Armidale Regional Council v Cox

No Appearance by the Respondent

3. When the matter was called on for hearing, there was no appearance by the Respondent. Mr King, solicitor, who appeared for the Applicant, then read a series of affidavits concerning service on the Respondent of the WRO, the Summons, and all affidavits and other evidence that the Applicant sought to tender and rely upon at the hearing. The affidavits of service read were:

(a) Affidavit of Sandra Falealili dated 19 July 2024; (b) Affidavit of Service of Lara Finlayson dated 28 February 2025; (c) Affidavit of James Harry King dated 11 April 2025 (including the documents that form Exhibit JHK-1 to the affidavit); and (d) Affidavit of Fayette Juanita Vermeer dated 8 May 2025.

4. Based on this affidavit evidence and other material, I am satisfied that the Respondent has been served with the WRO, the initiating Summons to these proceedings, and all of the affidavit and other evidence that the Applicant seeks to rely on, and that he had been notified of the orders made by this Court on 4 April 2025 listing this matter for hearing on 9 May 2025.

Factual History

5. Mr King tendered a bundle of documents which included evidence of the ownership by the Respondent of the Property, as well as some overhead photographs showing the Property and depicting waste and rubbish surrounding it: Exhibit A pages 101-102.

6. An Affidavit of Scott David Goodhand dated 9 July 2024 was read, and tendered with it was a bundle of documents described as Exhibit SG-1. The following matters are established by Mr Goodhand’s affidavit:

(a) On 5 July 2022, the Applicant received a complaint in relation to vehicles that were also on the adjoining nature strip. The Property was inspected on 12 and 19 July 2022. (b) On 19 July 2022, the Applicant issued a Notice of Intention to issue an order under item 21 in the table in s 124 LG Act to the Respondent. On 9 August 2022, the Applicant issued Order No. 21 (Order No. 21) on the Respondent to ensure the Property was kept in a safe and healthy condition. (c) On 28 September 2022, the Respondent issued a show cause letter as to why he should not be “legally required to comply with the provisions of” Order No. 21. (d) On 2 November 2022, the Applicant inspected the Property and observed Order No. 21 had not been complied with and issued a penalty infringement notice. Further complaints were made by members of the public. (e) The Applicant offered to supply a skip bin, and remove the bin from the Property, and bear the costs of the disposal for the Respondent. On 31 July 2023, the skip bin was placed on the Property and removed 5 times that year. (f) After a further phone complaint in late October 2023, on 1 November 2023, another inspection was conducted of the Property. Household waste was observed to be strewn across the Property, and a number of unused vehicles were parked on it. (g) On 21 November 2023, the Respondent issued a Notice of Intention to make an order under items 10 and 21 in the table in s 124 of the LG Act to the Respondent and on 13 December 2023 the Applicant was issued the WRO and provided 36 days to comply (until 18 January 2024). (h) On 5 February 2024, officers of the Applicant inspected the Property and observed that the WRO had not been complied with. A further inspection on 17 May 2024 revealed that the rubbish had overflown onto the nature strip, and Council Officers attended to remove rubbish from the kerb, mow the nature strip lawn to ensure access to the mailbox and driveway, and installed a black plastic fence around the front boundary of the Property.

7. As to the WRO given to the Respondent on 13 December 2023, its terms were as follows:

8. Remove from the property all vehicles that are unregistered and/or dismantled.

9. Remove from the property all articles, matter and miscellaneous items, including but not limited to old tyres, vehicle batteries, oil containers, petrol containers, vehicle parts, scrap metal, clothing, carpet, children’s toys, paint containers.

10. The above-mentioned items are to be disposed of at a suitably Licensed Waste Facility.

11. Maintain the property so that,

(a) The storage of articles and matter does not create unsightly conditions when viewed from a public place and or, (b) allowed to accumulate on the property and become a harbourage [sic] for vermin and or, (c) does not hinder safe access to and around the property should emergency services be required.

5. Overgrown vegetation which includes grasses, weeds and the like are to be cut to a height of 10cm and remove from the property and disposed of at a suitably Licensed Waste Facility.

6. Maintain the property so that grasses and weeds are no taller than 10cm.

7. Exhibit SG-1 included many photographs taken of the Property at the time of the Council inspections. They depict a large amount of waste, rubbish, and general debris spread all over the Property.

8. Mr King also read the following further affidavits:

(a) Affidavit of Fredrick Richard Mickerts dated 5 July 2024. In his affidavit Mr Mickerts attests to observations he made during various inspections of the Property, and that the WRO had not been complied with. (b) Affidavit of Bradley Hoult dated 25 February 2025. Mr Hoult attests to inspecting the Property on 10 February 2025, at which time a large amount of waste and debris was observed, and photographs taken. (c) Affidavit of Fredrick Richard Mickerts dated 26 February 2025. In this affidavit, Mr Mickerts attests to becoming informed that the fire that broke out at the Property on 21 July 2024, and which caused considerable damage to part of the dwelling on it, depicted in photographs exhibited to his affidavit.

Conclusion

10. Based on the affidavit and other evidence before me, it is clear that the WRO has not been complied with. There is evidence that a considerable amount of waste, other rubbish, and debris remains on the Property. This is causing safety concerns, and is adversely impacting the amenity of the occupiers and owners of adjoining and nearby properties.

11. Based on the lack of compliance with the WRO, and the factual history set out in the affidavits, the inference can be drawn that it is unlikely that the Respondent will himself remove the rubbish and waste remaining at the Property, and it would appear that (no doubt as a result of the fire referred to above) he is no longer residing at it. I am therefore satisfied that I should make the orders sought in the Summons.

Orders

12. I make the following orders:

13. Declare that the Respondent has breached the Applicant’s orders, being Order No. 10 and 21 in the table in section 124 of the Local Government Act 1993 (NSW) (LG Act) issued to the Respondent on 13 December 2023 (Waste Removal Order), and as a result has breached the LG Act as the Respondent has failed, within the period of 36 days of the date of the Waste Removal Order, to comply with the terms of the Waste Removal Order.

14. Pursuant to s 673(1) of the LG Act, that the Respondent remedy the breach of the Waste Removal Order and the LG Act by doing the things specified in the Waste Removal Order within 28 days of these Orders.

15. If the Respondent fails to comply with Order 2 of these Orders within 28 days of the date of these Orders, the Applicant exercise its functions under s 678(10) of the LG Act to do all such things as are necessary or convenient to give effect to the terms of paragraph 1-3 and 5 of the Waste Removal Order (the Works).

16. For the purposes of Order 3 and the Applicant carrying out the Works, and subject to compliance with Order 8 below, the Applicant, its servants and agents, shall be entitled to enter and remain at 294 Rusden Street, Armidale NSW 2350 (Premises) to carry out the Works during weekdays between the hours of 9:00am to 4:00pm.

17. 3 days before the Applicant carries out the Works, a sealed copy of these Orders are to be served on the Respondent by affixing the Orders in a sealed clear soft plastic pocket to the front door of the residential dwelling located on the Premises.

18. The Respondent is to provide access to the Premises by unlocking any doors (excluding doors to the dwelling) and fences by 8:00am on the day the Works commence. If that order is not complied with then the Applicant, its servants and agents, are permitted during the Works to unlock and remove any doors (excluding doors to the dwelling) and fences on the Premises in order to gain access to the Premises.

19. The Respondent may remove from the Premises or place within the dwelling house on the Premises any object of value which he does not wish to be removed by the Applicant, its servants and agents by 8:00am on the day when the Works commence.

20. The Respondent, his servants and agents abstain from doing any act which might interfere with or impede the entry by the Applicant, its servants and agents onto the Premises and then remaining on the Premises pursuant to these orders, and which might interfere with and impede the Applicant, its servants and agents in complying with these orders, and that the Respondent, his servants and agents stay a safe distance from any operating machinery and trucks brought by the Applicant to the Premises.

21. For the purposes of these orders and s 743 of the LG Act, “waste” means all objects located on the Premises (apart from anything within the dwelling house) at 9:00am on the day when the Works commence.

22. The Applicant, its servants and agents may cut vegetation at the Premises if that is reasonable required to facilitate the Works.

23. Any motor vehicle (registered or otherwise) which is parked on the Premises may be removed by an appropriate towing company to a storage facility operated by the Applicant.

24. Pursuant to s 678(6) of the LG Act, that if the Applicant carries out Works pursuant to Order 3, that the Respondent pay the Applicant’s expenses and any associated costs of carrying out these orders as agreed or assessed.

25. The Respondent pays the Applicant’s legal costs in these proceedings as agreed or assessed.

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