Watkins v City of Port Adelaide Enfield - [2010] SADC 46

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
In the Matter of LOCAL GOVERNMENT ACT 1999
WATKINS v CITY OF PORT ADELAIDE ENFIELD
[2010] SADC 46
Judgment of Her Honour Judge Cole
1 April 2010
LOCAL GOVERNMENT
Order served by Council for the removal of a boat and supporting structure - appeal lodged against the order - engineers' opinions as to the condition of both the boat and trailer and the degree of risk posed by their presence on the land considered - order of Council rescinded and Court order made requiring specific work to be done to ensure the structural safety of the boat and trailer.
Local Government Act 1999 s 254; District Court Act 1991 42E, referred to.

WATKINS v CITY OF PORT ADELAIDE ENFIELD
[2010] SADC 46

The land at 329 Lady Gowrie Drive, Taperoo (“the land”), contains a dwelling. In the front yard of the dwelling, there sits a trailer with a boat on top of it. The land is on the corner of Lady Gowrie Drive and Paringa Street. Lady Gowrie Drive is the esplanade.
The City of Port Adelaide Enfield (“the Council”) served an order, dated 22 July 2009, pursuant to s 254 of the Local Government Act 1999 (“the Act”), in respect of the land. Mr Watkins appealed against that order on behalf of the owner of the land, Modern Organisational Services Pty Ltd, of which he is a director.
The order stated:
You are the owner of land situated at 329 Lady Gowrie Drive, Taperoo in the State of South Australia (“the property”).
In regards to the boat which is positioned on a supporting structure in the front yard of the property, the City of Port Adelaide Enfield (“the Council”) notes that:
a.    the boat is in a state of disrepair and, in the Council’s opinion, is resting precariously on a rusted supporting structure, which comprises a trailer with wheels and multiple wooden beams propped up beneath the boat (“the supporting structure”);
b.    the boat and the supporting structure is positioned close to public land, namely a public road and footpath; and
c.    the structural stability of the boat and the supporting structure is in doubt.
Given the structural integrity of the boat and supporting structure is in doubt, the Council is of the opinion that the boat and the supporting structure constitute a hazard on land adjoining a public place (where the public place is a road) that is likely to cause damage to the road and, is a hazard to road users.
You are hereby ORDERED to take action to:
1.     remove the boat and the supporting structure from the front yard of the property;
or alternatively, if you desire the boat to remain in situ to –
2.    obtain an engineers report to verify the structural safety of the boat and of any supporting structure upon which the boat is positioned. Specifically the report must address the safety of the:
2.1trailer and wheels;
2.2supporting structure including the multiple wooden beams propped up beneath the boat; and
2.3the boat itself.
You are required to comply with this order on or before Monday, 24 August 2009.
The Act provides, in s 254:
254 Power to make orders
(1) A council may order a person to do or to refrain from doing a thing specified in Column 1 of the following table if in the opinion of the council the circumstances specified opposite it in Column 2 of the table exist and the person comes within the description opposite it in Column 3 of the table.
…

Column 1
To do or to refrain from doing what?
Column 2
In what circumstances? Column 3
To whom?

Hazards on lands
adjoining a public place

(1) To fence, empty, drain, fill or cover land (including land on which there is a building or other structure).

(2) To remove overgrown
vegetation cut back overhanging branches, or to remove a tree.

(3) To remove or modify a flag or banner, a flagpole or sign, or similar object or structure that intrudes into a public place.

(4) Where the public place is a road—to take action necessary to protect the road or to remove a hazard to road users.

Examples-

·    To fill an excavation, or to prevent drainage of water across the road.

·    To construct a retaining wall or to remove or modify a fence.

·    To fence land to prevent the escape of animals.

·    To remove a structure or vegetation near an intersection.

(1) A hazard exists that is, or is likely to become, a danger to the public.

(2) The vegetation, branches or tree create, or are likely to create, danger or difficulty to persons using a public place.

(3) The relevant object or structure creates, or is likely to create, danger or difficulty to persons using a public place.

(4) A situation exists that is causing, or is likely to cause, damage to the road or a hazard to road users.

(1) The owner or occupier of the land.

(2) The owner or occupier of the land.

(3) The owner or occupier of the land.

(4) The owner or occupier of the land.

The Council relied upon Clause (4) of the table.
Pursuant to s 256(3) of the Act, Mr Watkins appealed to this Court. The grounds of appeal were as follows:
1.     The trailer and boat is not a hazard.[sic]
2.     The trailer and boat is in sound condition.[sic]
3.     The structure is checked regularly and inspected after extreme weather activity.
The District Court Act 1991 provides as follows:
42E    Conduct of appeal
(1)    The Court must, on an appeal, examine the decision of the original decision-maker on the evidence or material before the original decision-maker, but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2)    The Court, on an appeal –
(a)is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.
(3)    The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and must not depart from the decision except for cogent reasons.
Decision of the original decision maker
Mr Newman is the Director of Environmental Services for the Council. An affidavit of Mr Newman was tendered in the appellant’s case, and Mr Newman gave evidence at the trial. Mr Newman made the decision to make the order under s 254. In his affidavit, Mr Newman said that he had delegated authority to issue such orders on behalf of the Council.
It was Mr Newman’s evidence that his concern about the boat on the land was triggered by an email from a Councillor which Mr Newman received on 30 October 2006. That email led Mr Newman to seek information from the Council’s planning staff. Mr Newman said that aerial photographs forming part of the Council’s records show that the boat has been on the land since 1995. Mr Newman said that the Council’s planning inspector, Mr Vardaro, took photographs of the boat on 13 November 2006. Mr Newman was concerned about what he saw in those photographs, and, on 11 December 2006, he directed a building officer to examine the boat. It seems that the building officer neglected to report back to Mr Newman, because Mr Newman next considered the matter in response to a request from Mr Wierda, the City Manager, in December 2008. Mr Newman discussed the matter with Mr Sotiropoulos, Council’s Senior Development Manager. Mr Sotiropoulos told Mr Newman that following a visit to the land with Mr Poupoulas, Council’s engineer, he had, on 12 August 2008, sent a letter to the owners of the land on behalf of the Council. A copy of that letter is exhibited to Mr Newman’s affidavit. It says, in part:
I wish to advise you that Council has concerns in relation to public safety while pedestrians are using Council footpath adjacent to your property, and in particular, the proximity and method of support for the boat located at the front yard.
It appears that the boat and trailer have been stored in this location for some time without incident, and whilst this may be the case, it is evident that the trailer stand has deteriorated and will continue to deteriorate due to corrosion. The corrosion has the potential to affect the integrity of the steel frame, causing the boat to turnover [sic] on to passing pedestrians using the footpath. In addition, the boat at the front and the rear are not adequately supported, and the prop restraining the boat from falling onto the house appears to be dislodged.
On 30 December 2008, Mr Newman requested that Mr Sotiropoulos prepare ‘formal enforcement proceedings and notices”. This apparently did not happen.
In early 2009, Mr Newman happened to drive past the land. He stopped and observed the boat. Mr Newman says, in his affidavit, that on this occasion he:
observed the structure was ageing and noted the exposed position (to the coast and storms). This confirmed my earlier opinion that there was reasonable doubt about the integrity of the support structure.
The next thing of note that occurred was a meeting on 31 March 2009, which Mr Newman arranged. It is not altogether clear, but this seems to have been a meeting of some of the members of the Council’s staff, including Mr Sotiropoulos and Mr Harrison, the Manager of Development Assessment. In his affidavit, Mr Newman said:
At the meeting on 31 March 2009 I stated that I was satisfied that an order should be issued pursuant to section 254 of the Local Government Act 1999. I was satisfied that the boat was in a state of disrepair and was resting precariously on a rusted supporting structure. I was satisfied that the boat and the supporting structure were positioned close to public land, and that the structural stability of the boat and supporting structure were in doubt.
On 20 April 2009, Mr Newman gave notice in writing to the owner of the land of the proposed order. On 4 May 2009, Mr Watkins responded, by letter, to that correspondence, saying that the boat and trailer were in a sound condition and did not pose a hazard, and that the structure is checked regularly and inspected after extreme weather activity. The Council attempted to send a further letter to Mr Watkins by registered post, but it was returned unclaimed. A process server was unable to serve it, also. Eventually it was sent by ordinary post, but no response was received.
On 22 July 2009, Mr Newman posted the order the subject of this appeal to the owner of the land. He said, in his affidavit:
I was satisfied that action was necessary to protect the road and to remove a hazard to road users, and that in the circumstances an order made under Section 254 of the Local Government Act 1999 was necessary.
On 12 August 2009, Mr Watkins appealed from the order.
On 20 November 2009, Mr Watkins provided the Council with the report of an engineer, Mr G R Burton, of Tonkin Consulting.
The Engineers’ Opinions
Mr Burton’s report was tendered at trial by consent. Mr Burton said that he had inspected “the yacht hull and supporting cradle structure” on the land. He said, further:
My inspection confirmed that the yacht hull, of approximately 14.2 metres overall length and aluminium alloy construction is supported on a steel “cradle” which comprises a modified 4-wheeled “dog” trailer manufactured by L T I Ellis Ltd and bearing markings indicating the trailer to have a Safe Working Load of 6 tonnes. I am informed that the mass of the yacht hull in its present configuration is approximately 5 tonnes and that, prior to being placed in its present location, circa 1999, the yacht was sailed from Fremantle, Western Australia to Port Adelaide before being used for extensive cruising of local waters. I am further informed that, prior to undertaking the voyage from Fremantle, the vessel successfully underwent a complete marine survey.
The modifications to the trailer structure comprise the following elements –
·       Supplementary steel structure to provide support for the lead-filled fin keel of the yacht hull
·       A total of ten (10) galvanised tubular steel props which transmit the vertical loads from the hull, via pads located atop each prop adjacent the chines of the hull, to the trailer frame. The props are welded to the trailer framework
·       Four (4) stout galvanised tubular steel props which transmit the vertical loads from the underside of the trailer axle to substantial jarrah timber bearers located beneath each axle. The bearers, in turn, transmit the loads to the underlying soil.
I note that there are three (3) pieces of timber which would appear to be supporting props but which serve as indicators as to whether any displacement of the hull occurs. These timber members are located as follows –
·       Leaning against the stern of the hull and aligned, generally, with the longitudinal axis of the hull
·       Leaning against the stern of the hull and aligned, generally, with the longitudinal axis of the hull
·       Leaning on the trailer coaming member on the starboard side of the hull and abutting the adjacent house footing.
My inspection revealed the following regarding the structural condition of the hull and its supporting structure –
·       The yacht hull appears to be in sound condition with no visual indication of any loss of structural integrity
·       The props beneath the trailer axle provide load paths which are alternative to the trailer wheels and tyres, rendering their condition of no significance to my considerations
·       The trailer structure has an extensive coating of surface rust. However, there has been no significant metal loss to any critical load-bearing elements thereof.
·       At each corner of the trailer, there is a vertical square tubular steel member, approximately 50 mm square. These members were placed originally to provide support to fenders which were attached to the hull, but which have subsequently been removed, rendering the members redundant. The lower extremity of each member is extensively corroded and further corrosion thereof may result in the member(s) becoming detached from the trailer framework. The upper extremity of each of these members is tethered to the hull by a rope which would prevent the member from falling to the ground in the event of it becoming detached.
·       The leaf springs of the trailer exhibit extensive corrosion which would render them unsuitable for use on a vehicle subjected to the dynamic loadings resulting from on-road use. However, under the static loadings to which they are presently subjected, they have a demonstrated capability of reliability sustaining the loads.
As a result of my investigation, I am satisfied that the yacht hull and its supporting structure are structurally sound and, subject to the following provisions, do not represent a potential hazard to the adjoining road and road users –
·       The upper end of the “displacement indicator” members located at the stem and stern of the hull be tethered to the hull in a manner which would prevent them from falling to the ground in the event of them being dislodged.
·       If the hull and supporting structure are to remain in the present configuration for longer than 1 year, substantial steel props be placed between the trailer axles and the trailer framework to provide load paths which are alternative to the trailer springs, rendering their condition of no significance to these considerations.
A report of Mr Thompson, consulting engineer, of Rory Thompson Services was tendered in the Council’s case, and Mr Thompson gave evidence.
Mr Thompson noted, in his report, that the boat, the support structure and the trailer frame are connected to the trailer axles through four leaf springs, which are heavily rusted. He noted that the multi leaf springs have four clamps which hold the leafs together, but he noted that the tie bolt on each of the clamps was broken which, he thought, would reduce the stability of the trailer. He also noted that the U-bolts connecting the spring to the axle are rusted.
Mr Watkins submitted that the leaf springs are attached to the trailer axles by means of a dowel which goes through the centre of the leaf springs. In evidence, Mr Thompson said that these are not able to be seen on surface inspection, but he conceded that the dowels would assist the stability of the structure. He remained concerned, however, that the U-bolts might fail. He said, in evidence:
Q:     If the dowel were present would that comfort you about the stability of the boat. Does that improve the position.
A:     The dowel will hold the spring pack together. If the U-bolts were to fail the springs would be simply resting on top of the axle rather than tied to the axle.
Q:     What would happen.
A:     It would be quite unstable.
Q:     Would it fall down.
A:     It may not fall down immediately but it would be liable to disruption, much more liable to disruption.
Q:     If an external force were applied.
A:     If some external force were applied.
Q:     But not otherwise.
A:     Well, it could, with wind rocking, gradually work off the axle.
Q:     How long might that take.
A:     I can’t predict that.
Q:     Years.
A:     I don’t know what strength the winds are, but it is certainly not a good design to have leaf springs simply resting across an axle.
In relation to the rust, in evidence Mr Thompson said:
Q:    What is the effect of the corrosion of the leaf springs.
A:     Well, corrosion of the steel to iron oxide reduces the thickness of the steel which has the strength so it reduces the strength of the leaf spring. In my opinion, they haven’t rusted to a degree where they’re liable to just break but they have reduced in strength.
Q:     What would it take for a leaf spring to break. Is it something that will happen over time with further degradation or can it be achieved by some form of interference.
A:     In the condition with it just sitting there, corrosion would be the most likely cause of one to fail and that would take some years.
Mr Thompson noted that the keel of the boat, which rests on the supporting frame, has a split in it. He said that this reduces its ability to sustain a vertical load. However, the strength of the keel is not presently a critical issue in relation to the stability of the boat.
In his report, Mr Thompson expressed a concern that displacement of the axles of the trailer either towards the bow or the stern by 100mm would allow an axle to be displaced from the stand. In evidence, Mr Thompson said that the force required to achieve that displacement could be generated by pulling the boat with a four wheel drive vehicle, or possibly by use of a winch which could be anchored in a nearby palm tree.
Mr Thompson expressed a concern about the strength of the welds on the struts supporting the boat. He said that a sideways load per strut of 163kgs would be needed to cause the weld to fail. In evidence, Mr Thompson said that the force could be applied, once again, by means of a winch which could be anchored in a nearby palm tree. Alternatively, the sideways rocking of the boat, back and forth, for about half an hour, might achieve it. Mr Thompson was asked if high wind could have this effect. He said that it was highly unlikely, because the rocking needs to be back and forth.
In evidence, Mr Thompson said:
Q:     To summarise, you are really concerned about trespassers, aren’t you.
A:     I am concerned that there is no protection around the boat and structure to prevent interference.
Q:     If you could be guaranteed that there would be no interference, your concerns would be reduced, wouldn’t they.
A:     The concerns would be reduced to the leaf springs degradation primarily.
Q:     If the leaf springs fail, it is likely that the boat would fall down, isn’t it, rather than falling over.
A:     It’s hard to say, because the stack is not constrained vertical. It could tilt sideways, with the leaf springs tilting sideways, that is a possibility.
Q:     How many leaf springs would need to disintegrate at once.
A:     I’m talking about the U-bolts failing, making it unstable.
Q:     That would happen one at a time, wouldn’t it, over time.
A:     That would happen over time, but if one U-bolt fails then that top plate can flip up and that can cause some instability, but how that would affect the other springs is very hard to predict. They would tend to break one at a time.
Q:     So there would be some warning, you’d think, wouldn’t you.
A:     You would have some warning of one breaking, but whether the others then are so highly stressed that they failed quite soon afterwards, I couldn’t predict.
Q:    You simply don’t know.
A:    I don’t know.

Mr Poupoulas, Council’s structural engineer and building surveyor, gave evidence. He did not provide a report. Mr Poupoulas said that he agreed with Mr Thompson’s report, however, he had some additional concerns. He was concerned that struts placed next to the tyres of the trailers reduced the stability of the structure by narrowing the distance between the supports connecting the load with the ground. I am satisfied, on the basis of Mr Burton’s report, that Mr Poupoulas’ concern in this regard is misplaced. Mr Poupoulas was concerned that trespassers might interfere with the boat and trailer and be injured. He also expressed a concern that the wind could cause the boat to overturn.
Should the decision be departed from?
On the basis of the evidence before me, it appears that Mr Newman made a decision to issue the order on the basis of the following:
·his understanding from the Council’s records that the boat and trailer had been present on the land since 1995 (which was not disputed)
·his impression of the condition of the boat and trailer from photographs taken by Mr Vardaro on 13 November 2006
·the information contained in Mr Sotiropoulos’ letter of 12 August 2008
·his impression of the condition of the boat and trailer from viewing the boat and trailer in early 2009.
It is likely that he also discussed the matter with Mr Sotiropoulos and Mr Poupoulas, and possibly other council officers, both at the meeting on 31 March 2007 and perhaps on other occasions, though the content of such conversations has not been adduced in evidence.
Mr Newman is not an engineer, and he was relying on his impression, from a superficial inspection of the boat and trailer, together with the opinion of others, when the notice was issued. In his affidavit, he said that the basis for his decision to issue the order was:
I was satisfied that the boat was in a state of disrepair and was resting precariously on a rusted supporting structure. I was satisfied that the boat and the supporting structure were positioned close to public land, and that the structural stability of the boat and supporting structure were in doubt.
It is apparent from the evidence of the engineers that the “state of disrepair” of the boat, taken alone, (which presumably refers to the damage to the keel), does not presently render it liable to fall into the road (including the footpath). It is also clear that the extent of the corrosion of the supporting structure was not a sufficient basis for the issue of the notice.
Mr Sotiropoulos’ letter of 12 August expressed concern about the corrosion (or rust). He also said:
In addition, the boat at the front and rear are not adequately supported, and the prop restraining the boat from falling onto the house appears to be dislodged.
This statement, viewed in the light of the subsequent engineers’ reports, shows a misunderstanding of the way that the boat is being supported on the land. The props at the front and the rear are not supporting the boat, but are being used by Mr Watkins to indicate displacement, should it occur, and the prop between the house and the trailer, likewise, does not have a critical supporting function. In his report, quoted above, Mr Burton recommended that the “displacement indicator” members at the stem and stern of the hull be tethered to the hull. Mr Watkins has attended to this.
The circumstances in which a Council may issue a notice pursuant to s 254 are set out above. The Council must be of the opinion that:
A situation exists that is causing, or is likely to cause, damage to the road or a hazard to road users.
The boat does not presently constitute a hazard. It is simply sitting on private land. The question is whether the boat and trailer are “likely to cause damage to the road or a hazard to road users”; in other words, whether, realistically, they have the potential to become a hazard reasonably soon. Ms Shute submitted that the requisite circumstances would be present when any risk at all is identified. I reject that proposition. The situation must be “likely” to cause damage to the road or a hazard to road users. Further, the order must be “necessary to protect the road or to remove a hazard to road users”.
I have set out the opinions of the three engineers in some detail above. It seems to me that Mr Thompson, Mr Poupoulas and Mr Burton are substantially in agreement with respect to the degree of risk posed by the boat and trailer in the absence of interference. That is, that the structure is not likely to fall onto the road imminently, but that it would be prudent to provide reinforcement to the leaf springs quite soon. Even if the leaf springs fail, it is not likely that they will do so all at once, though the failure of one would put additional pressure on the others. In the event of the failure of one or more of the leaf springs, there are many possibilities as to what may happen to the boat. It may fall partly or completely toward the house or toward the road, or it may fall vertically. I find that the wind, by itself, is not likely to cause the boat to fall toward the road. Where Mr Poupoulas differs from Mr Thompson, I prefer the evidence of Mr Thompson, as he had the opportunity to consider the issues in greater detail.
Mr Thompson considered the effect of outside interference. He contemplated trespassers attempting to tow the boat with a vehicle or displace it with a winch or attempting to make it fall by rocking it for half an hour. I do not believe that s 254 was intended to deal with these situations in relation to items wholly on private land. A car stolen from a driveway and driven away at high speed may pose a hazard to road users, but s 254 does not authorise a Council to require a car sitting on private property to be removed. Many things which are routinely present on land used for residential purposes have the capacity to become a hazard if misused by a malicious trespasser. No evidentiary basis was made out upon which it could be argued that such scenarios were particularly “likely” to occur in relation to the boat and trailer.
The Council has ordered that the boat and supporting structure be removed or that an engineer’s report be provided “verifying the structural safety of the boat and of any supporting structure upon which the boat is positioned”.
Pursuant to s 254 of the Act, the action taken by the Council must be “necessary to protect the road or to remove a hazard to road users”. Having regard to the evidence of the three engineers, the circumstances in this matter do not give rise to the necessity that the boat and trailer be removed. There are cogent reasons to rescind the order of 22 July 2009 and to substitute a different order, pursuant to s 42F of the District Court Act 1991, which is supported by the engineering evidence.
There will be an order rescinding the order of 22 July 2009. A further order will be made requiring substantial steel props to be placed between the trailer axles and the trailer framework to provide load paths which are alternative to the trailer springs, on or before 1 November 2010.
The issue of whether the boat and trailer are lawfully present on the land does not arise on this appeal. I make no findings in relation to that issue.