Georges River Council v Allan Frederick Goddard

Legislative scheme and Order

1. Section 124 is found in Pt 2 of Ch 7 of the LG Act. Section 124 provides that a council may order a person to do or refrain from doing a thing specified in column 1 of the Table therein if the circumstances specified in column 2 of the Table exist and the person comes within the description in column 3 of the Table.
2. The Table in s 124 relevantly provides: Orders requiring the preservation of Healthy Conditions To do what? In what circumstances? To whom? ... ... ...
3. 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 The land or premises are not in a safe or healthy condition Owner or occupier of land or premises condition ... ... ...

1. Pursuant to item 21 in the Table, Council issued the Order to Mr Goddard as owner and occupier of the Premises on 19 June 2018. The terms of the Order were: 1. Trim, prune or otherwise cut all grass and weeds on the Premises so that the said grass and weeds do not exceed the height of 75mm above ground level. All resulting waste material must be removed from the Premises and disposed of lawfully. 2. Remove the accumulation of waste and items from the outside areas of the Premises including the front and rear yards and the area between the house and the side boundaries being: a. Garbage (both putrescible and non-putrescible); and b. Refuse, including but not limited to: i. tyres; ii. plastic containers; iii. polystyrene boxes; iv. metal frames; v. cars and car parts that are not in working order; vi. tanks; vii. fish tanks; viii. plastic crates; ix. containers; x. tins; xi. jars; xii. dilapidated household furniture and assorted timber products; xiii. foam; xiv. cardboard; xv. rags; xvi. bottles; and xvii. dead vegetation and other miscellaneous matter which are likely to form or afford harbourage for vermin and insects or constitute a fire safety risk.
2. In these proceedings, Council is only concerned with the second term of the Order as Mr Goddard has attended to the first term.
3. Section 674(1) of the LG Act provides: 674 Remedy or restraint of breaches of this Act - other persons (1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act.
4. Section 672 of the LG Act relevantly provides: 672 What constitutes a breach of this Act for the purposes of this Part? In this Part: (a) a breach of this Act means: (i) a contravention of or failure to comply with this Act, (ii) a threatened or an apprehended contravention of or a threatened or apprehended failure to comply with this Act, and (b) this Act includes: (i) … (ii) an order under Part 2 of Chapter 7, and (iii) ....
5. The combined effect of ss 672 and 674 of the LG Act is that the breach of an order issued under Pt 2 of Ch 7 constitutes a breach of the Act, meaning that any person may bring proceedings to remedy or restrain a breach (including an apprehended breach). Accordingly, Council brings these proceedings to enforce the Order pursuant to s 674 of the LG Act.
6. Section 678 of the LG Act relevantly provides: 678 Failure to comply with order - carrying out of work by the council (1) If a person fails to comply with the terms of an order given to the person under Part 2 of Chapter 7, the council may do all such things as are necessary or convenient to give effect to the terms of the order, including the carrying out of any work required by the order. ... (5) Materials removed that are not saleable may be destroyed or otherwise disposed of. ... (9) A council may exercise its functions under this section irrespective of whether the person concerned has been prosecuted for an offence under section 628. (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.
7. Under s 678(1), authorised council representatives are entitled to enter property and carry out works required by an order which a person so ordered fails to do. Pursuant to s 678(10), the Court can order a council to exercise its functions under s 678(1).
8. Section 191 of the LG Act gives a council a general power of entry to enter any premises for the purpose of exercising its functions subject to exceptions which are not relevant to these proceedings.
9. Section 200 prevents a council from entering residential premises except with the permission of the occupier.
10. The combined effect of the provisions is that Council may enter the Premises and do the works required by the Order if the Court orders it to do so pursuant to s 678(10) of the LG Act: Manly Council v Moffit [2006] NSWLEC 184; (2006) 146 LGERA 215 at [54]-[56].
11. Council seeks orders pursuant to s 678(10) of the LG Act to carry out the works required by the Order as well as orders for its costs and expenses incurred.

Mr Judson's evidence

1. Mr Judson provides an aerial photograph of the Premises which shows that it includes a dwelling house and is located within a residential neighbourhood, with residences to its rear (east), to the north and to the south (separated by Darley Street). The Premises are zoned R2 Low Density Residential pursuant to the Kogarah Local Environmental Plan 2012.
2. Mr Judson inspected the Premises on 11 May 2017, 22 June 2017, 3 July 2017, 9 August 2017, 6 September 2017, 16 October 2017, 24 November 2017, 29 November 2017, 23 January 2018, 27 March 2018, 29 March 2018, 14 May 2018 and 18 June 2018. He observed large accumulations of items in the exterior of the Premises and formed the opinion that the accumulation of items was a fire hazard and made the Premises unsafe for occupants, the occupants of neighbouring properties, as well as emergency service workers who may be required to attend the Premises or neighbouring properties in the event of fire.
3. Mr Judson signed the Order on 19 June 2018 and the Order was served on Mr Goddard by registered post. Mr Goddard responded to the Order by letter dated 7 August 2018.
4. The time for compliance with the Order was 28 days, which expired on 20 July 2018. On 20 July 2018, Mr Judson inspected and took detailed photographs of the Premises. The photographs were attached to his affidavit sworn 26 November 2018.
5. Mr Judson further inspected the Premises on 5 February 2019 from the street and observed that the accumulation of items remained in the same or in a similar state to that referred to in his affidavit of 26 November 2018. The photographs taken from Mr Judson's inspection on 5 February 2019 were annexed to his affidavit sworn 7 February 2019.

Ms Heyo's evidence

1. Following the issue of the Order, Ms Heyo inspected the Premises on 19 September 2018, 30 July 2019 and 27 August 2019.
2. As stated above, Ms Heyo is employed by Council as co-ordinator environmental health. As part of her role, Ms Heyo carries out investigations to determine potential environment, health and safety impacts.
3. Ms Heyo's affidavit of 23 November 2018 records her observations of the condition of the Premises on 20 September 2018.
4. With the consent of Mr Goddard, Ms Heyo undertook an inspection of the Premises on 27 August 2019 to determine whether the accumulation of items thereon had been reduced. Ms Heyo's evidence is that whilst Mr Goddard has more recently made an effort to tidy the Premises, the extent of the accumulation remains in substantially the same form as that described by Mr Judson in his affidavits of 26 November 2018 and 7 February 2019. Ms Heyo acknowledges that the accumulation of dead or dried vegetation on the Premises has been removed, and, to that extent, there is an improvement in the condition of the Premises.
5. Having regard to the accumulation of items, Ms Heyo deposes that the Premises are not in a safe or healthy condition due to: 1. the fire safety risk given the abundance of fuel load, including tyres. Ms Heyo annexes a "Fact Sheet" from the NSW Fire and Rescue website which highlights the importance of safe paths of travel for emergency personnel; 2. the accumulation of materials which provides harbourage and breeding places for insects and vermin, noting that mosquito trapping programs in Sydney have identified the presence of Ross River Virus and eradication of breeding sites around homes can eradicate breeding sites; 3. the accumulation of materials and the ad hoc manner in which they are stacked. These items may fall or move causing damage to persons or property. For example, glass fish tanks may shatter over the public pathway; and 4. the paths of travel around the fish tanks being narrow. Ms Heyo notes that the fish tanks are unstable which may cause injury.
6. Ms Heyo gave further evidence that the photographs taken by Mr Goddard on 31 August 2019 and those taken by a Council officer on 2 September 2019 did not change her opinion that the Premises were not in a safe or healthy condition.

Mr Goddard's position

1. Mr Goddard's affidavit appended various documents setting out his position. He gave (with the concurrence of counsel for Council) a detailed explanation of his conduct from the bar table. Without meaning disrespect to the manner in which Mr Goddard marshalled and presented his evidence, I summarise the matters he raised below.
2. Mr Goddard, who is now 74 years of age, had a "childhood fascination" with motor vehicles and "rebuilding and updating" vehicles. This and other hobby interests have continued throughout his life. He considers that an earlier disagreement with a neighbour has led to Council's conduct which has ultimately resulted in the commencement of these proceedings.
3. He indicates that Council has "moved the [goal] posts" whenever he attempted to "fix the problem" in relation to his accumulation of items on the Premises. He says that Council has, over a period of time, kept adding items to those required to be removed.
4. Since he was involved in a car accident in 1988, Mr Goddard has experienced extensive health issues. As a result of the accident, he incurred spinal injuries, making him reliant on a disability pension. Mr Goddard has suffered two strokes, bowel cancer and has undergone a number of surgical procedures.
5. He is attempting to sell some of the accumulated goods on the Premises through online platforms such as Gumtree. Mr Goddard is critical of Council's conduct which he says includes informing the police of the keeping of motor vehicles on or about the Premises. Mr Goddard has approximately 20 vehicles, 7 of which are on the Premises with the remainder about the Premises.
6. Mr Goddard says Council's manner and presentation of the photographs depicting the state of the Premises has led to an exaggeration of the amount of items thereon.
7. While Mr Goddard accepts that there is an extensive volume of material on the Premises, he says that he has taken measures to attend to Council's various concerns relating to the fire risk (by the provision of a number of garden hoses, smoke detectors and fire extinguishers on the Premises), putrescible material (by the removal thereof) and vermin and cockroaches (by laying various bates and installing poisons and electronic devices). He provides documentation in relation to his use of a device known as "Pestrol Rodent Free" to attend to rats, mice and cockroaches.
8. Mr Goddard provides details of his attempted mediations with the neighbour who he says triggered Council's concern, and three testimonials relating to his standing in the local community.
9. Mr Goddard has indicated to the Court that he is prepared to and has been gradually reducing the volume of material accumulated on the Premises. While Mr Goddard submits that he intends to continue to do so, he notes that he is hampered by his present health and his ability to obtain assistance with this task. He has recently approached Catholic Healthcare, an organisation which may offer him some assistance in relation to the de-accumulation that is required to be undertaken. Mr Goddard also informed the Court that he receives lawn mowing and gardening vouchers from Rockdale Community Services.
10. At the hearing, Mr Goddard provided the Court with a bundle of photographs which were taken on 31 August 2019. He says that the photographs demonstrate that he has reduced the number of items on the front area of the Premises.

Consideration

1. I have closely considered the extensive documentary evidence which included approximately 400 photographs of the Premises, 6 short videos filmed on 27 August 2019 and more recent oral evidence. I have also considered the detailed background documentary material relied upon by Mr Goddard.
2. I am well satisfied, generally in accordance with Council's submissions, that the evidence demonstrates that: first, the Premises are residential premises; second, Mr Goddard is the owner and occupier of the Premises; third, Mr Goddard is accumulating items on the Premises in such a manner that the Premises are not in a safe or healthy condition; fourth, the keeping of the items on the Premises makes the Premises unsafe as emergency services would not have safe egress to the Premises in the event of a medical emergency or a fire on the Premises or a neighbouring property; fifth, there is an increased fuel load from the abundance of collected material; sixth, despite Mr Goddard's more recent efforts, there is harbourage for vermin and mosquitoes; seventh, the stacking of glass fish tanks without structural support puts the safety of the occupants and the general public (using the surrounding footpaths) at risk of injury from shattering glass; and, the Order served on Mr Goddard required him to remove the accumulations of garbage and refuse from the outside areas of the Premises (including the front and rear yards and the area between the house and the side boundaries) and that Order has not been substantially complied with.
3. At the time the Order was issued, Mr Goddard's Premises were not in a safe or healthy condition. It is clear, and I find, that in those circumstances, Council had power under s 124 of the LG Act to order him to do or refrain from doing such things as specified in the Order to ensure that the Premises were in a safe and healthy condition. While Mr Goddard has partly complied with the Order (in relation to the grass and the weeds referred to in the first term of the Order), I am not satisfied that there has been compliance with the second term in the Order (although I accept that Mr Goddard has made some effort to reorganise some areas, primarily at the front of the Premises). On the evidence, there has been little or no compliance with the second term in the Order as far as the remainder of the Premises is concerned and it appears that the rear areas (and likely the side areas) remain substantially as they have been for a significant period of time.
4. I accept the qualifications and experience of Council officers, particularly Ms Heyo. Apart from some short cross-examination, primarily in relation to Council's motives and conduct, Ms Heyo's evidence in relation to both her observations (and photography and video evidence) and more relevantly her opinion that the Premises are not in a safe or healthy condition, was not challenged. The extensive photographic and video evidence and the opinion of experienced Council officers establishes that the Premises are not in a safe or healthy condition.
5. I am therefore satisfied that the Order has not been complied with and that the failure to comply poses very real safety and health concerns. I am also conscious of the matters raised in the "Fact Sheet" published by NSW Fire and Rescue entitled "Hoarding and Squalor Fire Safety" which was part of Ms Heyo's evidence.

Appropriate relief

1. The Court has broad powers to make declarations and consequential orders and the principles in relation to the granting of declaratory relief are well established.
2. In Great Lakes Council v Lani; Great Lakes Council v Lani and Lampo Pty Limited [2007] NSWLEC 681; (2007) 158 LGERA 1 ('Lani'), Preston CJ of LEC considered the Court's position in relation to the making of declarations. He found that, whilst the Court had jurisdiction to make declarations where the respondents had breached planning and environmental statutes, on the facts before him, as a matter of discretion, a declaration would not be appropriate because: first, the making of a declaration would not have any practical effect in the circumstances; second, declarations of breach are not necessary in order for the Court to have jurisdiction to make orders including injunctive orders; third, a declaration of breach by itself neither remedies past breaches nor restrains future breaches; fourth, care must be taken not to use a declaration as a substitute for criminal prosecution; and fifth, whilst a legitimate purpose of civil enforcement is for there to be a finding by the Court and through its judgment a public pronouncement that a breach of the law has occurred, this effect can be equally achieved by the Court making findings in its judgment which is a public document. His Honour's remarks have been considered in a number of subsequent cases: see Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6.
3. I adopt Preston J's remarks and consider, for the reasons similar to those expressed in Lani, that in circumstances where I consider it appropriate to grant injunctive relief, it is not appropriate to make the declaration sought by Council.
4. I am satisfied that Council is entitled to relief pursuant to s 678(10) of the LG Act such that it may carry out the work required by the Order should Mr Goddard fail to carry out the de-accumulation otherwise ordered.
5. At the conclusion of the hearing, I indicated to counsel for Council that as the more recent evidence unfolded, to the extent that I was minded to grant relief to Council, understanding Mr Goddard's present position and balancing his willingness to attempt to reduce the accumulation with the obvious need for the accumulation to be reduced for health and safety reasons, it may be appropriate for the orders sought in the summons to be modified. Such modification could involve the provision of de-accumulation in stages, possibly adopting the various sections of the Premises as articulated in Ms Heyo's evidence (which, for convenience, is attached to this judgment and marked "A"). Alternatively, Mr Goddard could be required to articulate with precision those items which are of specific value to him and which could otherwise be appropriately stored on the Premises so long as no safety or heath risk was posed.
6. Council provided the Court with draft orders, subject to agreement, as to certain items to be removed from the Premises which I have canvassed in Court with both Mr Goddard and Ms Reid. Subject to minor amendment, I consider those orders to be appropriate.
7. The orders which I now make provide a short time for an agreement to be reached in relation to specific items in certain areas to be removed and if such agreement is reached, provide for an orchestrated de-accumulation of various areas to be attended to by Mr Goddard. Should agreement be reached, I intend to make orders on 24 September 2019 that Council may undertake the work if there is a failure by Mr Goddard to properly do so. I consider that this approach reflects both the obvious community concerns in relation to the health and safety of the Premises and takes into account Mr Goddard's present circumstances.

Orders

1. The orders of the Court are: 1. Georges River Council and Allan Frederick Goddard are, within 14 days of this order, to prepare an agreed list of the items to be removed from the Premises, being 297 Rocky Point Road, Sans Souci, divided by the areas nominated in Annexure "A" to these orders, and in the form of the schedule at Annexure "B" to these orders. 2. The proceedings are adjourned to 9.00am on 24 September 2019 for the making of final orders to reflect the agreed list of items for removal and the timing for removal, or alternative orders as the Court sees fit. 3. Costs are reserved.

Addendum made on 24 September 2019

1. After a hearing on 2 and 3 September 2019, I gave judgment on 3 September 2019: Georges River Council v Allan Frederick Goddard [2019] NSWLEC 127. In that judgment I set out my reasons for making orders generally in accordance with the relief Council sought, and I adjourned the proceedings to today for the making of final orders to reflect an agreement, if it could be reached between the parties, as to an agreed list of items for removal with associated deadlines.
2. Unfortunately the parties have not been able to agree to that list, and I have been provided with draft orders which generally reflect those which I had previously considered (and were in the summons before the Court) and Annexures "A" and "B" to my earlier judgment.
3. I have earlier recorded my findings in relation to the facts and concerns residing with Council and its officers. I indicated that I would make the orders generally sought, unless agreement had been reached, or alternative orders as the Court saw fit. At the commencement of the hearing today, Mr Goddard, who remains not legally represented, made submissions from the bar table and provided a written statement wherein he set out his concerns in relation to Council's conduct, which were not dissimilar to the concerns he had earlier expressed. He noted that he had recently undertaken some clean up works, in relation to two of the "areas".
4. While I understand Mr Goddard's concerns and I accept that they are genuinely held, as I indicated earlier, I consider that the draft orders now before me appropriately balance the concerns of both Council and Mr Goddard. In particular, I confirm my findings made in relation to the present state of the Premises as set out in the earlier judgment.
5. I have now heard further submissions and read the further evidence of Mr Goddard. I have also taken two short adjournments to further consider the material and the earlier material, and to allow Ms Reid to attend upon Mr Goddard and explain any matters that may not have been understood by him. I am comfortable that Mr Goddard properly understands the nature and extent of the orders sought by Council and the importance of compliance therewith.
6. In those circumstances, I make orders in accordance with the orders sought by Council (subject to minor amendment, being the addition of the words "with the exception of one fish tank on a wooden stand" after the words "fish tanks" in relation to the first item in Annexure "B") which I have initialled and placed with the Court file. Those orders will be entered and become orders of the Court.
7. The orders include an order that Mr Goddard is to pay Council's costs of these proceedings as agreed or assessed. Mr Goddard brought to my attention his concerns in relation to Council's past conduct and his belief that the Premises are not unsafe or dangerous, nor are they a fire hazard.
8. Mr Goddard also criticised Council for not providing him with a timetable for cleaning up sooner and seeking an earlier resolution of the matter when he had legal representation. In those circumstances, Mr Goddard submitted that Council should not be entitled to an order for costs. Whilst I take those matters into account, I consider that Council has not conducted itself in such a way as to disentitle it from costs.

Final orders

1. The final orders of the Court are: In these orders: "Act" means Local Government Act 1993 (NSW); "Premises" means Lot 6 in Deposited Plan 4949 known as 297 Rocky Point Road, Sans Souci NSW 2219; "House" means the dwelling house erected on the Premises; "Relevant due dates" means those dates as set out in the Schedule; "Removal Works" means the following works required to be carried out at the Premises by this Court Order: 1. Reduce accumulated items of the type identified in the Annexure "B" Schedule in the areas identified in Annexure "A", and in the timeframes identified in the Annexure "B" Schedule so that: 1. There are no more than 10 intact/unbroken fish tanks on the Premises, provided that there is sufficient room for them to be placed on the ground (upside down) and not stacked; 2. No more than 8 car tyres to be stored on the Premises; 3. Accumulated items in the areas nominated in Annexure "A" on the Premises are to be reduced so that they are in piles no higher than 1 metre and clear paths of at least 2 metres are provided around the piles; and 4. No more than 3 unregistered car bodies are to be stored on the Premises. "Schedule" means the Annexure "B" Schedule to these Orders setting out the works and timeframes therefor. "Works" means the Removal Works. "Areas" means the areas of the Premises identified on the aerial photograph annexed to these orders and marked "A". 1. The respondent, Allan Frederick Goddard, will by himself, his servants or agents, pursuant to s 124 of the Act complete the Works at the Premises in each of the Areas set out in the Schedule and by the dates nominated in the Schedule. 2. The applicant, Georges River Council ('Council'), will carry out regular inspections at or after the relevant due dates to ascertain whether the Works have been carried out. In the event that Council is satisfied that the Works have been carried out at each stage and by the relevant due date, Council will give written notice to Mr Goddard of sufficient compliance within 3 working days after the expiration of each of the relevant due dates. 3. In the event that Mr Goddard fails to complete any of the Works on or by the relevant due dates: 1. Council, its servants and agents will, pursuant to s 678(10) of the Act, execute Council's functions under s 678 by carrying out all of the Works which were required to be carried out at the Premises by Mr Goddard; 2. Provided a sealed copy of these orders are served on Mr Goddard by posting the orders in a pre-paid envelope addressed to Mr Goddard at the Premises 5 days before the Removal Works commence, the Works may commence on the Premises; 3. Council, its servants and agents, for the purposes of these orders, now and until these orders have been carried out, will be entitled to enter and remain on the Premises to carry out the Works during weekdays between the hours of 7.00am to 3.00pm; 4. Council, its servants and agents during the Works may, if in their opinion it is prudent to do so, disconnect the electricity or other utility services to the Premises. Where such a disconnection has occurred it must be reconnected at the conclusion of the day's work; 5. Mr Goddard may remove from any of the Areas any object of value which he does not wish to be removed by Council, its servants and agents by 7.00am on the day when the Works commence; 6. Council, its servants and agents may during the Works forcefully unlock and remove any gates on the Premises including any gates located at the side boundaries of the Premises and the front of the Premises in order to gain access to the Areas, on the Premises. Any locks or gates removed will be replaced by Council so as to restore the locks and gates to the condition prevailing prior to removal by Council or its servants and agents; 7. Mr Goddard, his servants and agents will abstain from doing any act which might interfere with or impede the entry by Council, its servants and agents onto the Premises and then remaining on the Premises pursuant to these orders which might interfere with and impede Council, its servants and agents in complying with these orders, and that Mr Goddard, his servants and agents stay a safe distance of at least 10 metres from any operating machinery and trucks on or in the vicinity of the Premises; and 8. For the purposes of these orders and the orders under s 124 of the Act, articles and items causing the Premises not to be in a safe or healthy condition means all objects located anywhere outside the House in any of the Areas at 7.00am on the day when the Works commence. 1. Mr Goddard is to pay Council's costs of these proceedings, as agreed or assessed.

Annexure A (596 KB, pdf) Annexure B (61.2 KB, pdf)

Amendments 23 October 2019 - Addendum added at par [55] Final orders added at par [63] 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. Decision last updated: 23 October 2019