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

1. 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.

2. 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.

3. This decision concerns an appeal against the emergency order issued pursuant to the EP&A Act order. An appeal against the Local Government Act order is dealt with in a separate decision published contemporaneously with this one.

The appeal

Introduction

4. On 6 June 2019, an appeal was filed with the Court against the EP&A Act order. That appeal was purportedly commenced by all three members of the Bobolas family (Ms Mary Bobolas and her daughters, Ms Elena Bobolas and Ms Liana Bobolas) who are resident at the premises. As all three members of the family need to be referred to in this decision, I shall, without disrespect to them, refer to each of them by their given name.

5. The EP&A Act order was, as earlier noted, issued to Mary. It was issued to her because she is the owner of the property.

6. This appeal falls within Class 1 of the Court's jurisdiction, a class of proceedings to which the strict rules of evidence do not apply, but where the obligations to afford procedural fairness and natural justice to the parties to such an appeal are, nonetheless, applicable.

The correct party to the appeal

7. As the EP&A Act order had been issued against Mary only, Mary is the only correct party to the appeal. No application was made pursuant to r 6.24 of the Uniform Civil Procedure Rules 2005 (the UCPR) by either Elena or Liana to be joined as a party to the proceedings. As I indicated at the commencement of the hearing, I proposed to remove Elena and Liana as purported parties to the appeal against the EP&A Act order. The orders I set out at [66] effect that removal.

8. However, I granted leave pursuant to s 63(1) of the Land and Environment Court Act 1979 (the Court Act) and r 7.7 of the Land and Environment Court Rules 1979 (the Court Rules) for Elena to act as Mary's agent for the purposes of this appeal.

9. As there was also an appeal (in Class 2 of the Court's jurisdiction) concerning the Local Government Act order, where that appeal had also been erroneously commenced in the names of all three members of the Bobolas family, I took a similar position concerning correcting the identity of the correct party to that appeal and permitting Elena to act as Mary's agent in the same fashion in those proceedings.

10. Finally, concerning representation, it is to be noted that, separately, challenges have been made against orders made in two Class 4 proceedings. In one of those proceedings, all three members of the family were respondents to those orders, whilst, in the other Class 4 proceedings, those proceedings were discontinued against Mary but they remained on foot with Elena and Liana as respondents.

11. As, without objection from the Council or any member of the Bobolas family, much of the hearing time before me was devoted to all matters in an intermingled fashion, Elena was also granted leave to represent Mary as her agent in the Class 4 proceedings to which Mary remained a respondent.

The status of the evidence

12. Although, as a consequence of s 38(2) of the Court Act, the strict rules of evidence do not apply in this appeal or in the Local Government Act appeal, they do apply in the Class 4 proceedings. That has had limited practical effect (and, to the extent that there has been a practical effect, that is later described specifically) and, therefore, that, to the extent relevant (and admissible), evidence in one proceedings was evidence in each other proceedings.

The procedural history

13. The Bobolas family filed a Notice of Motion on 3 July 2019 (nominating all four matters), which they sought to make returnable at 4:15 pm the following day. The Registrar abridged time for service and the matter was set down as requested. The orders that were sought in the Notice of Motion were in the following terms:

1   Applicants seek to be granted short service of the Notice of Motion and affidavit/s in support.

2   An order that the Respondent, its employees, agents and/or contractors, be restrained from entering, remaining on and/or performing any work at 19 Boonara Avenue Bondi and/or a stay on Council orders until matters are heard (final hearing) by the court, and a stay of the court's orders.

14. The Notice of Motion form then continued to say:

Please note that Mr Webber for the other side is on leave until Monday. Our pro-bono barrister, Mr Craig Bolger is away until 15 July 2019. Council want to do things on Monday 8th July. Please see also affidavit for further details/orders sought. There are issues that have to be aired before a court. Please note. Sheahan J orders (at order 20) provide for liberty to apply.

15. It is unnecessary to set out, in great detail, the common procedural history of the Class 1, 2 and 4 proceedings. It is sufficient to note that, as a consequence of the preliminary hearing of the Notice of Motion before Pepper J on 4 July 2019, timetabling orders were made for the preparation of hearing of the various matters, with the hearing dates of 24 and 25 September 2019 being allocated. On 12 August 2019, a further procedural hearing was held by Robson J, with this hearing resulting in variations to timetabling elements of the orders made by Pepper J but holding the hearing dates in September 2019.

The application to vacate

16. On the first day of the hearing before me of all the matters, a Notice of Motion was filed on behalf of the Bobolas family seeking to vacate the hearing for all matters. The hearing and determination of that Notice of Motion took the whole of the day on 24 September 2019. I dismissed the application to vacate the various proceedings (Bobolas v Waverley Council [2019] NSWLEC 148).

Representation

17. The Council was represented in all matters by Mr Lancaster SC. As earlier noted, Elena was granted leave to represent Mary in the Class 1, Class 2 and the remaining Class 4 proceedings involving Mary.

The Council’s Statement of Facts and Contentions

18. As directed, the Council filed a Statement of Facts and Contentions (SOFAC) in these proceedings. It is unnecessary to quote from the material set out in this document.

The issues

19. For Mary, the matters which are advanced on her behalf go, primarily, to the validity of the emergency order. The matters put on Mary's behalf by Elena questioning the validity of the order are:

• the claim that the order is based on evidence from Mr Doug McMillan, a structural engineer retained by the Council, and that that evidence was illegally obtained. As a consequence, it is put that there is no valid foundation for the order; and

• the terms of the order are vague and, therefore, are unenforceable.

20. Mary questions the necessity for the emergency order on its merits. The question of the reasonableness of time for compliance was also raised.

21. The primary contention of the Council is that this appeal is statute barred, as it was filed well after the expiry of the time limit imposed by the EP&A Act for the commencement of such appeals. On this basis, the Council contends that the appeal must be dismissed.

22. In this regard, it is to be observed that Elena advances the proposition, on behalf of Mary, that service was not effected validly within the timeframe asserted by the Council, but at a later time when the emergency order was brought to Mary's attention. As a consequence, Elena submits that, as this occurred less than the statutory time-limiting period of 28 days’ prior to the commencement of this appeal, the appeal is within time and is to be determined on the merits of the matters raised by Mary.

23. The Council also contends that, on the merits, the issuing of the emergency order was appropriate and necessary so that, if I was to conclude that I should undertake a merit assessment in this appeal, the appeal would be dismissed as having no merit foundation.

The evidence

24. As is customary, in proceedings such as these, the Council's evidence was taken first, whilst the evidence given on behalf of Mary followed. Affidavit evidence was given on behalf of the Council by:

• Mr Kendall Webber, the Council's solicitor. Mr Webber was required for cross-examination;

• Mr Doug McMillan, a structural engineer retained by the Council in 2014 and 2019 to provide expert advice on relevant matters. Mr McMillan was required for cross-examination. His affidavit, and its accompanying reports dated 13 February and 4 March 2019, was admitted, subject to my determination of an objection pressed by Elena that his presence on the property on 13 February 2019 (the occasion upon which he had made the visual observations forming the basis of his letters to the Council had been made when he was not lawfully present on the property, thus rendering his evidence inadmissible as it had been unlawfully obtained). Mr McMillan was required for cross‑examination, with this oral evidence being on a voir dire basis pending my resolution of the admissibility issue. It is also to be observed that, as later discussed, Mr McMillan was a member of the party that undertook the inspection of the site at 8.30 am on Thursday 4 October 2019; and

• Mr Fred Schilt, a Senior Environmental Health Surveyor employed by the Council. Mr Schilt was the officer who issued the Local Government Act order. He also issued the EP&A Act order. Mr Schilt was required for cross-examination.

25. Evidence given by all three council witnesses was potentially relevant to, and admissible in, the matters before me in these combined proceedings. It is, however, to be observed that Mr McMillan’s 2019 affidavit and annexed letters; his participation in the site inspection; and the bulk of his oral evidence was admissible only in the Class 1 and Class 2 appeals against the emergency orders issued by Mr Schilt. Two folders of documents were also tendered in the Council’s case. The first of those, a bundle of documents covering the period from 2014 to 2019, comprised Council orders, Court orders and correspondence, became Exhibit 2. Various elements of this material were admissible in only identifiable elements of the proceedings presently before me. To the extent that it is necessary to reference this material in any of the decisions to be delivered in the Class 1, Class 2 or Class 4 proceedings, the specific element of this bundle is identified for this purpose in the relevant decision.

26. The second folder of material (becoming Exhibit 5) contained a range of documents, bringing together all documents referenced as exhibited to Mr Schilt’s affidavit of 7 August 2019. As with the material in Exhibit 2, material contained in this folder was relevant, in varying fashions, across the Class 1, Class 2 or Class 4 proceedings. Cross-examination of Mr Schilt by Elena and by Liana was permitted to range across the documents contained in Exhibit 2 and Exhibit 5 without being sequentially confined by reference to the Class 1, Class 2 or Class 4 proceedings. To the extent that it may be relevant for me to refer to his evidence given in cross-examination with respect to any of the documents in either exhibit, that oral evidence will be referenced, where relevant, in the appropriate applicable proceedings.

27. Evidence was given on behalf of the identified, relevant member or members of the Bobolas family in the Class 1, Class 2 and Class 4 proceedings (to the extent relevant in any of those proceedings) by:

• Mr Craig Bolger, a barrister who has provided pro bono legal advice to members of the Bobolas family, both prior to Mr McMillan's attendance at the property on 13 February 2019 and subsequently. Although Mr Bolger attended the proceedings for the purposes of explaining the nature of involvement with the Bobolas family in, particularly, the Class 1 and Class 2 proceedings, this explanation was provided to me in his capacity as an officer of the Court and it was not suggested by Mr Lancaster that it was either necessary or appropriate that that explanation be provided from the witness box.

Mr Bolger subsequently deposed an affidavit on 2 October 2019 which was read during the following day’s hearing. This affidavit addressed matters arising in the Class 1 and Class 2 proceedings. For reasons later set out in my discussion concerning the admissibility of Mr McMillan's evidence of what he observed during the course of his presence on the property on 13 February 2019, it is unnecessary for me to refer further to Mr Bolger's affidavit. Mr Bolger was not required for cross-examination; and

• Liana deposed an affidavit dated 2 October 2019. This affidavit traversed matters in the Class 1, Class 2 and Class 4 proceedings. Her affidavit was read without objection. Liana was required for cross‑examination. Her cross-examination by Mr Lancaster, although comparatively brief, also crossed matters relevant to the Class 1, Class 2 and Class 4 proceedings. To the extent that it is appropriate to refer to her oral evidence, that evidence will be referenced in my decision in the relevant proceedings.

28. A bundle of 28 colour photographs was also tendered for the Bobolases (becoming Exhibit B). These were numbered by me and, to the extent relevant in any of the proceedings, those photographs will be referred to in that manner.

The concluding phase submissions

29. Although the closing submissions made by Elena and Liana on the afternoon of 14 October 2019 were, strictly speaking, to be confined to matters only relevant to the Class 4 issues pressed by them (and not to the Class 1 or Class 2 matters, as I had already reserved my decision in those matters), I permitted Elena and Liana to range across all three classes during these submissions. To the extent that either of them raised matters in their closing submissions on 14 October 2019 that related to aspects of the Class 1 and/or Class 2 proceedings, I have had regard to those submissions (to the extent relevant) in reaching my decision in these proceedings.

30. During the course of the closing submissions’ hearing on 15 October 2019, in addition to the changes earlier set out to the aspects of relief sought by Elena and Liana, I was also provided with the document authored by Liana that contained eight pages of submissions that ranged across not only the Class 4 matters with which this phase of the proceedings was engaged, but also revisited elements relating to the Class 1 and Class 2 proceedings upon which I had already reserved my decision. I indicated to Liana that I regarded the Class 1 and Class 2 proceedings as having been closed and that, therefore, I did not propose to have regard to anything in these written submissions that related to those two proceedings.

31. However, on reflection, I have concluded that the appropriate course to follow, given that the Bobolas family do not have legal representation before me (although, it is to be acknowledged, they have considerable experience in acting for themselves in litigation concerning the general statutory framework involved in these proceedings), was that I should have regard to all matters contained in the written submissions from Liana provided to me on 15 October 2019 in each relevant Class of proceedings.

32. As a consequence, to the extent relevant, I have done so. Although it has not been necessary for engaging with the issues I need to consider in any of the Class 1, Class 2 or Class 4 proceedings to quote from those submissions, the absence of quotation from those written submissions is not to be seen as any indication that I have not carefully read and had regard to the terms of that document.

The site inspection

33. The site inspection was conducted at 8.30 am on Thursday 3 October 2019. Those participating in the site inspection (Mr Lancaster, Mr Webber and Mr McMillan for the Council, and all three members of the Bobolas family) met me outside the property on the public footpath. I had indicated, at an earlier point in the hearing, that I would determine, after arrival at the property, whether I was prepared to enter the property for the purposes of the site inspection.

34. Upon arrival at the property, I observed that virtually the entirety of the front setback of the property was piled with individual items of waste, or plastic bags containing waste. Weaving through this detritus were narrow pathways that appeared to provide access to the front of the dwelling house on the property and, to the northern and southern sides of the dwelling, potentially provided access to the rear yard of the property. I indicated I was not prepared, for occupational health and safety reasons, to enter the property or to require any of those present for the Council to do so.

35. Mr Lancaster confirmed that access had been arranged with the owner of 17 Boonara Avenue (the property immediately to the north of the Bobolas’ property) in order to permit observation over the paling boundary fence into the rear area of the Bobolas’ property. Observation, for evidentiary purposes during the site inspection, was only appropriate to be made of various elements of the dwelling structure that were the subject of the emergency orders providing the basis for the Class 1 and Class 2 proceedings.

33. The owner of 17 Boonara Avenue (who took no part in the site inspection) provided a stepladder which permitted Mr McMillan and Elena to stand on a lower step (on opposite sides of the ladder) in order to view over the paling fence (the fence being approximately 1.8 metres high). Mr Lancaster, Mr Webber and I were tall enough to be able to see over the fence without the necessity for a ladder.

34. Mr McMillan was permitted to point out matters able to be observed but not to give opinion evidence concerning them. Elena was also permitted to point out matters on this basis. At the conclusion of the site inspection, proceedings were adjourned to recommence in Court later that morning.

The lawfulness of the evidentiary foundation for the EP&A Act order

38. Elena submitted on behalf of Mary that, for the purposes of the emergency orders in the Class 1 and Class 2 proceedings, Mr McMillan was not on the property pursuant to any authorisation arising from Order (4) of the orders of Pain J made on 14 September 2018. The terms of Pain J's Order (4) were:

(4)   An order that the Applicant, its servants and agents, for the purposes of these orders, now and until these orders have been carried out, shall be entitled to enter and remain on the premises to carry out the works during weekdays between the hours of 7.00 am to 3.00 pm.

39. The Council conducted the clean-up authorised by Pain J commencing on 13 February 2019. On that day, Mr McMillan was present on the site. The clean-up was being conducted by hand removal, without the use of mechanical equipment.

40. The Council relied on structural engineering evidence given by Mr McMillan who is a Senior Principal at Cardno, an engineering consultancy. As earlier noted, Mr McMillan deposed an affidavit. Annexed to that affidavit were two letters addressing structural issues relating to a sliding door structure in the western wall of the dwelling at its northern end and with respect to a lean-to structure attached to the southern end of the western wall of the dwelling. Mr McMillan addressed his structural concerns about these built elements on the site in two letters to the Council, dated 13 February and 4 March 2019. These letters provided the basis upon which Mr Schilt considered it appropriate to issue the two emergency orders. Mr McMillan based his letters to the Council concerning the state of these elements of the structures on the property on his observations undertaken on 13 February 2019.

41. As earlier noted, Mr McMillan's affidavit was admitted provisionally on the basis that I would subsequently rule on whether any evidence based on his observations whilst on the site on 13 February 2019 were inadmissible because he was on the site without lawful authority. It was on this basis that objection was pressed for Mary that his affidavit and the annexed letters, together with any oral evidence which he gave concerning what he had observed on 13 February 2019, were inadmissible.

42. I also note that, to the extent that Mr McMillan subsequently expressed opinions in his oral evidence given on 3 October 2019 after the site inspection, only part of that evidence was based on his comparative analysis of the position observed during the site inspection when compared to the position he observed on 13 February 2019. Other elements of his oral evidence on 3 October 2019 were simply addressed to what was able to be observed during the course of the site inspection without being tainted (in the fashion asserted by Elena) by any comparison with what he observed on 13 February 2019. However, all his evidence went to the merits of the two emergency orders and, for the reasons which follow, does not need to be considered for those purposes.

43. The present relevance of Mr McMillan’s evidence is that it provided, for reasons discussed below, lawfully obtained information to provide a proper basis for Mr Schilt to issue the two emergency orders.

44. Mr McMillan was cross-examined by Elena about the basis upon which he was on the property on 13 February 2019. It is unnecessary to set out any of that material, but it appears in the transcript of 30 September 2019 at page 41, line 40 to page 43, line 19. It is to be observed that Mr McMillan did not have any precise knowledge, as he acknowledged, as to the basis upon which he was on the property on that occasion.

45. However, Mr Schilt was also cross-examined by Elena on this point and he explained, concisely, the basis upon which he had caused Mr McMillan to be present on 13 February 2019. Mr Schilt said (Transcript, 3 October 2019, page 54, line 34 to page 59, line 4):

Q. Did you seek permission for Mr McMillan to set foot on the premises?

A. No.

Q. Why is that?

A. In my opinion the orders of the Court were that the council could - the council, its servants and agents could enter onto the property. The reason I had Mr McMillan there, was on account of a safety concern that I had regarding the structural disability of the back of the house and the garage that was - that is completely full of waste material.

46. The state of Mr McMillan's knowledge is irrelevant; it is the basis upon which the Council determined that Mr McMillan should be present that is relevant for my consideration. It is clear that, for the reasons explained by Mr Schilt, Mr McMillan was present on the site for a purpose consistent with the right of access created by order (4) of Pain J's orders.

47. There is no validity to the complaint that Mr McMillan was a trespasser on the property when he made the observations that he reported to the Council in his letters of 13 February and 4 March 2019 to the Council.

48. It is entirely appropriate that those observations be regarded as incidental as arising out of the purpose for which Mr Schilt had asked Mr McMillan to be present on the site on 13 February 2019.

49. It follows that Mr McMillan’s voir dire evidence is admissible and is, therefore, admitted. It provides a proper evidentiary basis for the issuing of both emergency orders by Mr Schilt.

Service of the order

Introduction

50. As earlier noted, a SOFAC was filed in these proceedings by the Council. That SOFAC set out, at [13], the following concerning the service of the EP&A Act order on Mary:

13.   The Emergency Order was issued by the Respondent on 20 March 2019 and served on that day by way of prepaid post and by a Council officer placing the Emergency Order in a sealed envelope addressed to Mary Bobolas within a plastic sleeve and attaching the plastic sleeve to the front gates of the site.

51. The position advanced on behalf of Mary by Elena was that service was not effected on Mary on 20 March 2019 as the posted documentation had been intercepted and withheld from Mary. The position was also advanced that it was not effected by the placing of the Emergency Order in a sealed envelope addressed to Mary Bobolas within a plastic sleeve and attaching the plastic sleeve to the front gates of the property as this documentation had also been intercepted and withheld from Mary. Liana gave affidavit and oral evidence to this effect.

52. The position put by Elena on behalf of Mary was that the order did not come to Mary's attention, to effect service, until about 6 June 2019. On this basis, it was submitted by Elena that this appeal had been commenced within the 28‑day time limit imposed by s 8.18 of the EP&A Act.

53. The position advanced by Mr Lancaster was that service had been effected as a result of Mr Schilt posting the EP&A Act order on 20 March 2019 and that, as a consequence of the 28-day time limit applying, this appeal had been commenced out of time and was to be dismissed on that basis.

54. The Council's position is undoubtedly correct (as I explain below), thus requiring this appeal to be dismissed.

Mr Schilt’s evidence concerning service

55. Mr Schilt’s affidavit of 7 August 2019 set out, at [53] and [54], how service of the Local Government Act order and the EP&A Act order had been effected on Mary. These paragraphs of his affidavit were not the subject of cross‑examination and were not challenged. These paragraphs of his affidavit were in the following terms:

53 I caused Emergency Order 21 under Section 124 of the Local Government Act 1993 and Emergency Order 5 under Part 1, Schedule 5 and Section 9.34 of Environmental Planning and Assessment Act 1979 (EPAA) both dated 20 March 2019 to issue to Mary Bobolas.

Exhibited to this affidavit and marked ‘FS13” are true copies of the Emergency Orders referred to above.

54   On 20 March 2019 in the Company of Ms Sasha McCaul, I attended Waverley Post Office and posted in prepaid envelopes, two envelopes addressed to Mary Bobolas each containing an Emergency Order referred to above.

At about 11.15 am on the same day I attended the property with Ms Sasha McCaul and attached two envelopes each containing and Emergency Order and addressed to Mary Bobolas, to the front gates of the property. The envelopes were each in plastic sleeves and attached attached to the front gates by plastic ties.

Exhibited to this affidavit and marked “FS14” is a true copy of a photograph I took of the envelopes in their plastic sleeves attached to the front gates.

The relevant statutory provisions

56. As can be seen from the following discussion, Mr Schilt’s placing the EP&A Act order in a sealed envelope addressed to Mary Bobolas within a plastic sleeve and attaching the plastic sleeve to the front gates of the property has no role to play in satisfaction of the service requirements of the EP&A Act.

57. However, the terms of a number of provisions of the EP&A Act are relevant to satisfaction of the service requirements of the EP&A Act. The first of them is s 8.18(3)(a), the provision which creates the right of appeal against the EP&A Act order. Relevantly, it is in the following terms:

8.18   Appeals concerning orders

(1)   A person who is given a development control order may appeal to the Court against the order.

(2)   …

(3)   The appeal may be made only:

(a)   within 28 days after the development control order is given to the person, or …

58. The second is s 10.11(1)(a)(ii), the provision dealing with the service of notices or other documents (this necessarily encompassing orders). The relevant elements of this section are in the following terms:

10.11   Notices

(1)   Where under this Act any notice or other document is required to be given to or served upon any person, the notice or other document may be given or served:

(a)   in the case of an individual:

(i)   …, or

(ii)   by sending it by prepaid post addressed to him or her at the address, if any, specified by him or her for the giving of notices or service of documents under this Act, or, where no such address is specified, at his or her usual or last known place of abode or his or her last known place of business, or

(b)   …, or

(c)   …

(2)   A notice or other document shall, in respect of a notice or other document sent by prepaid post in accordance with subsection (1)(a)(ii) or (b)(ii), be deemed to have been given or served at the time at which the notice or other document would be delivered in the ordinary course of post.

59. The terms of s 76 of the Interpretation Act 1987 (the Interpretation Act) are also relevant to the proper understanding of s 10.11(2)(a) of the EP&A Act.

76   Service by post

(1)   If an Act or instrument authorises or requires any document to be served by post (whether the word “serve”, “give” or “send” or any other word is used), service of the document:

(a)   may be effected by properly addressing, prepaying and posting a letter containing the document, and

(b)   in Australia or in an external Territory—is, unless evidence sufficient to raise doubt is adduced to the contrary, taken to have been effected on the seventh working day after the letter was posted, and

(c)   …

(2)   In this section:

working day means a day that is not:

(a)   a Saturday or Sunday, or

(b)   a public holiday or a bank holiday in the place to which the letter was addressed.

Conclusion on service

60. The consequence of the combination of s 8.18(3)(a) and s 10.11 of the EP&A Act; s 76(1)(a) and (b) and (2) of the Interpretation Act and the evidence in the earlier quoted paragraphs of Mr Schilt’s affidavit is that statutorily compliant service of the EP&A Act order was effected on Mary on 29 March 2019.

61. The appeal against the EP&A Act order was filed on 6 June 2019. For completeness, I note that, although the filed application was originally stamped as filed on 7 June 2019, this was corrected to 6 June 2019 and initialled by an officer of the Court’s Registry.

62. The filing date was some 68 days after the date of service effected pursuant to s 10.11(1)(a)(ii)) of the EP&A Act (excluding the period allowed for the carriage by post [s 76(1)(a) and (b) and (2) of the Interpretation Act 1987] and the day of filing); and

63. On the basis of the time between the date of validly effected service and filing of the appeal, the appeal is out of time. The necessary consequence, on the basis of this time breach, is that this appeal must be dismissed.

64. For completeness, it is appropriate to note that it is not possible to extend time for filing such an appeal. This is a consequence of the combination of rr 7.1(2) and 7.3 of the Court Rules. The first of these rules acts to prevent, expressly, extensions of time limits when those time limits are established by an Act (as is here the case) and, whilst r 7.3 contains a more general, facultative provision concerning the extension of time, it does not apply to time limits set by Acts of Parliament and, thus, cannot be read as modifying the prohibition contained in r 7.1(2).

The allegation of uncertainty

65. Elena advanced the proposition on behalf of Mary that the terms of the emergency order were uncertain because they were not able to be understood readily as a consequence of the language used. On this basis, it was submitted that the order, even if validly served, was void for uncertainty.

66. To understand why I consider that this proposition is entirely without merit, it is appropriate to annex a copy of the EP&A Act order to this decision. It is reproduced as Annexure A to this decision. The terms of the order are completely self-explanatory and in no way lack precision as to what is required to be undertaken by the person to whom the order is addressed. The reasons given for the making of the order are also clearly expressed. The order sets out necessary statutory matters, including the rights of appeal that lie with the person to whom the order is addressed.

67. The complaints about the terms of the order are entirely without foundation.

The futility of addressing merit matters

68. Although the Council engaged with the matters of merit concerning this emergency order, doing so against the possibility that I might be persuaded that the appeal had been commenced within the statutorily permitted timeframe, it is unnecessary for me to consider those matters because the appeal is statute barred. For the same reason, it is unnecessary for me to address the matters pressed for Mary as said to warrant me upholding this appeal on its merits.

Costs

69. As the question of costs in the Class 1 and Class 2 proceedings was not the subject of any substantive submissions, it is appropriate that I reserve the question of costs in each of them.

Orders

70. The orders of the Court are:

1. Pursuant to s 64(1)(a) of the Civil Procedure Act 2005, the Second Applicant (Elena Bobolas) and the Third Applicant (Liana Bobolas) are removed as applicants to this appeal;

2. The appeal against emergency Order 5 made pursuant to s 9.35 and Sch 5, Pt 1 of the Environmental Planning and Assessment Act 1979 issued on 20 March 2019 to the First Applicant (Mary Bobolas) is dismissed;

3. Costs are reserved; and

4. The exhibits are returned.

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Annexure A

Annexure A - Emergency Order - EP& A Act (1.63 MB, pdf)

Decision last updated: 15 November 2019