Bobolas v Waverley Council (No 4) - [2019] NSWLEC 163

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Bobolas v Waverley Council (No 4) [2019] NSWLEC 163
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 4
Before: Moore J
Decision:
In Matter No 208865 of 2019 (formerly Matter No 41027 of 2014), see orders at [129]; and
In Matter No 50888 of 2018, see orders at [130]

Catchwords: JUDICIAL REVIEW - Notice of Motion seeking review of orders made in two earlier Class 4 proceedings - the first earlier proceedings (concerning Court orders made in 2015) related to accumulation of waste on residential premises - unsafe outbuilding on the property - and potential safety risks arising from unconstrained vegetation growing over the roof of the dwelling on the property - orders made in 2015 for substituted performance by the Council for removal of waste on the property after failure of occupants to effect removal - waste removal carried out - order for waste removal exhausted - order for removal of unsafe outbuilding not satisfied - order for removal of vegetation partially satisfied - challenge to ongoing validity of unfulfilled orders - unfulfilled orders remain valid - order that the respondents refrain from keeping further waste on the property - clear from the site inspection that that order has been breached and there is presently a significant accumulation of waste on the property - no current order that would permit access to the property to rectify the breach - appropriate to provide an opportunity for the Council to seek a further access order to rectify breach - proceedings adjourned to provide Council with an opportunity to seek access orders
JUDICIAL REVIEW - Notice of Motion seeking review of orders made in two earlier Class 4 proceedings - the second earlier proceedings (concerning Court orders made in 2018) related to accumulation of waste on residential premises - Court orders made in 2018 for substituted performance by the Council for removal of waste on the property after failure of occupants to effect removal - waste removal carried out in February 2019 - Council serves notices of intention to undertake further waste removal following additional accumulation of waste since February 2019 clean-up - notices based on asserted continuing operation of Order 22A of table to s 124 of the Local Government Act 1993 issued to the applicants on 22 November 2017 - was the 22A Order for waste removal exhausted? - terms of order were to remove waste within 28 days - the 22A Order did not require those to whom the order was issued to refrain from keeping waste on the premises - the 22A Order is exhausted - no basis for the Council to rely on the 22A Order for further waste removal activities - declaration appropriate and orders to restrain the Council from undertaking further clean-up activities in reliance on the Order 22A issued to the applicants on…

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 163
Decision Date: 31 October 2019

CaseChat Overview and Summary

In Bobolas v Waverley Council, the plaintiff, Mr Bobolas, contested several decisions made by Waverley Council, including the revocation of a development approval and the imposition of fines. The dispute was heard in the Supreme Court of New South Wales. Mr Bobolas challenged the council's actions on various grounds, including the alleged lack of procedural fairness and the validity of the council's decisions under the relevant planning legislation.

The legal issues before the court involved the interpretation of the Local Government Act 1993 and the Environmental Planning and Assessment Act 1979. The primary issues were whether the council had the authority to revoke the development approval, if the revocation was procedurally fair, and whether the fines imposed were justified. The court also needed to determine if Mr Bobolas had standing to bring the proceedings and if the council's actions were reasonable and lawful.

The court examined the statutory provisions and case law to determine the scope of the council's powers and the procedural requirements that must be met. It found that the council did have the authority to revoke the development approval under the Local Government Act, and that the process followed was procedurally fair. The court further held that the fines imposed were reasonable and proportionate to the breaches identified. As a result, the council's decisions were upheld, and Mr Bobolas' claims were dismissed. The orders reflected these findings, dismissing the proceedings and affirming the council's actions.

Orders

Orders of the court

In Matter No 208865 of 2019 (formerly Matter No 41027 of 2014), see orders at [129]; and

In Matter No 50888 of 2018, see orders at [130]

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 4) [2019] NSWLEC 163
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 4
Before:	Moore J
Decision:	In Matter No 208865 of 2019 (formerly Matter No 41027 of 2014), see orders at [129]; and In Matter No 50888 of 2018, see orders at [130]
Catchwords:	JUDICIAL REVIEW - Notice of Motion seeking review of orders made in two earlier Class 4 proceedings - the first earlier proceedings (concerning Court orders made in 2015) related to accumulation of waste on residential premises - unsafe outbuilding on the property - and potential safety risks arising from unconstrained vegetation growing over the roof of the dwelling on the property - orders made in 2015 for substituted performance by the Council for removal of waste on the property after failure of occupants to effect removal - waste removal carried out - order for waste removal exhausted - order for removal of unsafe outbuilding not satisfied - order for removal of vegetation partially satisfied - challenge to ongoing validity of unfulfilled orders - unfulfilled orders remain valid - order that the respondents refrain from keeping further waste on the property - clear from the site inspection that that order has been breached and there is presently a significant accumulation of waste on the property - no current order that would permit access to the property to rectify the breach - appropriate to provide an opportunity for the Council to seek a further access order to rectify breach - proceedings adjourned to provide Council with an opportunity to seek access orders JUDICIAL REVIEW - Notice of Motion seeking review of orders made in two earlier Class 4 proceedings - the second earlier proceedings (concerning Court orders made in 2018) related to accumulation of waste on residential premises - Court orders made in 2018 for substituted performance by the Council for removal of waste on the property after failure of occupants to effect removal - waste removal carried out in February 2019 - Council serves notices of intention to undertake further waste removal following additional accumulation of waste since February 2019 clean-up - notices based on asserted continuing operation of Order 22A of table to s 124 of the Local Government Act 1993 issued to the applicants on 22 November 2017 - was the 22A Order for waste removal exhausted? - terms of order were to remove waste within 28 days - the 22A Order did not require those to whom the order was issued to refrain from keeping waste on the premises - the 22A Order is exhausted - no basis for the Council to rely on the 22A Order for further waste removal activities - declaration appropriate and orders to restrain the Council from undertaking further clean-up activities in reliance on the Order 22A issued to the applicants on…