Recovery Costs for Default Works

LG Leader March 2018

We are often asked questions regarding how councils can efficiently go about recovering costs that have been incurred where a council exercises a statutory power to undertake works, often referred to as ‘default works’, that are required by a statutory notice or order following non-compliance with the requirements of the notice/order by the recipient.

In particular, default works are frequently undertaken by councils under the Fire and Emergency Services Act 2005 (the Act) to prevent or inhibit the outbreak of fire on and/or the spread of fire through private land where the owner of the land has failed to comply with a notice issued pursuant to section 105F(5) of the Act. Such action typically involves trimming or removing vegetation on land (i.e. in the manner required by the section 105F(5) notice) and is often taken by contractors on behalf of councils. In this case, section 105J(8) of the Act provides that the reasonable costs and expenses incurred by the Council are recoverable as a debt from the person who failed to comply with the notice. Further, subsection (9)(a) operates such that the amount is automatically recoverable as though it was rates in arrears.  This enables a council to simply include the relevant amount as rates arrears on the next rates notice issued for the land.

A word of caution however – unlike the Act, not all legislation provides for the automatic conversion of an amount payable for default works to rates arrears. In some cases, a notice of demand that requires payment within a specified period must first be issued. If the amount remains outstanding then, provided it relates to something done in respect of rateable property, or is payable by a person as the owner or occupier of rateable or other property within the area of the council, the amount can be converted to rates arrears by way of serving a further notice for this purpose pursuant to section 144(2) of the Local Government Act 1999.

Importantly, the recovery of costs incurred by a council for carrying out default works (including as rate arrears under the Local Government Act) can only occur in circumstances where the legislation that authorises the works to be undertaken expressly provides the Council with power to recover the associated costs.