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[2012] NSWLEC 94
Land and Environment Court (NSW)
2012-04-30
Pain J, Mr J
Original judgment source is linked above.
Judgment 1These are civil enforcement proceedings relating to the failure of Mr Wouters to comply with two orders issued by North Sydney Council (the Council) under s 124 of the Local Government Act 1997 (the LG Act) being order 21 and order 22A. These required the removal of a large amount of accumulated material in Mr Wouters' home and that he maintain his home in a safe, clean and healthy condition. The orders were issued on 13 April 2011 and required compliance within 21 days. Mr Wouters occupies the lot on the ground floor of a two storey, two lot strata plan building in Cremorne. The Council seeks declarations of non-compliance with the two orders and consequential orders to achieve compliance. 2As the Council considers Mr Wouters is unlikely to be able to carry out the necessary work to comply with the orders it also seeks orders pursuant to s 678(10) of the LG Act that the Council be permitted to carry out the necessary works upon expiry of a specified period. 3The Council has filed extensive evidence of its dealings with Mr Wouters over an extended period in which it has tried through its officers, Mr Ellis in particular, to assist Mr Wouters in clearing up his property. The Council relies on the following affidavits: affidavit of Mr Brecht, clinical psychologist, dated 21 February 2012; affidavit of Ms Coculescu, solicitor for the Council dated 4 November 2011; affidavit of Ms Davy, tenant of upper unit, dated 23 February 2012; three affidavits of Mr Ellis, the Council's Director of Community and Library Services, dated 13 December 2011, 23 February 2012 and 27 April 2012; affidavits of Ms Mulcahy, Council's Environmental Health Team Leader, dated 5 December 2011 and 4 April 2012; affidavit of Ms Whitney, solicitor for the Council, dated 4 April 2012 and an affidavit of Ms Williams, owner of upper unit, dated 23 February 2012. 4Mr Brecht did not interview or assess Mr Wouters prior to writing the report dated 16 February 2012 attached to his affidavit. Based on the documents provided by the Council's solicitors, Mr Brecht opines that Mr Wouters suffers from senile squalor Diogenes syndrome. Characteristics of this syndrome include hoarding of rubbish and avoidance of discarding rubbish. Mr Brecht states that people suffering from this syndrome often end up living in squalid and unhealthy conditions which may present serious health and safety hazards for themselves and others living in the vicinity. 5Ms Coculescu's affidavit annexes a title search dated 22 September 2011 confirming Mr Wouters as the owner of the premises, copies of orders 21 and 22A and a letter from HWL Ebsworth Lawyers to Mr Wouters dated 5 October 2011 advising of the Council's intention to commence proceedings unless Mr Wouters provides a written undertaking that he will comply with the orders within a specified period. 6Ms Davy has been a tenant of the upper unit of the duplex, owned by Ms Williams, since 2001. Mr Wouters has occupied his premises all that time. To access her unit she must walk past unit 1 to enter the common stairwell. In or about 2003 through the broken panels in the front door, Ms Davy observed that Mr Wouters' apartment was full of refuse and rubbish stored in plastic bags and covering the entire floor. Ms Davy was concerned that the materials in Mr Wouters unit were a fire hazard. Photographs she took on that day were annexed to her affidavit. Ms Davy notices a urine smell on a daily basis in the stairwell and when she passes Mr Wouters' front door. In recent years, through Mr Wouters' kitchen window, Ms Davy has noticed flies around the plastic bags of material piled in the kitchen above the sill height. 7Mr Ellis' affidavit dated 13 December 2011 states that when he personally served Mr Wouters with the summons and affidavits, he explained that there would be a Court mention and an allocation of a hearing date. Mr Wouters said he would clean up before then. 8In his affidavit dated 23 February 2012 Mr Ellis states he has held his position with the Council since 1997. Mr Ellis came to know Mr Wouters in or around February 2010 when Ms Williams complained to the Council about the state of Mr Wouters' premises. Mr Ellis has had contact with Mr Wouters numerous times and has visited the premises several times. Mr Wouters has refused offers of help to clean up from Mr Ellis, has repeatedly insisted he will clean up himself and asked for extensions of time to comply with his written and oral undertakings. On 13 April 2011 Mr Ellis hand delivered the two Council orders issued under s 124 of the LG Act. In April 2011 Mr Ellis enlisted the involvement of the Specialised Mental Health Services for Older People within the Aged Care and Rehabilitation Service at Royal North Shore Hospital. On 12 October 2011 Mr Wouters handed Mr Ellis a letter requesting an extension up to 22 October 2011 to clean up the premises in response to HWL Ebsworth Lawyers' letter dated 5 October 2011. Mr Ellis granted the extension. Mr Ellis does not believe Mr Wouters will voluntarily remove the accumulated rubbish and he is concerned about Mr Wouters' welfare, health, and safety as well as those of his neighbours. 9Mr Ellis' affidavit dated 27 April 2012 states that he personally served Mr Wouters with documents including points of claim and affidavits and explained what they were. Mr Wouters told Mr Ellis he would complete cleaning up the premises by the end of April. 10Ms Mulcahy is an environmental health officer. In her first affidavit Ms Mulcahy states she has been employed in her current position since 2005. Ms Mulcahy identifies that Mr Wouters failed to comply with orders issued on 3 September 2010 and 13 April 2011 (an order 21 of which enforcement was not sought). She inspected the premises on five occasions in 2010 and 2011. Exhibited to her affidavit were photographs of the premises and the duplex building taken on 23 November 2011. She did not gain internal access to the premises but observed accumulated rubbish through the glazed panelling in the front door and noticed a urine smell. She does not believe any action has been taken by Mr Wouters to comply with the orders. In her opinion the premises are not in a safe and healthy condition. Much of the material is paper, boxes and combustible cloth or clothing and due to the accumulated material Ms Mulcahy is concerned that there is a real danger presented by fire hazards which pose a serious risk to Mr Wouters and Ms Davy. The accumulated rubbish is providing harbourage for vermin and pests and is consequently a health hazard. 11In her affidavit dated 4 April 2012 Ms Mulcahy states she inspected the premises on 2 April 2012 and noticed the strong smell of urine. Through the glazed panels in the front door Ms Mulcahy observed behind Mr Wouters' front door the build up of materials which she estimated to be above her head height. 12Ms Whitney's affidavit documents correspondence between the Council and the Council's solicitors and Mr Wouters' nephew, Mr Gibbons. It also attaches a letter to Mr Wouters dated 28 February 2012 advising him of options for legal assistance. 13Mr Leabon, a registered nurse with the Specialised Mental Health Services for Older People at Royal North Shore Hospital from Royal North Shore Hospital, is Mr Wouters' caseworker. He was invited to sit at the bar table and I asked for his opinion about Mr Wouters' circumstances. He is concerned about the effect on Mr Wouters if the Court makes an order allowing the Council and/or its contractors to enter the premises for a forced removal of the accumulated material.
Council's submissions 14The Council's solicitor filed in Court comprehensive written submissions which helpfully cross references the evidence relied on in relation to the state of the premises, detailing the nature of the material accumulated over a number of years, and refuse and associated problems of odour, vermin, appearance, health and safety concerns particularly fire, in light of the substantial volume of material in the premises, see par 14 - 18. The actions of the Council since February 2010 particularly through its officer Mr Ellis in trying to assist Mr Wouters on numerous occasions to remove the material are detailed in par 19 - 26. The numerous occasions on which Mr Wouters has failed to comply with an earlier order to clean up issued by the Council in 2010, several undertakings given by him to the Council and its solicitors before and after the commencement of proceedings are identified in the written and oral submissions made, and confirmed by the evidence of Ms Mulcahy and Mr Ellis. 15Given the history of the matter the Council considers it is very unlikely Mr Wouters will be able to comply by 1 June 2012. Mr Wouters has requested extensions of time on numerous occasions in the past and has not done any of the work. Mr Wouters has also been reluctant to allow entry into his unit by Council officers and others and it may be necessary to employ force to enter the premises and the orders sought include allowing forced entry. The Council does not wish to remove personal memorabilia or photographs, important personal documents or personal effects.
Mr Wouters' evidence and submissions 16Mr Wouters is 83 and has lived on his own for a number of years. His nephew Mr Gibbons is named in a partial guardianship order made in relation to Mr Wouters for a limited time and for limited purposes issued by the Guardianship Tribunal of NSW on 15 February 2012. Mr Gibbons attended Court to assist his uncle and is prepared to assist Mr Wouters in the carrying out of orders the Court makes requiring removal of the accumulated material. He was invited to sit at the bar table and to address the Court. He informed the Court that he supports the Council's actions in undertaking the clean up of the premises. 17Mr Wouters gave brief oral evidence of how he had succeeded in various circumstances throughout his life and would do so on this occasion. He asked for further time in which to comply. He says he can and will comply by 1 June 2012.
Consideration 18It is clear that the orders issued under s 124 of the LG Act have not been complied with by Mr Wouters given the substantial evidence of non-compliance before the Court. Declarations to that effect can be made. Whether consequential orders should be made must be considered. 19I accept the Council's submissions that the accumulated rubbish and material in Mr Wouters' home presents a serious fire safety risk to Mr Wouters and to Ms Davy who lives upstairs. There are also clearly health and amenity issues given the odour from the premises, the presence of vermin and the appearance of the ground floor unit. That situation has now existed for a substantial period of years, not months. These circumstances suggest that consequential orders ought be made. 20The only reason not to make an order requiring removal of material by Mr Wouters or the Council is the impact on Mr Wouters personally resulting from possible forced entry and removal of the accumulated material. Mr Wouters has been provided with many opportunities to remove the material. It appears from the psychological evidence before me that he is probably unable to do so. He has asked the Court for additional time to undertake removal which time I will allow. 21As well as his mental state, the removal of such a large amount of material also poses a considerable physical challenge. I note that Mr Gibbons has offered to assist in removal of the material in the past but no action by Mr Wouters has resulted. It is necessary that the Court make orders requiring compliance with the orders in these circumstances. 22As identified in the Council's written submissions, while the Council is not permitted to enter into residential premises when exercising its powers under the LG Act, the Court has power to order that this be done by the Council and its contractors, such orders being made in Waverley Council v Bobolas (No 2) [2009] NSWLEC 211, Manly Council v Moffitt [2006] NSWLEC 184; (2006) 146 LGERA 215 and Council of the City of Sydney v The Estate of the Late Alfred Sulligoi care of The Public Trustee [2007] NSWLEC 778, inter alia. 23Care has been taken by the Council's legal representatives in discussion with Mr Gibbons and Mr Wouters to craft orders which will provide the opportunity for Mr Wouters to undertake the work in the timeframe he nominated of 1 June 2012. The involvement of Mr Gibbons is also important because of his relationship with Mr Wouters and this is provided for in the orders. Provision is also made for adequate notice to be given by the Council before entry on or after 20 June 2012. The orders enable work to be done in as sensitive a manner as feasible including provision for the identification of personal memorabilia and other personal items which are not intended to be removed. I will order that Mr Gibbons must be present if the Council is required to enter the premises on 20 June 2012 to undertake the work. 24I consider I should make the orders handed up by the Council in the course of the hearing and subsequently amended.
Costs 25The Council seeks its legal costs of the proceedings and the removal costs it is likely to incur in complying with the orders. Mr Gibbons expressed his concern about the financial impact of such orders on Mr Wouters given his limited financial capacity. According to the certificate of title in evidence Mr Wouters owns his home unencumbered but I infer that he does not have much or any additional financial capacity. In Mr Gibbons' opinion Mr Wouters does not understand what is happening in the proceedings. 26I have a broad discretion to award legal costs in Class 4 proceedings: s 98(1) of the Civil Procedure Act 2005. Legal costs are generally ordered to be paid in civil enforcement proceedings where there is no disentitling conduct as the award of costs is compensatory, not punitive. The Council through no fault of its own has had to approach the Court for relief in these unfortunate circumstances. There is authority that a person's means to pay is not a relevant consideration of whether an order for costs ought be made: Kempsey Shire Council v Thrush (No 2) [2011] NSWLEC 130 at [11]. An order for costs should be made in the Council's favour. If the costs are not agreed and are to be assessed, Mr Wouters or Mr Gibbons on his behalf can ensure that the amount is reasonable. Whether the Council enforces payment for all of its costs or will agree to Mr Wouters making payments by instalments is a matter for the Council: see Director-General of the Department of Environment, Climate Change and Water v Venn (No 2) [2011] NSWLEC 232 at [31] per Preston J. 27The Council also seeks the costs of complying with the orders in the event that this becomes necessary. If these costs are not ordered to be paid by Mr Wouters the burden otherwise falls on the ratepayers of the Council's area. I take into consideration Mr Wouters' age and personal circumstances, Mr Brecht's opinion that Mr Wouters suffers from a mental illness, Mr Gibbons' comments on Mr Wouters' limited understanding of these proceedings, and Mr Leabon's concern about the effect of an order for forced entry, if that becomes necessary, on Mr Wouters' mental well being. In these circumstances, I do not consider I should exercise my discretion to order Mr Wouters to pay the Council's costs of complying with the Court's orders.
Orders 28The Court makes the following declarations and orders: The Court declares: 1.The Respondent by himself, his servants or agents has failed to comply with an order issued by the Council to the Respondent under the Local Government Act 1993 s 124 order No 21, dated 12 April 2011, a copy of which is annexed to these orders and marked "A" (order 21). 2.The Respondent by himself, his servants or agents has failed to comply with an order issued by the Council to the Respondent under the LG Act, s 124 order No 22A dated 12 April 2011, a copy of which is annexed to these orders and marked "B" (order 22A). The Court orders: 3.The Respondent by himself, his servants or agents is to comply with the terms of order 21 and order 22A and is to carry out, or cause to be carried out, the removal of accumulated material from the subject premises, by 1 June 2012. 4.Pursuant to section 678(10) of the LG Act, the Council by its servants, agents or contractors is to exercise its functions under s 678(10) of the LG Act by entering into the subject premises and carrying out the work required to be carried out by order 21 and order 22A, in accordance with these orders and Annexure C hereto. 5.Council by its servants, agents or contractors may use reasonable force if necessary for the purpose of gaining access to the subject premises in order to carry out the work required by order 21 and order 22A. 6.Council by its servants, agents or contractors shall be entitled to enter the subject premises between the hours of 8am and 5pm from the date the subject premises is first entered in accordance with these orders and shall be entitled to so enter the subject premises until the order 21 and order 22A is complied with to Council's satisfaction. 7.The Council is to notify the Police of its intention to enter the subject premises. 8.The Council is to provide 72 hours notification to the Respondent, Mr Ken Gibbons and Mr Malcolm Leabon, health care worker, of its intention to enter the subject premises. 9.Orders 4, 5, 6, 7 and 8 are to be stayed until 20 June 2012 to enable the Respondent to carry out the work required to be carried out by order 21 and order 22A. 10.The Respondent is to pay the Council's costs of these proceedings as agreed or assessed. 11.Liberty to apply to the Court on 3 days notice. 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: 09 May 2012
North Sydney Council
Wouters