Bobolas v Waverley Council (No 4) [2019] NSWLEC 163

Land and Environment Court New South Wales

Medium Neutral Citation: Bobolas v Waverley Council (No 4) [2019] NSWLEC 163 Hearing dates: 24, 25 and 30 September and 3, 14 and 15 October 2019 Date of orders: 31 October 2019 Decision date: 31 October 2019 Jurisdiction: Class 4 Before: Moore J Decision: In Matter No 208865 of 2019 (formerly Matter No 41027 of 2014), see orders at [129]; and In Matter No 50888 of 2018, see orders at [130] Catchwords: JUDICIAL REVIEW - Notice of Motion seeking review of orders made in two earlier Class 4 proceedings - the first earlier proceedings (concerning Court orders made in 2015) related to accumulation of waste on residential premises - unsafe outbuilding on the property - and potential safety risks arising from unconstrained vegetation growing over the roof of the dwelling on the property - orders made in 2015 for substituted performance by the Council for removal of waste on the property after failure of occupants to effect removal - waste removal carried out - order for waste removal exhausted - order for removal of unsafe outbuilding not satisfied - order for removal of vegetation partially satisfied - challenge to ongoing validity of unfulfilled orders - unfulfilled orders remain valid - order that the respondents refrain from keeping further waste on the property - clear from the site inspection that that order has been breached and there is presently a significant accumulation of waste on the property - no current order that would permit access to the property to rectify the breach - appropriate to provide an opportunity for the Council to seek a further access order to rectify breach - proceedings adjourned to provide Council with an opportunity to seek access orders JUDICIAL REVIEW - Notice of Motion seeking review of orders made in two earlier Class 4 proceedings - the second earlier proceedings (concerning Court orders made in 2018) related to accumulation of waste on residential premises - Court orders made in 2018 for substituted performance by the Council for removal of waste on the property after failure of occupants to effect removal - waste removal carried out in February 2019 - Council serves notices of intention to undertake further waste removal following additional accumulation of waste since February 2019 clean-up - notices based on asserted continuing operation of Order 22A of table to s 124 of the Local Government Act 1993 issued to the applicants on 22 November 2017 - was the 22A Order for waste removal exhausted? - terms of order were to remove waste within 28 days - the 22A Order did not require those to whom the order was issued to refrain from keeping waste on the premises - the 22A Order is exhausted - no basis for the Council to rely on the 22A Order for further waste removal activities - declaration appropriate and orders to restrain the Council from undertaking further clean-up activities in reliance on the Order 22A issued to the applicants on 22 November 2017 COSTS - costs reserved. Legislation Cited: Environmental Planning and Assessment Act 1979 Interpretation Act 1987, ss s 34(2)(f), 76 Land and Environment Court Act 1979, ss 22, 63(1) Land and Environment Court Rules 1979, r 7.7 Local Government Act 1993, ss 124 Order 22A, 128A Uniform Civil Procedure Rules 2005, rr 6.24, 36.11, 36.15, 36.16 Cases Cited: Bobolas v Waverley Council [2016] NSWCA 139 Bobolas v Waverley Council [2019] NSWLEC 148 Bobolas v Waverley Council (No 2) [2019] NSWLEC 157 Bobolas v Waverley Council (No 3) [2019] NSWLEC 162 Northey v Bega Valley Shire Council [2012] NSWCA 28 Waverley Council v Bobolas (No 2) [2015] NSWLEC 66 Waverley Council v Bobolas (No 2) [2018] NSWLEC 144 Texts Cited: Civil Trials Bench Book, Judicial Commission of NSW Category: Principal judgment Parties: Mary Bobolas (First Applicant - in Matter No 41027 of 2014 only) Elena Bobolas (Second Applicant in both matters) Liana Bobolas (Third Applicant in both matters) Waverley Council (Respondent) Representation: Counsel: Ms E Bobolas in person (and as agent for Ms M Bobolas in Matter No 41027 of 2014) Ms L Bobolas in person Mr R Lancaster SC/Ms J Reid, barrister (Respondent)