Bobolas v Waverley Council

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bobolas v Waverley Council [2020] NSWLEC 103

Hearing dates:

29, 30 July 2020

Date of orders:

31 July 2020

Decision date:

31 July 2020

Jurisdiction:

Class 4

Before:

Pain J

Decision:

See [24] of judgment

Catchwords:

PROCEDURE– judicial review challenge to order issued under s 124 of Local Government Act 1993 requiring waste removal from private property – notice of motion by respondent local council seeking leave to be excused from undertaking to Court not to execute order – alternatively earlier hearing date sought – vacation of hearing date and relisting on earlier hearing date due to public health and safety concerns – leave to be excused from undertaking to Court not pressed

Legislation Cited:

Civil Procedure Act 2005 (NSW) ss 56, 57, 58

Land and Environment Court Act 1979 (NSW) s 16

Local Government Act 1993 (NSW) ss 124, 138, 180

Cases Cited:

Hammersley Iron Pty Ltd v Lovell (1998) 19 WAR 316

Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576

McIlraith v Ilkin [2007] NSWCA 911

Category:

Procedural and other rulings

Parties:

Elena Bobolas (First Applicant)
Mary Bobolas (Second Applicant)
Liana Bobolas (Third Applicant)
Waverley Council (Respondent)

Representation:

COUNSEL:
Elena and Liana Bobolas in person (Applicants)
J Reid (Respondent)

SOLICITORS:
N/A (Applicant)
Wilshire Webb (Respondent)

File Number(s):

20/91346

Judgment

1. Members of the Bobolas family (the Applicants) have commenced judicial review proceedings seeking to challenge a No 22A order issued under the table to s 124 of the Local Government Act1993 (NSW) (LG Act) to Mary Bobolas (the Order) which is annexed to their summons. The Order issued by Waverley Council (the Council) requires the removal of specified waste from premises in Boonara Avenue Bondi (the Property) being areas around the residential house located on the Property. The Property is owned by Mary Bobolas. The proceedings have been set down for final hearing on 12-13 October 2020 and usual orders for the preparation of evidence and submissions were made by the Court on 5 June 2020. The basis on which Elena and Liana Bobolas are applicants is unclear. They argue they can apply for the relief sought as occupants of the Property to set aside the Order. The issue has been identified in call-overs and I note it here as a matter to be resolved in due course most likely at the final hearing. All the Applicants appeared in person. Mary Bobolas was represented by her daughter Elena Bobolas during the hearing.

2. An order can be issued under No 22A in the table to s 124 of the LG Act requiring the removal of waste on any residential premises if the waste is causing or likely to cause a threat to public health or the health of any individual. Such an order can be issued to any owner or occupier. The Order dated 29 January 2020 attached to the summons requires the removal of various kinds of putrescible and non-putrescible waste and refraining from collecting…