Orange City Council v Kjoller

Land and Environment Court (NSW)|2009-10-20|Before: Pepper J, Mr P

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;

(b) that the property was large and that she found it "a lot for one person to manage";

(c) that some attempts had been made by her to deal with the grass and weeds at the front and rear of the property and to remove the rubbish at the front of the premises but that it had been replaced by other rubbish and that the grass and weeds continued to grow despite her attempts to remove them;

(d) that any vermin in her yard were likely to have come from the lot next door which was unkempt and had building rubbish on it (photos were provided);

(e) that other properties situated nearby particularly a property across the road was also unkempt and had grass that was very high growing on it; and (f) that in her view the council were harassing her despite the fact that she had made some attempts to comply with the orders, albeit late and incomplete due to illness. 19 Under cross examination Mrs Kjoller stated: (a) first, that she owns three properties: the property the subject of the proceedings, another house in Orange that was "dilapidated" and uninhabited and a farm (which comprised of land only). These had been given to her pursuant to a property settlement with her former husband, the terms of which were unclear;

(b) second, that she owed money on a loan taken out in her son and his wife's name to St George Bank. The loan was for approximately $120,000. Mrs Kjoller was not able to say how much remained to be paid but she told the Court that she was paying approximately $200 off per week in relation to the loan, and moreover, that she owed approximately $100,000 to her mother which had been given to her in the form of various loans. Again, the details of this debt were vague;

(c) third, that there had been an attempt to comply with the orders but that she had found this difficult due to her poor health, bad weather and the size of the property; (d) fourth, that in her opinion she had largely complied with the orders but she conceded that there was still more to be done and that total compliance had not been achieved;

(e) fifth, that her daughter and son had been giving her assistance where possible and that she anticipated that this would continue; and

(f) sixth, that with their assistance she could achieve compliance with the orders "by Christmas" at the latest. 20 Mrs Kjoller further relied on an affidavit from her daughter, Ms Lisa Kjoller, sworn 18 August 2009 and a letter from her dated 19 October 2009. This evidence attested to the assistance that she had been giving her mother with her garden generally and to her mother's ill health. Ms Lisa Kjoller also made observations about other properties nearby that were in a poor state, in particular, the house across the road that had, according to her, two metre high grass. 21 Finally, the respondent relied on an affidavit of Ms Judi Zerbst sworn 11 August 2009, who deposed that she had been Mrs Kjoller's next door neighbour for approximately 11 months and that there had never been any litter or material coming from her yard into Ms Zerbst's yard, that no odours emanated from Mrs Kjoller's yard and that there were other properties nearby that were "no worse than Sophia's". Site Visit 22 A site visit took place during the proceedings to the property. It confirmed many of the observations made by Mr Hebold in his affidavit concerning the state of the property. It also confirmed Mrs Kjoller's evidence about the large area of the property. Consideration 23 Based on the evidence that has been presented to the Court, I find that it is appropriate in all the circumstances to make the declaration sought by the council and which is consented to by Mrs Kjoller. 24 I also find it appropriate to make the other orders in the Amended Summons that have been sought by the council and which have also been consented to by Mrs Kjoller. 25 In so finding, I acknowledge that there has been some attempt by Mrs Kjoller to comply with the earlier orders made by Commission Brown. But the fact remains that there has not been compliance with the majority of these orders despite the urgings of council and despite more time being given to Mrs Kjoller to comply. Mrs Kjoller has conceded as much in relation to orders 1, 2 and 4. I accept that Mrs Kjoller has been impeded, in part, by complying fully with the earlier orders due to her ill health. 26 I therefore propose to make the orders in the Amended Summons. Orders 27 By consent the orders of the Court are: (1) the Court declares that the respondent has failed to comply with the terms of orders 1, 2, 3, 4, 5 and 8 of orders issued pursuant to s 124 of the Local Government Act 1993, order no. 21 and dated 11 March 2008 and modified by the Land and Environment Court on 17 July 2008 ("the Order");

(2) the Court orders that the respondent carry out the terms of orders 1, 2, 3, 4, 5, 6, 8 and 9 of the Order by 31 January 2010;

(3) in order to comply with order 2 hereof the respondent shall: (a) cut, slash or remove all grass and weeds. Any cut grass may remain on the ground or be mulched provided it is managed so as not to cause or result in odour or vermin harbourage and subject to paragraph 7(d) hereof;

(b) remove all rubbish, boxes, loose material, books, clothing and linen material and food stuffs from areas 1, 2 and 3 of Attachment 1;

(d) place all potted plants neatly in rows in the area defined in the plan attached hereto ("Area A") and they may be kept in foam boxes provided the boxes are also neatly placed in rows in that area;

(e) all rubbish is to be removed from areas 5, 6, 7, 8, 9 and 10;

(f) take all reasonable steps to ensure that water is not standing in containers of any description so as to attract mosquitos;

(g) ensure that all areas 1 to 10 are kept in neat and tidy condition;

(h) ensure that any mulch materials are stored or kept in the rear yard and not in the front yard and ensure it is managed so as not to cause or result in odour or vermin harbourage; (4) the Court further orders that the respondent pay council's costs as agreed or assessed;

(5) the Court notes that the council has provided to the respondent extracts of Orange DCP and SEPP (Exempt and Complying Development) with the provisions relating to sheds and shading structures and devices, and that the council will make available to the respondent a planning officer at the council during usual business hours to advise the respondent as to whether any proposal she may have requires development consent;

(6) the Court grants liberty to the parties to apply to the Court to vary these orders or to seek further orders to enable compliance upon three days' notice to the other party; and

(7) the Court notes that: (a) the council agrees that any communication in the nature of an order or instruction relating to these proceedings or the Order shall be made or confirmed in writing;

(b) subject to any order of the Court the council shall give not less than 48 hours' notice in writing of any proposed inspection of the respondent's property;

(d) the council agrees that newspaper may be used together with weed mats, hay, lucerne, grass or the like for the purpose of weed suppression provided it is managed so as not to cause or result in odour or vermin harbourage, and in any event the organic material shall not be more than 2 inches (5 centimetres) thick. **********

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.

CITATION : Orange City Council v Kjoller [2009] NSWLEC 184

CASES CITED: Kjoller v Orange City Council [2008] NSWLEC 1297 Shoalhaven City Council v FB & FA McMahon Pty Ltd and Kel Campbell Pty Ltd [2009] NSWLEC 122

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