Bobolas v Waverley Council

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.