Notice of Council's Intention to Serve an Order - 11 Heaton St Awaba

Notice of Council's Intention to Serve an Order (‘NOI’) Under Schedule 5, Part 6 of Environmental Planning and Assessment Act 1979 (NSW)

Council hereby gives notice under Schedule 5, Part 6 of the Environment Planning and Assessment Act 1979 (the ‘Act’) that we intend to serve an Order on the owner of the property known as 11 Heaton Street, AWABA NSW 2283 (Lot A DP 371352) (the ‘Premises’). The terms of the proposed Order, and the periods proposed to be specified as the periods within which the Order is to be complied with, are set out below.

The owner may make representations to Council’s Senior Compliance Officer in relation to the proposed Order, such as to why the proposed Order should not be given, or as to the terms of or period for compliance with the proposed Order. Any representations must be made to the Senior Compliance Officer within 14 days from the date of this NOI.

In making any representations regarding the proposed Order the owner may be represented by a barrister, solicitor, or agent.

Any representations that the owner makes will be heard and considered in accordance with the Act. After hearing and considering any representations made by the owner concerning the proposed Order, a determination may be made:

(a)      to give an order in accordance with the proposed Order; or

(b)      to give an Order in accordance with modifications made to the proposed Order; or

(c)      not to give an Order.

Should the owner require further information, please contact Council on 4921 0333.

Proposed Order

Orders are proposed under the Environmental Planning and Assessment Act 1979 (NSW) (the ‘Act’) pursuant to the following Items of the Table in Schedule 5.

As the owner of the property known as 11 Heaton Street, AWABA NSW 2283 (Lot A DP 371352) (the Premises), the Council of the City of Lake Macquarie hereby orders you to do the following:

Terms of Order – Item 3

1. To do all actions and things necessary to demolish the fire damaged buildings on the Premises within 28 days from the date of this Order. All work must be carried out in a proper and workmanlike manner by suitably qualified contractors or tradespeople, in accordance with NSW SafeWork practices and guidelines;  
   
   
2. To remove from the Premises, and lawfully recycle, dispose of, or take to an approved waste facility, all materials and debris in respect of the fire damaged buildings or caused by the demolition of the fire damaged buildings, within 28 days from the date of this Order. In carrying out any work pursuant to this Order, any materials containing asbestos must be handled by an appropriately licensed contractor or tradesperson, and lawfully disposed of in accordance with NSW SafeWork practices and guidelines; and
   
   
3. To provide to Council within 42 days from completion of the demolition a report from a qualified Occupational Hygienist with experience and expertise in friable asbestos, confirming there is no residual of any asbestos fibres or debris remaining on the Premises which is or may be likely to pose any health risk to current or future owners or occupiers of the Premises, or any risk of environmental harm.

Terms of Order – Item 7

1. Secure the Premises within 28 days from the date of this Order, by erecting construction site safety type fencing around the Premises to prevent unauthorised access to the Premises.

Reasons for the Order

This Order has been issued to you because:

1. You are the owner of the Premises.  
   
   
2. Council has been contacted by members of the public who have raised concerns regarding the dangerous and dilapidated condition of the Premises and the prejudicial effect that it has on them and the neighbourhood.
   
   
3. At inspections by Council on 28 March 2022 and on 2 May 2023 it was observed that the buildings on the Premises have been extensively damaged by fire.
   
   
4. Council considers that the integrity and stability of the buildings on the Premises due to such fire damage is, or is likely to become, a danger to any occupiers of the Premises, neighbouring owners or properties, and the public, particularly having regard to the potential for the buildings or any part of the buildings on the Premises to collapse.
   
   
5. Having regard to the extensive fire damage to the buildings on the Premises, Council considers they are so dilapidated as to be prejudicial to persons or property in the neighbourhood, and should be demolished.
   
   
6. Council considers the fencing is in poor condition and unlikely to prevent the Premises from being accessed by members of the public. Having regard to the fire damage to the buildings on the Premises, Council considers that this is, or is likely to become, a danger to the public and that, given the nature of this Order requiring the buildings on the Premises to be demolished, the Premises need to be fenced appropriately.

Timeframe of Order

The terms of this order continue to apply until either:

1. Those terms are complied with; or
   
   
2. The order is revoked by either the Council or the Land & Environment Court; or
   
   
3. Some other order of the Land & Environment Court is made in regard to the order.

Penalty

This order remains in force until such time as the terms of the order have been complied with or the order is revoked.  It is an offence pursuant to Section 9.37 and 9.50 of the Act to fail to comply with this Order.

Should the Order not be complied with, Council may:

1. Commence civil enforcement proceedings in the Land and Environment Court of NSW pursuant to Section 9.45 of the Act seeking mandatory orders to compel compliance with the Order and any other order necessary and costs; and/or
   
   
2. Commence summary criminal proceedings in a Court of competent jurisdiction pursuant to Section 9.57 of the Act seeking a conviction and pecuniary penalty; and/or
   
   
3. Do all such things as are necessary or convenient to give effect to the terms of the Order, including the carrying out of any work required by the Order.  Any costs and expenses incurred by Council (less the proceeds, if any, of any sale of any materials under Schedule 5, Part 11 of the above Act or the amount of any security provided in respect of development to which the Order relates) may be recovered by Council in any court of competent jurisdiction as a debt due to Council by the person required to comply with the Order.

Note: In relation to (2) above, pursuant to Section 9.52 of the Act, the offence carries a maximum pecuniary penalty of:

• $5,000,000 and a further daily penalty of $50,000 for a continuing offence for a corporation, and
• $1,000,000 and a further daily penalty of $10,000 for a continuing offence for an individual.

Right of Appeal

The owner is advised that they may appeal to the Land and Environment Court against this Order or a specified part of this Order within a period of 28 days after service of this Order on them.

Dated: 27 July 2023

Contact: Council's Development Compliance Officer, Environmental Regulation and Compliance.