Orange City Council v Kjoller

Land and Environment Court (NSW)|2010-07-05|Before: Pepper J

Introduction 1 HER HONOUR: This is a notice of motion filed by the Orange City Council ("the council") on 14 May 2010, seeking an order pursuant to s 678 of the Local Government Act 1993 ("the Act"), that the council be permitted to carry out works ordered in earlier proceedings by this Court on 20 October 2009 ("the earlier orders") (Orange City Council v Kjoller [2009] NSWLEC 184 - "the 2009 Kjoller decision"). 2 In addition, the council seeks an injunction restraining Mrs Kjoller from doing anything which might interfere with or impede the council complying with the earlier orders 3 In my opinion, the evidence warrants the making of the orders sought by the council. The Proceedings are Ex Parte 4 Notwithstanding her presence at the hearing of the 2009 Kjoller decision, Mrs Kjoller did not appear before the Court. The matter was called three times outside the court room but there was no response. 5 Medical certificates dated 24 May and 25 June 2010 were tendered by the council from Dr Marja deJong written on behalf of Mrs Kjoller. These certificates were to the effect that she was unwell, suffering from arthritis and diabetes and that as at May - but not June - she was unfit to attend Court. The medical certificates had been delivered to the Court the morning of the hearing. No application to adjourn the proceedings accompanied them. 6 Earlier correspondence faxed to the Court on 20 May 2010, also referred to Mrs Kjoller's ill health and the anxiety that the proceedings were causing her. While that correspondence specifically requested that any hearing of the matter not take place on 1 June 2010, it did not state that she was generally unfit to attend Court. The correspondence also sought to vary the previous orders made on 20 October 2009, to which Mrs Kjoller now complains she was "coerced" to agree to. 7 From the bar table Mr Clay, appearing on behalf of the council, informed the Court that in a telephone call the morning of the hearing between his instructing solicitor, Ms Celia McMaster of McIntosh, McPhillamy & Co, and Mrs Kjoller, it was clear that Mrs Kjoller was aware of today's hearing date. This is consistent with a letter sent on 24 May 2010 from council's solicitors to Mrs Kjoller informing her of today's date and a similar letter to similar effect sent from the Court Registry on 21 May 2010. In the telephone call, Mrs Kjoller indicated that she was suffering from a mental issue and would be seeking day treatment at Cadia House ( a centre specialising in community mental health services) and could require admission to hospital. 8 While I have no doubt that Mrs Kjoller is generally in poor health, the Court has been presented with only the most generalised and second-hand evidence concerning the nature and extent of her illnesses. I am not satisfied that Mrs Kjoller is sufficiently unwell that she is unable to attend Court today, or unable to instruct someone to attend on her behalf, thereby warranting the postponement of today's hearing. 9 Given the continuing complaints from neighbours and the continuing potential threat to human safety that the property poses, I consider it appropriate to proceed with the hearing on an ex parte basis (Council of the City of Sydney v Le [2010] NSWLEC 78 at [2]-[4]). In my view, to do so promotes the overriding purpose of the "just, quick and cheap" resolution of the real issues for determination (s 56 of the Civil Procedure Act 2005). Factual and Procedural Background to Motion 10 The history of this matter is set out at [3]-[6] and [8]-[12] and [25] of the 2009 Kjoller decision. For the sake of convenience I adopt the terms defined therein. 11 As a result of an agreement reached by the parties on the last occasion, by consent the Court relevantly made the following orders in respect of the property (at [27]): (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;

(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

12 The council asserts that Mrs Kjoller has almost wholly failed to comply with orders 2 and 3 of the earlier orders. Evidence of the Council 13 The council relied on affidavits of Mr Martin Hebold, the Health and Building Team Leader at the council, sworn on 19 June and 14 October 2009, 11 May and 5 July 2010. A summary of Mr Hebold's affidavit sworn 19 June 2009 is contained at [13]-[16]. 14 In his affidavit sworn 14 October 2009, Mr Hebold attaches correspondence between the council and Mrs Kjoller. The correspondence includes orders served by the council on Mrs Kjoller to clean up the property, together with various extensions of time granted by it to comply with those orders. 15 In his affidavit sworn 11 May 2010, Mr Hebold deposed that on 5 February 2010, he and Council Ranger Dennis Hines attended the property to conduct an inspection of the front and backyard in order to ascertain if there had been compliance with the earlier orders. Mrs Kjoller did not permit either himself or Council Ranger Hines to enter the property for the purpose of the inspection. 16 As a consequence, Mr Hebold inspected the front yard of the property from the street and observed that parts of the yard and garden were overgrown and contained grass or weeds of greater than five cm height and that the yard contained cars, a shopping trolley and trailers, the latter of which appeared to be used to store materials. The area adjacent to the right hand side of the house contained foam and cardboard boxes and loose material stored in an untidy and disorderly manner. At the front of the house were boxes and unidentified loose material stored in a manner and in a quantity similar to his inspection on 10 March 2009. In general, Mr Hebold observed that the front of the house was not neat or tidy and contained many loose and disorderly items of refuse. 17 Mr Hebold was able to inspect the rear of Mrs Kjoller's property from the adjacent property, 10 Winfred Street. His observations of the rear of the property revealed that: (a) boxes, plastic drums, furniture items and garden tools were present in an untidy and haphazard manner;

(b) the yard contained plastic pots and foam boxes in which plants stored in a manner and volume similar to that which he observed on his inspection of 10 March 2009;

(c) parts of the yard contained overgrown weeds and bamboo in excess of five cm in height, rabbit cages, furniture, garden tools, lawn mowers, wooden and metal items, rolls of wire, mesh and tin, ladders, plastic bags, pot plants, foam boxes, a large bag of saw dust and numerous empty pots; and

(d) the sheds in the backyard were in a poor state of repair. 18 The photographs Mr Hebold took of the rear of the property corroborated this description. 19 Accordingly, it appeared to Mr Hebold that, with the exception of earlier order 3(h), none of the orders contained in order 3 (or, as a matter of inference, order 2) made by the Court on 20 October 2009 had been complied with. 20 Furthermore, based on his observations it was his opinion that the contents of the front and back yard of the property posed a risk to health and safety because of: (a) the volume and nature of materials stored in the front and back yard, which could harbour vermin; and

(b) the boxes lined with plastic and other containers provided a suitable habitat for mosquitoes to breed. 21 Mr Hebold further inspected the property from the street and from 10 Winfred Street on 22 March and 28 April 2010. On each occasion he observed conditions at the front and back yard of the property very similar, if not identical, to those seen by him on 5 February 2010. 22 Finally in his affidavit sworn 5 July 2010, Mr Hebold stated that when he sought to inspect the property on 28 June and 5 July 2010, save for an area towards the back of the property (areas 9 and 10 on the plan attached to the earlier orders) which had recently been dug up (an area of approximately 25m2), the property was in the same condition as that deposed to in his affidavit sworn on 11 May 2010. Statutory Framework 23 Section 678(1), (6) and (10) of the Local Government Act provide as follows: 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.

(6) Any expenses incurred by the council under this section (less the proceeds, if any, of any sale under this section) together with all its associated costs may be recovered by the council in any court of competent jurisdiction as a debt due to the council by the person concerned.

(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. 24 Section 678(10) grants the Court wide powers to make orders enabling a council to enter residential premises to clean them up, notwithstanding the presence of ss 191, 193 and 200 of the Act (Waverley Council v Bobolas (No 2) [2009] NSWLEC 211 at [3] and the authorities cited thereat). 25 Subject to the proscription of specificity by the party seeking orders pursuant to s 678(10) (Manly Council v Newton [2007] NSWLEC 768 at [24]), consideration of this provision has been unremarkable. Consideration Order Permitting the Council to Clean Up the Property

26 The evidence of Mr Hebold more than satisfies me that an order under s 678(10) of the Act permitting the council to take all steps necessary to give effect to earlier orders 2 and 3 is appropriate. 27 It is manifestly clear from the material before me that such an order is necessary to ensure that the potential health hazards identified by Mr Hebold as a result of the material and waste accumulated on the property do not transpire. 28 While I have no doubt that if she were present Mrs Kjoller would stridently object to the Court making such an order, the fact remains that Mrs Kjoller is in breach of the earlier orders, which were made with her consent and after considerable discussion between the parties. There is no evidence before me, and I do not accept, that she was in any way forced into agreeing to the making of the earlier orders. 29 While I acknowledge that some attempt has been made by Mrs Kjoller to comply with the earlier orders, these attempts have been inadequate. To the extent that this is explained by Mrs Kjoller's ill health, this reinforces the need, in my view, for the council to enter the property in order to execute the earlier orders made by the Court. That is to say, it is all the more appropriate that the Court makes the order sought by the council in light of Mrs Kjoller's incapacitation and inability to undertake the work herself. Injunctive Relief 30 I am also satisfied, in light of the evidence contained at paragraphs 4-6 of the affidavit of Mr Hebold sworn 11 May 2010, and the contents of Mrs Kjoller's correspondence dated 20 May 2010, that it is appropriate to grant the injunctive relief sought by the council (Tegra (NSW) Pty Limited v Gundagai Shire Council (2007) 160 LGERA 1 and Le at [12]) for such period of time as is necessary for the council to complete the works. There must, however, be a time limit within which these works are to be completed and thus the injunction is extant. Costs 31 The council seeks an order that Mrs Kjoller pay the costs and expenses associated with carrying out the earlier orders, pursuant to s 678(6) of the Act. In addition, it seeks an order that Mrs Kjoller pay the costs of the motion. 32 Again, I strongly suspect that were Mrs Kjoller before the Court she would oppose both costs orders primarily on the basis that she claims that she does not have the financial means to satisfy them. In her correspondence dated 20 May 2010, Mrs Kjoller states that she is on a disability support pension and that she has $1.05 in her bank account. No objective evidence was provided in support of these claims and Mrs Kjoller is not present to enable them to be tested. I give them very limited weight as a consquence. 33 Without more, Mrs Kjoller's purported inability to meet any costs order made in the council's favour is an insufficient basis for me to exercise my discretion to decline to make the orders. 34 Moreover, this is the third time that the matter has been brought before the Court by the council seeking orders to have the property cleaned up. On the previous occasions the council has, in my opinion, been generous and flexible in its attempts to resolve the proceedings in a manner agreeable to both parties. On each occasion its attempts have been subsequently rejected through non-compliance by Mrs Kjoller. The consequence of such a course of conduct is that the council is entitled to an order recompensing it for the costs it has incurred to date and will incur in the future in respect of the remediation of the property. There is no suggestion of any disentitling conduct on behalf of the council that would warrant any other costs order being made. Orders 35 In light of Mrs Kjoller's absence, and after helpful discussion with the council, the council agreed to the operation of the orders for the cleaning up of the property being stayed to permit Mrs Kjoller to make any application she wishes in respect of those orders. 36 The Court, therefore, makes orders in accordance with the short minutes of orders proffered by the council as follows: (1) that by 30 September 2010, the council, by its servants, contractors and agents, execute the council's functions under s 678 Local Government Act 1993 by carrying out the following work, being work required to be carried out by orders 2 and 3 of the orders of the Court made 20 October 2009 at 8 Windred St, Orange ( "the property"): (a) cut all grass and weeds in areas 1-10 of the plan annexed to the Court orders made on 20 October 2009 and marked "A" ("the plan") to a height of less than five centimetres; (b) stack foam boxes in a single row in area 4 of the plan against the western wall of the dwelling to a maximum height of 1.5 m above ground level; (c) remove all other boxes (foam or cardboard) and their contents from the property; (d) place glass jars within the foam boxes stored in area 4. Any excess glass jars are to be removed from the property; (e) place potted plants neatly in rows in the area defined as area "A" on the plan and dispose of those potted plants that do not fit within that area; (f) remove all rubbish from the front and back yards of the property including books, clothing, linen, materials, foodstuffs, building materials (including material stored on top of the sheds), disused equipment, disused or broken garden implements, broken play equipment, barrels, drums, buckets, shopping trolleys, plant pots, car and lawnmower parts, car wheels and broken lawn mowers; and (g) place all normal domestic articles so that they are stored in a neat and orderly fashion and in unobtrusive location;

(2) that Mrs Sophia Kjoller be restrained from doing, causing or permitting any act which might interfere with, or impede the entry by council on to the property and then remaining on the property pursuant to order 1 above or impede the council in complying with order 1 above. Subject to further order, this order 2 shall cease to have effect at 5 pm 30 September 2010;

(3) that Mrs Kjoller pay the council's costs and expenses associated with carrying out order 1 above pursuant to s 678(6) of the Local Government Act 1993;

(4) that Mrs Kjoller pay the council's costs of the motion filed 14 May 2010;

(5) that orders 1-4 above are stayed up to and including 19 August 2010;

(6) that the council give Mrs Kjoller not less than five days notice of when the work in order 1 above is to be carried out;

(7) that the council inform Mrs Kjoller of these orders in writing delivered today to the property;

(8) that these orders be taken out and served personally on Mrs Kjoller on or before 15 July 2010; and

(9) that liberty be granted to either party to restore the matter to the list on three 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.

CITATION : Orange City Council v Kjoller (No 2) [2010] NSWLEC 116

Manly Council v Newton [2007] NSWLEC 768 Orange City Council v Kjoller [2009] NSWLEC 184 CASES CITED: Waverley Council v Bobolas (No 2) [2009] NSWLEC 211 Council of the City of Sydney v Le [2010] NSWLEC 78 Tegra (NSW) Pty Limited v Gundagai Shire Council [2007] NSWLEC 806; (2007) 160 LGERA 1

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