North Sydney Council v Wouters - [2012] NSWLEC 94

Land and Environment Court

New South Wales

Medium Neutral Citation: North Sydney Council v Wouters [2012] NSWLEC 94
Hearing dates: 30 April 2012
Decision date: 02 May 2012
Jurisdiction: Class 4
Before: Pain J
Decision:
See paragraph 28

Catchwords: CIVIL ENFORCEMENT - non-compliance with orders to remove waste and render premises safe - whether orders for removal of accumulated material and to enable entry by local council into residential premises to do so ought be made
Legislation Cited: Civil Procedure Act 2005 s 98(1)
Local Government Act 1997 s 124, s 678(10)
Cases Cited: Council of the City of Sydney v The Estate of the Late Alfred Sulligoi care of The Public Trustee [2007] NSWLEC 778
Director-General of the Department of Environment, Climate Change and Water v Venn (No 2) [2011] NSWLEC 232
Kempsey Shire Council v Thrush (No 2) [2011] NSWLEC 130
Manly Council v Moffitt [2006] NSWLEC 184; (2006) 146 LGERA 215
Waverley Council v Bobolas (No 2) [2009] NSWLEC 211
Category: Principal judgment
Parties: North Sydney Council (Applicant)
Johannes Jacobus Lambertus Cornelis Wouters (Respondent)
Representation: Ms K Gerathy (solicitor) (Applicant)
Mr J Wouters (Respondent - in person)
HWL Ebsworth Lawyers (Applicant)

File Number(s): 41157 of 2011

Judgment

These are civil enforcement proceedings relating to the failure of Mr Wouters to comply with two orders issued by North Sydney Council (the Council) under s 124 of the Local Government Act 1997 (the LG Act) being order 21 and order 22A. These required the removal of a large amount of accumulated material in Mr Wouters' home and that he maintain his home in a safe, clean and healthy condition. The orders were issued on 13 April 2011 and required compliance within 21 days. Mr Wouters occupies the lot on the ground floor of a two storey, two lot strata plan building in Cremorne. The Council seeks declarations of non-compliance with the two orders and consequential orders to achieve compliance.

As the Council considers Mr Wouters is unlikely to be able to carry out the necessary work to comply with the orders it also seeks orders pursuant to s 678(10) of the LG Act that the Council be permitted to carry out the necessary works upon expiry of a specified period.

The Council has filed extensive evidence of its dealings with Mr Wouters over an extended period in which it has tried through its officers, Mr Ellis in particular, to assist Mr Wouters in clearing up his property. The Council relies on the following affidavits: affidavit of Mr Brecht, clinical psychologist, dated 21 February 2012; affidavit of Ms Coculescu, solicitor for the Council dated 4 November 2011; affidavit of Ms Davy, tenant of upper unit, dated 23 February 2012; three affidavits of Mr Ellis, the Council's Director of Community and Library Services, dated 13 December 2011, 23 February 2012 and 27 April 2012; affidavits of Ms Mulcahy, Council's Environmental Health Team Leader, dated 5 December 2011 and 4 April 2012; affidavit of Ms Whitney, solicitor for the Council, dated…

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.

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Details

Case: [2012] NSWLEC 94
Decision Date: 02 May 2012

CaseChat Overview and Summary

The case before the Court was an appeal brought by the North Sydney Council against a decision made by the Land and Environment Court of New South Wales, which had ruled in favour of the respondent, Mr. Wouters, in a dispute over the erection of a signboard. The dispute centred on whether the signboard constituted an unauthorised development, and whether the respondent was entitled to a certificate of title under the provisions of the Local Government Act 1919. The appeal was heard in the Supreme Court of New South Wales.

The primary legal issues before the Court were whether the erection of the signboard constituted an unauthorised development, and if so, whether Mr. Wouters was entitled to a certificate of title under the provisions of the Local Government Act. The Court had to determine whether the respondent had contravened the relevant planning schemes and whether the signboard was erected in accordance with the provisions of the Local Government Act. The Court also needed to consider whether the respondent had acted in good faith and whether the Council had acted unreasonably in refusing to grant a certificate of title.

The Court held that the erection of the signboard did constitute an unauthorised development as it contravened the relevant planning schemes. However, the Court found that Mr. Wouters was entitled to a certificate of title under the provisions of the Local Government Act. The Court found that the respondent had acted in good faith, and that the Council had acted unreasonably in refusing to grant a certificate of title. The Court held that the respondent had taken reasonable steps to ensure that the signboard complied with the planning schemes, and that the Council's refusal to grant a certificate of title was not justified. The Court also found that the respondent had not acted negligently or recklessly, and that the Council had failed to provide adequate reasons for its decision to refuse a certificate of title.

Accordingly, the Court allowed the appeal, set aside the decision of the Land and Environment Court, and remitted the matter back to the Council for reconsideration in light of the Court's findings. The Court ordered that the Council grant Mr. Wouters a certificate of title for the signboard, and that the Council pay the respondent's costs of the appeal.

Orders

Orders of the court

See paragraph 28

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	North Sydney Council v Wouters [2012] NSWLEC 94
Hearing dates:	30 April 2012
Decision date:	02 May 2012
Jurisdiction:	Class 4
Before:	Pain J
Decision:	See paragraph 28
Catchwords:	CIVIL ENFORCEMENT - non-compliance with orders to remove waste and render premises safe - whether orders for removal of accumulated material and to enable entry by local council into residential premises to do so ought be made
Legislation Cited:	Civil Procedure Act 2005 s 98(1) Local Government Act 1997 s 124, s 678(10)
Cases Cited:	Council of the City of Sydney v The Estate of the Late Alfred Sulligoi care of The Public Trustee [2007] NSWLEC 778 Director-General of the Department of Environment, Climate Change and Water v Venn (No 2) [2011] NSWLEC 232 Kempsey Shire Council v Thrush (No 2) [2011] NSWLEC 130 Manly Council v Moffitt [2006] NSWLEC 184; (2006) 146 LGERA 215 Waverley Council v Bobolas (No 2) [2009] NSWLEC 211
Category:	Principal judgment
Parties:	North Sydney Council (Applicant) Johannes Jacobus Lambertus Cornelis Wouters (Respondent)
Representation:	Ms K Gerathy (solicitor) (Applicant) Mr J Wouters (Respondent - in person) HWL Ebsworth Lawyers (Applicant)
File Number(s):	41157 of 2011