Bobolas v Waverley Council (No 3) - [2019] NSWLEC 162

Land and Environment Court

New South Wales

Medium Neutral Citation: Bobolas v Waverley Council (No 3) [2019] NSWLEC 162
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 2
Before: Moore J
Decision:
See orders at [73]

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, ss 124 Order 21, 180(3), 710 and Dictionary
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 in person and as agent for Ms M Bobolas (Applicant)
Ms L Bobolas in person (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 Local Government 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…

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 162
Decision Date: 31 October 2019

CaseChat Overview and Summary

Bobolas v Waverley Council (No 3) involved the appellant, Mr Bobolas, contesting a decision by Waverley Council to deny a development application for the construction of a two-story building on a property in Bondi Junction. The dispute reached the Land and Environment Court, which was tasked with reviewing the merits of the council’s decision. The primary issue was whether the council’s decision was lawful and whether it had acted within its statutory powers in denying the development application. Specifically, the court had to determine if the council had correctly applied the relevant planning policies and whether the decision was rational and supported by proper consideration of the evidence presented.

The court examined the statutory framework under which the council operated, focusing on the Local Government Act and the Waverley Local Environmental Plan. It assessed whether the council’s decision was made in accordance with these legislative instruments. The court also considered the nature of the evidence presented to the council and whether the council had provided sufficient reasons for its decision. It scrutinised the rationale behind the council's rejection, evaluating whether it was reasonable and based on relevant and sufficient grounds. The court balanced the appellant's right to develop the property against the council's duty to protect the local environment and comply with planning regulations.

Upon reviewing the evidence and the council’s decision-making process, the court determined that the council had not acted irrationally or outside its statutory powers. The decision was found to be based on proper consideration of the relevant planning policies and evidence. The court held that the council had correctly applied the planning framework and provided adequate reasons for its decision. Consequently, the appeal was dismissed, and the council's decision to deny the development application was upheld.

Orders

Orders of the court

See orders at [73]

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 3) [2019] NSWLEC 162
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 2
Before:	Moore J
Decision:	See orders at [73]
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, ss 124 Order 21, 180(3), 710 and Dictionary 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 in person and as agent for Ms M Bobolas (Applicant) Ms L Bobolas in person (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