Liverpool City Council v Stefanovski
[2004] NSWLEC 534
•20 September 2004
NEW SOUTH WALES LAND AND ENVIRONMENT COURT
CITATION: Liverpool City Council v Stefanovski and Anor. [2004] NSWLEC 534
PARTIES:
APPLICANT:
Liverpool City Council
RESPONDENT:
Stefanovski and Anor.
CASE NUMBER: 41015 of 2004
CATCH WORDS: Practice and Procedure
LEGISLATION CITED:
Local Government Act 1993, s 678
CORAM: Bignold J
DATES OF HEARING: 17/09/2004
DECISION DATE: 20/09/2004
LEGAL REPRESENTATIVES
APPLICANT:
Mr D Miller, Barrister
SOLICITORS
Maddocks
RESPONDENT:
Mr S Brennan, Barrister
SOLICITORS
B J Murphy Angelovski & Associates
JUDGMENT:
14
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBIGNOLD J
20 September 2004
41015 of 2004 LIVERPOOL CITY COUNCIL v ELVIS STEFANOVSKI AND ANOR.
JUDGMENT
HIS HONOUR:
These are class 4 proceedings brought by the Council pursuant to the Local Government Act 1993 (the LG Act) s 673 to remedy breaches of that Act by virtue of alleged contraventions by the Respondents of three orders made by the Council under Part 2 of Chapter 7 of the Act in respect of premises known as No 15 Myrtle Street, Prestons owned and occupied by the Respondents.
On 26 August 2004, just two days after the commencement of the proceedings, Lloyd J granted ex parte interlocutory relief directing the Council to do all such things as were necessary to give effect to the Council’s orders, including the carrying out of necessary works required by the orders and in particular, to remove from the premises all birds and animals on the premises and to take those birds and animals to RSPCA premises situate at Yagoona.
The interlocutory relief was granted in the terms sought by the Council. A copy of the Orders is annexed hereto and marked “A”.
It is to be noted that the Court’s Orders were directed not to the Respondents who were in alleged breach of the Council’s orders, but to the Council itself. In this respect the Court Orders were founded on the LG Act, s 678(10) which is in the following terms:
In any proceedings before the Land and Environment Court that are brought by a council against a person as a result of the person’s failure to comply with an order under Part 2 of Chapter 7, the Court may, at any stage of the proceedings, order the council to exercise the council’s functions under this section. Having made such an order, the Court may continue to hear and determine the proceedings or may dismiss the proceedings.
Subsequently to the making of the Court’s Orders, the Council, by Notice of Motion filed 8 September 2004 sought (i) some variations to the Court’s Orders; and (ii) an additional order.
The need for the variation arose because the RSPCA premises specifically referred to the Court’s Orders could not accommodate all of the removed birds and animals which were deposited in other premises maintained by the RSPCA. Some 180 birds and five dogs were removed from the Respondents’ premises.
In the event this variation was not opposed by the Respondents and the Court, by consent on 9 September 2004 varied the original Orders.
However, the additional Order was opposed by the Respondents. It sought the conferral of full discretion on the Council “to sell, destroy or otherwise dispose” of the animals and birds which had been removed from the Respondents’ premises at Prestons pursuant to the Court’s original Orders.
In the event, the following limited order was made by consent on 9 September 2004 (upon the basis that there were a handful of birds or animals that were liable to come within the ambit of the Order) when the remainder of the case was adjourned to 15 September 2004:
That the Council or its agents (including the RSPCA) be granted full discretion to destroy or otherwise dispose of the animals and birds removed from the property on 3 September 2004 that are ill or diseased on advice from the RSPCA or veterinary specialist.
When the matter next came before me on 15 September 2004, (following a brief adjournment to enable the Respondents’ Solicitors to have a reasonable opportunity to obtain instructions and to enable the Council to present more detailed argument in support of its case), the Council had filed detailed written legal submissions in support of its claim to an order to sell, destroy or dispose of the birds and animals which had been removed from the Respondents’ Prestons premises and the Respondents had served an affidavit sworn by Mr Mounir Nahlous on 14 September 2004 which stated the following:
1.I am part owner and team breeder with Elvis Stefanovski
2.I would like to collect all livestock and incubator which were taken from 15 Myrtle Street, Prestons and take them to my five acre property in Belimba Park. I will take full responsibility in the care of the livestock.
3.I have appropriate facilities and am an experienced breeder and have taken care of animals.
4.I have never come under the attention of the RSPCA or Local Council in relation to mistreatment of animals.
5.I left my livestock in Elvis’s care on his property whilst I was overseas on holidays. I was not notified by Council at any stage. Had I been notified I would have made suitable arrangements for the animals as a matter of urgency.
6.Since I have now returned I would like to collect all livestock, incubator etc and return them to my property at Belimbla Park.
7.I am willing to attend court if required to do so.
In the light of these developments, by consent, the matter was adjourned until 17 September 2004 to give the Council the opportunity to consider its position in respect of its Motion seeking an order for the vesting it with a power of sale, destruction or disposal of the birds and animals and to investigate matters raised in Mr Nahlous’ affidavit.
When the matter came before me on 17 September 2004, the Council had filed a further affidavit sworn earlier that day by Mr Robertson McLaggan the Council’s Senior Environmental Health Officer, Pollution Control. (Mr Mc Laggan had previously sworn a number of affidavits in the proceedings in support of the original class 4 application and in support of the Council’s present Notice of Motion). That affidavit deposed to the following matters—
(a)his telephone conversation with Mr Nahlous in response to receipt of the latter’s affidavit;
(b)his written communications with the Wollondilly Shire Council concerning Mr Nahlous’ rural property and his proposal to accommodate there the animals following their release by the RSPCA; and
(c)his opinion that it may be doubted whether development consent would be obtained from the Wollondilly Council for the proposed accommodation of the animals at the property of Mr Nahlous.
It was on the basis of the affidavit evidence of Mr Nahlous and Mr McLaggan (there being no cross-examination of either deponent) that the Council maintained its application for an order vesting it with the power of sale and disposal of the relevant birds and animals. This application was opposed by the Respondents who supported the release of the held birds and animals into the custody of Mr Nahlous for re-housing at his Wollondilly rural property.
The Respondents did not wish to advance any argument against the Council’s argument that the Council was vested under the LG Act with a relevant power of sale but submitted that in the light of the evidence concerning Mr Nahlous’ willingness to reclaim and to accommodate the birds and animals at his rural property, the Court would withhold making any such order in favour of the Council, in the exercise of its judicial discretion.
The Council responded by submitting that it would be virtually irresponsible for the Court to sanction action proposed on behalf of the Respondents which might conceivably merely transfer the locale of the previous problem experienced by the Respondents housing the birds and animals at their Prestons premises, from those premises to Mr Nahlous’ Wollondilly property.
In my respectful opinion, this last-mentioned sweeping Council submission seriously misapprehends the true nature of the present proceedings and of the Court’s interlocutory orders made in the proceedings and of the Court’s powers in relation to the proceedings.
Additionally, it is founded upon a speculative version of facts which finds no support in the evidence. By way of illustration, for the Council’s submission to seek to compare the Respondents’ residential premises in the City of Liverpool comprising a house on a 500 m2 residential lot to Mr Nahlous’ 5 acre rural property in the Shire of Wollondilly, as the place for accommodating the relevant birds and animals clearly demonstrates a significant lack of perspective.
Similarly, for the Council’s submission to speculate that the accommodation of the birds and animals at Mr Nahlous’ property may replicate the appallingly inadequate and unhealthy manner in which the same birds and animals were kept at the Respondents’ Prestons premises, is nothing more than gratuitous scare mongering and empty rhetoric.
Finally, for the Council’s submission to speculate on the prospects in terms of the relevant environmental planning laws (not administered by the Council) of development consent not being granted to Mr Nahlous’ proposal to accommodate the birds and animals at his Wollondilly property, travels very far beyond the true ambit of the present proceedings, which involve statutory enforcement orders issued by the Council pursuant to the LG Act, s 124 and the curial enforcement of alleged contraventions of those orders.
My impression of the Council’s submissions was that the Council had perceived itself to be bound by the Court’s interlocutory Orders to remain the custodian (at a significant daily cost of some $350) of the birds and animals which it had removed from the Respondents’ Prestons premises pursuant to the Court’s Orders. Prompted by that impression, I expressed the view in the course of argument that having fully executed the required works under the Court’s Orders, the Council might be released from its perceived ongoing custodian role in respect of the relevant birds and animals simply by the appropriate discharge of those aspects of the Court’s Orders that had been fully executed by the Council. This appeared to me to be the appropriate response to the Council’s perception of the pressure of a continuing obligation, since there had been no express order that the Council would be left in the ongoing role of custodian of the birds and animals following their forcible removal from the Respondents’ Prestons premises. Indeed, the principal object of the Council’s statutory enforcement orders was clearly the abatement or the elimination of the public nuisance created of the Respondents’ accommodating at their Preston’s residential premises of so many birds and animals in appallingly inadequate and unhealthy conditions.
The existence of this object of the Council’s statutory enforcement orders and of this Court’s Orders, of course did not mean that the well being of the affected animals was not an important consideration in its own right—but it was (and remains) a consideration that was truly incidental or subsidiary to the principal focus of the Council’s actions (both administratively and via these proceedings) which was to abate and eliminate the serious public nuisance that had been created by the Respondents’ use of their premises. As I understand the evidence, the Council’s commendably urgent actions in this behalf have been entirely effective and successful. It is perhaps this successful outcome that has led to the Council’s present focus in the proceedings on its custodian responsibility for the birds and animals while housed at the RSPCA premises and its legitimate concern to limit its ongoing expenses in this respect and to recover costs already incurred by it in implementing the required works under the Court’s Orders (which it is to be recalled the Council asked (doubtless entirely responsibly so) the Court to impose on it to ensure the urgent and effective abatement of the pubic nuisance).
But understandable though this tendency may be on the part of the Council to so view the present state of the proceedings, their true nature cannot be re-contoured or remoulded simply to elevate what might be fairly said to be incidental aspects of the case into their principal case. Accordingly, in order to contextualise the Council’s present claim, it must be emphatically stated that the present litigation is not a case to secure the ongoing wellbeing of the rescued birds or animals. Nor is it a case which concerns the true ownership of the birds and animals. Nor is it a case requiring an adjudication as to who is entitled to possession of the birds and animals. Nor is it a case whether some kind of lien has been created by virtue of the Council’s care for the birds and animals. Nor is it a case concerning the question whether the Council has an ongoing obligation for the care and well-being of the seized birds and animals.
Rather, it is simply a case concerning the enforcement by the Court of the Respondents’ alleged contraventions of statutory enforcement orders made by the Council in circumstances where the only curial relief granted to date is that granted by the Court on an interlocutory basis in the terms sought by the Council, namely that the Council be ordered to do all things necessary to give effect to those statutory orders. The effect of the Court’s Order which derives from the LG Act, s 678(10) was to mandate action by the Council which otherwise lay within the Council’s power and discretion to do, in terms of the LG Act, s 678(1) which provides as follows:
678 Failure to comply with order—carrying out of work by the council
(1)If a person fails to comply with the terms of an order given to the person under Part 2 of Chapter 7, the council may do all such things as are necessary or convenient to give effect to the terms of the order, including the carrying out of any work required by the order.
But the effect of the Court’s interlocutory Orders and the Council’s execution of the required works under those Orders is that there remains little if anything outstanding in the proceedings, this being not an unexpected outcome since it is an option that is expressly provided for by s 678(10) but that option has not yet been finally exercised by the Court in these proceedings.
Although the Court’s interlocutory Orders may prove sufficient in themselves to finally dispose of these proceedings ( in the sense that their making and the Council’s execution of them appears to have entirely abated the public nuisance and entirely eliminated the problem caused by the Respondents’ accommodating the birds and animals at their Prestons residential premises), the interlocutory basis of the solution so far achieved in the proceedings provides a very insecure and unsound basis for the further interlocutory orders now sought by the Council, namely the conferral of power in its entire discretion to destroy, sell or otherwise dispose of the relevant birds and animals.
Upon this basis alone, the relief should be refused in the exercise of the Court’s discretion, because there is not any truly interlocutory element in the destruction or sale of the birds or animals.
For these reasons, the relief now claimed by the Council is simply not appropriate relief to be granted on an interlocutory basis. Nor is it appropriate that the relief be granted as final relief that is simply tacked onto the otherwise sufficient interlocutory relief already granted, because such is the nature of that final relief that it would need to be founded upon, and be ancillary to, final findings of relevant contraventions by the Respondents of the Council’s statutory enforcement orders, and any final relief (declaratory and/or injunctive) that is granted in relation to such findings to remedy the contraventions.
An entirely separate but equally cogent reason for refusing, in the exercise of discretion, the relief now claimed by the Council is provided by the evidence of Mr Nahlous of his part ownership in the birds and animals, of his desire to recover possession of them and to re-house them at his rural property in Wollondilly, coupled by the Respondents’ undertaking not to accommodate at his Prestons residential premises the animals upon obtaining repossession of them. Faced with this evidence (in the legal context of not having to adjudicate upon questions of ownership or right to repossession of the birds and animals or the recovery of costs incurred by the Council in the accommodation of the birds and animals at the RSPCA premises—because all these questions are extraneous to the proceedings) it is simply inappropriate for the Court to clothe the Council with the absolute unfettered power of destruction, sale or otherwise disposal of the birds and animals in question.
Although, as I have already held, the present proceedings do not involve questions of ownership or right to possession of the birds and animals, if there be any lingering suggestion that the Court’s Orders have imposed an ongoing obligation upon the Council for the upkeep and welfare of the birds and animals, that suggestion should be immediately scotched, and the most effective manner of achieving this result is to immediately discharge those aspects of the Court’s interlocutory Orders that have been fully implemented and executed by the Council when it took the required action of abating the nuisance.
So far I have been content to proceed upon the assumption that the LG Act, s 678 vests the Council with the power of sale, destruction or disposal of the birds and animals that were removed from the Respondents’ Prestons premises and deposited at the RSPCA premises, as the Council has argued its case (especially in the light of the decision of the Respondents not to contest the Council’s legal argument).
However, for completeness, I must record my own opinion, despite the able arguments advanced on the Council’s behalf, that the LG Act, s 678 does not vest the Council with the asserted power of sale etc.
The Council’s argument was principally founded upon the provisions of the LG Act, s 678 which provides as follows:
678 Failure to comply with order—carrying out of work by the council
(1)If a person fails to comply with the terms of an order given to the person under Part 2 of Chapter 7, the council may do all such things as are necessary or convenient to give effect to the terms of the order, including the carrying out of any work required by the order.
(2)If the council gives effect to an order by demolishing a building, the council:
(a)may remove any materials concerned, and
(b)may sell the materials, unless the expenses of the council in giving effect to the terms of the order are paid to it within 14 days after removal of the materials.
(3)If the proceeds of such a sale exceed the expenses incurred by the council in relation to the demolition and the sale, the council:
(a)may deduct out of the proceeds of the sale an amount equal to those expenses, and
(b)must pay the surplus to the owner on demand.
(4)If the proceeds of sale do not exceed those expenses, the council:
(a)may retain the proceeds, and
(b)may recover the deficiency (if any) together with its costs of recovery from the owner as a debt.
(5)Materials removed that are not saleable may be destroyed or otherwise disposed of.
(6)Any expenses incurred by the council under this section (less the proceeds, if any, of any sale under this section) together with all its associated costs may be recovered by the council in any court of competent jurisdiction as a debt due to the council by the person concerned.
(7)Nothing in subsection (3), (4) or (6) affects the owner’s right to recover any amount from any lessee or other person liable for the expenses of repairs.
(8)A reference in subsection (4) or (6) to costs is a reference to costs incurred by the council in seeking to recover the deficiency or expenses otherwise than by proceedings in a court, but nothing in this section prevents the council from receiving costs as between party and party in respect of those proceedings.
(9)A council may exercise its functions under this section irrespective of whether the person concerned has been prosecuted for an offence under section 628.
(10)In any proceedings before the Land and Environment Court that are brought by a council against a person as a result of the person’s failure to comply with an order under Part 2 of Chapter 7, the Court may, at any stage of the proceedings, order the council to exercise the council’s functions under this section. Having made such an order, the Court may continue to hear and determine the proceedings or may dismiss the proceedings.
Council submitted that the power conferred by subsection (1) was a very broad power ‘”do all such things as are necessary or convenient to give effect to the terms of the order….”, as was evident from the comprehensive legislative language employed (namely “all such things as are necessary or convenient to give effect to the terms of the order….”) and from the clear statutory purpose or object of conferring such powers upon a council.
It may be readily accepted that the statutory grant of power is deliberately and beneficially broad, but this conclusion does not mean that a power to sell or to destroy or dispose of birds or animals is thereby conferred upon a council.
Where a power of sale is conferred upon a council in other circumstances provided by the LG Act, it is expressly so conferred—for example the power to sell land for unpaid rates or charges that is conferred by s 713.
A further example of the conferral of an express power of sale is provided by s 678 itself, although the power of sale conferred by subsection (2) is a qualified power and the power conferred by subsection (5) appears to be limited to a power to destroy or dispose of, and does not extend to the “sale” of materials removed by a Council.
It is the very existence of subsections (2), (3), (4) and (5) that provides very cogent reasons for negating the Council’s principal argument that the power of sale, destruction or disposal is vested in a council by virtue of the power conferred by subsection (1).
This leads to my consideration of the Council’s subsidiary argument that the express power conferred by subsection (5) in respect of “materials” should be interpreted purposively so as to include the “birds and animals” in question in this case. In support of this submission, the Council cites the decision of Sheahan J in Sutherland Shire Council v Sawyer (2000) 109 LGERA 409. In that case, his Honour made a declaration that a council “may do all such things as are necessary or convenient to give effect to the terms of the Council’s Order, including the seizure and disposal of any rabbits in excess of the two (2) de-sexed rabbits kept on the property in a cage” (see at pp 414 and 415).
After reciting parts of the LG Act, s 678 his Honour stated his conclusion at 415:
I have not quoted subs (2),(3), and (4) which deal specifically with the demolition of buildings and sale of resulting materials, by Council, but I do not believe that they constrict the other enabling powers of the section and I am prepared to make the relevant declaration council has sought.
Unfortunately, his Honour in his judgment did not specify which enabling provision of s 678 he was relying upon in so concluding, although logically and textually there could only be two possible sources, namely subsection (1) (which of course does not mention the words “seize and dispose of”) and subsection (5) (which uses the words “destroyed” or “disposed of”).
If his Honour was founding his conclusion upon the enabling power conferred by subsection (1), he would have had to conclude that the express provisions contained in subsections (2), (3) and (4) did not affect the interpretation of the power conferred by subsection(1). If this be the case, with great respect, I am unable to agree for the reasons that I have already given in rejecting the Council’s argument based upon subsection (1) (which reasons include the interpretive effect on the power conferred by subsection (1) of the existence of the other specific powers of sale and disposal etc (that are conferred by subsections (2) to (5) inclusive).
If his Honour in Sawyerwere concluding that subsection (5) provided the source of enabling power, he would have had to conclude that living rabbits fell within the word “materials”. The difficulty is that he did not expressly so hold, and since the ordinary meaning of the word “materials” would not embrace living creatures (such as rabbits), the difficulty in speculating upon his Honour’s reasons is only intensified.
In my respectful opinion, the power conferred by subsection (5) in respect of removed “materials”, properly construed, does not extend to living creatures (such as birds and animals) and this results from the application of either a literal or purposive approach to construing the LG Act, s 678 and its proper construction. It is of interest to note that in a similar statutory context that is provided by the Impounding Act 1993 there is a clear distinction drawn between an “animal” and an “article”, the latter term being defined in the Dictionary to that Act as meaning “anything capable of ownership except a living creature”.
Before leaving the decision of Sheahan J in Sawyer, I would make two additional observations in response to the Council’s reliance upon it. Firstly, his Honour’s declaration did not refer to the “sale” of the rabbits, rather it referred to the “seizure and disposal” of the rabbits. Accordingly, it does not support the full extent of the relief now claimed by the Council. Secondly, it is not readily apparent that there was jurisdiction vested in this Court to make the declaration that his Honour made.
Finally, in relation to the question of this Court’s jurisdiction to make the order sought by the Council, I seriously doubt that there is jurisdiction to make the order. Section 678(10) empowers the Court “to order the council to exercise the council’s functions under this section”. Such empowering clearly does not authorise the Court to order the Council to do anything beyond or outside the Council’s functions under the section and to the extent that the Council, in seeking the order, is necessarily seeking a judicial declaration of the nature and extent of the functions conferred upon the Council under s 678, the making of that declaration would appear to be beyond this Court’s jurisdiction (cf ss 20(2) and (3) of the Land and Environment Court Act 1979).
For all these reasons, I am not satisfied that section 678 confers upon the Council a power of sale or destruction or disposal of the birds and animals, or that this Court has the power to order that such a power be vested in the Council or the power to declare that such a power is vested in the council under s 678.
The Council’s alternative argument based upon the power conferred upon councils by the LG Act, s 23 (“A council may do all such things as are supplemental or incidental to, or consequential on, the exercise of its functions”), similarly is beyond this Court’s jurisdiction to found judicial relief either by way of declaration or order of the type sought by the Council in its Notice of Motion.
However, for completeness, I would hold that the power conferred by s 23 does not legally sustain the power of sale, destruction or disposal that is asserted or claimed by the Council in these proceedings.
For all of the foregoing reasons, I make the following orders:
1.The order claimed in paragraph 1(b) of the Council’s Notice of Motion filed 8 September 2004 seeking an order that it be entitled to sell, destroy or otherwise dispose of the animals removed from the premises on 3 September 2004 is refused.
2.To the extent that the works particularised in Order 1 paragraphs (a) and (b) of the Court’s Orders made on 26 August 2004 have been completely undertaken and executed, that Order is forthwith discharged.
3.Stand over to Friday 24 September 9.30 am the question of the final disposal of the proceedings on a permanent basis with liberty to restore on two days’ notice for the purpose of effecting an earlier disposal.
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