Lismore City Council v Reeves
[2013] NSWLEC 28
•07 March 2013
Land and Environment Court
New South Wales
Medium Neutral Citation: Lismore City Council v Reeves [2013] NSWLEC 28 Hearing dates: 7 March 2013 Decision date: 07 March 2013 Jurisdiction: Class 4 Before: Sheahan J Decision: See Orders in [18]
Catchwords: CIVIL ENFORCEMENT: disobedience of Council "clean up" orders - power of sale - costs of clean-up - costs of proceedings. Legislation Cited: Local Government Act 1993
Local Government (General) Regulations 2005Cases Cited: Tweed Shire Council v Kress [2004] NSWLEC 653 Category: Principal judgment Parties: Lismore City Council (Applicant)
Christopher Reeves (Respondent)Representation: Michael Young, solicitor (Applicant)
N/A (Respondent)
McCartney Young Lawyers (Applicant)
N/A (Respondent)
File Number(s): 40867 of 2012
Judgment
The need to clean up a property at 28 Oakeshott Street, Lismore Heights, on the corner of Cooling Street, has been an issue between Council and Mr Reeves for almost 20 years.
Mr Reeves has been the occupier of the premises throughout that period, and became also the registered owner on 6 January 2011, following the death of his mother in March 2010.
Before the court today is extensive evidence of Council's efforts to reach an agreement with Mr Reeves on cleaning the place up. Various demands, notices and orders have been served on him over those years, and it appears there may have been some earlier proceedings at least threatened, in 2003.
The extensive material accumulated on the site over the years included, but was not limited to, "derelict" cars, boats and associated equipment, and the physical findings on their removal validated Council's and neighbourhood concerns about vermin, such as rats, snakes, etc, and the general "unhealthy and unsafe" condition of the premises over that long period.
These present proceedings seek to enforce Orders given under s 124 of the Local Government Act 1993 ("LG Act"), on 9 September 2008 and 12 August 2010, and to deal with the aftermath of Council's entry, and its doing of the clean up work, on 1-2 February 2011. Section 124 Orders may be directed to the "owner or occupier" of "land or premises ... not in a safe or healthy condition".
Council relied on three affidavits from Mr Young, one from former Council officer, Robyn Fitzroy, and two from its compliance officer, David Mundt, as well as four bundles of documents (Exhibits C1-C4). Mr Mundt has had carriage of the matter for Council since 2007.
The court understands Mr Reeves is an unemployed pensioner. He has been generally polite and co-operative with Council - eg not opposing entry - but did very little indeed in response to the orders, despite firm undertakings to Council officers that he would "clean up". He has had various people try to assist him with this matter, but does not appear ever to have come to grips with the increasingly urgent need to rectify the position on his property.
Council's solicitor, Michael Young, understood that the Respondent had filed, late in 2012, a small bundle of documents he had served on Council. (tendered by Mr Young, as Exhibit C5). They go to ownership of the property, rather than merits or relief issues in the proceedings.
The Council has strictly observed the requirements of the LG Act, and has been very fair in affording Mr Reeves ample time, and opportunities to negotiate agreements to clean up and/or realise the value of some of the materials. (Exhibits C1 and C2)
I am satisfied that he is aware of these proceedings, including today's hearing and the terms of Council's amended summons and Points of Claim, but he has chosen to neither file any formal documents, such as an appearance or Points of Defence, nor appear in his own defence, despite telling Council representatives on 3 and 4 March that he would attend court today. He was informed on 3rd how to get a message to me, but did not do so.
Today, not for the first time, Mr Reeves has, at the very last minute, asked for forbearance on Council's part, including asking Mr Young to seek the adjournment of the matter to tomorrow. I declined to adjourn it, but I am satisfied that Mr Young has put before the court, at every stage of the matter, everything put to him by Mr Reeves, and I granted Council leave to proceed in his absence. Even while I was reviewing the evidence, Mr Reeves asked Mr Young to allow him to reclaim from Council's the storage yard a bobcat, trailer, and tools he wishes to use to generate income.
Council presented comprehensive submissions to negative arguments it anticipated Mr Reeves might have put, had he appeared.
Most of what was cleared from the property was "waste" (see photographs, especially in Exhibit C3). Anything of value, although mostly scrap metal and the like, has now been impounded by Council for two years, awaiting return to Mr Reeves - for storage by him elsewhere, or for disposal. The Council's Short Minutes of Order now provide for its sale, by transparent tender process.
The Council's costs of doing the work remain outstanding, and I am satisfied that they amount to $11,225.88 (Exhibit C4), which would appear to me to be reasonable.
Council's solicitor has also indicated to the court that he is prepared to "mark down" his costs of the proceedings to a lump sum of $6000, and, on the basis of all the material before me, I find that amount to be reasonable.
The Council has clearly established its entitlement to all the relief it has sought, namely:
- a finding that Mr Reeves is in breach of one or both of the orders given to him under Item 21 of section 124
- an order that Council may sell or otherwise dispose of items taken from the subject land in February 2011, and listed in the schedule to the amended summons, and must account to the respondent for the proceeds, subject to the liability of the Respondent to pay the Council's proven costs of the clean up and the sale (see Tweed Shire Council v Kress [2004] NSWLEC 653)
- permission for Council to destroy or dispose of non-saleable items
- an order that the Respondent pay Council's costs of the proceedings, in the sum of $6000.
I am prepared, despite the evidence about the condition of the bobcat in 2011, at pp 3 and 21 of Exhibit C3, to allow the Respondent some opportunity to reclaim it. Earlier concessions of this type have not been respected, and I will grant Council liberty to apply, with this in mind.
The formal orders of the court will be:
1. The Court finds that the Respondent is in breach of the Orders dated 9 September 2008 and 12 August 2010, issued by the Applicant to the Respondent pursuant to Item 21 of the Table to section 124 of the Local Government Act 1993.
2. The Court grants leave to the Applicant to sell those items taken from the Respondent's property at 28 Oakeshott Street Lismore Heights (the Property) on 1 and 2 February 2011, being the items listed in Schedule A to the Amended Summons filed with the Court on 7 March 2012, other than the bobcat and one trailer. The other items are to be offered for sale by an open tender conducted in accordance with the provisions of the Local Government Act 1993 and the Local Government (General) Regulation 2005, and any items not sold by open tender conducted in accordance with this Order are to be sold for scrap metal. The Applicant may otherwise destroy or dispose of the items that are not saleable. The Respondent is to reclaim the bobcat and trailer within 28 days, and ensure their appropriate storage in future. If he does not reclaim them within that period they are to remain in the schedule of items to be sold, or otherwise disposed by Council, in accordance with this order.
3. The Applicant is ordered to account to the Respondent for the sale of the items in the following way:
(a) If the proceeds of the sale or disposal exceed the costs incurred by the Applicant in relation to the clearing of the Property and the sale of the items, the Applicant:
(i) may deduct out of the proceeds of the sale an amount equal to those costs; and
(ii) must pay the surplus to the Respondent on demand.
(b) If the proceeds of sale do not exceed those costs, the Applicant:
(i) may retain the proceeds; and
(ii) may recover the deficiency (if any) together with the costs of clean-up from the Respondent as a debt.
(c) Any costs incurred by the Applicant in carrying out order 2 (less the proceeds, if any, of any sale under these orders) together with all its associated costs may be recovered by the Applicant in any court of competent jurisdiction as a debt due to the Applicant by the Respondent.
(d) A reference in this order to "costs" is a reference to costs incurred by the Applicant in seeking to recover the deficiency or expenses otherwise than by proceedings in a court, but nothing in this order prevents the Applicant from receiving costs as between party and party in respect of any such proceedings.
4. I stay orders 2 and 3 for a period of 28 days from the date of these orders (namely, until 7 April 2013).
5. I direct that within 7 days a copy of these Orders shall be served upon the Respondent, together with a letter advising the Respondent of his rights under Rule 36.16 of the Uniform Civil Procedure Rules 2005. For the purposes of this Order service shall be effected if a copy of these Orders is:
(a) sent by ordinary post to the Respondent at 28 Oakeshott Street Lismore Heights; and
(b) a copy of the Orders is affixed to the front door of the Property.
6. I order that the Respondent pay the Applicant's costs of the proceedings, in the sum of $6000.
7. The Council's exhibits may be returned.
8. Liberty is granted to Council to apply, on 7 business days notice.
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Decision last updated: 08 March 2013
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