Waverley Council v Mary Bobolas and Ors. [No. 3] [2005] NSWLEC 713

Land and Environment Court of New South Wales

CITATION : Waverley Council v Mary Bobolas and Ors. [No. 3] [2005] NSWLEC 713

APPLICANT: Waverley Council PARTIES : RESPONDENTS: Mary Bobolas and Ors.

FILE NUMBER(S) : 40328 of 2005

CORAM: Bignold J

KEY ISSUES: Practice and Procedure :- Application for stay of Court Orders

DATES OF HEARING: 02/12/2005 EX TEMPORE JUDGMENT DATE : 12/02/2005

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

2 December 2005

40328 of 2005 WAVERLEY COUNCIL v MARY BOBOLAS AND ORS.

JUDGMENT HIS HONOUR: 1 This is an application brought by a Motion filed on Monday of this week by the Respondents seeking to exercise the liberty to apply granted by Order 4 in orders that I made on 30 September this year in these civil enforcement proceedings. 2 The principal relief granted in those proceedings was an order by the Court directed to the Council pursuant to the Local Government Act 1993, s 678(10) to execute the Council's functions under that section by carrying out the work which was required to be carried out by par (a) of an order given by the Council pursuant to the Local Government Act 1993, s 124 on 18 March 2005, as modified by order 2 made by this Court on 19 July 2005 in related class 2 proceedings (No 20363 of 2005) whereby the recipients of the statutory notice appealed to this Court pursuant to the Local Government Act against the order. 3 The effect of the Court's Order made on 19 July was to grant the Respondents a further two months for the execution of the works. Those works not having been executed, the Council reactivated, and prosecuted the pending class 4 proceedings which had been held in abeyance pending the Court's decision on the merits of the related class 2 proceeding. 4 As I have said, the principal relief granted by me on that reactivated class 4 application was the giving of an order to the Council for the Council to itself execute its statutory functions and carry out the required clean-up works. The Order directed to the Council was, however, suspended until yesterday (1 December) by order 2 made on that occasion which gave the opportunity to the Respondents for themselves to undertake the work. 5 Order 3 of the Orders made on that occasion gave the Council liberty to apply for a curtailment of the effective two months suspension of Order 1 should it be established that the Respondents had failed to embark upon the required clean-up work and to maintain progress on that work. A couple of weeks ago the Council itself exercised that liberty and sought a curtailment of the effective two months suspension of the Court's order directed to the Council. That matter which was heard over a period of four days, was resisted by the Respondents who filed a countervailing application for an extension of time on the suspension pursuant to the liberty reserved in Order 4 made on 30 September 2005. 6 As a result of an extensive hearing which brought the Court completely up to date with comprehensive evidence of inspections and photographic and oral testimony of observations carried out on Monday 21 November, and after a full argument in support of both applications, the Court on Wednesday of last week, (23 November) dismissed the Council's application to curtail the suspension of the order and dismissed the Respondents' application for an extension of time and re-declared the continuing efficacy of the orders made on 30 September 2005. The effect of the continuing operation of those orders of course meant that the suspension of the order directing the Council under the Local Government Act, s 678(10) came to an end yesterday. 7 On Monday of this week the Respondents filed a Motion, as I have indicated, pursuant to Order 4 of the orders made on 30 September and today have sought a three week extension of time from today in order for themselves to carry out the work and avoid the necessity for the Council to do the work in default of compliance by the Respondents. That Motion, it is to be noted, was filed on the Monday following the preceding Wednesday's judgment when I extemporised detailed reasons for judgment as to why the extension of time of the stay (in that case thirty days) must be rejected. 8 On that occasion the Court was informed that the Council would make arrangements for the undertaking of the necessary works by the Council (in default of the Respondents' compliance) on Monday of next week, (5 December) and today Mr Newport of Counsel has informed the Court that those arrangements have been made involving a number of independent contractors as well as Council personnel. The arrangements, I am told, include the attendance at the premises of three Council officers who have been familiar with this case (and its predecessor) manifestations for a long period of time) including Ms Jackie Campesi, a quasi social worker. Officers of the Waverley Police Station will also be in attendance. The Respondents today have informed the Court that they are confident that they can finish the work in three weeks time and, without giving evidence (because time was short), have estimated that they have already moved something like seventy to seventy-five per cent of the rubbish from their premises. 9 Again because of the shortness of time, the Council has not called evidence but Mr Newport on behalf of the Council has informed the Court that Mr O'Leary, Council servant well familiar with the case, inspected the premises yesterday and his observations indicated to him only a very very small change in observable circumstances at the premises since Monday 21 November which was the updated position that the Court had the benefit of in giving its decision on 23 November. 10 For the reasons given for my judgment on 23 November dismissing both the Council's application for curtailment of the suspension and the Respondents' application to extend the suspension, I am of the opinion that the suspension now sought (namely for three weeks) should not be given. 11 Fundamentally the reason for this decision is the same as I stated in my ex tempore judgment on 23 November, namely that this case has dragged on far too long with the existing problem unresolved. That problem is significant both as a matter of public interest and hygiene and, as I have always acknowledged in my judgments in this case, a recognition of the problem besetting the Respondents by dint of Mrs Bobolas's psychological and mental state. However, no case has been made out to further extend what was a significant suspension of time of two months granted on 30 September which followed on from the two months granted by the Court in its decision on the related class 2 merits appeal. 12 In truth a singularly unsatisfactory state of affairs has existed at the Respondents' premises for all of the year and it must now come to an end. The arrangements that have been made by the Council in my view are the only assurance that an unsatisfactory state of affairs in the public interest will be effectively eliminated. I am conscious of the distress that that is likely to cause the Respondents. I accept their conscientious attempts to carry out the work themselves. But as I have held on a number of occasions, the mountainous task in front of them is simply beyond their capacity, notwithstanding their conscientious goodwill, in view of the time imperative that the problem is overdue for solution. 13 For these reasons, the application is dismissed. 14 The costs of today will be costs in the cause.