Blacktown City Council v Pearce

Judgment 1For over 20 years the house and land at 141 Piccadilly Street, Riverstone had been unsafe and unhealthy. The house is so dilapidated as to be prejudicial to any occupants or neighbours. The land is unkempt and overgrown, filled with discarded rubbish and abandoned vehicles. Mr Pearce is the owner of the land. 2Blacktown City Council ('the Council') has issued notice after notice on Mr Pearce to fix the problem, but to no avail. The first of the notices was issued in 1989 under the then Ordinance No 39 of the Local Government Act 1919 to remove rubbish and waste materials from the premises. Five more notices under Ordinance No 39 followed over the next three years all requiring Mr Pearce to remove overgrown vegetation and waste from the premises. Mr Pearce did not comply with any of these notices. 3There was then a lull in bureaucratic activity broken by the Council serving in 2005 a notice of proposal to issue an order, followed by an order under s 124 of the Local Government Act 1993 ('LG Act'), to remove overgrown vegetation and waste from the premises. Six more pairs of notices - first, a notice of proposal to issue an order, then an order under s 124 of the LG Act - followed over the next five years until 2010, each requiring removal of overgrown vegetation and waste from the premises. From 2006 to 2008, the Council issued three penalty notices to Mr Pearce for failure to comply with various s 124 orders. 4In 2010, the Council also issued its first notice under s 121B of the Environmental Planning and Assessment Act 1979 ('EPA Act') to demolish the dilapidated single storey dwelling on the land. 5Mr Pearce was not moved by these various notices under s 124 of the LG Act or s 121B of the EPA Act or the penalty notices to take action specified in the orders to remedy the problems with the house or land. 6So, in 2011, the Council issued yet again notices and orders under s 121B of the EPA Act and s 124 of the LG Act. The order under s 121B of the EPA Act, served on Mr Pearce on 14 April 2011, required Mr Pearce to 'Demolish the dilapidated single storey dwelling in accordance with the provisions of AS 2601-2001, Demolition of Structures and remove all waste materials from the site', within 30 days of the date of the order (which was 14 April 2011). The order under s 124 of the LG Act, served on Mr Pearce on 20 June 2011, required Mr Pearce to '[r]emove all overgrown vegetation and waste from the property and ensure that the land and premises are maintained in a safe and healthy condition', within 28 days of the date of the order (which was 20 June 2011). 7Mr Pearce has not complied with either of these orders. These are the orders that are the subject of these proceedings. 8As a consequence of Mr Pearce's failure to comply with these orders, the Council commenced these Class 4 proceedings seeking declarations that Mr Pearce's failures to comply with the orders constitute breaches of the EPA Act and LG Act, and orders that Mr Pearce remedy the breaches by complying with the orders, including demolishing the dilapidated house and removing vegetation and waste materials from the land. 9The proceedings have been heard today. In preparation for the hearing, the Council and Mr Pearce have had settlement negotiations, which have been successful. They have agreed on declaratory and injunctive relief which will acknowledge and remedy the statutory breaches by Mr Pearce. Consent orders, signed by the Council's solicitor and Mr Pearce's solicitor, have been provided to the Court. 10The Court does not grant declarations of breaches of statutes or mandatory and prohibitive injunctions merely because the parties consent. The Court must be satisfied that the statutory breaches have indeed occurred and the orders sought are appropriate to remedy those established breaches. 11Accordingly, the Council has put evidence before the Court to establish the breaches and the appropriateness of the relief agreed. Mr Merewether, the city agent for Mr Sayer, the solicitor for Mr Pearce, informed the Court of his discussions with Mr Sayer in which Mr Sayer said he had carefully and thoroughly explained to Mr Pearce each of the declarations and orders in the consent orders and that Mr Pearce understands what he is required to do and the consequences (such as punishment for contempt) if he fails to comply with the orders. Mr Pearce has put in place funding and obtained quotes to undertake the works required by the consent orders. 12The parties seek that the Court make three declarations being that Mr Pearce has failed to comply with the s 121B order and the s 124 order and that by reason of such breaches Mr Pearce has breached the EPA Act and the LG Act. 13The Council read an affidavit of Ms Relph, a building surveyor with the Council, and tendered the bundle of documents exhibited to her affidavit. Photographs taken by Ms Relph in 2010, 2011 and, more recently, on 23 March and 5 October 2012 of the state of the house and land were tendered. Mr Pearce did not contest any of this evidence. Ms Relph's evidence, the documents and the photographs establish: