point in time recall. I'm trying to put my thoughts together. If you're asking me was it possible
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that he said it – every likelihood he did, but with regards to whether or not I recall him directly saying it, I do not particularly recall him addressing it to myself. All I know is that the conflict was about him directing his notification to myself, and I insisted upon it." 45 In Mr Crake's evidence-in-chief he was asked and said: 46 In cross-examination Mr Crake was asked and said: "I imagine you must have said something first, didn't you?---I said that the container had to be removed. … Okay. I understand you can't remember the exact words, but you said you were there to remove the container?---When he said, 'You can deal with me', I said, 'The container has to be removed', and then I'm not sure whether he made the threat then or then I said, 'We're here to remove the container', and that's when he made the threat. I'm not sure whether it came before or after. … Could you just recount the conversation as you remember it out on the verge; that is, the conversation with Mr Lawrence?---At the time I said to him, 'The container's got to be removed', he was still coming toward us and he said something along the lines of – he said, 'I don't care. You can bring the police next time', and then he said to all three of us, 'If any of you touch the container, I will do you damage', and then later he said, 'Why don't you get the verge surveyed' or something? 'Why don't you bring a surveyor', something along those lines." 47 Where the evidence of Mr Crake conflicts with the evidence of the plaintiff on the issue of Mr Crake requesting the plaintiff to remove the container and generally I prefer and accept the evidence of Mr Crake.
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48 Mr Crake, Mr Norris and the transport contractor left the premises on 16 June 1999 without removing the container. Sometime after they left and on 16 June 1999 the plaintiff and Ms Feery-Lawrence went to the defendant's offices. Ms Feery-Lawrence had to leave before the plaintiff spoke with Mr McNally at the defendant's offices. The plaintiff's evidence on his discussion with Mr McNally included the following:
"What did he say?---He indicated that as far as council were concerned they had been in contact with the property owner and that the paperwork was in place for them to take action. He asked me how long did I believe it would be before I could move the container. I indicated to him quite clearly that I had a couple of months' work to complete the renovations and I said to him that I would need that period of time and he indicated quite clearly that he was not interested in providing any further time; as far as he was concerned he had dealt with the matter and the matter was being handled between council and my wife and I had nothing to do with it. And what was your response to that?---My response was quite annoyed. I indicated to him that he'd better get his paperwork in place, that he'd better make certain where the container was, and in fact not long after that a surveyor came around and actually surveyed the position of the container with relationship to the boundary and the verge. There was no correspondence to myself ever?" 49 Mr McNally's evidence on his discussion with the plaintiff included the following: "Was there any discussion as to the city's responsibility in relation to the verge, the street verge?---Look, I certainly indicated to him that we had done all the necessary legal checks and advice to ensure that we were acting within our legal capacity. I explained to him that it was always the practice of the City of Melville in cases such as this to try and reach some sort of amicable agreement on the approach to amenity issues. I on several occasions counselled him to provide me with a date or a series or a range of dates that we might be able to agree on by which the seatainer could be removed and I would have been more than happy to accept something that was definitive in that remark. He indicated to me quite strongly that he had no intention of removing the seatainer within any particular date
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and he'd remove it in fact when he felt it was appropriate or necessary and I probably on several occasions indicated to him that to at least provide me with a date or a series of dates or, you know, something that we could negotiate on and I think his response at the end of the day was 'see you in court' and indicated that any of my officers who would attend the site to impound the seatainer would need police protection, and he left that meeting about that time I think. When you say you asked him for some dates, I didn't take a note of precisely what you said but it was to the effect – you made a statement to the effect that you asked him for some dates, a date or dates, in which the container would be removed. Could you explain what it was you said to him in that context?---Well, certainly in our discussions I indicated to him that we would be, you know, more than happy to look at compromise situation and if he was being reasonable about removing the seatainer, if he had work commitments or reasons why it couldn't be removed in a reasonable time, I was prepared to listen to that. If, you know, in those discussions he had of indicated that, you know, he maybe had work commitments for a week or 2 weeks or a month, we could have negotiated a time or a date, but in my discussions with him requesting him on a number of occasions to remove the seatainer, he indicated he wasn't prepared to commit to any date, wasn't prepared to move it, and would do so when he felt appropriate." 50 In my view Ms Feery-Lawrence essentially played a passive role in the events concerning the container. If anything because of her relationship with the plaintiff and his dominant attitude she was probably caught up and swept along by his angry and unreasonable behaviour towards the defendant and its employees. In my view her involvement in the matter was limited and probably reluctant. Generally I think that the matter caused her much distress. It is interesting to note that even on the plaintiff's evidence of his conversation with Mr McNally he says that Mr McNally asked him how long he needed to remove the container. In any event where there is a conflict between the evidence of the plaintiff and Mr McNally on what was said by each of them at the defendant's offices on 16 June 1999 I prefer and accept the evidence of Mr McNally. 51 In my view the requirement contained in s 6(1) of the LG (ULP) Regulations that a local government should request the person who placed the obstruction on the public thoroughfare to remove it is one that can be
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satisfied by an oral request. A formal written request is not necessary but may be given. The meaning of request in the context of the section and the form of request required by the section should enable summary, speedy and cost efficient enforcement. 52 The section does not provide any fixed minimum period of time within which the request must be complied with. In my view when the person who placed the obstruction on the public thoroughfare is requested by the local government to remove it the person must be given a reasonable time to comply. What is a reasonable time will vary from case to case and is dependent on all of the circumstances. Without wishing to be exhaustive the volume and weight of the obstruction and the availability of necessary means required to remove the obstruction would be relevant circumstances to take into account. 53 It is the case that before 16 June 1999 the defendant had only directed requests to Ms Feery-Lawrence to remove the container. However I find that on 16 June 1999 Mr Crake requested the plaintiff to remove the container. In my view what Mr Crake said to the plaintiff at the premises amounts to a request by the defendant for the purposes of s 6(1). I also find that on 16 June 1999 Mr McNally requested the plaintiff to remove the container. In my view what Mr McNally said to the plaintiff in the context of their exchange at the defendant's premises amounts to a request by the defendant for the purposes of s 6(1). Further in my view the request by Mr Crake on its own is sufficient to satisfy the requirement of s 6(1) that a request be made. Nothing was said later by Mr McNally to the plaintiff to derogate what Mr Crake had said to the plaintiff earlier in the day. 54 After the container was removed and impounded the defendant sent a letter dated 24 June 1999 to Ms Feery-Lawrence stating that if she wanted to collect the container fees and costs were payable and that if it was not collected within two months the defendant may cause it and its contents to be offered for sale. Counsel for the plaintiff argued that this letter is consistent with the defendant believing that Ms Feery-Lawrence placed the container on the street verge and directing written requests to her and not to the plaintiff and inconsistent with each and both of Mr Crake and Mr McNally having orally requested the plaintiff on 16 June 1999 to remove the container. The defendant and the plaintiff engaged in mediation on 11 August 1999. By letter dated 13 August 1999 the defendant advised the plaintiff of costs incurred for the impounding of the container and that it would return its contents to him if he signed a statutory declaration on ownership. By letter dated 10 March 2000 the
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defendant advised the plaintiff inter alia that it alleged he contravened s 6(1) of the LG (ULP)Regulations, sought costs for removing and impounding the container and gave notice that if the costs were not paid within a certain time stated therein the defendant would exercise its power of sale. 55 I have weighed all of this up when assessing the evidence as a whole and in particular the evidence of each of the plaintiff, Mr Crake and Mr McNally. Notwithstanding the fact that the defendant communicated with Ms Feery-Lawrence about the impoundment after the container had been removed I still prefer and accept the evidence of each and both of Mr Crake and Mr McNally to that of the plaintiff and find that on 16 June 1999 each of them requested the plaintiff to remove the container. 56 The fact of the matter is that after 16 June 1999 the plaintiff did not remove the container or cause it to be removed and so on 21 June 1999 the defendant had it removed. I do not consider it necessary to detail the events on 21 June 1999 when the container was removed and impounded. Suffice to say that I am satisfied that Mr Norris who attended the premises and the adjoining road verge on 21 June 1999 and removed and impounded the container or caused it be removed and impounded was authorised to do so pursuant to s 3.39(1) of the Act. 57 The plaintiff attempted to prevent the defendant from removing and impounding the container. The defendant arranged for the police to be present on 21 June 1999. I find that the plaintiff's behaviour on 21 June 1999 was unreasonable and inconsistent with the defendant's lawful authority to remove and impound the container. I prefer and accept the accounts of what happened on that day given by Mr Crake, Mr Norris and Sergeant Balcombe to that of the plaintiff where there is conflict. Sergeant Balcombe impressed me as being as conciliatory as reasonably possible in the circumstances on the day the container was removed. Regrettably the plaintiff's extreme anger, entrenched attitude against the defendant and unreasonable behaviour generally made the removal unnecessarily difficult. 58 In my view the time between when the plaintiff was requested to remove the container on 16 June 1999 by each and both of Mr Crake and Mr McNally and when the defendant's employees and the contractor attended the premises and the adjacent road verge to remove it on 21 June 1999 was a reasonable period of time within which the plaintiff could have and should have removed the container from the thoroughfare of Riseley Street. He failed and/or refused to do so. Accordingly when the
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defendant's employees and the contractor attended the premises and the adjacent road verge on 21 June 1999 the plaintiff was in breach of s 6(1) of the LG (ULP) Regulations and the defendant by one of its duly authorised employees was empowered to remove and impound the container. 59 As already mentioned, the plaintiff gave evidence, which I accept, that on the weekend before 21 June 1999 he unsuccessfully tried to move the container so that it was completely on the premises. He also gave evidence which in the absence of credible independent evidence I do not accept that a crane driver was supposed to shift the container on the Friday before 21 June 1999 but failed to appear. The legality of the removal and impoundment of the container 60 For all these reasons I find that the defendant committed an offence against s 6(1) of the LG (ULP) Regulations and that the defendant was empowered under s 29(1) of the LG (F & G) Regulations to remove and impound the container and its contents as it did on 21 June 1999..
The defendant's costs and expenses for the removal and impoundment 61 In these proceedings the defendant has sought a declaration that the impoundment of the container by the defendant was lawful and an order that the plaintiff pay to the defendant costs and expenses payable pursuant to the provisions of the Act. While it is clearly desirable that all outstanding issues between the plaintiff and the defendant be resolved in my view it is not proper that I make any order in these proceedings in favour of the defendant against the plaintiff for costs and fees relating to the defendant's removal and impoundment of the container. Upon dismissing the plaintiff's claim for the return of the container and declaring that the defendant's removal and impoundment of the container was and is lawful the proper course is for the provisions of the Act relating to impoundment to apply and be played out.
Conclusion 62 For all these reasons I find that the plaintiff's claim should be dismissed and that a declaration be made in favour of the defendant that the impoundment of the container by the defendant was lawful.
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Otherwise the defendant's counterclaim should be dismissed. The parties have liberty to apply on the question of costs.
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