Council of the City of Sydney v Fuh

Australian Securities and Investments Commission v Sweeney (No.2) (2001) 38 ACSR 743 CASES CITED: Building Insurers' Guarantee Corporation v Merv Eddie & Ors [2008] NSWSC 195 Council of the City of Sydney v Estate of the Late Alfred Sulligoi care of The Public Trustee and Anor [2007] NSWLEC 778

APPLICANT Ms L Byrne, Solicitor of LEGAL REPRESENTATIVES: Council of the City of Sydney RESPONDENT No apperance

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

EXTEMPORE JUDGMENT 1 His Honour: Mr Paul Fuh was apparently born in China in either 1942 or 1944. He is an Australian citizen, apparently not married, and has owned residential premises at 544 Elizabeth Street Redfern since 1991 (Exhibit C1), but has been seen there only occasionally (perhaps three or four times a year) since Mr Paul Wilton took possession of No.546 in June 2004. 2 No other private citizens have been observed attending the property, and there is evidence that Mr Fuh may actually have resided for some time, in at least about 2005, in a boarding house at 563 Elizabeth Street. 3 The subject property (No.544) has been clearly neglected. The Court did not see the need to carry out a site visit, as there is extensive affidavit and photographic evidence of its condition, both internally and externally, and I have also had the benefit of oral evidence from the neighbour to the South, Mr Wilton, and Council's Building Surveyor Mr Phillip Motbey. 4 This is an important property. It sits towards the centre of a row of twelve or more late Victorian Filligree terraces of local historic and aesthetic significance and value, dating from about 1873, if not earlier. The row of terraces is listed in the South Sydney Local Environmental Plan 1998 as a heritage item (see Heritage Branch Summary in Exhibit C4). However, complaints have been made to Council since 28 March 2008 regarding the deteriorating condition of No.544. 5 Mr Motbey opines that the current condition of terrace 544 constitutes a serious structural threat not only to itself, but also to those at 542 and 546 on each side of it, largely because of (1) substantial water penetration and fungal and other damage, past and likely, (2) the huge accumulation of inappropriate rubbish near common walls, (3) the threats caused by unchecked vegetation in the rear yard and on or over the roof, and (4) the obvious instability of the out-house at the rear. 6 Mr Motbey has made several inspections, including yesterday (Exhibit C3), and has told the Court today of the gradually worsening physical and structural situation depicted in his photographs. The Council's Acting Senior Environmental Health Officer Nichola Hooker, an expert in microbiology, opines to the serious private and public health threat also caused by the current internal circumstances of the premises, especially with rubbish, newspapers, food waste, decaying organic matter, etc, as well as the vegetation. 7 These proceedings were brought on 19 August this year as a consequence of there being no response to a series of letters, notices and orders sent to Mr Fuh at the premises and to his GPO box (as registered with the Council - see Exhibit C2). Notices and Orders have been given under the Local Government Act 1993 s.124 - items 21 and 22A - and an emergency notice was also issued under s.121B of the Environmental Planning and Assessment Act 1979 - items 4(a) and (b). 8 These notices, orders, and letters from the Council sent to Mr Fuh at the premises have not been collected, and those sent to his GPO box have not been returned, indicating that it is still rented and "active". One registered letter sent to the box was, however, returned five weeks after posting, when not collected. The police entered the premises on 31 July 2008 and Council secured them on 7 August, having satisfied themselves there was no person living or dead within. A key to the lock placed following that visit was in the registered letter, and another five keys are in the hands of police. 9 Extensive inquiries have been made to locate Mr Fuh, despite privacy restrictions on various public records. He has never been reported as a "missing person", and the New South Wales Registry of Births, Deaths and Marriages records no relevant death between 1998 and 3 September 2008. He is not on the electoral roll and no person or agency in the area seems to know him. 10 Council has now ascertained, and the Court is satisfied, that he left Australia on a Qantas flight QF191, bound for Hong Kong and China, as an "Australian resident departing temporarily" for a stated period of 6 months (Jones affidavit par [6] and Annexure 'A') on 12 November 2007, and has not returned, at least not under that name. 11 On 12 September, Biscoe J granted leave to Council to amend its summons and made an order for its "substituted service". Despite the apparent continued currency of the GPO Box, I am satisfied that that order was entirely appropriate - see Australian Securities and Investments Commission v Sweeney (No.2) (2001) 38 ACSR 743, and Building Insurers' Guarantee Corporation v Merv Eddie & Ors [2008] NSWSC 195. I am also satisfied that Council has entirely complied with it, and I have today granted Council's application for leave to proceed on an ex parte basis, given that attempts have been made to serve on Mr Fuh all the material relied on by Council today. Apart from the evidence of Mr Wilton, Mr Motbey and Ms Hooker, I have been assisted by affidavits from Council officers Kirsten Morrin and Bradley Jones. 12 I am satisfied that the premises currently pose a serious threat to public health, to the health of any person who enters them, to the environment generally, and to the structural safety of at least Nos.542, 544 and 546 Elizabeth Street. 13 The orders issued by Council, namely the "21" order on 29 April 2008, the "22A" order on 7 July 2008, and the "121B" order on 5 August 2008 give extensive details of what is required to be done about the smell, the rubbish, the rodent infestation, the structural risks, the vegetation and the general dilapidation of the premises, but further investigation is indicated before a final regime of remediation is put in place. 14 I propose, therefore, to make the following orders, generally in terms of the prayers for relief in the Amended Summons dated 5 September 2008 (see Council of the City of Sydney v Estate of the Late Alfred Sulligoi care of The Public Trustee and Anor [2007] NSWLEC 778):

A. I make the following declarations: 1. A declaration that the Respondent has failed to carry out the terms of an Order issued pursuant to s.124 of the Local Government Act 1993, Order No.21 and dated 29 April 2008. 2. A declaration that the Respondent has failed to carry out the terms of an Order issued pursuant to s.124 Local Government Act 1993, Order No.22A and dated 7 July 2008.

3. A declaration that the Respondent has failed to carry out the terms of an Emergency Order issued pursuant to s.121B Environmental Planning and Assessment Act 1979, Order Nos. 4(a) and 4(b) and dated 5 August 2008.

B. I make the following orders: 4. Pursuant to s.678(10) of the Local Government Act 1993, the Applicant, namely the Council of the City of Sydney, by its servants, contractors and agents (" Council" ) is ordered to execute Council's functions under s.678 by carrying out the work which is required to be carried out by the Orders dated 29 April 2008 and 7 July 2008. 5. Pursuant to s.121ZJ(11) of the Environmental Planning and Assessment Act 1979, Council is ordered to execute its functions under s.121ZJ by carrying out the work which is required to be carried out by the Terms of the Order dated 5 August 2008.

6. The Respondent is ordered to pay Council's costs of the proceedings as agreed or assessed. 7. The Respondent is ordered to pay Council's costs and expenses associated with carrying out these Orders, pursuant to s.678(6) of the Local Government Act 1993 and s.121ZJ(7).

8. Council is to give Redfern Police five days written notice of its intention to enter the premises in accordance with these Orders for the purpose of carrying out the works.

9. The Respondent, by himself, his servants and agents is restrained from doing any act which might interfere with or impede the entry by Council on the premises and then remaining on the premises pursuant to these Orders and which might interfere with or impede Council in complying with these Orders.

C. 10. I direct Council to bring in within fourteen days Short Minutes of Order containing a schedule of the works required by orders 4 and 5 and a timetable for doing those works in strict conformity with orders 4 and 5. Copies of the Council orders should be annexed to those Short Minutes of Order. 11. Exhibits are to be retained.

12. The Court grants liberty to Council to apply to have the Court specify amounts in orders 6 and 7.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.