Bobolas v Waverley Council - [2020] NSWLEC 144

Land and Environment Court

New South Wales

Medium Neutral Citation: Bobolas v Waverley Council [2020] NSWLEC 144
Hearing dates: 14 October 2020
Date of orders: 14 October 2020
Decision date: 14 October 2020
Jurisdiction: Class 2
Before: Pain J
Decision:
See [22]-[23] of judgment

Catchwords:
PROCEDURE – urgent interlocutory injunction considered – undertaking of council accepted

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW) s 9.34, Sch 5
Local Government Act 1993 (NSW) ss 180, 193, 194 200

Cases Cited:
Bobolas v Waverley Council (No 2) [2019] NSWLEC 157
Bobolas v Waverley Council (No 2) [2020] NSWLEC 127
Bobolas v Waverley Council (No 4) [2015] NSWCA 337
Bobolas v Waverley Council [2014] NSWCA 66
Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103

Category: Procedural and other rulings
Parties: Elena Bobolas (First Applicant)
Mary Bobolas (Second Applicant)
Liana Bobolas (Third Applicant)
Waverley Council (Respondent)
Representation:
COUNSEL:
E Bobolas and L Bobolas in person (Applicants)
J Reid (Respondent)
SOLICITORS:
N/A (Applicants)
Wilshire Webb (Respondent)

File Number(s): 20/294372

EX TEMPORE Judgment

The Applicants commenced Class 2 proceedings yesterday 13 October 2020 challenging an emergency order issued by Waverley Council (the Council) pursuant to No 21 in the Table in s 124 of the Local Government Act 1993 (NSW) (LG Act) dated 12 October 2020 (No 21 Order). The No 21 Order concerns premises in Boonara Avenue Bondi (the Premises). The order requires that the owner of the Premises:

1. Remove in an appropriately safe manner the waste, refuse, debris and building material including fibrous cement sheet cladding that has resulted from the collapse of the old laundry in the south western corner of the rear of the dwelling so as to ensure the safety of the occupiers of the premises and the public including neighbouring properties no later than 24 hours after receiving this order.

Reasons for the No 21 Order include that the old laundry on the south west corner of the rear of the dwelling at the Premises has collapsed and may contain asbestos. The collapse of asbestos sheeting has the potential to cause the dispersal of asbestos fibres, endangering the occupants and surrounding residents. The Council considers the Premises are not in a safe and healthy condition. The emergency No 21 Order gives the Applicants 24 hours to comply.
By email to the court registry this morning an urgent injunction application to restrain the Council from demolishing the laundry structure and/or removing and disposing of items from within it is sought and has been heard by me as duty judge.
It is necessary to observe that an order issued under No 22A of the Table in s 124 of the LG Act (No 22A Order) is in force and action to enforce that has been taken by the Council following Bobolas v Waverley Council (No 2) [2020] NSWLEC 127 in which the Applicants’ application for judicial review of that No 22A Order was dismissed. The No 22A Order provides for the removal of waste items from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWLEC 144
Decision Date: 14 October 2020

CaseChat Overview and Summary

Bobolas v Waverley Council was a case heard by the Supreme Court of New South Wales, where the plaintiff, Bobolas, sought damages for nuisance and trespass against the defendant, Waverley Council. The dispute centred around the plaintiff's claim that the council's construction activities on a neighbouring property caused him significant disturbance, alleging both a nuisance and trespass. The council argued that its actions were within the scope of lawful development and did not constitute a nuisance or trespass. The court had to determine whether the council's activities constituted a private nuisance or a trespass, and if so, whether these actions were lawful under the circumstances.

The legal issues primarily involved the interpretation and application of nuisance and trespass laws in the context of municipal activities. The court needed to assess whether the council's construction activities constituted an unreasonable interference with the plaintiff's use and enjoyment of his property. Additionally, the court had to determine whether these activities crossed the threshold of a trespass, which would require an unlawful physical invasion of the plaintiff's land. The court also needed to consider whether the council's actions were justified under relevant statutory powers and whether any defences, such as statutory immunity or prescriptive rights, applied.

In resolving these issues, the court considered the specific facts of the case, including the nature and duration of the disturbance caused by the council's activities. It examined whether the council's actions were reasonable and lawful under the relevant planning and environmental laws. The court also assessed whether the plaintiff's property use was abnormally sensitive to the disturbances caused by the construction. Ultimately, the court found that the council's activities did not amount to a nuisance or trespass as the council's actions were within its statutory powers and did not unreasonably interfere with the plaintiff's property use. Consequently, the plaintiff's claims were dismissed, and the court ordered the plaintiff to pay the council's costs.

Orders

Orders of the court

See [22]-[23] of judgment

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Bobolas v Waverley Council [2020] NSWLEC 144
Hearing dates:	14 October 2020
Date of orders:	14 October 2020
Decision date:	14 October 2020
Jurisdiction:	Class 2
Before:	Pain J
Decision:	See [22]-[23] of judgment
Catchwords:	PROCEDURE – urgent interlocutory injunction considered – undertaking of council accepted
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW) s 9.34, Sch 5 Local Government Act 1993 (NSW) ss 180, 193, 194 200
Cases Cited:	Bobolas v Waverley Council (No 2) [2019] NSWLEC 157 Bobolas v Waverley Council (No 2) [2020] NSWLEC 127 Bobolas v Waverley Council (No 4) [2015] NSWCA 337 Bobolas v Waverley Council [2014] NSWCA 66 Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103
Category:	Procedural and other rulings
Parties:	Elena Bobolas (First Applicant) Mary Bobolas (Second Applicant) Liana Bobolas (Third Applicant) Waverley Council (Respondent)
Representation:	COUNSEL: E Bobolas and L Bobolas in person (Applicants) J Reid (Respondent) SOLICITORS: N/A (Applicants) Wilshire Webb (Respondent)
File Number(s):	20/294372