Bobolas v Waverley Council - [2015] NSWCA 204

Court of Appeal
Supreme Court

New South Wales

Case Name:	Bobolas v Waverley Council
Medium Neutral Citation:	[2015] NSWCA 204
Hearing Date(s):	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

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.
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.
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…

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.

Continue reading Bobolas v Waverley Council

Details

AGLC: Bobolas v Waverley Council [2015] NSWCA 204
Case: [2015] NSWCA 204
Decision Date: 13 July 2015

CaseChat Overview and Summary

The Court of Appeal of New South Wales considered an application for a stay pending appeal in the matter of *Bobolas v Waverley Council*. The applicants sought to restrain the respondent council from enforcing certain orders made by Sheahan J on 24 April 2015, specifically those relating to the removal of waste, pending the determination of their appeal against those orders.

The central legal issue before the Court of Appeal was whether a stay should be granted to prevent the council from enforcing the removal orders. This involved balancing the public interest in health and safety, which the council argued was served by the removal orders, against the potential prejudice to the applicants if the appeal were successful and the removal works had already been completed. The court also considered whether the original orders involved a manifest excess of power by the primary judge.

Basten JA reasoned that a stay should be granted in relation to the removal works, but not the entirety of the orders. His Honour found that the public interest in health and safety was a significant factor, but that the prejudice to the applicants from enforcing only the removal orders, should they succeed on appeal, would be limited. The court concluded that there was no manifest excess of power in the making of the orders by the primary judge, but that a partial stay was warranted to preserve the subject matter of the appeal.

Consequently, the Court of Appeal ordered a stay on giving effect to orders 5 and 6 made by Sheahan J on 24 April 2015, and that other provisions referring to "the Works" should be understood to refer to "the Removal Works", pending the determination of the appeal. The motion was otherwise dismissed, and the costs of the motion were made costs in the appeal.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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