Bobolas v Waverley Council (No 2)

[2021] NSWLEC 58

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bobolas v Waverley Council (No 2) [2021] NSWLEC 58

Hearing dates:

27-28 May 2021

Date of orders:

28 May 2021

Decision date:

28 May 2021

Jurisdiction:

Class 2

Before:

Pain J

Decision:

(1) The Applicants’ appeal dated 13 October 2020 against the Council’s Emergency Order 21 pursuant to s 124 of the Local Government Act 1993 issued on 12 October 2020 is dismissed.

(2) The Applicants are to pay the Council’s costs of the Class 2 appeal as agreed or assessed.

Catchwords:

PRACTICE AND PROCEDURE – Class 2 appeal of emergency order dismissed – costs ordered in favour of respondent council

Legislation Cited:

Local Government Act 1993 (NSW) ss 124, 180

Land and Environment Court Rules 2007 r 3.7

Cases Cited:

Bobolas v Waverley Council [2020] NSWLEC 144

Category:

Principal judgment

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

1. Mary Bobolas, Elena Bobolas and Liana Bobolas have commenced Class 2 proceedings dated 13 October 2020 appealing an emergency order issued on 12 October 2020 by Waverley Council (the Council), pursuant to s 124 of the Local Government Act 1993 (NSW) (LG Act). That was an order issued under Order 21 of that section. It required work within 24 hours on a property in Boonara Avenue Bondi where the three Applicants live. The emergency order is addressed to Mary Bobolas as the owner of the premises.

2. The basis on which her daughters Elena and Liana Bobolas can commence the appeal is unclear. They assert they can because they have possessions at the property and are occupiers. Ultimately, as they have not appeared at the second day of hearing of this matter today and the Council’s application to have it dismissed is made due to their non‑appearance, that is not something I need to deal with. I note that the Court’s powers, if I was to deal with this appeal, are set out in s 180 of the LG Act. I note that the quite limited orders that the Court can make in these circumstances may not have been of great assistance to the Applicants.

3. The emergency order that the Applicants were seeking to appeal required the removal of waste, refuse, debris and building material resulting from the collapse of a structure described as an old laundry in the south-western corner of the rear of the dwelling made of fibrous cement sheet cladding. That was required to be done within 24 hours. The reasons given in the order included that the collapse of the asbestos sheeting had the potential to cause for dispersal of asbestos fibres, endangering the occupants of the premises and neighbouring properties, and the premises were not in a safe and healthy condition.

4. I understand that the Council has, in fact, removed all necessary waste from the premises. I am aware of that, in part, because I have already given one judgment in these proceedings refusing an urgent interlocutory injunction application in Bobolas v Waverley Council [2020] NSWLEC 144. I noted in that judgment that there was at least one other order pursuant to which the Council was acting issued under Order 22A of s 124 of the LG Act.

5. In terms of the events this week, the matter was set down on 11 November 2020, that is last year, for a two-day hearing on 27 and 28 May 2021. Orders were made requiring a statement of facts and contentions to be done by the Applicants by 26 February 2021. These were not complied with. Nothing has been filed by the Applicants in the proceedings.

6. At the outset of the hearing yesterday, 27 May 2021, an oral application for an adjournment was made by Elena Bobolas and Liana Bobolas, with submissions made from the bar table about why they had not been able to prepare for the hearing. Mary Bobolas did not appear and I was informed that she was ill and unable to attend. No medical certificate was provided. Elena Bobolas and Liana Bobolas said they did not have instructions from Mary Bobolas to appear as her agent. They nevertheless made the application for adjournment.

7. I determined yesterday I should stand the matter over to the second allocated hearing day, that is today, 28 May 2021. I considered it was feasible that the limited affidavit evidence and photographs the Applicants wished to rely on could be prepared by Liana and Elena Bobolas, given their now lengthy experience in preparing for Court matters. They have not appeared today or otherwise contacted the Court. Once again, no material is otherwise before the Court. I agree with the application of the Council that the proceedings should otherwise be dismissed, and will so order.

8. It is clear from the history of the matter that, in relation to the application of r 3.7 of the Land and Environment Court Rules 2007 (LEC Rules) there is a basis, if satisfied, for the Court to order costs in Class 2 proceedings when generally it would not make such an order.

9. I agree with the Council that the circumstances in r 3.7(3)(b)(ii) have been met in that there has been no provision of information which would enable the consent authority to gain a proper understanding and give proper consideration to the matter. In relation to r 3.7(3)(d) of the LEC Rules, given the absence of any evidence and today’s non-appearance, it would appear the Applicants have acted unreasonably in the conduct of the proceedings. I have dismissed them for that reason.

10. I also take into account Ex 1, which is a letter dated 21 May 2021 from the Council’s solicitors to the Applicants, basically offering to discontinue the proceedings as they appear to lack utility on the basis that each party pay their own costs. If accepted there would have been no need for the Council to appear, as it has had to do on two occasions this week. For all those reasons, I think an order for costs in the Council’s favour should be made.

Orders

11. Accordingly, the Court orders:

1. The Applicants’ appeal dated 13 October 2020 against the Council’s Emergency Order 21 pursuant to s 124 of the Local Government Act 1993 issued on 12 October 2020 is dismissed.

2. The Applicants are to pay the Council’s costs of the Class 2 appeal as agreed or assessed.

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Decision last updated: 02 June 2021