Burwood Council v Wanless

Judgment 1Burwood Council brings civil enforcement proceedings in Class 4 of the Court's jurisdiction, pursuant to s 673 of the Local Government Act 1993 ( LG Act ), to remedy or restrain alleged breaches of the LG Act, being the failure of the respondent, Miss Susan Wanless, to comply with an order it issued for the removal of overgrown vegetation on her property in Croydon. Miss Wanless has not appeared in the proceedings.

FACTUAL BACKGROUND 2Miss Wanless is the owner and occupier of residential premises located at 22 Austin Ave, Lot 11 Deposited Plan 11258, Croydon. The subject premises are overgrown with grass and other vegetation, and beset with a quantity of weeds, refuse and litter which the Council seeks to have removed. The Council is particularly concerned that the subject premises are a harbourage for vermin including mice, rats and cockroaches. 3In December 2008 Council received a complaint which asserted that the garden of the subject premises was overgrown and that cockroaches and rats were nesting therein. 4The Council's Senior Environmental Health Officer, Mr John Mills, subsequently attended the subject premises to investigate the complaint. He described Miss Wanless as "very agitated and defensive". She refused Mr Mills access to the subject premises, so Mr Mills gained access to a neighbouring property. From this vantage point he observed that the back of the subject premises was "overgrown and had weeds and the like growing very high in it." 5From this inspection Mr Mills formed the view that the premises harboured pests and vermin such as mice, rats and cockroaches. 6By letter of 22 December 2008 Mr Mills wrote to Miss Wanless to inform her that Council was in receipt of a complaint regarding the overgrown condition of her property, and that she was required to: "Remove from the subject premises overgrown vegetation and vegetative matter whether alive or dead which is or is likely to become a harbourage for rubbish and vermin and maintain the property in a neat and tidy manner." 7Council requested that Miss Wanless complete the required work within 14 days in order that the matter be "amicably resolved". 8By letter of 30 December 2008 Miss Wanless confirmed receipt of the Coucil's letter, requesting that the Council disclose the source of the complaint and stating that: "There certainly can be no amicable resolution under these set of circumstances and goodwill does not and cannot exist by underhand tactics." 9From the evidence it appears that Council made no further attempts to resolve the situation until 8 February of 2011 when the Council received a further complaint concerning the state of the subject premises. 10On 2 March 2011 the Council's Law Enforcement Officer, Mr Anthony Henderson , attended the subject premise s in an attempt to inspect the premises. Mr Henderson knocked on the front door but there was no answer. He observed that there was an amount of significantly overgrown grass and vegetation at the front of the premises. 11Following Mr Henderson's inspection of the property, the Council issued Miss Wanless with a Notice of Proposed Order of 2 March 2011, pursuant to s 132 of the LG Act. The Notice of Proposed Order stated: Order in terms of Order No 21 in the Table to Section 124 of the Act. " Local Government Act 1993 Notice of Proposed Order Premises: 22 Austin Avenue Croydon NSW 2132 Lot 11 on DP11258 Pursuant to Section 132 of the Act, Council advises that it intends to give you the following Order in terms of Order No 21 in the Table to Section 124 of the Act. The Proposed Order: To do such things as are specified below so as to place the abovementioned premises in a healthy condition: 1. To remove all overgrown grass and vegetation at the FRONT, SIDES and REAR of the premise to a height of 10cm above the finished ground level as well as all weeds, refuse and litter from the above mentioned property. 2. To maintain all grass and vegetation at the FRONT, SIDES and REAR of the premise to a height not exceeding 10cm above ground level. From the date of the order, you will have 14 days to comply. ... You may, if you wish, make representation to Council yourself, or by your Barrister, Solicitor or Agent as to why the order should not be given or as to the terms of or period for compliance with the Order. Any representation must be made to the Manager, Compliance within fourteen (14) days of the date of this letter. After hearing the considerations, the Council may determine to give the Order in accordance with the Proposed Order, or to give an Order with modifications made to the Proposed Order of to given no order at all." 12There is no record of Miss Wanless making any such representations to Council within the time period stipulated by the notice. 13On 16 March 2011 Mr Henderson again attended the subject premises for the purposes of ascertaining whether Miss Wanless had complied with the Notice of Proposed Order of 2 March 2011. My Henderson attempted again to gain entry to the property, again the door was not answered. Mr Henderson formed the view, from the visible portions of the subject premises he observed, that the proposed order had not been complied with. 14On 16 March 2011 the Council issued Miss Wanless with a Notice of Order pursuant to s 124 of the LG Act, which relevantly provides as follows: " 124 What orders may be given, in what circumstances and to whom? ... Orders requiring the preservation of healthy conditions Column 1 Colum 2 Column 3 To do what? In what circumstances? To whom? 21 To do or refrain from doing such things as are specified in the order to ensure that land is, or premises are, placed or kept in a safe or healthy condition The land or premises are not in a safe or healthy condition Owner or occupier"