Hawkesbury City Council v Dundler and Another [2005] NSWLEC 662

Hawkesbury City Council v Dundler and Another [2005] NSWLEC 662

The respondents had not complied with the council orders and the premises, lacking usable sewerage and potable water and being in an insanitary state, posed a significant health risk. The second respondent was the occupant and cause of the condition, so he should be required to vacate and restrained from re-entering until water and sewerage services were available. Because orders requiring the respondents to clean up would be futile given their lack of means, it was appropriate to order the Council to enter and clean the premises under s 678(10). The Court lacked jurisdiction to order sale of the premises because sale was not ancillary to enforcing compliance and was not necessary to...

Jurisdiction
Australia
Judgment Date
01 August 2005
Procedural Posture
Amended Application for Declarations and Orders Concerning Non Compliance With Local Government Act Orders and Unsanitary Premises / Ex Tempore Judgment
Outcome
Declarations and orders made for non-compliance, vacation and restraint of the second respondent, Council cleanup, costs against both respondents, and return of exhibits; the requested order requiring sale of the premises was refused for lack of jurisdiction.
Legal Topics
['injunctions and Declarations' 'unsanitary Premises' 'failure to Comply With Council Orders' 'occupation of Premises Without Water or Sewerage Services' 'ancillary Jurisdiction' 'costs']
['local Government' 'land and Environment' 'public Health' 'civil Procedure'] ['injunctions and Declarations' 'unsanitary Premises' 'failure to Comply With Council Orders' 'occupation of Premises Without Water or Sewerage Services' 'ancillary Jurisdiction' 'costs']

Case Brief

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Procedural Posture

Amended Application for Declarations and Orders Concerning Non Compliance With Local Government Act Orders and Unsanitary Premises / Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether the first and second respondents failed to comply with Order No 21 dated 8 December 2004 and Orders Nos 21 and 22 dated 15 June 2005 issued under s 124 of the Local Government Act 1993.' 'Whether the condition of the premises posed a significant risk to the health of the occupant and the public so as to justify restraining the second respondent from occupying the premises.' 'Whether the Court should order the Council to enter the land and remove rubbish, waste, vermin and debris under s 678(10) of the Local Government Act 1993.' 'Whether the Court had jurisdiction under s 16(1A) or s 20(2) of the Land and Environment Court Act 1979 to order the first respondent to sell the premises.' 'Whether costs should be ordered against both respondents.']

Ratio Decidendi

The respondents had not complied with the council orders and the premises, lacking usable sewerage and potable water and being in an insanitary state, posed a significant health risk. The second respondent was the occupant and cause of the condition, so he should be required to vacate and restrained from re-entering until water and sewerage services were available. Because orders requiring the respondents to clean up would be futile given their lack of means, it was appropriate to order the Council to enter and clean the premises under s 678(10). The Court lacked jurisdiction to order sale of the premises because sale was not ancillary to enforcing compliance and was not necessary to...

Court Disposition

Declarations and orders made for non-compliance, vacation and restraint of the second respondent, Council cleanup, costs against both respondents, and return of exhibits; the requested order requiring sale of the premises was refused for lack of jurisdiction.

Orders

  • ['A declaration that the first and second respondents have not complied with the Order No 21 issued pursuant to section 124 of the Local Government Act 1993 dated 8 December 2004, to do things to ensure that the premises known as Lot 16 DP 238403, known as 278 Terrace Road North Richmond are placed or kept in a safe...