Posted on September 30, 2020 by Katie Mortimer and Stuart Simington
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A reminder about the enforcement of Local Government Act Orders
We are often asked to advise clients on the issuing and enforcement of orders pursuant to s124 of the Local Government Act 1993 (LG Act).
A recent decision serves as a reminder that if LG Act orders are not complied with, councils can take steps to seek orders from the Land and Environment Court requiring the recipient to comply. In the event of non-compliance with those Court orders, councils can also seek orders that permit them to enter premises, carry out the necessary works, and recover their costs of doing so as a debt from the recipient.
A Failure to comply with a Clean-Up Order
Gunnedah Shire Council served clean-up orders on a landowner pursuant to order number 21, s124 of the LG Act (Clean-Up Orders). The Clean-Up Orders required the landowner to clean up premises in order to render them safe and healthy. The landowner did not comply.
The Council commenced civil enforcement proceedings in the Land and Environment Court pursuant to s676 of the LG Act, seeking:
- a declaration that the landowner had breached the LG Act by failing to comply with the Clean-Up Orders, and
- that the Court make orders requiring the landowner to carry out, or cause to be carried out specified works that would return the subject premises to a safe or healthy condition.
In addition, the Council sought orders permitting it to do all things necessary or convenient to give effect to the Clean-Up Orders, and recover its costs of doing so, in the event that the landowner did not comply by a specified time (known as a Substituted Performance Order).
The Court was satisfied from the Council’s evidence that an accumulation of metallic materials and growth of vegetation on the relevant land had caused the premises to not be safe and healthy, and that it was appropriate for the Council’s proposed orders to be made.
The Court also awarded the Council a fixed sum of its costs incurred in the proceedings.
Enforcement of Orders
In our experience, civil enforcement proceedings are often the best mechanism to ensure that an order is complied with.
The recipient will usually give more weight to orders that have been made by the Court. However in the event that an order continues not to be complied with, having the benefit of a Substituted Performance Order will permit the council to rectify the situation, and enable it to seek recovery of any expenses incurred in doing so (see s678(6), LG Act).
Read the Court’s decision in full here: Gunnedah Shire Council v Woodhead [2020] NSWLEC 131
If you have any questions regarding this post please contact Katie Mortimer on 8235 9716 or Stuart Simington on 8235 9704.
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