Posted on August 8, 2016 by Michael Levy

Don’t you forget about me – who to commence civil enforcement proceedings against

The Land and Environment Court this week adjourned civil enforcement proceedings brought by a Council against an alleged perpetrator and ordered the Council to amend its summons to join an additional party to the proceedings.

The joinder of the additional party was required as Council was seeking declaratory and injunctive relief against the owner of a shipping container for a failure to comply with a s121B order in circumstances where the shipping container was stored on land owned by a third party.

Background

Mr Robert McAllister was the owner of the shipping container which he stored on land owned by his mother, Mrs Joan McAllister.

In September 2014, Council issued s121B orders to both Mr McAllister and Mrs McAllister which required them to cease using the premises to store the shipping container.

Mr McAllister subsequently lodged a DA with Council to allow him to continue to store the shipping container on the land.

The DA was refused by Council in December 2014 and Council commenced proceedings against Mr McAllister in December 2015 as the shipping container had remained on the land in breach of the order.

Should Mrs McAllister have been joined as a party to the proceedings?

Despite having issued Mrs McAllister with an identical s121B order to the order it had issued to Mr McAllister the Council chose not to bring proceedings against her due to her age and ill-health.

In considering whether Mrs McAllister should have been joined as a party to the proceedings Pepper J noted that there were five reasons why Mrs McAllister ought to be joined as a party by the Council.

At [10] of the judgment her Honour stated:

  1. The order requires Mr McAllister to cease using “the premises” to store the shipping container. The “premises” are owned by Mrs McAllister and as the owner of the land Mrs McAllister will be directly affected by the orders sought in the proceedings.
  2. Mrs McAllister could thwart her son’s compliance with the order by refusing entry onto her land of any machinery or persons necessary to give effect to the order.
  3. If the council sought, at a later juncture, an order for it to remove the shipping container itself, it would conceivably be committing a trespass if it were to enter onto Mrs McAllister’s property without her permission.
  4. The ownership of the contents of the shipping container is unknown and is a matter of concern to the Court because some or all of the items stored within the shipping container may belong to Mrs McAllister.
  5. It is not enough to simply presume that Mrs McAllister is aware of the proceedings.

Key message

This case affirms the principle which we discussed in our previous blog about the case of Ross v Lane Cove Council [2014] NSWCA 50 that a person who is directly affected by the orders sought in a proceeding is a necessary party, and that the obligation to join that person rests upon the person applying for those orders.

Therefore, when Councils commence civil enforcement proceedings against an alleged perpetrator, it is critical that if the alleged illegal activities occurred on land owned by a third party, the Council joins that landowner to the proceedings so that any orders obtained from the Court which will require entry onto the land can be given effect to.