Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Bobolas v Waverley Council [2015] NSWCA 204 Hearing dates: 13 July 2015 Decision date: 13 July 2015 Before: Basten JA Decision: 1. Direct that there be a stay on giving effect to orders 5 and 6 made by Sheahan J on 24 April 2015 and consequentially that such other provisions in the orders as refer to "the Works" be understood to refer to "the Removal Works", pending determination of the appeal. 2. Otherwise dismiss the motion filed in this Court on 8 July 2015. 3. Direct that the costs of the motion be costs in the appeal. Catchwords: APPEAL – stay pending appeal – respondent council seeking to enforce only orders with respect to removal of waste – public interest in health and safety – limited prejudice to applicants in enforcement – no manifest excess of power in making orders Legislation Cited: Local Government Act 1993 (NSW), ss 200, 678 Category: Procedural and other rulings Parties: Liana Bobolas (First Applicant) Elena Bobolas (Second Applicant) Mary Bobolas (Third Applicant) Waverley Council (Respondent) Representation: Counsel: First and Second Applicants in person Mr P Clay SC/Ms J Reid (Respondent) Solicitors: (First and Second Applicants self-represented) Wilshire Webb Staunton Beattie (Respondent) File Number(s): 2015/151997 Decision under appeal Court or tribunal: Land and Environment Court Citation: Waverley Council v Bobolas (No 2) [2015] NSWLEC 66 Date of Decision: 24 April 2015 Before: Sheahan J File Number(s): 41027 of 2014 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. BASTEN JA: This matter involves an application for a stay by the applicants in this Court who seek to appeal against orders made in the Land and Environment Court at the instance of Waverley Council. The orders included orders providing for Waverley Council to enter premises, being the premises occupied by the applicants, to remove waste, to remove vegetation and to assess and carry out works with respect to a garage which may require to be demolished. 2. The notice of motion, filed last Wednesday (8 July), seeks orders in effect staying Waverley Council carrying out any works pursuant to the orders of the Land and Environment Court which were made on 24 April 2014. 3. The course the Council wishes to take has been clarified in the course of this morning's hearing. The Council indicated that it does not wish, prior to the determination of the appeal, to pursue what are described as the demolition order and the safety order which deal respectively with the garage and the vegetation. It is content to agree to a stay of those orders. What is sought to be pursued by Council in accordance with the orders of the Land and Environment Court is the removal of waste on the premises and the order requiring that the occupants cease to accumulate further waste on the premises. As a result, some of the matters raised in the motion and in the accompanying papers are no longer of significance. 4. The applicants put forward a number of bases upon which they seek a stay of the remaining orders, which are in effect the substance of the grounds of appeal which are sought to be pursued in this Court. The notice of motion filed on 8 July 2015 raised a number of issues in 9 paragraphs, some of which are grounds on which the stay is sought, others are proposed orders. Grounds 1 and 2 seek orders restraining the Council and a stay of Sheahan J's orders. Paragraphs 3, 4 and 5 deal with bases upon which those orders are sought. Paragraphs 5 and 6 seek a stay on the basis of procedural unfairness, because of lack of notice. Paragraph 7 requires the Court to have regard to various affidavits and documents and, so far as they are relevant to this application, the Court has done so. 5. Paragraph 8 alleges that the applicants will suffer significant prejudice if a stay is not granted or an injunction not provided in the form of the restraining order sought at paragraph 1. Paragraph 9 seeks to have Waverley Council pay the costs of the motion. 6. Some matters are in effect a repetition of the grounds of appeal; for example, the orders are said to be beyond the power of the Land and Environment Court, for various reasons. Some of those reasons are entirely procedural but no doubt of significance if the underlying factual premises are made good. They include the complaint agitated in some detail this morning that Sheahan J acted without giving an opportunity for the applicants to pursue their applications for legal aid and a review of an earlier refusal by the Legal Aid Commission. 7. Of the other matters complained of, quite a number were dealt with by way of an application in the Land and Environment Court to vary the orders which had been made by Sheahan J. Sheahan J made his orders and gave his judgment in the absence of the applicants. The applicants returned to the Land and Environment Court on 10 June 2015 and brought a motion before Pain J seeking to have the various orders reconsidered. Pain J dismissed that motion, judgment and reasons being given on 18 June 2015. 8. In the course of that application it is clear that the applicants had before them the orders which they were seeking to have varied, and understood quite clearly the consequences for them of non-compliance with the orders. For example, Pain J noted an issue (which has been raised before this Court today), that the orders with respect to removal of waste were too broad and failed to specify what kind of waste could be removed. Pain J stated, at [36] of her reasons, that there was provision in the orders for individual items of value to the respondents to be moved, as the Council was required to give three days' notice before entering the property to undertake the work. 9. Pain J noted in her judgment at [22] a submission that everything outside on the property is not waste and includes pot plants which cannot be moved inside. It was said that the orders covered such items and were therefore too wide and unreasonable. 10. There is no clear reason to suppose that the concept of waste, as identified in the removal order originally provided to the occupants and the subject of the proceedings in the Land and Environment Court, was not capable of supporting an order within power. It may be that there are arguable grounds of appeal with respect to that order but it is not manifestly beyond power and, given the public interest in health and safety, it is not an order of the kind that should generally be stayed. 11. The applicants have claimed a need for their consent for the Council officers to come on to the premises to undertake any of the work required by the orders. That, they say, is required by s 200 of the Local Government Act 1993 (NSW). They also refer to the powers granted under s 678(10) of that Act. The clear intent of the orders is that the Council is obliged to undertake its functions in accordance with the court's orders, regardless of the consent being obtained or refused by the occupiers of the premises. 12. That may be an issue which the applicants will wish to raise on appeal, but at the moment I am not persuaded, without having heard full argument on the matter, that there is any substance to that challenge to the orders. If there had been, it might have been appropriate to take a different course in relation to the application now before the Court. 13. However, I would not have been persuaded, unless there were clear evidence that all of the orders of the Court were beyond power (which would seem to make a nonsense of the operation of the Local Government Act), that the orders with respect to removal of waste should have been stayed pending the hearing of the appeal. 14. Ms Liana Bobolas affirmed an affidavit on 8 July 2015 which raised a number of matters by way of broad denials or assertions, dealing in the main part with events which have occurred before the hearings in the Land and Environment Court but more specifically alleging that there has not been proper service of the orders in accordance with order 9 of the orders made by Sheahan J. 15. Order 9 provided that a sealed copy of the orders be served in a particular manner. In her affidavit Ms Bobolas asserted that those orders were not received and thus they were not served. The form of service provided for did not necessarily involve receipt. An officer of Waverley Council, Andrew Gaze, has sworn an affidavit of 28 May 2015, filed in the Land and Environment Court on 29 May 2015, which states that he, as the Manager, Environment, Health and Compliance, served the various orders in the form in which they were required to be served under order 9. 16. Objection is taken to the reading of that affidavit in this Court. There is a conflict between the content of that affidavit and that which Ms Bobolas says. It is not necessary, however, to resolve that conflict. I propose to allow Mr Clay, appearing for Waverley Council, to read the affidavit and I note that it indicates that service was undertaken in the manner provided by the orders. 17. It is also the case that the applicants are fully aware of the terms of the orders and were fully aware of the terms of the orders on 18 June when they appeared before Pain J in order to seek to have the orders varied or set aside. For the purposes of present proceedings it is sufficient that they know of, and understand, the terms of the orders relating to refraining from accumulating waste, and in relation to the removal of waste. That they do so is indicated by their specific submissions both before Pain J and before this Court as to the deficiencies in the terms of those orders. 18. To the extent that a lack of proper notice might have been a basis for staying the operation of those orders pending the appeal, I am satisfied that there has been adequate notice provided, and the form of the orders is well understood. 19. The applicants further complain that even the more limited action proposed to be taken by the Council pending the appeal will require entry by Council officers on their premises and require removal of goods. They asserted that, in the past, council officers have unduly interfered with their property when attending to remove material, and have taken goods which should not have been removed. Other complaints are made about past conduct. 20. That material is of little assistance in relation to the carrying out of the orders which are now the subject of consideration. What is of greater importance is that the purpose of the order for removal of waste and the order requiring that the applicants cease to accumulate waste is that as the orders indicate, there are health and safety issues involved with the accumulation of waste in residential premises in the suburbs. The potential prejudice to the applicants which would arise from the removal of such waste, that is waste of the kind specified in the orders which were served prior to the hearing in the Land and Environment Court, is very limited and largely speculative. The public interest in matters of health and safety outweigh those considerations. 21. Accordingly, subject to giving effect to the concessions made by the Council, the motion should be dismissed. As to costs, although the applicants have been partly successful in their motion, it is only to the extent of the Council's concession. The basis upon which the motion came before this Court was in effect varied because Mr Clay indicated the limited basis upon which the Council sought to enforce the orders pending the hearing of the appeal. The applicants cannot complain about the late notification of the Council's position, the notice of motion having only been filed last Wednesday. These circumstances may be met by making costs of the motion costs in the appeal. 22. In those circumstances I make the following orders. (1) Stay orders 5 and 6 made by Sheahan J on 24 April 2015, and consequentially direct that such other provisions in the orders as referred to "the Works" be understood as limited to "the Removal Works", pending determination of the appeal. (2) Otherwise dismiss the applicants' motion filed in this Court on 8 July 2015. (3) Direct that the costs of the motion be costs in the appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 July 2015