Posted on May 16, 2013 by

Court Upholds Council Order that ‘Clearly Enough’ Required Demolition

The NSW Court of Appeal (Court) has unanimously upheld the validity of an order issued by Narrabri Shire Council (Council) requiring a property owner (Appellant) to restore land to a safe and healthy condition. Although the notice did not identify what work was necessary, the Court held it was ‘clear enough’ that it required the demolition of fire damaged buildings and structures on the property that contained asbestos.

The Court’s decision in McNeil v Narrabri Shire Council [2013] NSWCA 112 is particularly interesting because Council’s order was made pursuant to Item 21 of Section 124 of the Local Government Act 1993 (Local Government Act) which does not expressly invest Council with any power to order demolition and the fact that the case arose in circumstances where the Council had been forced to carry out the demolition work itself and recover its costs as a debt due.

The Facts

The Appellant owned the Property, consisting of two separate parcels of land – Lots 1 and 2 respectively – upon which was situated a shop with an attached residence, and various other smaller structures. The Appellant’s father had used the shop as a bakery before it closed in the 1980’s with all equipment left in situ. From 2003 to 2006, part of the shop building was operated as a pizza shop with Council approval.

On 29 January 2006, the shop front and residential part of the building were largely destroyed by a fire. On 7 February 2006, Council gave the Appellant a clean-up notice under s 91 of the Protection of the Environment Operations Act 1997 (Protection Act). The clean-up notice was stated to apply to the ‘land at Lot 1, DP 998352, 61 Rose Street, Wee Waa’.

The clean-up notice stated that the land had been contaminated with friable asbestos as a result of the fire and required the Appellant to cease all current clean-up activities. The clean-up notice further required the Appellant to engage an appropriately licensed contractor to carry out clean-up work within 14 days in compliance with the Protection Act and other statutory provisions. The clean-up notice stated that failure to comply would result in Council completing the required works and recovering its costs from the Appellant.

Section 124 Order

An extension was allowed requiring the Appellant to complete all works by the end of May 2006. Nevertheless, the clean-up works were not completed by that time and 0n 23 June 2006, the Council gave notification under s 132 of the Local Government Act of a proposed order under s 124 (s 132 notice). The s 132 notice stated that the proposed order under s 124 would apply to the site known as ‘Lot 1, DP 998352, 61 Rose Street, Wee Waa’ and that the proposed order would require the ‘Restoration of the land to a safe and healthy condition‘ in accordance with the following three requirements:

• “An appropriately licensed contractor is required to undertake all clean-up works associated with the site to restore safe and healthy conditions.

• All clean-up activities … are to comply with the [Protection of Environment Act], as well as associated regulations … and any other relevant statutory requirements.

• The contractor is to provide the Council with a written report of all clean-up activities being undertaken in relation to the above mentioned land.”

The s 132 notice stated that the proposed order under s 124 would specify a period of 28 days for compliance but Council would not make the proposed order if the works required by the s 132 notice were completed by 7 July 2006. The required clean-up works were not completed by that time, and Council gave the Appellant a document purporting to be an order under s 124 (s 124 order) on 7 July 2006. Once again, no reference was made to Lot 2 of the Property. The stated reason for the order was that ‘[the Property] was not in a safe and healthy condition as a result of the presence of a dilapidated structure and the presence of friable asbestos waste’.

Council completes the demolition

Although the s 124 order did not exactly mirror the proposed terms of the s 132 notice, it did include the three (3) requirements listed above. The Appellant took no steps to appeal against the s 124 order and failed to comply with the requirements within the specified period. Accordingly on 11 October 2006 the Council sent a letter notifying the Appellant of its intention to enter the Property for the purposes of carrying out the terms of the order pursuant to s 678 of the Local Government Act.

Between 16 and 19 October 2006, Council’s contractors cleared the Property – demolishing all buildings and structures. Council subsequently succeeded in recovering its costs in the District Court in the sum of $40,687.26 plus interest . The Appellant’s cross-claim for trespass was dismissed.

The case before the Court of Appeal

Four contentions were pressed by the Appellant on appeal as follows:

1. The s 124 order was invalid and a nullity because it did not order [the Appellant] to do, or refrain from doing, anything.
2. Section 124 and item 21 of the table in s 124 do not authorise an order requiring demolition or removal of a building.
3. The s 124 order, even if otherwise valid and effective in relation to Lot 1, was ineffective in relation to Lot 2.
4. The s 124 order was invalid and a nullity because it was based on the premise that friable asbestos material was present on the Property, in circumstances where a finding should have been made that there was no friable asbestos on the Property.

1. The s 124 order does not require anything to be done

In addressing this argument Emmett JA, with whom the other judges agreed, said [my emphasis]:

‘The s 124 order is infelicitous in its expression. Comparison with s 132 notice indicates that it is likely that the drafter of the s 124 order may have inadvertently omitted several lines. Thus the s 124 order does not use, in its statement of what is required to be done, the precise words “[r]estoration of the land to a safe and healthy condition”, as had been foreshadowed in the s 132 notice.

Nevertheless, the terms of the s 124 order achieve the same effect of requiring restoration of the land to a safe and healthy condition…

While no specific work is stated in the s 124 order as being necessary or adequate to restore safe and healthy conditions, the requirement to do so must be understood in the light of the reason given for the issue of the s 124 order. That is to say, the reason given is that the Property is not in a safe and healthy condition, as a result of the presence of a dilapidated structure and the presence of friable asbestos waste. It is clear enough that the s 124 order was saying that, in order to restore and healthy conditions, it was necessary to remove the dilapidated structure and friable asbestos waste.

Accordingly, the s 124 order is clear enough in identifying what it is that the Council was ordering [the Appellant] to do’.

The Court’s ruling on this point is particularly interesting when contrasted with the relatively more literal and strict approach to s 124 orders it has taken in the recent past. See for example the case of Bobolas v Waverley Council [2012] NSWCA 126, where a differently constituted Court of Appeal held that the council’s s 124 order was invalid for ‘failure to convey any requirement for immediate implementation or compliance’. In that case the relevant s 124 order had been expressed ‘in terms of futurity’ (referring to a ‘proposed order’) and created the impression that the order was still to be given.

For our previous discussion of the Bobolas decision see here.

2. No power to require demolition

Moving to the second of the Appellant’s contentions, the Court rejected the Appellant’s argument that the express reference to demolition and removal of buildings in Item 1 of the Table indicated that subsequent items, including item 21, should be read down so as not to authorise an order requiring demolition or removal. The Court explained that Items 1 and 21 were directed to different circumstances and that although these circumstances may conceivably overlap in a particular case, it is not necessary that they must do so before council can validly order the demolition or removal of buildings under Item 21. It is sufficient that in the circumstances,  the demolition or removal is required to ensure that land or premises are placed (or kept) in safe or healthy condition.

3. Effect of order on Lot 2

This contention hinged on the failure of the s 132 notice and s 124 order to expressly refer to Lot 2. The Court rejected this third contention swiftly by stating:

‘While there are apparently two separate cadastral parcels, there has been no suggestion that they are treated as separate premises. The two parcels together make up the property known as 61 Rose Street, Wee Waa. On a fair reading of the s 132 notice and the s 124 order, it is clear that, notwithstanding that there is express reference to Lot 1 and no reference to Lot 2 in the two instruments, the site that is the subject of both instruments is the rectangular property known as 61 Rose Street, Wee Waa which includes both Lot 1 and Lot 2.

… While the failure to refer to Lot 2 is indicative of less than ideal administration on the part of Council, the omission does not invalidate the s 124 order’.

Once again, the Court took a relatively flexible approach to the order.

4. No friable asbestos material

The Court rejected the Appellant’s final contention by ruling that the primary judge had sufficient evidence to conclude that friable asbestos material was present on the Property. The Appellant had argued that the presence of friable asbestos was a jurisdictional fact which conditioned the valid exercise of Council’s power to make an order under s 124. The Court held that Council was entitled to presume that its s 124 order was valid, and that the Appellant bore the onus of adducing evidence to the contrary. Ultimately the Court was unconvinced by the Appellant’s evidence on this point and accordingly found that he had failed to meet the evidentiary onus.

Going forward

The Court’s decision represents a more liberal approach to the interpretation of the requirements for orders and notices than in some recent cases like Bobolas. Nevertheless councils would be unwise to treat the case as any licence to take a shorthand or relaxed approach to the drafting of such documents as the exercise of statutory notice powers are usually construed narrowly. It seems to this writer that the particular circumstances of this case (Council recovering costs for work conducted), may have made an unstated contribution to the somewhat liberal approach taken by the Court.

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