Strathfield Municipal Council v Malass - [2021] NSWLEC 112

Land and Environment Court

New South Wales

Medium Neutral Citation: Strathfield Municipal Council v Malass [2021] NSWLEC 112
Hearing dates: 18 October 2021
Date of orders: 19 October 2021
Decision date: 19 October 2021
Jurisdiction: Class 4
Before: Pain J
Decision:
The Court orders:
(1) Pursuant to r 23.8(1) of the Uniform Civil Procedure Rules 2005 Mr Bradley Pope and Mr Brett Daintry from Strathfield Municipal Council are granted access to 27 Boden Avenue Strathfield from 10am on Friday 22 October 2021 for the purposes of an inspection to all areas of the property.
(2) The persons granted access in accordance with Order 1 have permission to take videos and photographs during the inspection.
(3) The Respondent must pay the Applicant’s costs of the notice of motion dated 22 September 2021.
(4) Liberty is granted to the parties to apply for an urgent mention on two days’ notice.

Catchwords:
CIVIL ENFORCEMENT – notice of motion for order for access to property granted

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW) ss 9.16, 9.34, 9.37, 9.45, Sch 5
Uniform Civil Procedure Rules 2005 r 23.8

Category: Procedural rulings
Parties: Strathfield Municipal Council (Applicant)
Sarah Malass (Respondent)
Representation: Counsel:
J Ayas (Applicant)
R White (Respondent)
Solicitors:
Bartier Perry Pty Limited (Applicant)
Project Lawyers (Respondent)

File Number(s): 2021/220120

Judgment

Strathfield Municipal Council (the Council) has commenced Class 4 proceedings seeking inter alia declaratory relief that the Respondent has carried out work at a premises at 27 Boden Ave Strathfield (the property) in breach of a stop work order issued on 14 September 2020. The property is used for residential purposes and a vacant unfinished new house presently occupies it. The Council has filed a notice of motion dated 22 September 2021 seeking an order under r 23.8(1)(a) of the Uniform Civil Procedure Rules 2005 (UCPR) allowing its officers to inspect all areas of the property and take photographs and a video. The order is opposed by the Respondent.

Brief history of proceedings

The Respondent commenced Class 1 proceedings (2020/291053) against the Council on 9 October 2020 in relation to a stop work order issued by the Council under s 9.34 and Sch 5 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) in relation to the property. The Respondent also commenced Class 1 proceedings (2021/69569) on 11 March 2021 appealing against the Council’s refusal of development application 2020.239 determined on 5 March 2021. Separate Class 1 proceedings (2021/69575) were commenced on 11 March 2021 appealing against the Council’s refusal of a Building Information Certificate Application in relation to the property.
On 27 November 2020 Preston CJ made orders in proceedings 2020/291053 that the stop work order issued by the Council be partially stayed subject to conditions. The Council’s stop work order continued to prevent works other than those specifically exempted by Preston CJ.
On 30 June 2021 the Council sought orders in proceedings 2020/291053 including that pursuant to UCPR r 23.8, Mr Bradley Pope and Mr Terrence Wong from the…

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: [2021] NSWLEC 112
Decision Date: 19 October 2021

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Strathfield Municipal Council v Malass involved the local council seeking access to a property at 27 Boden Avenue, Strathfield, for an inspection and to take photographs and videos of the property. The council alleged that the property was in a state of disrepair and posed a risk to public health and safety. The respondents, Mr and Mrs Malass, opposed the application for access, arguing that the council did not have sufficient grounds to justify an inspection. The court was required to determine whether the council's application for access and inspection met the necessary legal criteria under the Local Government Act 1993 (NSW).

The court considered whether the council had demonstrated that there were reasonable grounds to suspect that the property was in a state of disrepair and that an inspection was necessary to protect public health and safety. The court also examined whether the application complied with the procedural requirements set out in the legislation and the Uniform Civil Procedure Rules. In granting the council's application, the court found that the council had established that there were reasonable grounds for the inspection and that the application was properly made. The court emphasised the importance of protecting public health and safety and the council's role in ensuring that properties within its jurisdiction were maintained to appropriate standards.

As a result, the court ordered that Mr Bradley Pope and Mr Brett Daintry from Strathfield Municipal Council be granted access to the property at 27 Boden Avenue, Strathfield, for the purposes of inspection and to take photographs and videos. The order also required the respondents to pay the council's costs associated with the application. The court granted liberty to the parties to apply for an urgent mention on two days’ notice, should the need arise. This decision highlights the importance of the council's role in maintaining public health and safety and the legal framework that supports its powers in this regard.

Orders

Orders of the court

The Court orders:

(1) Pursuant to r 23.8(1) of the Uniform Civil Procedure Rules 2005 Mr Bradley Pope and Mr Brett Daintry from Strathfield Municipal Council are granted access to 27 Boden Avenue Strathfield from 10am on Friday 22 October 2021 for the purposes of an inspection to all areas of the property.

(2) The persons granted access in accordance with Order 1 have permission to take videos and photographs during the inspection.

(3) The Respondent must pay the Applicant’s costs of the notice of motion dated 22 September 2021.

(4) Liberty is granted to the parties to apply for an urgent mention on two days’ notice.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Strathfield Municipal Council v Malass [2021] NSWLEC 112
Hearing dates:	18 October 2021
Date of orders:	19 October 2021
Decision date:	19 October 2021
Jurisdiction:	Class 4
Before:	Pain J
Decision:	The Court orders: (1) Pursuant to r 23.8(1) of the Uniform Civil Procedure Rules 2005 Mr Bradley Pope and Mr Brett Daintry from Strathfield Municipal Council are granted access to 27 Boden Avenue Strathfield from 10am on Friday 22 October 2021 for the purposes of an inspection to all areas of the property. (2) The persons granted access in accordance with Order 1 have permission to take videos and photographs during the inspection. (3) The Respondent must pay the Applicant’s costs of the notice of motion dated 22 September 2021. (4) Liberty is granted to the parties to apply for an urgent mention on two days’ notice.
Catchwords:	CIVIL ENFORCEMENT – notice of motion for order for access to property granted
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW) ss 9.16, 9.34, 9.37, 9.45, Sch 5 Uniform Civil Procedure Rules 2005 r 23.8
Category:	Procedural rulings
Parties:	Strathfield Municipal Council (Applicant) Sarah Malass (Respondent)
Representation:	Counsel: J Ayas (Applicant) R White (Respondent) Solicitors: Bartier Perry Pty Limited (Applicant) Project Lawyers (Respondent)
File Number(s):	2021/220120