Waverley Council v Walsh

[2014] NSWLEC 195

Land and Environment Court

New South Wales

Medium Neutral Citation:

Waverley Council v Walsh [2014] NSWLEC 195

Hearing dates:

18 December 2014

Decision date:

19 December 2014

Jurisdiction:

Class 4

Before:

Pepper J

Decision:

See orders at [31].

Catchwords:

CIVIL ENFORCEMENT - failure to comply with a s 121B order issued under the Environmental Planning and Assessment Act 1979 - dilapidated house - risk to human safety - declaratory and remediation orders made - legal costs and repair expenses awarded.

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 121B, 121ZJ

Cases Cited:

Council of the City of Sydney v Galanis [2012] NSWLEC 263

Maitland City Council v Khali [2012] NSWLEC 58

Waringah Council v Ulrich [2012] NSWLEC 234

Category:

Principal judgment

Parties:

Waverley Council (Applicant)
William John Walsh (Respondent)

Representation:

Mr S Nash (Applicant)
No appearance (Respondent)
Sparke Helmore Lawyers (Applicant)
No appearance (Respondent)

File Number(s):

ex tempore Judgment

The Council Seeks Orders in Relation to a Dilapidated House

1. In a summons filed on 1 October 2014, the applicant, Waverley Council ("the council"), seeks a declaration that the respondent, Mr William Walsh, has failed to comply with an order dated 23 October 2013 issued to him under s 121B of the Environmental Planning and Assessment Act 1979 ("the EPAA") ("the order").

1. The order required Mr Walsh to rebuild timber framing members and replace tiles to the roof of his two-storey dwelling located at 37 Bondi Road, Bondi Junction, described as Lot 2 in DP 201822 ("the premises"). When the works were completed, a certificate of structural adequacy was to be submitted to the council by a certified structural engineer.

1. The reasons for the order were noted as:

The timber framing members and tiles to sections of the roof to the two storey dwelling are rotted and tiles have become loose and are in danger of falling. The roof is in an unstable state and the safety of occupants and the public may be at risk.

1. Time for compliance with the order was 28 days after service, that is, by 20 November 2013.

1. The council also seeks an order that it be permitted to enter on to the premises for the purpose of carrying out the works specified in the order, together with any works of an ancillary nature that it determines are necessary so that the premises can be made safe.

1. Based on the material before the Court, I have determined that it is appropriate to grant the relief sought by the council.

The Proceedings Were Heard Ex Parte

1. The council has been unable to locate Mr Walsh.

1. Between July 2013 and June 2014, the council made extensive enquiries of various State and federal agencies in an attempt to ascertain his whereabouts for the purpose of these proceedings. These enquiries included, as deposed to in an affidavit of Ms Catherine Morton, the council's solicitor, sworn 29 October 2014:

(1)   a request to the Eastern Suburbs Local Area Command at Waverley Police Station that the police investigate Mr Walsh's…