Manly Council v Moffit

Land and Environment Court (NSW)|2006-04-13|Before: Biscoe J

CITATION : Manly Council v Moffit [2006] NSWLEC 184

APPLICANT: Manly Council PARTIES : RESPONDENT: Marjorie Jane Moffit

KEY ISSUES: Injunctions and Declarations :- whether a Court order is required before council can enter residential premises to carry out work required by a council order issued under Local Government Act 1993 s 124.

CASES CITED: Kiama Council v Grant [2006] NSWLEC 96; Van Haasteren v South Sydney Council (2000) 109 LGERA 252

DATES OF HEARING: 05/04/2006, 07/04/2006, 12/04/2006

APPLICANT: Ms L Finn, Solicitor SOLICITORS LEGAL REPRESENTATIVES: Abbott Tout RESPONDENT: Ms E Bobolas (agent) SOLICITORS N/A

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT HIS HONOUR: A. INTRODUCTION 1 The respondent owns and resides in a semi-detached house located at 20 William Street, Fairlight. Over a long period of time she accumulated an enormous amount of rubbish and discarded items at her premises. On 6 June 2005 the local council, Manly Council, issued her with an order pursuant to the Local Government Act 1993 s 124, requiring her to remove such things within 14 days ("Council's Order"). She failed to do so. On 15 February 2006 the council commenced these proceedings seeking to enforce Council's Order under s 678(10).

2 Council's Order was in the following terms: ORDER Section 124 - Local Government Act 1993 Owner: Mrs M J Moffit

PLEASE TAKE NOTICE that Manly Council under the terms of section 124 of the Local Government Act 1993, hereby orders you as the owner of the above premises to comply with the following Order on the grounds that the premises is not in a clean or sanitary condition:

Remove from the premises and appropriately dispose of all accumulations of the following materials:

Newspapers, books, tin cans, food containers, kitchen utensils including pots, timber, buckets, laundry baskets, furniture items, plastic sheeting, clothing, ornaments, bins, and other accumulated items.

It is therefore not in the interests of public health, safety and convenience that the premises remain in their present state.

The accumulation of materials at 20 William Street, Fairlight are creating a nuisance to the surrounding residents. Reports indicate that the accumulations are providing harbourage for rats and many flies and cockroaches have also been seen as infesting the area.

Odours from this area at 20 William Street are evident to Council.

Containers holding water in the grounds of 20 William Street, Fairlight are providing a breeding ground for mosquitoes.

It is therefore not in the interests of public health, safety and convenience that the premises remain in their present state.

The order must be complied with within 14 days from the date of this Order.

You may appeal to the Land & Environment Court against this order or a specified part of the Order under the provisions of section 180 of the Act. Any appeal must be made within twenty-eight (28) days of service of the Order.

Failure to comply with this Order by the specified date is an offence under the Local Government Act 1993.

Your attention is drawn to Sections 628(2) and 678 of the Local Government Act 1993, which state: `628(2). A person who fails to comply with an order given to the person under Part 2 of Chapter 7 of the Local Government Act 1993 that is an Order in terms of the Order No 18-25 or 27-29 of the Table in Section 124 is guilty of an offence. Maximum penalty $2,200 '.

Under Section 679, Council may also issue you with an on-the-spot penalty infringement notice of $330 for failing to comply with this Order.

3 The Local Government Act 1993, s 124 provides as follows: 124 A council may order a person to do or to refrain from doing a thing specified in Column 1 of the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the table.

4 The Table to s 124 relevantly provides as follows: ORDERS REQUIRING THE PRESERVATION OF HEALTHY CONDITIONS

To do what? In what circumstances? To whom 20. To do such things as are specified in the order to put premises, vehicles or articles used for the manufacture, preparation, storage, sale, transportation or other handling or use of or in relation to food into a clean or sanitary condition The premises, vehicle or article is not in a clean or sanitary condition Owner or occupier of premises or owner or operator of vehicle or article 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 of land or premises

5 The Local Government Act 1993, s 678 relevantly provides: 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.

6 Section 136 relevantly requires a council to give a person to whom an order is directed the reasons for the order in the order or in a separate instrument, when the order is given. Section 137 relevantly requires that an order must specify a reasonable period within which the terms of the order are to be complied with.

B. THE EVIDENCE OF MR JAMIE WILDASH 7 The respondent's residence is a semi-detached house with 22 William Street, Fairlight where Mr Jamie Wildash resides with his wife and two year old son. They share a common roof. Mr Wildash deposed that for many years he had seen the respondent bring home rubbish from council clean-ups, charity disposal bins and discarded food from supermarket industrial bins and placed that rubbish within her home and throughout her yard. In cross-examination he said that he had observed this several times. She had offered him food she had obtained from the industrial bins. He has seen on her property rats, cockroaches and ants.

8 On 7 March 2006 he had occasion, at the invitation of the respondent, to go inside her house and observed that rubbish was piled from floor to ceiling throughout the house. In cross-examination, he said it was piled from floor to ceiling in three bedrooms, the hallway, the dining room and kitchen and in other areas of the house was piled lower. In his affidavit, he said that he also observed that there were no shower or bathing facilities within the house. I do not accept that this was accurate. A photograph in evidence shows shower fittings in her house. In one room he observed that there were plastic bags piled up so as to almost touch a ceiling light globe. He deposed that the smell from the rubbish stored at the premises was putrid particularly after rain. He was concerned that there is a risk of disease to his wife, child and himself as he had seen very large rats in and around the respondent's home. He was also concerned that there is a risk of fire starting in the stored rubbish which would spread to his home.

9 On 15 March 2006 he wrote a letter which recorded his concerns and also that his wife was pregnant.

10 On 22 March 2006 he had a conversation with the respondent at her open front door to the following effect. He said to her that he had been told that she had been seen taking things from piles of items put out for council's clean-up around the local streets and bringing them home. She told him to mind his own business, he was a spy or a policeman. She indicated that she had picked up a small chest of drawer which was in the hallway behind the front door for the purpose of putting her underwear in it. She also told him that she had picked up a garbage bin lid as some of the bins down the side of her house were cracked. In cross-examination, Mr Wildash identified the person who had told him that she had been seen taking things from piles of items put out for council's clean-up as a council lawyer who told him she received the information from council.

11 Mr Wildash deposed that on a prior occasion when he had been on the respondent's property, he had looked in her and observed that they were full of rotten food such as potatoes and also contained packets of food which had passed their use-by date.

12 Mr Wildash obtained a service report on his home by Flick Pest Control 27 March 2006. It records that the areas treated were internal, the roof void, sub-floor and external and that the pests treated were cockroaches, rodents and ants. The report stated: Pest problem mainly resides on the neighbour's property. Chemicals will have limited effect unless all garbage and decaying organic matter has been removed and property professionally cleaned and maintained. Property in question that of 20 William Street, Fairlight. Cleaning and maintaining property will reduce any health regulations problems.

13 In cross-examination he said that he called in Flick because nearly every night he was awakened by rats in the roof. The Flick bait killed the rats and the consequential odour from dead rats under the house was described by him as unbearable for a time.

14 I accept Mr Wildash's evidence except where I have indicated above that I do not do so.

C. THE EVIDENCE OF MR EDUARD McPEAKE 15 Eduard McPeake gave evidence in the applicant's case. He is the Senior Environmental Officer employed by Manly Council.

16 Over many years he has seen the respondent bring home rubbish from council clean-ups, charity disposal bins and discarded food from supermarket industrial bins and place rubbish within her home and throughout the yard. He has seen on the property rats, cockroaches and ants. His affidavit annexed relevant council records going back to November 2004.

17 Mr McPeake's file note of 22 November 2004 records that he received a call from a neighbour in regard to the state of the respondent's premises. At an on-site meeting on 11 November 2004, the respondent agreed that he could contact a Chris Revson at Queenscliff Health Centre Mental to assist and support her in the implementation of a clean-up of the premises. Another file note records that on 24 November 2004 he explained the situation to Chris Revson by telephone. They agreed to meet with the respondent and Ms Revson said she would contact the respondent in regard the matter. Mr McPeake's file note of 3 December 2005 records that he was informed by Chris Revson that she had been unable to contact the respondent with regard to the state of her property and that Ms Revson would be on leave in a few weeks time and unable to offer any support in the meantime. Mr McPeake informed her that in that case council had no other option than to proceed with action to improve the state of the respondent's property.

18 On 17 December 2004, Mr McPeake wrote to the respondent letter referring to his inspection of her premises on that date which revealed accumulations of materials at her property contrary to the requirements of a council letter to her of 2 December 2004.

19 This letter attached a Notice of Intention to Issue an Order "under Section 124 (No 21) of the Local Government Act 1993". Such a notice was required by s 132. The notice set out the terms of the proposed order, which were identical to the terms of the later Council's Order. It stated the reasons for the which included that "The land is not in a safe or healthy condition". It stated council's intention to allow a period of 14 days in which time the order must be complied with when issued. It informed the respondent that s 132(2) of the Act allowed her to make representations to council as to why the proposed order should not be issued or as to the terms of a period of compliance with the proposed order, and informed her that any such representations should be served no later than 31 December 2004. It stated that council will issue the proposed order if representations are not received within that period.

20 Photographs taken on 7 June 2005 annexed to Mr McPeake's affidavit show a large amount of rubbish and items in the external areas of the respondent's premises.

21 On 6 June 2005 the applicant issued Council's Order to which I have previously referred, to the respondent. Mr McPeake's file note of 10 June 2005 records that he attended the respondent's premises at her telephone request but no-one was there. A meeting was planned with the Queenscliff Health Centre, who were contacted by the respondent when the order was served, to attempt to resolve the situation before further action was necessary.

22 Photographs of the respondent's premises taken on 3 August 2005 show a great deal of rubbish and accumulated items located on the external part. Mr McPeake's file note of 3 August 2005 records that a complaint had been received from Mr Wildash concerning the respondent's premises. Issues raised by Mr Wildash were that there were rats, mosquitoes, food putrescibles and a fire risk. Mr McPeake explained to Mr Wildash that the matter had been referred to the council's legal representative, Mr Mark Pearson. A meeting was arranged the following Friday between Mr Wildash, Mr Pearson and Mr McPeake.

23 A council memorandum dated 9 August 2005 authored by Mr Mark Pearson recorded the following history: The history dates back to 1988 when Council received the first of many complaints by neighbours, regarding the accumulation of rubbish at 20 William Street, owned by the respondent.

the respondent is well known amongst the community, Council officers and social community groups, particularly with the Aged Care Assessment Team (ACAT - 9951 0330) and Queenslciffe Health Centre (QHC - Christine Revson is the case officer).

During the pursuing 17 year period Council has issued 8 Notices, 5 Orders and 2 Court proceedings, the latter resulting in fines being issued to the respondent. However, these have been negated by the respondent by not paying costs or the fines, which ultimately have all been met by Council.

To date, Council's actions have resulted in little or not effect to the rubbish that has been hoarded by the respondent, it seems only when Community Services are involved, there is some disposal of rubbish, but again this does not resolve the fact that the interior of the dwelling is a time bomb waiting to go off. It has been noted in the past that access to the interior is hampered due to excessive materials and that a person only gains access by walking crab-like through the interior of the property. There is the real danger of spontaneous combustion, which may result in damage to adjoining properties, with possible critical results to persons.

Council has served a recent Order (6 June 2005) but again the removal of rubbish is not evident. I am reluctant to instigate section 678 of the Local Government Act 1993, which effectively allows Council to carry out the works if the Order has not been complied with, for a number of reasons, particularly the possible effect on the respondent.

Council has indicated in the past to the respondent that Council will do the work in accordance with s.678, this resulting in her attending Council Chambers with a torrid of accusations and intimidatory action against Council officers.

I have spoken with the General Manager and rather than pursue regulatory action presently, the approach is one of assistance again from the community social services group to try and convince the respondent to remove the excessive loads of assorted goods, which is posing both a health and fire danger to the property and adjoining households, keeping in mind the weather is warming up.

As you may all be aware, Council has pursued the respondent through the Magistrates Court for unhealthy and the disturbing array of rubbish on her property over a period in about 1988! On the two occasions this matter has been brought before a Magistrate, Council was successful, however, the fines, Court costs, lawyer fees and enormous amount of not only Council resources, have been borne by Council, the respondent has not paid a cent!

Council is receiving complaint after complaint (recently) from neighbours regarding the potential of loss of life as a result of the state of the respondent's property. Ed has also spent an incredible amount of time on this matter with some results, but these do not go far enough, there is the real potential for a fire during the hotter months and again the real possibility of loss of several lives, this is an unacceptable situation.

We have tried every avenue, as everyone is aware, but to no avail, just chasing our tails.

Therefore, I am issuing an Emergency Order pursuant to s.124 of the Local Government Act requiring for the premises to be cleaned TO THE SATISFACTION of Council - a specific period is to be determined. If this is not undertaken (no extension) then in accordance with s.678 of the LG Act, Council then informs the respondent it is undertaking the removal of those goods considered dangerous/unhealthy, such as a room full of newspapers/books, tin cans, food containers used, ornaments, bins, etc, etc. These to be itemized prior to any action under s.678.

Police assistance and a video record of the cleanup will also be part of the action.

24 Mr Pearson sent an e-mail, apparently to colleagues, on 27 September 2005 stating that council had pursued the respondent through the Magistrate's Court for an unhealthy and disturbing array of rubbish on her property over a period in about 1988. On two occasions the matter had been brought before a magistrate. Council was successful. However the fines, costs, legal fees and very large amount of not only council resources had been borne by council as the respondent had not paid a cent. The e-mail recorded that council had received complaints recently from neighbours regarding the potential of loss of life as a result of the state of her property. There was the real potential for a fire during the hotter months and the real possibility of loss of lives. The e-mail recorded that, therefore, Mr Pearson was issuing an emergency order pursuant to the Local Government Act 1993, s 124 requiring the premises to be cleaned to the satisfaction of council.

25 By letter dated 9 September 2005 to the respondent, Mr Pearson referred to Council's Order served on 6 June 2005 and stated council had inspected the exterior of the property recently and considered that the premises continued to represent a risk to the public due to the items contained on or around the dwelling. The letter stated that as the order had not been complied with, council brought to her attention the Local Government Act 1993, s 678, quoted subsections (1) and (5) and enclosed a copy of the section. The letter stated that a period of 14 days was provided from the date of the letter for materials on the exterior and interior of her premises to be removed to the satisfaction of council. She was informed that council would be undertaking an inspection of the property on 14 October and that if, after this period, the accumulation of materials had not been removed as indicated in the order, council proposed to enforce s 678 of the Act. The letter concluded by informing her that council had taken those steps to ensure public safety due to the excessive accumulation of materials to her property, which council considered posed a severe health hazard and a potential lethal risk to both occupants of the premises and neighbouring properties.

26 On 29 September 2005 the respondent wrote a letter to Mr Pearson concerning Council's Order as follows: I have a lot of commitments at the moment. One is a survey for our precinct to do with Charles Street Reserve between William Street and Cohew request by Council feedback. Another is my mother's death that I was not told of. I would like a consideration of six weeks from 14 October 2005….I want it done but find it difficult.

27 There is a joint memorandum by Mr Pearson and Mr McPeake dated 24 November 2005 re "Complaints by neighbours. Action initiated by Council". It recorded that on 24 November 10.45 pm at 12.30 pm they, together with other council officers, attended the site to discuss with the respondent the removal of rubbish collected by her over approximately the last 18 months. The memorandum stated: "The hording and accumulation of goods has a long history dating back to 1988. Council has pursued removal of the goods on several occasions, but has been met with resistance by the owner, who is believed to have a compulsive behavioural disorder with collecting goods that have been discarded by the general public, due to their age or as a result of their use-by date passing, eg: old shoes, old pots and pans, plastic containers, etc. This has been documented over the last 17 years on council's property file (attached)."

28 The memorandum set out a time sequence of events on 24 November 2005. It recorded that Mr McPeake explained the reasons for their visit ie to remove accumulated goods which were observed to be health and safety issues. the respondent became very agitated and aggressive, stating that moving her personal goods was inhuman, that council had no respect for her belongings and that she required a further period due to the recent death of her mother (several weeks previously), and as a result of her ongoing discussions with council regarding the upgrade of the nature park immediately across the road. Mr McPeake explained that it had been 18 months since he had personally approached her and that little had been done to remove the goods. Rather, an additional accumulation of assorted materials had been collected and in the side passage had grown to greater heights. He explained that as a result of the constant accumulation of goods, it was affecting neighbours, particularly during the warmer/windy days as the smell resulted in other property owners having to keep windows and doors shut and their children unable to play in their own yard.

29 The memorandum recorded that that she refused a request for the council representatives to look inside her dwelling. However, from observation at the adjoining property to the north (no 18), Mr Pearson observed that the material stacked inside the dwelling was in some cases over window height, consisting mainly of newspapers, pots and pans and clothing material. He recorded that if the interior of the property was to catch fire, there would be little chance for escape. This was explained to the respondent. She said that council officers were not allowing her sufficient time to remove goods from outside to inside her dwelling and spoke about her involvement with the park over the road. Mr McPeake explained that the park issue had no bearing on the current situation and that as a result of the accumulation of goods she was not physically capable of removing them because of their enormity. He explained the risk of health issues, particularly in the warmer months, with flies and their potential for disease, the rats seen by neighbours and a plague of cockroaches which Mr McPeake and he had witnessed at the time of the inspection. the respondent did not respond to those questions but spoke of the council's inhuman disregard for her wellbeing.

30 The memorandum recorded that during this visit a council garbage truck arrived for removal of the goods, that advice was received that two truckloads may be required at 10 tonne load. The press arrived and took photographs which incensed the respondent who became very aggressive and yelled abuse.

31 The memorandum recorded that it was clear that she was in need of professional assistance for her disorder. It concluded with the recommendation "to seek immediate action to instigate a Court order to clean the land and remove all waste, being garbage, including but not limited to various specified items". It was said that the accumulation of these goods had created a nuisance to the surrounding neighbouring properties with evidence of providing harbourage for rats, numerous flies and their larvae/maggots, cockroaches and their larvae and the overall infestation of the area.

32 Mr McPeake in evidence also described the events of 24 November. He expressed the opinion that accumulation of rubbish on the property has created a nuisance for surrounding neighbours and said that he had seen evidence that the rubbish is providing harbourage for rats, flies and their larvae/maggots and cockroaches and their larvae. In his opinion this created a health risk for both the respondent and the surrounding neighbours. He expressed concern that much of the material was combustible and any fire which ignited in the accumulated rubbish could spread to the adjoining semi-detached home. It was possible to see rubbish which had accumulated inside the dwelling owned by the respondent which was also considered to constitute a fire hazard.

33 I accept Mr McPeake's evidence and the facts stated in the documents to which I have referred.

D. THE EVIDENCE OF MR MARK PEARSON 34 Mark Pearson, Manager Regulatory Services of Manly Council, gave evidence in the applicant's case. He agreed with the contents of Mr McPeake's affidavit in relation to the visit to the respondent's property on 24 November 2005. He annexed photographs taken by him on 29 November 2005. They show the accumulation of a great deal of rubbish and items on the premises outside the dwelling. One photograph taken through the window shows items piled high inside a room. Mr Pearson agreed to extend the time for removal of the rubbish until 22 December 2005.

35 He annexed to his affidavit an undertaking to council apparently signed by the respondent dated 17 December 2005. Although this part of the affidavit was originally objected to and not read, the undertaking came back into evidence in his cross-examination. It stated: I, Marjorie Moffit, give Manly Council an undertaking that I will clear all rubbish from both within and to the outdoor area at my property at 20 William Street, Fairlight, within the period indicated by council, being the last week of December 2005. The rubbish is to be removed with assistance from council when I remove the goods to the verge of the front property.

36 There is evidence by the respondent that the signature on this undertaking is not hers. I consider this aspect later in this judgment.

37 On 31 January 2006 he took photographs which again showed the accumulation of a great deal of rubbish and items on the premises outside the dwelling. A photograph taken of a window appears to show items piled high inside.

38 Mr Pearson on 29 March 2006 attended premises adjoining 20 William Street and observed that the front yard and the side passageway had been cleared of all the material and rubbish indicated in his photographs taken on 29 November and 31 January 2006. He observed that there were piles of items and material, possibly clothing, stored in the rear yard which were covered by sheets of plastic and cloth. He took a photograph of the rear yard which is in evidence. It corroborates what he says that he observed. In cross-examination, Mr Pearson said that the rubbish outside the house had been removed by people from the community.

39 On 30 March 2006 he again attended in William Street and observed the respondent's premises from the boundary of the adjoining property, 18 William Street. He was able to see into the south facing windows of her premises. He observed that behind three of the windows, various materials including items of clothing, paper and what looked to him like newspapers were piled up to a height above the window sill of about half the total height of the window. When he attended the premises on 29 November 2005 and 31 January 2006 he also observed that material and rubbish were piled up behind the windows.

40 I accept Mr Pearson's evidence, except that I reserve for consideration later in this judgment the question of the authenticity of the undertaking of 17 December 2004.

E. THE EVIDENCE OF MR ROD MOORE 41 Evidence was given in the applicant's case by Rod Moore, building surveyor. He is the Manager of Standards and Compliance employed by Manly Council. He is familiar with the respondent's premises. In March 2006 he attended at the adjoining premises, 22 William Street, and inspected the roof space of the respondent's premises. He observed that there was a 30 mm brick party wall separating the two dwellings with 110 mm brick separation of the dwelling and the roof space which extended to the underside of the timber ridge beam only. The Building Code of Australia requires that a fire separation must go to the underside of the roof covering in order to provide a one hour fire separation. In the present situation, in his opinion, if a fire starts in the respondent's premises and enters the roof space in 20 William Street, it will spread into the adjoining roof at 22 William street within 15 minutes.

F. SOLICITORS' PRE-LITIGATION CORRESPONDENCE 43 By letter dated 30 November 2005, council's solicitors, Abbott Tout, wrote to the respondent stating that they were instructed that she had failed to comply with the 6 June 2005 order, a copy of which was attached. They were instructed that despite the time for removal of material and rubbish having been extended by Manly council to 19 November 2005, the accumulated material and rubbish had not been removed. The letter recorded instructions that on 24 November 2005, the respondent had refused to permit council officers to enter upon the premises to remove the rubbish. It concluded by stating that, due to the threat to health and safety of the community and of the respondent posed by the accumulation of rubbish both outside and inside her premises, Manly council had no alternative but to commence proceedings in this Court seeking orders that the rubbish be removed or alternatively orders that the council enter upon the property and remove the rubbish.

44 By letter dated 2 February 2006 to the respondent, Abbott Tout recorded their instructions that notwithstanding their earlier letter of 30 November (a copy of which was enclosed) she had failed to comply with the order (a copy of which was also attached). The letter recorded that on 1 December she had advised council officers that she would remove the accumulated rubbish but that it had not been removed and, in fact, further rubbish had been placed on the property. The letter reiterated that, due to the threat to health and safety of the community and the respondent as a consequence of the accumulation of rubbish both outside and inside her home, the council would commence proceedings immediately in the Land and Environment Court seeking orders that she remove the rubbish or alternatively that the council enter her property and remove the rubbish.

45 As I have said, these proceedings were commenced on 15 February 2006.

G. THE RESPONDENT'S EVIDENCE AND SUBMISSIONS 46 The respondent gave written evidence on which she was not cross-examined and made submissions as follows.

47 First, the respondent submitted that paragraph 3 of the Application filed on 15 February 2006 was inaccurate in that it alleged that the respondent had failed to do the work required by the Council's Order. The respondent's evidence was that on 24 August 2005 she placed a large amount of materials on the nature strip for the council to pick up in their free collection; that during the later half of December 2005 she threw a large amount of materials away during regular rubbish pick-ups as well as placing two extra large wardrobes on the nature strip for council collection; and that on 21 February 2006 she placed material on the nature strip to be picked up by council on 22 February 2006 in its free collection. I accept that evidence. However, the last event post-dated the filing of the Application and therefore is irrelevant to this submission. Paragraph 3 of the Application was inaccurate in that she had complied, to a limited extent, with Council's Order before the application was filed. The photographs taken by Mr Pearson on 31 January 2006 show a great deal of rubbish and items still on the premises.

48 Next, the respondent submitted that the Local Government Act 1993 s 200 prevented the Court from granting the relief sought. I reject the submission which requires some analysis of the interrelationship between ss 678 and 200.

49 Section 678(1) of the Act provides that: 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.

50 A legislative note to s 678 states that: Note: Section 193 requires the council to give the owner or occupier of premises written notice before a person authorised to enter premises under Part 2 of Chapter 8 of the Act does so.

51 This note was inserted by the Local Government Amendment Act 2000. The second reading speech in relation to the Bill for that legislation states: Item 31 inserts a note which links the power of entry provisions in part 2 of chapter 8 of the Act to the council's power to give effect to the terms of an order when the person to whom the order relates has failed to do so. This is for clarification only and does not amend the provisions themselves.

52 Sections 193 and 200 are both in Part 2 of Chapter 8 and provide as follows: Notice of Entry 193. Before a person authorised to enter premises under this Part does so, the council must give the owner or occupier of the premises written notice of the intention to enter the premises. In what circumstances can entry be made to a residence?

200 The powers of entry and inspection conferred by this Part are not exercisable in relation to that part of any premises being used for residential purposes except: (a) with the permission of the occupier of that part of the premises, or (b) if entry is necessary for the purpose of inspecting work being carried out under an approval, or (c) under the authority conferred by a search warrant.

53 In the present case, the s 193 notice was given. Part 2 of Chapter 8 commences with s 191 which provides in subsection (1) that: For the purpose of enabling a council to exercise its functions, a council employee (or other person) authorised by a council may enter any premises.

54 In my opinion, the interrelationship between s 678 and Part 2 of Chapter 8 is as follows. One of the "functions" of a council referred to in s 191(1) is the exercise of power under s 678 to give effect to the terms of its own order under s 124 if a person fails to comply with the terms of the order. If an order under s 124 orders a person to do or to refrain from doing a thing on premises, then the exercise by council of its power under s 678 brings Part 2 of Chapter 8, including sections 193 and 200, into play. If the order relates to premises being used for residential purposes, then the powers of entry and inspection conferred by that Part are not exercisable unless one of the three exceptions to s 200 applies. None of those three exceptions applies in the present case.

55 However, none of these provisions limit the power of this Court to make an order under s 678(10).

56 In the result, if a council wishes to enforce an order that it has made under the Local Government Act 1993 s 124 in the way prescribed by s 678(1) and if enforcement requires entry onto premises being used for residential purposes, then, unless one of the specified exceptions to s 200 applies, council can only do so by obtaining an order of this Court. The legislative intention is to provide special protection in this way in the case of residential premises.

57 Next, the respondent submitted that Council's Order did not comply with the terminology of order 21 in s 124 because in the preamble said that the grounds were that the premises are "not in a clean or sanitary condition". This language is to be found in the circumstances section of the Table to s 124 which is referable to order 20. Order 20 is not an order that could be made in the circumstances of this case because it is not referable to ordinary residential premises. The relevant s 124 order is order 21. The terms of Council's Order satisfy the requirements of order 21 of s 124. The reasons are included in Council's Order thus satisfying s 136: see Van Haastren v South Sydney Council (2000) 109 LGERA 252. I am satisfied that when Council's Order was made, the prescribed s 124 (order 21) circumstances which permitted it to be made in fact existed. The legislation does not require these prescribed circumstances to be stated in the order. The fact that in the present case grounds were unnecessarily stated in the preamble to Council's Order and infelicitous words used has no adverse consequence.

58 Next, the respondent submitted that the 14 day period of time which Council's Order allowed for compliance was unreasonably short. I reject this submission. Having regard to the health and safety danger and the fact that intention to issue an order had been given six months previously, in my view a period of 14 days was reasonable.

59 Next, the respondent submitted that the reasons for the order stated therein had not been established on the evidence. I disagree. In my view, they have been substantially established by the evidence which I have accepted.

60 Next, the respondent submitted that the respondent attempted to contact the council concerning Council's Order but Mr McPeake in evidence had no suitable explanation as to why he did not write to her. In my view, it has been established through evidence to which I have referred that council acted reasonably in its communications with her concerning compliance with the order.

61 Next, it was submitted that there was no evidence of rats, cockroaches, flies and maggots. I disagree. I have referred earlier to the evidence.

62 Next, the respondent submitted that any fire risk arose because the dividing wall in the roof separating her residence from the adjoining property had been fractured by the construction of a chimney of some sort by the occupant of the adjoining premises thus providing a passageway for any fire. Mr Moore testified that a fire would spread within 15 minutes from one property to the other. I accept that work has been carried out on the adjoining premises by or on behalf of the occupant which caused the dividing wall to have missing bricks through which fire could pass. However, I do not regard that as a significant consideration in determining whether I should grant the relief sought by the applicant. In this context, the respondent pointed to her unchallenged evidence that she had lived at the address for over 40 years and there had been no incidence of fire. I accept that evidence. However, again, I do not consider that it bears significantly on the ultimate issues before me.

63 Next, it was submitted that a written undertaking by the respondent of 17 December 2005 which the council received, was a forgery. It was said that it was not known who the forger was. Earlier in this judgment I set out the undertaking. The evidence of the respondent was to the effect that she did not provide the undertaking or sign it. I was asked to compare the signature on it with her signatures on her statement in evidence. I can see some apparent differences but I am unable, on that basis, to draw a conclusion that the signature on the undertaking is a forgery. However, taking into account that the evidence of the respondent to which I have referred, I am prepared to proceed on the basis that it has not been proved that she signed it. The applicant did not know, nor, in my view should it have known, that the signature was a forgery, if indeed it was a forgery. I make no finding that it was a forgery.

64 Next, the respondent submitted that Mr Pearson's affidavit evidence was false where he said that on 1 December 2005 he attended her premises; that she said she would give an undertaking that the applicant can take the excess rubbish; and that she had a problem in which she was seeking professional assistance. The respondent gave contrary evidence. However, on objection being taken to this evidence by Mr Pearson, it was not read. I do not take it into account.

65 Next, the respondent submitted that the photographs in evidence which showed her front windows must have been taken when the photographer was trespassing on her property. I am not satisfied that this has been established. Nor do I consider that it has a significant bearing on my decision.

66 Next, it was submitted that Mr McPeake's file note of 22 November 2004 evidenced a breach of the respondent's privacy because it recorded him speaking to one of her neighbours about getting help for her from the Queenscliff Health Centre. I do not regard this as a breach of privacy. In any case, it does not bear significantly on whether I should grant the application.

67 Next, the respondent submitted that the council's letter of 2 December 2004 to the respondent where it was stated "You agreed at that time that you would look at cleaning up the exterior of your property", evidenced that the council was solely concerned with the exterior of her house and not with the interior. I do not accept the submission. The evidence before me indicates that rubbish and other items have not been removed from the interior of the respondent's house and Council's Order is wide enough in its terms to extend to the interior.

68 Next, the respondent questioned the legal adequacy of the reasons for the order expressed in Council's Order. In particular, it was submitted that it had not been established that there was an "infestation" of cockroaches because Mr Pearson in evidence said that he could not say that he had seen more than a few cockroaches. Whether the number of cockroaches technically amounts to an "infestation" or not does not significantly affect my consideration of the ultimate issues in this case. There was ample evidence from witnesses, which I accept, that rubbish on her premises was providing harbourage for cockroaches and other pests.

69 Next, the respondent submitted that owners of other comparable properties in the Manly municipality had not been given the same notices. I was referred to some photos which it was submitted were of such other places in the municipality. There is no evidence as to where these photos were taken, nor as to whether the owners received notices, nor is it clear to me that the scenes depicted justified the issue of notices. In any event, I regard the point as irrelevant.

70 Next, it was submitted that the respondent has now done everything required by Council's Order. I do not accept that submission. In my view, on the evidence, Council's Order has not been complied with so far as the interior is concerned, at least. Insofar as there has now been compliance with Council's Order concerning the exterior, that mainly occurred after the commencement of these proceedings. Indeed, I am not entirely satisfied that there has been total compliance as regards the exterior.

H. CONCLUSIONS 71 My main conclusions are as follows.

72 At the time Council's Order was made, the respondent's premises were not in a safe or healthy condition. In those circumstances the applicant had power under the Local Government Act 1993 s 124 (order 21) to order her to do or refrain from doing such things as are specified in the order to ensure that the land or premises were placed in a safe or healthy condition. Council's Order was such an order.

73 The respondent only partly complied with Council's Order before these proceedings commenced. The main compliance, so far as the exterior is concerned, occurred subsequently. I am not satisfied that there has been complete compliance so far as the exterior is concerned, although there has been very considerable compliance. On the evidence, there has been little or no compliance with Council's Order so far as the interior is concerned.

74 In my view, on the evidence, the premises are still not in a safe or healthy condition. The main danger is to the safety and health of the respondent herself and her near neighbours. This situation must be brought to an end.

75 I will make an order under the Local Government Act 1993 s 678(10). I am sensitive to the fact that this will involve intrusion into the respondent's home which may cause her anxiety or distress. Therefore I will stay the order for 14 days to give her a final opportunity to comply with Council's Order. If she does so, then the visit by council officers thereafter should be short.

76 The applicant has succeeded. The applicant should be entitled to an order for costs unless there is some disentitling conduct on its part: Kiama Council v Grant [2006] NSWLEC 96 at [92] (Preston CJ). I have heard argument as to costs. In my view, there is no disentitling conduct on the applicant's part.

77 Accordingly, I make the following orders: 1. Pursuant to Section 678(10) of the Local Government Act 1993 , Manly Council is ordered to execute Council's functions under s 678 by carrying out the work which is required to be carried out by paragraph 1 of the Order dated 6 June 2005 given to the respondent pursuant to Section 124 of the Local Government Act 1993 in accordance with the timetable and procedures set out below. 2. Order 1 is to be stayed for a period of 14 days to enable the respondent to carry out the work required to be carried out by paragraph 1 of the Order dated 6 June 2005. 3. The respondent is to pay the applicant's costs as agreed or in lieu of agreement as assessed. 4. The exhibits may be returned. Timetable and Procedures (i) Within 7 days after the above stay expires, Mr Michael Giddey, Council's Building Surveyor with specialist expertise in fire safety matters, and Mr Eduard McPeake, Council's Environmental Health Officer, are to inspect the subject premises for the purposes of identifying any items or material within the subject premises which, in their opinion, constitute a risk to health and safety. (ii) Michael Giddey and Eduard McPeake are to prepare a schedule for the removal of the items identified in paragraph (i) and present a copy to the respondent together with a timetable for the removal of those items. (iii) Council will then enter the subject premises and remove the items as set out in the said schedule and timetable. (iv) Council will enter onto the curtilage of the subject premises and remove all vermin infested material stored on the curtilage of the subject premises.

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.

(2006) 146 LGERA 215

(2000) 109 LGERA 252

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Cited By (7)