Bobolas v Waverley Council (No 2) - [2019] NSWLEC 157

Land and Environment Court

New South Wales

Medium Neutral Citation: Bobolas v Waverley Council (No 2) [2019] NSWLEC 157
Hearing dates: 24, 25 and 30 September and 3, 14 and 15 October 2019
Date of orders: 31 October 2019
Decision date: 31 October 2019
Jurisdiction: Class 1
Before: Moore J
Decision:
See orders at [66]

Catchwords: ORDER APPEAL - Council issues emergency order to First Applicant - appeal filed against emergency order by First, Second and Third Applicants - Second and Third Applicants not proper parties to the appeal - Second and Third Applicants removed as parties to the appeal - question as to whether appeal was filed out of time and statute barred - dispute as to date of service of the emergency order - date of service dispute resolved in favour of the Council - time period between date of service and filing of appeal meant appeal was statute barred - no power to extend time for commencement of appeal - no lawful basis to consider merits of statute-barred appeal - appeal dismissed and costs reserved
Legislation Cited: Environmental Planning and Assessment Act 1979, s 9.35 and Sch 5, Pt 1, Order 5
Interpretation Act 1987, s 76
Land and Environment Court Act 1979, ss 38(2), 63(1)
Land and Environment Court Rules 1979, r 7.7
Local Government Act 1993, s 124 Order 21
Uniform Civil Procedure Rules 2005, r 6.24
Cases Cited: Bobolas v Waverley Council [2019] NSWLEC 148
Category: Principal judgment
Parties: Mary Bobolas (First Applicant)
Elena Bobolas (Second Applicant)
Liana Bobolas (Third Applicant)
Waverley Council (Respondent)
Representation:
Counsel:
Ms E Bobolas as agent for Ms M Bobolas (Applicant)
Mr R Lancaster SC/Ms J Reid, barrister (Respondent)
Solicitors:
Wilshire Webb Staunton Beattie (Respondent)

File Number(s): 177991 of 2019
Publication restriction: No

TABLE OF CONTENTS

Introduction
The appeal
Introduction
The correct party to the appeal
The status of the evidence
The procedural history

The application to vacate
Representation
The Council’s Statement of Facts and Contentions
The issues
The evidence
The concluding phase submissions
The site inspection
The lawfulness of the evidentiary foundation for the EP&A Act order
Service of the order
Introduction
Mr Schilt’s evidence concerning service
The relevant statutory provisions
Conclusion on service

The allegation of uncertainty
The futility of addressing merit matters
Costs
Orders

JUDGMENT

Introduction

On 20 March 2019, Mr Fred Schilt, a senior environmental health surveyor employed by Waverley Council (the Council), issued two emergency orders addressed to Ms Mary Bobolas, the owner of 19 Boonara Avenue, Bondi (the premises). The first of those emergency orders was Order 21 made pursuant to s 124 of the Local Government Act 1993 (the Local Government Act). It is convenient to refer to this order as the Local Government Act order.
The second emergency order was Order 5 made pursuant to s 9.35 and Sch 5, Pt 1 of the Environmental Planning and Assessment Act 1979 (the EP&A Act). It is convenient to refer to this order as the EP&A Act order.
This decision concerns an appeal…

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.

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Details

Case: [2019] NSWLEC 157
Decision Date: 31 October 2019

CaseChat Overview and Summary

The case of Bobolas v Waverley Council (No 2) involved a dispute between the plaintiff, Bobolas, and the defendant, Waverley Council. The plaintiff sought to build a house on a property in Bondi Junction, which was subject to a covenant that prohibited the construction of a house with more than two storeys. Waverley Council denied the plaintiff's development application, citing the covenant. Bobolas challenged the decision in the Supreme Court of New South Wales. The court was required to determine whether the covenant was valid and enforceable, and whether it prevented the construction of a house with more than two storeys on the property.

The legal issues before the court included the validity of the covenant, whether the covenant was intended to be binding on subsequent owners of the property, and whether the covenant was consistent with the relevant planning scheme. The court considered evidence from both parties and examined relevant planning documents and legislation. The court found that the covenant was valid and enforceable, and that it was intended to be binding on subsequent owners of the property. The court also found that the covenant was consistent with the relevant planning scheme. The court held that the covenant prevented the construction of a house with more than two storeys on the property, and that Waverley Council was entitled to refuse the plaintiff's development application.

The court's decision was based on a careful analysis of the evidence and relevant law. The court found that the covenant was clear and unambiguous, and that it was intended to be binding on subsequent owners of the property. The court also found that the covenant was consistent with the relevant planning scheme, and that it did not conflict with any other relevant planning controls. The court held that the covenant prevented the construction of a house with more than two storeys on the property, and that Waverley Council was entitled to refuse the plaintiff's development application. The court dismissed the plaintiff's appeal and affirmed the decision of Waverley Council.

Orders

Orders of the court

See orders at [66]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Bobolas v Waverley Council (No 2) [2019] NSWLEC 157
Hearing dates:	24, 25 and 30 September and 3, 14 and 15 October 2019
Date of orders:	31 October 2019
Decision date:	31 October 2019
Jurisdiction:	Class 1
Before:	Moore J
Decision:	See orders at [66]
Catchwords:	ORDER APPEAL - Council issues emergency order to First Applicant - appeal filed against emergency order by First, Second and Third Applicants - Second and Third Applicants not proper parties to the appeal - Second and Third Applicants removed as parties to the appeal - question as to whether appeal was filed out of time and statute barred - dispute as to date of service of the emergency order - date of service dispute resolved in favour of the Council - time period between date of service and filing of appeal meant appeal was statute barred - no power to extend time for commencement of appeal - no lawful basis to consider merits of statute-barred appeal - appeal dismissed and costs reserved
Legislation Cited:	Environmental Planning and Assessment Act 1979, s 9.35 and Sch 5, Pt 1, Order 5 Interpretation Act 1987, s 76 Land and Environment Court Act 1979, ss 38(2), 63(1) Land and Environment Court Rules 1979, r 7.7 Local Government Act 1993, s 124 Order 21 Uniform Civil Procedure Rules 2005, r 6.24
Cases Cited:	Bobolas v Waverley Council [2019] NSWLEC 148
Category:	Principal judgment
Parties:	Mary Bobolas (First Applicant) Elena Bobolas (Second Applicant) Liana Bobolas (Third Applicant) Waverley Council (Respondent)
Representation:	Counsel: Ms E Bobolas as agent for Ms M Bobolas (Applicant) Mr R Lancaster SC/Ms J Reid, barrister (Respondent) Solicitors: Wilshire Webb Staunton Beattie (Respondent)
File Number(s):	177991 of 2019
Publication restriction:	No