Orange City Council v Kjoller

Introduction 1 HER HONOUR: After considerable effort and negotiation both outside the Court and inside the Court, the parties have reached an agreement as to the declaratory and other orders that Orange City Council ("the council") seeks in these proceedings. 2 The agreement that the parties have reached is contained in an Amended Summons which was filed in Court pursuant to leave granted by me today. Background 3 Originally, the proceedings came before the Court by way of summons filed 23 June 2009. The council sought a declaration and orders that the respondent carry out, within seven days, the terms of orders 1-5 and 8-9 of previous orders made by Commissioner Brown of this Court on 17 July 2008 in Kjoller v Orange City Council [2008] NSWLEC 1297 (compliance with orders 6, 7 and 10 were not pressed by the council) ("the earlier orders"). The earlier orders were made pursuant to s 124 of the Local Government Act 1993. 4 In the alternative, the council sought an order under s 678(10) of the Local Government Act that it execute its functions under that Act by carrying out the work itself if the respondent failed to comply with those orders. 5 The council also sought an order restraining Mrs Sophia (also known as Sophie) Kjoller from doing anything to interfere or impede the council from carrying out the work if she failed to do so and to recover its costs of carrying out the work. 6 The Amended Summons seeks new orders which in effect permit Mrs Kjoller more time to clean up the front and rear of the property the subject of these proceedings and permit an increased area for her to engage in her pastime of potting and propagating plants. 7 Because the Court cannot make declaratory orders without first being satisfied that to do so is appropriate, the parties must tender sufficient evidence for the Court to be satisfied (Shoalhaven City Council v FB & FA McMahon Pty Ltd and Kel Campbell Pty Ltd [2009] NSWLEC 122 at [2]). 8 The earlier orders were made by the Court pursuant to an appeal filed by Mrs Kjoller against an initial council order issued on 11 March 2008 requiring Mrs Kjoller to ("the council order"): (1) remove rubbish boxes, newspapers, bags, pots and pot plants from the front and back of her premises at 8 Windred Street, Orange (Lot 22 DP 545034) ("the property"); and (2) to cut and maintain all grass and other vegetation at the front and rear of the property to a height of no more than 5 cm. 9 The reason for the council order was because the premises were not in a safe or healthy condition. 10 Mrs Kjoller sought to appeal against the imposition of the council order in the Land and Environment Court. The appeal was heard by Commissioner Brown and was conducted by way of an on-site hearing. A description of what Commissioner Brown observed during the proceedings is as follows (Kjoller v Orange City Council at [6] but omitting Attachment 1): [6] The site was inspected with Mrs Kjoller, Mr James Taylor, the council's solicitor and Mr Martin Hebold, an officer of the council. Mr Hebold helpfully prepared a document that provided a sketch of the site identifying different areas and the specific areas of concern for each area (see Attachment 1). This can be summarised as: Area 1 : the front yard containing newspapers, Area 2 : the front yard containing boxes, including foam boxes, glass jars, newspapers and other miscellaneous materials, Area 3 : the front yard containing boxes with books, newspapers, clothes, fruit and vegetables and other miscellaneous materials, Area 4 : the western side of the dwelling containing boxes with glass jars, car wheels and tyres, lawnmower parts and other miscellaneous materials, Area 5 : the rear of the dwelling containing boxes with various materials, miscellaneous furniture items and some plant and equipment, Area 6 : the rear yard containing foam boxes lined with plastic sheeting containing pot plants and water and empty pots, Area 7 : the eastern side of the rear yard containing rabbit cages, garden furniture, children's play equipment, lawnmowers, ladders and some boxes with plants, Area 8 : the eastern side of the rear yard being generally overgrown and containing some rabbit cages and building materials, Area 9 : the rear yard containing a large pile of vegetative material and being generally overgrown, Area 10 : the rear yard being a previous vegetable patch but now in an overgrown state, and Area 11 : along the rear property boundary containing piles of grass clippings, vegetative material, shredded newspaper and overgrown vegetation. 11 A discussion between the parties resulted in an agreed timetable to clean up and tidy the property which resulted in the earlier orders being made. The earlier orders were (omitting Attachment 1): 1) Areas 1, 2, 3 and 4 shown on Attachment 1 - rubbish to be removed and the areas left in a clean and tidy condition within 3 weeks from the date of this Order (that is by, 7 August 2008). 2) Area 4 shown on Attachment 1 - the glass jars are to placed in foam boxes and stacked in a single row against the western wall of the dwelling to a height not exceeding 1.5 m above natural ground level within 4 weeks from the date of this Order (that is by, 14 August 2008). All other glass jars are to be removed from the site. 3) Area 6 shown on Attachment 1 - the plants and pots are to be located within an area defined by the existing clothes line and the three trees located to the south and east of the existing clothes line and the western boundary as shown as Area A (hatched) on Attachment 1 within 7 weeks from the date of this Order (that is by, 28 August 2008). All other potted plants and pots are to be removed from the site. 4) Areas 5, 6 and 7 shown on Attachment 1 - rubbish to be removed and the areas left in a clean and tidy condition within 8 weeks from the date of this Order (that is by, 4 September 2008). 5) Areas 8, 9 and 10 shown on Attachment 1 - rubbish, including the disused water tank is to be removed and the areas left in a clean and tidy condition the within 10 weeks from the date of this Order (that is by, 4 September 2008). 6) Area 11 shown on Attachment 1 - this area may be maintained as a compost area subject to there being no increase in width or height. 7) All buildings or structures in the rear yard are to be made good and repaired to a safe condition or removed from the site within 13 weeks from the date of this Order (that is by, 18 September 2008). 8) All lawns are to be cut regularly and kept in a neat and tidy condition. 9) All normal domestic articles such as ladders etc are to be stored in a neat and orderly fashion and in an unobtrusive location. 10) The council may inspect the property at the conclusion of each target date and if so, the council is to advise the applicant of whether compliance has been achieved, or what is required to achieve compliance. 12 However, in the intervening period since the earlier orders were made the council complains that little has been done by Mrs Kjoller to comply with them. Thus the filing of the original summons in this Court. Evidence of Mr Martin Hebold 13 The council relied on an affidavit of Mr Martin Hebold sworn 19 June 2009. Mr Hebold is the Health and Building Team Leader for the council. It was he who, pursuant to a complaint being made, inspected the property on 10 December 2007 and observed the state of the property which, in his opinion, caused him to form the view that it posed a risk to health and safety. He formed this opinion because the front and back yards may have contained vermin and provided a suitable habitat for mosquitos to breed. 14 It was his opinion which resulted in the council order being issued on 11 March 2008 requiring Mrs Kjoller to clean up her property. 15 Mr Hebold deposed that after the original order was made, he inspected the property on numerous occasions in August, September, October and November 2008 and in January and March 2009 and he observed during the course of these inspections that little, if any, progress had been made by Mrs Kjoller to comply with the earlier orders. 16 As at the date of the swearing of his affidavit in June 2009, Mr Hebold deposed that in his opinion the property continued to pose a risk to public health and safety because: (i) the newspapers, clothes, books, foam boxes, fruit, vegetables, tyres, lawnmower parts, pot plants, building materials, rabbit cage, the overgrown vegetation, pile of vegetative matter may harbour vermin; (ii) the vegetative matter may provide sustenance for vermin; (iii) the boxes lined with plastic sheeting in Area 6 provide a suitable habitat for mosquitos to breed; and (iv) the grass clippings covering the ground omit a strong odour of rotting vegetation. Evidence of Mrs Kjoller 17 Mrs Sophia Kjoller relied on two affidavits sworn by her on 11 August 2009 and 15 October 2009. 18 In these affidavits Mrs Kjoller deposed that: (a) she was in poor health and indeed had suffered a number of illnesses since the earlier orders had been made including arthritis, breast and bowel cancer (which were now in remission) and problems with her knees and left shoulder. By way of support Mrs Kjoller tendered medical evidence from Dr Marja deJong dated 11 August 2009 that stated that Mrs Kjoller had arthritis and had a past history of cancer, two reports of the Greater Western Area Health Service dated 16 July 2008 and 23 September 2008 and a report from Central West Radiology dated 22 October 2008 confirming the injury to Mrs Kjoller's left shoulder;