Bobolas v Waverley Council (No 2)

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Bobolas v Waverley Council (No 2) [2020] NSWLEC 127

Hearing dates:

31 August – 1 September 2020

Date of orders:

1 September 2020

Decision date:

01 September 2020

Jurisdiction:

Class 4

Before:

Pain J

Decision:

(1) The summons dated 23 March 2020 is dismissed.

(2) The Applicants must pay the Respondent’s costs of the proceedings.

(3) The exhibits are returned.

Catchwords:

JUDICIAL REVIEW – challenge to s 22A Order issued under s 124 of Local Government Act 1993 requiring removal of waste from residential premises – ex parte hearing – summons dismissed

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Local Government Act 1993 (NSW) Ch 7 Pt 2 (ss 124, 146, 148) ss 180, Ch 8 Pt 2 (s 200), s 678

Cases Cited:

Armidale Dumaresq Council v Vorhauer (No 3) [2014] NSWLEC 50

Bobolas v Waverley Council (No 4) [2015] NSWCA 337

Bobolas v Waverley Council [2020] NSWCA 201

Bobolas v Waverley Council [2020] NSWLEC 103

Category:

Principal judgment

Parties:

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

Representation:

COUNSEL:
N/A (Applicant)
R Lancaster SC (Respondent)

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

File Number(s):

20/91346

EX TEMPORE Judgment

1. The Applicants challenge an order issued to Mary Bobolas as provided for by No 22A in the table to s 124 of the Local Government Act 1993 (NSW) (LG Act) in relation to a property in Boonara Ave Bondi (the Property). The order was issued by Waverley Council (the Council).

2. An order can be issued under No 22A in the table to s 124 of the LG Act (No 22A Order) 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 (Order) requires the removal of various kinds of putrescible and non-putrescible waste and refraining from collecting such waste on the Property. The reasons for issuing the Order identified in it include that the Property is residential and is adjoined by other similar properties, there is a large amount of waste on the Property in the outside areas and is likely to attract vermin, is combustible and therefore a fire hazard and has been issued to protect the threat to public health posed by the state of the Property. Compliance by no later than 26 February 2020 is specified. There is no appeal right against the Order under the LG Act as s 138(2) provides that no notice of a right to appeal against a No 22A Order need be provided and s 180(5) provides that an appeal right under s 180(1) concerning s 124 orders does not apply to a No 22A Order. The Order states that if it is not complied with, the Council will enter onto the Property and…