LOCAL GOVERNMENT — orders — s 124 Local Government Act 1993 (NSW) — asbestos contamination after fire to property — orders requiring premises in safe condition — whether orders valid — whether the defendant complied with orders — Council entry and remediation under s 678 — debt recovery — judgment for the plaintiff
TORTS — trespass — cross-claim — Council entry onto private property — demolition of fire-damaged property — asbestos contamination — whether Council authorised to enter — whether procedural fairness denied — s 43A Civil Liability Act 2002 (NSW) — whether bars cross-claim — cross-claim is dismissed
DAMAGES — post-fire demolition — betterment principle — whether deduction for betterment applicable — method of calculation
Quick Take
1Section 43A of the Civil Liability Act 2002 (NSW) has no application to a claim in trespass because the liability alleged is based on the asserted unlawfulness of entry onto land, not on the exercise or failure to exercise a special statutory power; the statutory power is relied upon only as justification, not as the basis of the claim.
2An emergency order under s 124 of the Local Government Act 1993 (NSW) is valid where it conveys to a reasonable reader what must be done to comply, notwithstanding minor ambiguities in dating, and the statutory scheme in ss 129-135 expressly displaces any additional common law obligation to afford procedural fairness when the order is given in an emergency.
3Where a property owner fails to comply with a valid emergency order, the council's exercise of power under s 678 of the Local Government Act 1993 (NSW) to enter and carry out works including demolition does not constitute trespass, and the obligation to give notice of entry under s 193 is displaced where entry is required because of a serious risk to health or safety.
