The Environment Court, in Whangarei District Council v Gray, considered the familiar problem of the untidy backyard. The Council had sought enforcement orders to remove derelict appliances and materials stored on Mr Gray's property, and to cut back and remove overgrown vegetation. While the problem is a common one, this decision is interesting as it demonstrates the specificity required in enforcement orders.

The Court accepted the order relating to removal of materials only after it had been amended to provide a relatively comprehensive list of the type of materials on the property, and specified where and how those materials could be stored.

The Court held that the requirement for vegetation to be trimmed to a size consistent with residential standards was not sufficiently clear. Neither was the Court prepared to make an order that the vegetation be cut back to the satisfaction of the senior planner, which relied on the exercise of discretion by a Council officer. A requirement for the lawns to be kept to a maximum of 30cm in length was sufficiently clear (although the actual measurement was questioned).

Proposed enforcement orders must clearly state what is required so that not only the respondent but also the Court can be clear as to what is required and that the proposed orders are reasonable.

There are other options for dealing with an untidy property, depending on the facts. For example, Council may seek an abatement notice, although these have a narrower ambit than enforcement orders. Alternatively, if the untidy property is not simply an eyesore but is offensive or injurious to the public health, then the provisions of the Health Act 1956 may be used to remove the offensive material, or, under s650 of the Local Government Act 1974, the Council may order the removal of overgrown vegetation, accumulated refuse or flammable waste material which is likely to become a source of danger from fire.

Each untidy property situation needs to be considered on its facts to determine which option in preferable. If you have any queries relating to this type of situation, please contact us.

This is a general summary only and should not be taken as a substitute for specific advice.

For further information please contact Cameron Law, solicitor
cameron.law@phillipsfox.com

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