Manly Council v Newton
[2007] NSWLEC 768
•14 November 2007
Land and Environment Court
of New South Wales
CITATION: Manly Council v Newton [2007] NSWLEC 768 PARTIES: APPLICANT
RESPONDENT
Manly Council
Michael Robert Raymond NewtonFILE NUMBER(S): 40737 of 2007 CORAM: Preston CJ KEY ISSUES: Civil Enforcement :- accumulation of waste on premises - orders made under s 124 Local Government Act 1993 - non-compliance with orders by respondent - injunctive relief sought by Council to remedy breach - no appearance by respondent - orders made to remove waste should be specific LEGISLATION CITED: Local Government Act 1993, s 124, s 672, s 673(1), s 678 CASES CITED: Wollongong City Council v McLean [2006] NSWLEC 295 DATES OF HEARING: 14 November 2007 EX TEMPORE JUDGMENT DATE: 14 November 2007 LEGAL REPRESENTATIVES: APPLICANT
L R Finn (Solicitor)
SOLICITORS
Home Wilkinson LowryRESPONDENT
No Appearance
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESPRESTON CJ
14 NOVEMBER 2007
40737 OF 2007
MANLY COUNCIL V MICHAEL ROBERT RAYMOND NEWTON
JUDGMENT
1 HIS HONOUR: Michael Newton owns residential premises at 14 Kirkwood Street, Seaforth. It is formally described as lot 76 in deposited plan 11162. Unfortunately, there is currently, and has been on and off for about a decade, an accumulation of waste on the premises.
2 The relevant local government authority, Manly Council, has taken action over the years, including issuing orders and penalty infringement notices under the Local Government Act 1993. Mr Newton has responded, usually belatedly, by reducing the accumulation of waste but inevitably the problem reoccurs.
3 The latest administrative action taken by the Council has been to issue an order under s 124 of the Local Government Act in terms of item 22A in the table to that section. The Order is No 122/06 and is dated 3 November 2006.
4 The Order is in respect of the whole of the premises and was served on Mr Newton in his capacity as owner of the premises. The Order requires Mr Newton to:
“4.1 Remove from the land and dispose of from the area to a designated rubbish collecting facility, all accumulation of materials within the dwelling and surrounding property boundary of the premises , the following materials:
Newspapers; books; tin cans; kitchen materials including pots and pans; timber; buckets; furniture items; clothing; ornaments; cane and wire baskets; plastic sheeting; cane and wire baskets; cardboard; disused bins and children’s paddling pools; boxes and bags of disused household and waste materials, suitcases; lawn mowers; fuel containers; water filled containers; wheelbarrows; stockpiled garden waste; wood piles; clothing and numerous other accumulated goods;
4.2 Remove all noxious weeds and dispose of these to a rubbish collection or recycling facility and maintain the area free of noxious weeds thereafter;
4.4. Refrain from keeping, storing and accumulating any of the above mentioned materials to prevent the likelihood of attraction and/or shelter for vermin and other pests such as to constitute a possible threat to public health.”4.3 Cut, remove and dispose of all grass and then maintain the lawn area and grounds of the premises to a height not exceeding 100 mm above natural ground level;
5 The reasons for which the order was issued include:
“2.1 The premises is not in a safe or healthy condition;
2.2 The accumulation of materials, vegetation, noxious weeds and rubbish described within point 4.2 of Order No. 122/06 are creating a nuisance and likely to cause a threat to public health;
2.3 The accumulation of materials is providing harbourage for rats, flies and cockroaches on the premises ;
2.4 Strong repugnant odours, particularly during the day are causing amenity issues for neighbouring properties and were evident at the time of Council inspections;
2.6. The items mentioned above constitute or are likely to constitute a fire hazard.”2.5 Accumulation of newspapers; books; tin cans; kitchen materials including pots and pans; timber; buckets; furniture items; clothing; ornaments; cane and wire baskets; plastic sheeting; cane and wire baskets; cardboard; disused bins and children’s paddling pools; boxes and bags of disused household and waste materials, suitcases; lawn mowers; fuel containers; water filled containers; wheelbarrows; stockpiled garden waste; wood piles; clothing and numerous other accumulated goods is causing amenity, health and sanitary issues to the neighbouring property owners;
6 The order requires Mr Newton to comply with it within 28 days of service of the order on Mr Newton. The order also provides that it remains in force (unless earlier revoked) for a maximum period of five years from the date of the order for reason of protection of public health.
7 No direct evidence of service of the order on Mr Newton has been adduced. However, there is evidence of conversations with and communications from Mr Newton after the date of the order, in which Mr Newton requested and discussed extensions of time within which to comply with the order of 3 November 2006. For example, a file note of Mr Pearson of the Council dated 2 April 2007 establishes that Mr Newton had received the order of 3 November 2006 by that date. The file note states as follows:
“On 2nd April 2007 at approximately 4.15pm, Mr Newton approached myself at Council to discuss an opportunity for him to comply with the Order issued 3rd November 2007 [sic], as his parents had been ill and he was not capable of removing unwanted accumulation of goods from the property at 14 Kirkwood St, Seaforth.
I indicated a further period of say 2-3 weeks would be provided and that if he contacted me directly I would provide a free garbage service by Council to collect the goods.
Mr Newton agreed.”I indicated those goods of disrepair of [sic] considered not appropriate, as indicated in point 4 of the Order (No.122/06), should be removed.
8 A further file note on 30 April 2007 by Mr Pearson reveals that Mr Newton had not met this extended time frame for compliance with the order.
9 Subsequently, Mr Newton wrote to Mr Pearson offering an explanation for his non-compliance with the order and undertaking to clean up the waste materials in the future.
10 After the proceedings had been commenced, Mr Pearson’s affidavit of 11 September 2007, which included as an annexure the order of 3 November 2006, was served on Mr Newton and an affidavit of service has been read in these proceedings.
11 I am satisfied that Mr Newton has been served with the order prior to 2 April 2007 at the latest, and that a period of 28 days after service for compliance with the order has well and truly expired.
12 Notwithstanding the extensions of time, Mr Newton did not comply with the order of 3 November 2006. On 27 July 2007, the Council’s solicitors wrote a letter before action to Mr Newton. In that letter, the Council’s solicitors stated:
“We are instructed by our client that you have failed to comply with an Order issued pursuant to item 22A of the table to section 124 of the Local Government Act 1993, issued by our client on 30 November 2006.
We are instructed therefore to commence proceedings against you in the Land and Environment Court of New South Wales requiring compliance with Council’s Order without further notice.”We are further instructed that you have also failed to comply with the Order despite attempts by officers of our client to assist you in the removal of accumulated items of waste material stockpiled at the abovementioned property.
13 On 2 August 2007, the Council commenced Class 4 proceedings in the Court seeking declaratory and injunctive relief to remedy the breach of the Local Government Act by reason of Mr Newton’s non-compliance with the order under s 124 of that Act. The Class 4 application together with an affidavit of Mrs Finn, sworn 2 August 2007, was personally served on Mr Newton and an affidavit of service has been read establishing that fact.
14 There then followed a series of interlocutory appearances before the Court, at which the Court made various directions. The Council notified Mr Newton personally of each of these appearances and of the directions made by the Court. Again, affidavits of service establish these facts.
15 The affidavit of Mr Pearson, which chronicles the decade-long attempts by the Council to have Mr Newton clean up the accumulated waste on his premises, was also served on Mr Newton.
16 The Council read an affidavit of Mr Anderson, sworn 9 November 2007, which deposes to an inspection undertaken by Mr Anderson on 7 November 2007. Mr Anderson annexes photographs taken on 7 November 2007, which show an accumulation of waste of the kind described in the order of 3 November 2006. Mr Anderson’s affidavit was also served on Mr Newton.
17 At the hearing of the matter, although Mr Newton had been advised of the hearing, Mr Newton did not appear. Mrs Finn, the solicitor for the Council, read her affidavit, sworn 13 November 2007, which deposes to a conversation with Mr Newton on that day. In response to Mrs Finn’s question “Will you be at Court tomorrow?”, Mr Newton replied “No, I won’t be at Court tomorrow.”
18 I am satisfied that Mr Newton is aware of the proceedings and the case that is made against him, but has elected not to appear.
19 I am satisfied on the evidence tendered at the hearing that there is ongoing non-compliance with the order dated 3 November 2006. Pursuant to s 672 of the Local Government Act, failure to comply with an Order made under Pt 2 of Ch 7 of the Act (which includes s 124), is a breach of the Local Government Act. A Council may bring proceedings in this Court to remedy or restrain such a breach under s 673(1) of the Act.
20 I am satisfied on the evidence that Mr Newton has breached the Act in that he has failed to comply with the Order issued by the Council under s 124 of the Act. The order required that the accumulated waste specified in the order be removed within a period of 28 days after service of the order. Although the precise date of service has not been established, it must have been prior to 2 April 2007. Accordingly, the period for compliance with the Order would have expired earlier in the year. It certainly has expired well before today.
21 Although there has been some promises by Mr Newton to comply with the Order, he still has not done so. He has however indicated that he has a desire to comply with the Order. The affidavit of Mrs Finn of 13 November 2007 also deposes to a conversation with Mr Newton where he said:
“I could finish the clean up, especially the back porch, maybe within 5 weeks.”
Mrs Finn responded by asking:
“Do you think you could have it done by 14 December 2007?”
“I would prefer the 21st December.”Mr Newton replied:
22 The Council submitted at the hearing that although it still pressed for Orders that it carry out the works to remove the accumulated waste, it would be prepared to have those Orders suspended for a period of time until 21 December 2007, in order to enable Mr Newton to carry out the works himself.
23 Accordingly, the Council sought amended injunctive relief in the following terms:
“1. Pursuant to s 678(10) of the Local Government Act 1993, Manly Council is ordered to execute Council’s functions under s 678 by carrying out the works set out in para (a) and (b) hereunder:
(a) Remove from the front, back and side yard areas of the property located at 14 Kirkwood Street, Seaforth all household items in a poor state of repair including outdoor furniture, garden pots, old shopping trolleys, broken garbage bins, buckets, plastic containers, broken garden tools, cleaning utensils, items of furniture and plastic bags, whether empty or full; and
(b) Remove from the rear open porch of the dwelling on the property all items of clothing, plastic bags, whether empty or full, and household items or equipment in a poor state of repair.
3. The Respondent to pay the applicant’s costs as agreed or in lieu of agreement as assessed.”2. Order 1 is still be stayed until 21 December 2007 to enable the Respondent to carry out the work required to be carried out by o 1.
24 These orders are specific as to the waste to be removed and the areas from which it is to be removed, and do not leave too much room for debate as to what is covered by the order. Such specificity is desirable in these types of cases: see Wollongong City Council v McLean [2006] NSWLEC 295 at [44]-[46].
25 I am satisfied that the amended orders sought by the Council and set out above are appropriate to remedy the breach of the Local Government Act that I have found to be established. Accordingly, I make orders in terms of the orders that I have set out above.
26 In addition, I will add a fourth order that either party has liberty to apply to the Court on seven days’ notice.
Orders
27 The Court orders:
1. Pursuant to s 678(10) of the Local Government Act 1993, Manly Council is ordered to execute Council’s functions under s 678 by carrying out the works set out in para (a) and (b) hereunder:
- (a) Remove from the front, back and side yard areas of the property located at 14 Kirkwood Street, Seaforth all household items in a poor state of repair including outdoor furniture, garden pots, old shopping trolleys, broken garbage bins, buckets, plastic containers, broken garden tools, cleaning utensils, items of furniture and plastic bags, whether empty or full; and
- (b) Remove from the rear open porch of the dwelling on the property all items of clothing, plastic bags, whether empty or full, and household items or equipment in a poor state of repair.
2. Order 1 is still be stayed until 21 December 2007 to enable the respondent to carry out the work required to be carried out by Order 1.
3. The respondent to pay the applicant’s costs as agreed or in lieu of agreement as assessed.
4. Either party has liberty to apply to the Court on seven days’ notice.