Waverley Council v M Bobolas and Ors [2005] NSWLEC 577

Land and Environment Court of New South Wales

CITATION : Waverley Council v M Bobolas and Ors [2005] NSWLEC 577

APPLICANT: Waverley Council PARTIES : RESPONDENTS: M Bobolas and Ors

FILE NUMBER(S) : 40328 of 2005

CORAM: Bignold J

KEY ISSUES: Injunctions and Declarations :- civil proceedings to enforce s 124 Order made by Council to clean up premises

LEGISLATION CITED: Local Government Act 1993, ss 124, 180, 673, 678(1) and 678(10)

DATES OF HEARING: 29/10/2005

DATE OF JUDGMENT: 10/12/2005

APPLICANT: Mr G Newport, Barrister SOLICITORS Staunton and Beattie

LEGAL REPRESENTATIVES:

RESPONDENTS: In person SOLICITORS N/A

JUDGMENT:

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

BIGNOLD J

12 October 2005

40328 of 2005 WAVERLEY COUNCIL v M BOBOLAS & ORS

JUDGMENT 1 HIS HONOUR: I now publish my reasons for judgment in respect of the orders that I announced in Court at the end of the hearing on 29 September 2005 but which were not issued in written from until the following day. 2 The present class 4 proceedings brought pursuant to the Local Government Act 1993, s 673 which were commenced by the Council on 13 April 2005, sought declaratory and injunctive relief against each of the three Respondents (who may conveniently be referred to as the "Bobolas family" comprising mother and two adult daughters who reside at residential premises known as No 19 Boonara Avenue, Bondi). 3 The relief claimed was founded upon the existence of a statutory enforcement order that the Council had on 18 March 2005 given to each Respondent pursuant to the Local Government Act, s 124. Each order was in the same terms except for the stipulations of the name of the person to whom it was given and of the capacities of each of those persons, in that the order given to Mrs Bobolas was given to her in the capacity of "owner" of the premises (No 19 Boonara Avenue, Bondi) and each order given to each of the Bobolas daughters was given to her in the capacity of "occupier" of those premises. The substantive relevant requirements of each of the s 124 orders was the same and provided as follows: (a) remove all waste, being garbage and refuse including but not limited to scrap metal, papers, rags, bottles, plastic containers, and putrescible matter which you have collected, accumulated and are storing from all parts of the subject premises; and (b) refrain from using the subject premises for the purposes of collection, accumulation and storage of waste being garbage and refuse including but not limited to scrap metal, papers, rags, bottles, plastic containers, and putrescible matter from all parts of the subject premises. REASONS FOR ORDER This order is given because: (a) the subject premises are a dwelling house located in a residential area; (b) you are storing waste, being garbage and refuse including but not limited to scrap metal, papers, rags, bottles, plastic containers, and putrescible matter on all parts of the subject premises; (c) the garbage and refuse you are storing is a fire risk and is likely to form or afford harbourage for vermin and as such constitutes a serious health risk to the occupants of the subject premises and the neighbouring properties. PERIOD FOR COMPLIANCE WITH ORDER As the storage of waste constitutes a serious health risk you are required to comply with this order within seven (7) days from the date of service of this order upon you. NON COMPLIANCE It is an offence to not comply with this order. The maximum penalty for this offence is $2,200.00. If this order is not complied with, Council m ay carry out the work and recover the costs from you. APPEAL RIGHTS You may appeal to the Land & Environment Court of NSW against this order or a specified part of this order within twenty eight (28) days from the date of service of this order upon you. 4 Upon the same day that the Council commenced its class 4 proceedings, the Respondents commenced class 2 proceedings (Matter No 20363 of 2005) appealing pursuant to the Local Government Act 1993, s 180 against the s 124 orders that had been given to each of the Respondents. (It may be noted that the Council's class 4 proceeding was commenced before the expiry of the 28 days statutory appeal time.) 5 Although in its class 4 application the Council had claimed interlocutory relief, no such relief was granted by the Court during the pendency of the Respondents' class 2 proceedings. Such an outcome, not only reflected the Court's usual practice in relation to concurrent class 4 and class 1 or 2 proceedings (where it is usual to first determine the class 1 or 2 proceedings involving a determination on the planning merits where a possible outcome of that determination will remove the continuing foundation for the grant of relief in the related class 4 proceedings) but reflected the course of the Court initiated intensive case management of both proceedings which was conducted by a Commissioner of the Court and which came very close to resolving the proceedings by way of an inter partes agreement. 6 But following the ultimate failure of settlement negotiations, the Respondents' class 2 appeal was part heard and determined by the then Chief Judge of the Court on 19 July 2005 when he made the following orders and gave the following directions 1. The appeal is upheld in part. 2. The terms of the order given to each of the respondents dated 18 March 2005 is modified by deleting order (a) and replacing it with: i) The Council will remove all material placed on the nature strip in front of 19 Boonara Ave, Bondi every Thursday, commencing on 21 July 2005 and concluding 2 months later on 22 September 2005.