“You look like an 11 year old, walk like an 11 year old, talk like an 11 year old. But you’re a lobbyist in disguise”
The title of this article; a takeoff from Elvis Presley’s song “Devil in Disguise.” Following the Parkes Elvis Festival which I went to recently, it seems the songs are still in my head.
But it also seems that to get anything done these days you have to be small, about 11 years old and a just a little bit feisty. That appears to be the case with Parramatta Council anyway.
On returning home from my very…err… ‘entertaining’ trip to Parkes, I noticed in the foyer of my apartment building that a member of the Executive Committee, or perhaps the Strata Manager, had posted a cut-out of a newspaper article, no doubt as a warning to owners and tenants. The headline of the article read:
“Laith’s call gets council attention.”
The body of the article detailed how within days of Laith, an 11 year old boy, complaining about rubbish and discarded furniture being dumped in his street, Parramatta Council moved to crack down on illegal dumpers. Well done Laith!
A media release on Council’s website dated 7 December 2009 read “Residents and body corporations who are suspected of illegally dumping rubbish in public spaces will now be issued a Clean-Up Notice and have to pay $433. If they fail to comply with the Clean-Up Notice, an on the spot fine of $750 for individuals and $1500 for corporations will be imposed.”
Another media release on Council’s website dated 14 December 2009 detailed Parramatta City Council’s Lord Mayor, Cr Paul Garrard, urging residents to “dob in a dumper” via the hotline 1800-DUMPED. Although the phone number sounds more like a practical joke you would use on a bad date, it does give Council rangers a ‘tip-off’ line to pursue its promised “covert operations throughout Parramatta to catch offenders in the act.”
In my opinion, there are very few other words that are as exciting as “covert operations,” so I was immediately sucked in by intrigue. However, on reading the newspaper article and the media releases further I became concerned with the use of the word “suspected.” That word suggested that it wouldn’t need to be ‘proven’ that an Owners Corporation had dumped, or been responsible for dumping, rubbish in a street – a Notice and fine could simply be issued on suspicion. If that was the case, procedural fairness was in jeopardy and I too decided to call for council attention.
The wind was knocked out of my sails, however, when Council confirmed that the media releases were a bit unclear and that Clean-Up Notices and fines would only be issued where a resident or Owners Corporation was found guilty of dumping rubbish on a street.
The question remains, however, how do you prove such guilt? Council advised that in order to ascertain who was responsible for rubbish dumping, Council Rangers would investigate the matter in a number of ways and then decide whether there is sufficient evidence of guilt. Such ways include going through the rubbish dumping to see if there are any indications of identity, i.e. paperwork, matches in the type of rubbish dumped and normal rubbish coming from the premises. Neighbours or eye witnesses would also be questioned. Closed circuit cameras in busier areas would also be checked.
Once the evidence is collected, it is then the Council Ranger’s job to decide who’s guilty. But how much evidence is enough evidence for such a decision? What are the criteria against which the ranger will measure his or her decision? We have been informed that as long as there is enough evidence to lead the Ranger to “reasonably suspect” the guilt of a person, then a Clean-Up Notice can be issued. We are advised, however, that this will not usually happen before a warning and request for a cleanup is given.
So, if a person is considered to be guilty of illegally dumping rubbish on a street they will be issued a Clean-Up Notice under section 91 of the Protection of the Environment Operations Act 1997 and will be required to pay an administration fee of $433 (yes, you get to pay for the privilege of receiving the Notice). If that person fails to comply with the Clean-Up notice, another fine will follow, being $750 for individuals and $1500 for corporations.
We have not looked into the situation with other councils or suburbs. However, walking around the streets of Parramatta there seems to always be rubbish dumped on a street somewhere at some time. It must be asked, how do you stop someone else from dumping rubbish outside your house or strata plan? What does an Owners Corporation, or the strata manager, do when it disputes a Clean-Up Notice and fine issued by Council for illegally dumping rubbish?
Well, Council asserts that there is no right of appeal against a Clean-Up Notice! Amazingly this is reiterated in one of the fact sheets on the Department of Environment, Climate Change and Water website and other government publications. We do not feel this is correct. One of the fundamentals of administrative law is that administrative decisions must be a proper decision made appropriately, therefore subject to review. Council is at least required to afford procedural fairness, the lack of which can be a basis for appeal in itself.
However, Parramatta City Council has advised that if a Clean Up Notice is issued to an Owners Corporation and the Owners Corporation wish to dispute it, they can call for Council to review the Notice for the purpose of revocation. The Owners Corporation will, however, be required to provide information and/or evidence to support its dispute. If Council refused to revoke the Notice, the next stop for the Owners Corporation will most likely be in the Land and Environment Court. The Court has the power to make orders of such kinds as the Court thinks appropriate, including reversal of orders from local councils. The down side of this is that the initial fee to make an application to the Court (if this type of matter is considered to be a Class 1 application) is $1,498 for a corporation. With no guarantee of success it is rarely worth it.
The fact of the matter is that there is little that an Owners Corporation can do to prevent other people from dumping rubbish in front of a Strata complex. Further, once rubbish has been dumped there is little that can be done to find out who it was. Council acknowledges the difficulty of this community problem. Thankfully, it appears (at least, we hope) that Council will only issue such notices and fines where there is clear evidence of who is responsible. However, as a preventative measure, the Owners Corporation can:
a) Inform owners and tenants of the consequences of dumping rubbish if it is a problem (as the case with my apartment block); and
b) Use this as a warning to all occupants that if any Clean-Up notices and/or fines are issued to the Owners Corporation a special levy will be raised to pay for the costs of compliance.
Depending on the severity of the offence, illegal dumping can attract fines from $750 up to $250,000. Knowledge of this and the warning of a special levy might give some incentive to all occupants to keep an eye out for dumpers.
This week’s Common Property Newsletter was authored by Shannon Lakic a solicitor with ACP/Leverage.
Shannon Lakic
B.Media; LLB,Cert IV TAA
Leverage Australia
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