Manly Council v Moffit - [2006] NSWLEC 184

Reported Decision: (2006) 146 LGERA 215

Land and Environment Court

of New South Wales

CITATION: Manly Council v Moffit [2006] NSWLEC 184

PARTIES:
APPLICANT:
Manly Council
RESPONDENT:
Marjorie Jane Moffit

FILE NUMBER(S): 40121 of 2006

CORAM: Biscoe J

KEY ISSUES: Injunctions and Declarations :- whether a Court order is required before council can enter residential premises to carry out work required by a council order issued under Local Government Act 1993 s 124.

LEGISLATION CITED: Local Government Act 1993 ss 124, 132, 191, 193, 200, 678

CASES CITED: Kiama Council v Grant [2006] NSWLEC 96;
Van Haasteren v South Sydney Council (2000) 109 LGERA 252

DATES OF HEARING: 05/04/2006, 07/04/2006, 12/04/2006

DATE OF JUDGMENT:
04/13/2006

LEGAL REPRESENTATIVES: APPLICANT:
Ms L Finn, Solicitor
SOLICITORS
Abbott Tout
RESPONDENT:
Ms E Bobolas (agent)
SOLICITORS
N/A

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BISCOE J

13 April 2006

40121 of 2006 MANLY COUNCIL v MARJORIE JOY MOFFIT
JUDGMENT

HIS HONOUR

A. INTRODUCTION

1 The respondent owns and resides in a semi-detached house located at 20 William Street, Fairlight. Over a long period of time she accumulated an enormous amount of rubbish and discarded items at her premises. On 6 June 2005 the local council, Manly Council, issued her with an order pursuant to the Local Government Act 1993 s 124, requiring her to remove such things within 14 days (“Council’s Order”). She failed to do so. On 15 February 2006 the council commenced these proceedings seeking to enforce Council’s Order under s 678(10).

2 Council’s Order was in the following terms:

ORDER

Section 124 – Local Government Act 1993
Owner: Mrs M J Moffit

Premises: 20 William Street, Fairlight, 2093

PLEASE TAKE NOTICE that Manly Council under the terms of section 124 of the Local Government Act 1993, hereby orders you as the owner of the above premises to comply with the following Order on the grounds that the premises is not in a clean or sanitary condition:

Terms of Order

Newspapers, books, tin cans, food containers, kitchen utensils including pots, timber, buckets, laundry baskets, furniture items, plastic sheeting, clothing, ornaments, bins, and other accumulated items.

Reasons for Order

It is therefore not in the interests of public health, safety and convenience that the premises remain in their present state.

The accumulation of materials at 20 William Street, Fairlight are creating a nuisance to the surrounding residents. Reports indicate that the accumulations are providing harbourage for rats and many flies and cockroaches have also been seen as infesting the area.

Odours from this area at 20 William Street are evident to Council.

Containers holding water in the grounds of 20 William Street, Fairlight are providing a breeding ground for mosquitoes.

It is therefore not in the interests of public health, safety and convenience that the premises remain in their present state.

Period of Compliance:

The order must be complied with within 14 days from the date of this Order.

You may appeal to the Land &…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Manly Council v Moffit

Details

AGLC: Manly Council v Moffit [2006] NSWLEC 184
Case: [2006] NSWLEC 184
Decision Date: 04/13/2006

CaseChat Overview and Summary

The applicant, Manly Council, brought this proceeding under the Local Government Act 1993 to enforce an order it had made under s 124 of the Act. The respondent, Marjorie Jane Moffit, who owned and resided in premises at 20 William Street, Fairlight, had failed to comply with the order. The order was made because the premises were not in a clean or sanitary condition, thereby contravening s 124(order 21) of the Act. The applicant sought an order that it should be authorised to carry out the work required by the order in accordance with s 678(10) of the Act. The respondent argued that the Court did not have power to make such an order because s 200 of the Act required the applicant to obtain her consent to enter onto the premises. The Court held that s 200 did not apply in the circumstances of this case. The Court found that the respondent had only partially complied with the order and that the premises were still not in a safe or healthy condition. It made an order under s 678(10) that the applicant should carry out the work required by the order, but stayed the order for 14 days to enable the respondent to comply with the order. The Court also ordered the respondent to pay the applicant’s costs.

Orders