Council of the City of Sydney v The Estate of the Late Alfred Sulligoi care of The Public Trustee and Anor

Council of the City of Sydney v The Estate of the Late Alfred Sulligoi care of The Public Trustee and Anor - [2007] NSWLEC 778 - NSWLEC 2007 case summary — Zoe

[15]

JUDGMENT 1 Her Honour: This Class 4 application seeks declarations and orders in relation to two separate statutory orders issued by the Council in relation to land in Lot B in DP 320793 known as 12 Arcadia Road Glebe (the premises). 2 The following issues are raised in the matter as follows: (i) The first order was issued under s 121B of the Environmental Planning and Assessment Act 1979 (the EP&A Act) (the s 121B EP&A Act order) to Mr Alfred Sulligoi. The Council seeks a declaration it has not been complied with and an order under s 121ZJ(11) of the EP&A Act that it be authorised to enter the premises and conduct repairs and rubbish removal in order to effect the terms of the s 121B EP&A Act order. This may require forced entry to the premises. (ii) The second order was issued under s 124 of the Local Government Act 1993 (the LG Act) (the s 124 LG Act Order) to Mr Livio Sulligoi. The Council seeks a declaration that the s 124 LG Act order has not been complied with. Further the Council seeks pursuant to s 678(10) of the LG Act an order that the Council execute its functions under s 678, requiring entry onto the premises by the Council's environmental health officer for the purpose of itemising materials that constitute a risk to health and safety and the subsequent removal of these items by Council. This will require forced entry to the premises. History of orders and proceedings 3 The Council relied on the following affidavits of: (a) Bruce Ansted, Building Compliance Officer, sworn 6 July 2006, 17 July 2007, 7 August 2007 and 30 August 2007; (b) Bradley Jones, Compliance Officer, sworn 14 August 2007, 30 August 2007, 20 September 2007, 28 September 2007, 6 November 2007; (c) Boguslaw Robert Dudek, Environmental Health Surveyor, sworn 10 August 2007; (d) Jonathon Hassett, neighbour at 10 Arcadia Road, Glebe, sworn 21 August 2007, 8 September 2007; (e) Louise Byrne, Senior Solicitor, sworn 24 July 2007, 10 August 2007. 4 The Council's solicitor has provided a useful chronology of events based on the affidavit material which is set out below.

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17 July 2007 Proceedings restored to the list by Notice of Motion Court record 20 July 2007 Council obtains Births, Deaths and Marriages search and discovers Mr Alfred Sulligoi died on 2 February 2006 Affidavit LM Byrne, 24/7/07 24 July 2007 Service of s124 LG Act order No 22A on Livio Sulligoi Affidavit BR Dudek, 10/8/07 25 July 2007 Order by Jagot J substituting the name of the Respondent to "Estate of the Late Alfred Sulligoi, c/o The Public Trustee" Court record 9 Aug 2007 Time for compliance with s124 LG Act order No 22A expires Affidavit BR Dudek, 10/8/07 17 Aug 2007 Personal service on Mr Livio Sulligoi by the neighbour, Mr Hassett, of motion for joinder and Council's s124 LG Act order Affidavit JF Hassett, sworn 21/8/07 5 Sept 2007 Order by Pain J joining Mr Livio Sulligoi as Second Respondent, leave to file in court "Further Amended Application Class 4" Court record 21 Sept 2007 Order by Pain J that proceedings can continue against the Estate without representation of the Estate under SCR Pt 8 r16(1)(a) Court record 28 Sept 2007 Matter listed for call-over before Registrar, set down for hearing on 7 November 2007 Court record 31 Oct 2007 Letter advising Mr Livio Sulligoi of court hearing enclosing "Further Amended Application Class 4" posted on door of 12 Arcadia Rd, Glebe and hand delivered to other Glebe addresses Affidavit BS Jones, 6/11/07 5 Nov 2007 Observation that Council's letter advising of hearing removed from front door Affidavit BS Jones, 6/11/07

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7 The Court had the benefit of a view of the premises and neighbouring properties during the hearing. The Class 4 application seeks costs of the proceedings. This part of the application is not pressed in this part of the proceedings. Should hearing proceed ex parte? 8 As neither Respondent appeared at the hearing on 7 November 2007 it was first necessary to determine if the matter should proceed ex parte on the day of the hearing. The Council's solicitor applied at the hearing for the matter to be heard ex parte. 9 As identified above, Mr Alfred Sulligoi is deceased and the proceedings are now brought against his estate. There was no appearance by the estate. The estate is vested in the Public Trustee under s 61 of the Wills, Probate and Administration Act 1898 until probate or letters of administration have been issued. The Public Trustee has not filed a Notice of Appearance. Correspondence dated 26 July 2007 and 31 July 2007 between the Council and the Public Trustee was tendered. The letter from the Council to the Public Trustee informed that office of progress in the matter and asked it to apply for letters of administration or probate. In its letter of 31 July 2007 the Public Trustee stated that it did not wish to participate in these proceedings. I ordered on 21 September 2007 that the matter could proceed in the absence of a representative of the estate of Mr Alfred Sulligoi. At the hearing I considered it was appropriate to proceed ex parte in relation to the estate of Mr Sulligoi in relation to the s 121B EP&A Act order. 10 The Second Respondent, Mr Livio Sulligoi, did not appear at any stage of these proceedings after he was joined as a party in relation to the s 124 LG Act order, including at the hearing. 11 The efforts made to bring the s 124 LG Act order and these proceedings to the attention of the Second Respondent are set out in the affidavits of Mr Dudek sworn 10 August 2007; Mr Ansted sworn 7 August 2007 and 30 August 2007; Mr Hassett sworn 21 August 2007; and Mr Jones, sworn 14 August 2007, 20 September 2007, 28 September 2007 and 6 November 2007.

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Motion for proceedings to continue in absence of a person representing the estate 19 In his affidavit of 20 September 2007 Mr Jones stated that during his visit to the premises on 19 September 2007 he saw documents on the ground at the front door including his affidavit of 14 August 2007 which had previously been affixed to the front door. He photographed this. He knocked on the front door a number of times but did not hear anything or see anyone. He affixed the notice of motion dated 18 September 2007 to the front door. The notice of motion sought an order that service of the notice on him was effected by affixing it to the front door at 12 Arcadia Road, Glebe and that Mr Livio Sulligoi was appointed to represent the estate otherwise the proceedings may continue in absence of a person representing the estate. Mr Jones stated that he then attended unit 3, 1 Charlton Way, Glebe and tried to contact the owner/occupant Mr Livio Sulligoi, but was unsuccessful. He pushed the notice of motion under the door. He put copies of the notice of motion under the doors at both Sheehy Street, Glebe addresses also. 20 In his affidavit of 28 September 2007, Mr Jones stated that he attended the premises on 25 September 2007 and saw documents including his affidavit on the ground as before. He knocked on the door but could not raise anyone. He affixed to the front door the Court orders of 21 September 2007 (which set a callover date for the fixing of a hearing date and ordered that the proceedings continue in the absence of a person representing the estate) and a letter from the Council advising of the callover date. He then attended 1 Charlton Way, Glebe and attempted to contact Mr Livio Sulligoi without success. He saw a single letter in the letterbox and formed the opinion that the box was regularly cleared. He put the letter from the Council and the Court orders into the letterbox. He then attended the units at 20-24 Sheehy Street and 2-6 Sheehy Street, Glebe, but was unable to contact Mr Sulligoi. He put the letter and Court orders in the letterbox at each address. I infer that "Livio" and "Silvio" both referred to the same person in the affidavits of Mr Jones.

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Council's submissions (i) "Regularity" of proceedings against estate 30 The Council's solicitor argued the orders sought should be made as the proceedings have been regularised and are now brought against the estate of Mr Alfred Sulligoi. The Council acted as soon as it became aware that Mr Sulligoi was deceased. This fact was unknown when proceedings were commenced (Byrne affidavit 24 July 2007). Property title searches showed Mr Alfred Sulligoi was the owner of the premises. Further, s 151(1)(a) of the EP&A Act provides that evidence that a person is rated in respect of any land is evidence that the person is owner of the land. Under s 121Y, orders made under s 121B continue to have effect against successors in title. 31 A decision which the Council considered should be brought to the Court's attention was the Court of Appeal in Deveigne & Anor v Askar [2007] NSWCA 45. Mr Deveigne was deceased at the time proceedings were commenced against him in the District Court on 9 February 2000. The appeal concerned inter alia the efficacy and enforcement of a costs order brought in the name of the deceased the entitlement to which was claimed by the NRMA as insurer. 32 The Council's solicitor submitted that this decision is authority for the proposition that although proceedings which are commenced against a deceased person are irregular, they are not a nullity where the deceased is not the sole defendant but merely a nominal defendant and a "real" defendant exists, per McColl JA at [176-180]. Irregularity can be cured prior to the making of orders such that the orders have legal force and effect: McColl JA [176] - [180]. However orders that are made in the name of a deceased person, or orders giving effect to an application in the name of a deceased person, are a nullity where the Court could not make the orders of its own volition: McColl JA [173] - [175]. McColl JA noted at [185] that NRMA may be joined as a party. However the Court did not exercise its discretion to regularise the proceedings because the NRMA had not acted promptly to discover or inform the Court of Mr Deveigne's death. 33 The Council submitted that proceedings commenced against a deceased person can be regularised but the court in its discretion might not make such an order in that party's favour if they have not acted promptly on discovering the fact that the proceedings were irregularly commenced. In this case the Council did act promptly to regularise the proceedings once it knew Mr Alfred Sulligoi was deceased. (ii) Exercise of Court's discretion to make orders 34 In relation to the exercise of the Court's discretion to make the orders sought there is clear evidence in the Council's affidavits of the dangers posed by the verandah in its present state, and this danger has worsened over time. 35 The Council wishes to restore the verandah rather than demolish it as the building is in a heritage conservation area identified in the relevant local environmental plan. The terms of the orders sought include painting, rubbish removal and other activities likely to be incidental to the repair work the subject of the original order so that the works are described in slightly broader terms than the s 121B EP&A Act order. This it to overcome any uncertainty where work consequential on the repair work is undertaken.

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41 Alternatively, there is no evidence that any person is actually living in any part of the terrace house at 12 Arcadia Road, Glebe, and therefore there may be no part of the premises that "is being used for residential purposes" within the terms of s 118J of the EP&A Act and s 200 of the LG Act. Although Mr Alfred Sulligoi is now deceased, he was alive at the time of service of the s121B EP&A Act order and a neighbour, Mr Hassett, deposed in his affidavit of 8 September 2006 at paragraph 6, that Mr Alfred Sulligoi had not regularly lived there since his wife died (which was on 4 July 2003, see affidavit Byrne, 24 July 2007, par 2). 42 True it is that Council served the s 124 LG Act Order on Mr Livio Sulligoi, the Second Respondent, in his capacity as occupier of the subject premises at 12 Arcadia Road, Glebe and the order is directed to "residential premises". However the definition of "occupier" under the LG Act does not require the person to be in residence but merely have 'the charge, management or control of the premises': see also Shannon v Lithgow City Council (1995) 88 LGERA 253. 43 Biscoe J has held that none of the provisions in Ch 8 Pt 2 of the LG Act (with respect to power of entry) limit the power of the Court to make an order under s678(10): Manly Council v Moffitt (2006) 146 LGERA 215 at [5]. Biscoe J concluded that a council can only obtain such an order in respect of residential premises by approaching the Court: Moffitt at [6]. The textual similarities between s 121ZJ of the EP&A Act and s 678 of the LG Act and the provisions of each Act with respect to a council's powers of entry support a similar finding to that of Biscoe J in Moffitt in this case. Although the Court is not bound to follow a decision of another judge, judicial comity supports this consistent approach. 44 In contrast to the s124 LG Act order, the s 121B EP&A Act order is not specifically directed to residential premises. It is specifically directed to a "building". To constrain the Court's power to order a council to give effect to the terms of that type of order by limiting entry to the premises to the backyard, for example, and not allowing entry to the building, would unduly constrain the council's contractors, servants or agents in giving effect to the terms of the order and to carry out any of the work required by the order: s121ZJ(1) and s121ZJ(11) EP&A Act.

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48 Given that the work required is extensive and will involve the removal of a large number of items from private property and work by a private contractor, a suitable regime for access and supervision of the work is needed in the Court's orders. The issue also arises of whether the Court can or should order forced entry to the premises. Access to the rear yard of the premises does not require forced entry but if access to the house were needed then forced entry through a door or window would be needed. (iii) Forced entry 49 I set out above at par 36-44 the Council's submissions in relation to forced entry for both the LG Act and EP&A Act as the two are closely connected and both arise in this case as an order under each Act is sought to be enforced. This appears to be the first case where the Court is being asked to make orders enabling forced entry into a house pursuant to s 121ZJ(11) of the EP&A Act. Access to the backyard to do work on the verandah is somewhat similar to the facts in Moffit which considered s 200 and s 678(10) of the LG Act. That case was concerned with the removal of rubbish from around a house. Biscoe J held that it was necessary to approach the Court for orders to enter residential premises in order to enforce a s 124 LG Act order unless one of the exceptions in s 200 applied but that the Court's powers were not limited by s 200. In Moffit there was no forced entry to any residence required as access was only necessary to the yard area and there is no reference to it being locked in the judgment. 50 I am considering the equivalent section of s 200 of the LG Act in the EP&A Act, s 118J, which states that powers of entry and inspection under "Division 1A - Local Enforcement Powers" are not exercisable in relation to the part of premises used for residential purposes unless in specified circumstances which do not include the enforcement of s 121B orders. The Council is seeking to enforce the s 121B order in this Court as provided for by s 121ZJ(11). 51 I accept the Council's submissions on the existence of the Court's powers to make orders which enable a forced entry into residential premises because the scope of the Court's powers to enforce s 121B orders must be broadly interpreted if the orders able to be issued under s 121B are to be given effect. While the cases referred to by the Council in par 39 concerning the desirability of giving broad scope to the Court's powers in different circumstances, I agree that failing to apply a broad interpretation of the Court's power to enable forced entry may render enforcement of a s 121B EP&A order ineffective. As identified by the Council at par 44 a s 121B EP&A order can be made in relation to a building. In this case, for the s 121B EP&A Act order to be enforced a forced entry could be necessary and should be provided for. I find that the limitation in s 118J of the Council's powers to enter residential premises does not limit the Court's powers to make orders under s 121ZJ(11).This reasoning is analogous to that in Moffit concerning the Court's powers to enforce s 124 LG Act orders. The circumstances of this case requires additional orders to allow forced entry. The Council has provided detailed orders and further clarification of these is necessary in light of the need for forced entry. Appropriate orders must allow for supervision of access and notification to the relevant police station of what is to occur. 52 While orders allowing forced entry are on one view somewhat draconian I agree with the Council's submissions at par 41-42, based on the affidavit evidence of the Council's officers and the neighbour at 10 Arcadia Street, that it does not appear that anyone is living at the premises. Forced entry is therefore likely to have less impact than if someone were living there.

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54 The Council seeks an order enabling it to exercise its functions under s 678 of the LG Act . Section 678 (10) provides: 678 Failure to comply with order - carrying out of work by the council (10) In any proceedings before the Land and Environment Court that are brought by a council against a person as a result of the person's failure to comply with an order under Part 2 of Chapter 7, the Court may, at any stage of the proceedings, order the council to exercise the council's functions under this section. Having made such an order, the Court may continue to hear and determine the proceedings or may dismiss the proceedings. Evidence 55 Mr Dudek, Council's Environmental Health Surveyor, swore an affidavit of 10 August 2007 and gave oral evidence. In his affidavit Mr Dudek stated that on 23 July 2007 he attended the premises and observed items accumulated on the front porch including old computers, microwaves and other electrical equipment. There were household items such as books, empty plastic bottles, and baskets stacked to a height of about 2m. There were toasters, bags, pillows and other items including clothing, as well as empty and half empty food containers. He took a series of photographs which were attached to his affidavit. He also spoke to the neighbour at 10 Arcadia Road and took photographs from that property's backyard. At the back of the premises he observed accumulation of rubbish on the back verandah and disused cars, car parts and batteries. It appeared that some rooms had rubbish stacked from the floor to at least half the window height including bedding, rugs, timber plastic bags and household refuse. He took further photographs. 56 He then issued an order under s124 of the LG Act, Order 22A, dated 23 July 2007, to Mr Livio Sulligoi. He stated that from the Council's records and evidence from the neighbours, the Council reasonably believed that Mr Livio Sulligoi was the occupier of the premises. The Order stated: Terms of the Order: 1. Within 14 days you are to remove or cause removing from inside the residential premises located at 12 Arcadia Road GLEBE NSW 2037: (a) all of newspapers, carton boxes, cardboard and paper and cardboard packaging, including food packaging; (b) all rugs, old curtains, old bedding and linen, all disused clothes and materials that are filling the space of habitable rooms and corridors; (c) all of plastic bags whether empty or full, all accumulation of plastic containers, crates, tubs and other plastic waste; (d) all disused white goods, waste building materials, timber and all other items not normally forming part of residential or household furnishing. 2. Within 14 days, you are to remove or cause removing from the front porch and back yard of the premises located at 12 Arcadia Road GLEBE NSW 2037: (e) all putrescible waste such as old food and food containers whether full or empty; (f) all plastic bags whether empty or full; and all accumulation of plastic containers, crates, tubs and other plastic waste; (g) all disused white goods, electric and electronic implements, computer parts, electric cables and accessories; (h) all car bodies, car parts and car accessories including an accumulation of disused car batteries; (i) all any loose combustible material such as wood, timber, plastic pots, boxes and paper.

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57 The time for compliance with the order was 14 days. Mr Dudek stated that on 9 August 2007 he inspected the premises and took further photographs. He saw that the materials at the front had not been removed. There was more material including food containers that obstructed access to the front door. These appeared to contain rotten food. As environmental health surveyor, he was concerned that this presented an imminent risk to public health. 58 In his oral evidence Mr Dudek stated that he issued the s 124 LG Act order to prevent the risk to public health for four reasons: to prevent the harbouring of vermin; to prevent a fire hazard from the accumulation of rubbish; to prevent a safety risk to the occupants of the premises; and to prevent the spread of disease. He stated that the entry to the premises was unsafe due to the accumulation and stacking of items in a haphazard manner. He pointed to putrescible food matter visible in the photographs taken by him, which could harbour vermin, flies and cockroaches. He stated that these could spread microorganisms such as E. coli. He noted that other photographs showed a fire hazard caused by the accumulation of newspaper, rugs, curtains and other things mixed with food containers containing putrescible matter. 59 In his affidavit of 8 September 2006, Mr Hassett stated that a large colony of rats lives amongst the rubbish and regularly invade his property. He has been setting traps to combat this problem for two years. There are also wild bees on the premises which fly over his backyard. He stated that he had observed Mr Sulligoi collecting rubbish from bins, which he then stacked at the front and back of his property. 60 The Council also relied on an affidavit of Mr Jones, Council Compliance Officer, sworn 6 November 2007. Mr Jones stated that on 31 October 2007 he attended the premises and saw an extensive quantity of discarded items including microwaves, computer drives, recyclable plastic bottles and foodstuffs on the front patio and in front of the main entrance. He annexed photos showing these items to his affidavit. The presence of extensive rubbish is also set out in each of Mr Jones' earlier affidavits. Council's submissions 61 Mr Livio Sulligoi, the occupier of the premises, has been served with the s 124 LG Act order and has not complied with it. The order has been issued due to concern about the impact of the premises on public health given the accumulated rubbish outside and inside the residence which attracts vermin, is a fire risk, and unsafe because it is unsecured. The Court has power to make orders pursuant to s 678(10) which require forced entry into residential premises in order to comply with a s 124 LG Act order. These submissions are set out above at par 36-44.

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Finding 62 Mr Livio Sulligoi is an occupier of the premises as defined in the EP&A Act, s 4. Section 4 defines occupier to include " a tenant or other lawful occupant of premises, not being the owner". The Council's rates records attached to the affidavit of Ms Byrne sworn 10 August 2007 list 12 Arcadia Road, Glebe as his mailing address. He has been seen on the premises watering the garden by his neighbour Mr Hassett. It is clear from the photographs attached to the numerous affidavits of the Council's officers that someone is attending to the premises as some of the items left around the front door change. That person is, I infer, likely to be Mr Livio Sulligoi. Exercise of discretion 63 The evidence that the s124 LG Act order has not been complied with is clear from the Council's affidavit evidence as set out above at par 55-60. It was also clear from the view taken by the Court of the premises. The build up of rubbish and various accumulated items inside the house and outside the house on the premises is substantial. The affidavit and oral evidence of Mr Dudek set out at par 55 emphasised that there are public health and safety risks as a result of the state of the premises. The neighbour Mr Hassett's evidence raised concerns about rats coming onto his property from the premises. I consider the s 124 LG Act order should be enforced. Forced entry 64 Forced entry to the house on the premises is necessary as the door is locked and the Council does not have a key. The circumstances are similar to those in Moffit except that the orders to be enforced did not require forced entry in order to be given effect. The Council's submissions in relation to forced entry are set out above at par 36-44 as the same issue arises under both the s 124 LG Act and the s 121B EP&A Act. It is appropriate for the same reasons as I gave in relation to the s 121B EP&A order at par 51 that I also make orders which allow forced entry of the premises in order to give effect to s 124 LG Act order. My comments are par 52 above also apply. 65 The Council has provided detailed orders it asks the Court to make. The orders require a Council officer to catalogue the items in the house and remove those items and rubbish in the house. While the Council has provided detailed orders for access these require further amendment and I will discuss these with the Council's legal representative before finalising the orders.

At a glance

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Judgment (54 paragraphs)

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