Elena Bobolas v Waverley Council

[2006] NSWLEC 444

Land and Environment Court

of New South Wales

CITATION:	Elena Bobolas v Waverley Council [2006] NSWLEC 444
PARTIES:	APPLICANT Elena Bobolas RESPONDENT Waverley Council
FILE NUMBER(S):	20269 of 2006
CORAM:	Brown C
KEY ISSUES:	Appeal :- s 124 order - whether land in a safe or healthy condition
LEGISLATION CITED:	Local Government Act 1993
CASES CITED:	Wollongong City Council v McLean [2006] NSWLEC 295
DATES OF HEARING:	7 July 2006
DATE OF JUDGMENT:	07/21/2006
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT Mr M Staunton, solicitor SOLICITORS Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

21 July 2006

20267 of 2006 Mary Bobolas v Waverley Council
20268 of 2006 Liana Bobolas v Waverley Council
20269 of 2006 Elena Bobolas v Waverley Council

JUDGMENT

1 COMMISSIONER: These are three separate but related appeals against three orders issued by Waverley Council (the council) under s 124 of the Local Government Act 1993 (the LGA Act) for the premises at 19 Boonara Avenue, Bondi (the site).

2 The appeals were heard concurrently and relate to:

• Ms Mary Bobolas - Appeal No. 20267 of 2006
• Ms Liana Bobolas - Appeal No. 20268 of 2006
• Ms Elena Bobolas - Appeal No. 20269 of 2006
  

3 Ms Mary Bobolas is the owner of the premises and lives at the site with her daughters Ms Liana Bobolas and Ms Elena Bobolas. The applicants were not legally represented with Ms Elena Bobolas representing herself and her mother and Ms Liana Bobolas representing herself.

The orders

4 The orders were dated 7 March 2006 and relate to order 21 of s 124 of the LGA Act in that the council has determined that the land or the premises are not in a safe or healthy condition. The orders are identical for each of the appeals and the relevant parts state:

TERMS OF THE PROPOSED ORDER
(a) Remove all waste, being garbage and refuse including but not limited to scrap metal, papers, rags, bottles, plastic containers, and putrescible matter which you have collected, accumulated and are storing from all parts of the subject premises.

REASONS FOR ORDER
This order is given because:
(a) the subject premises are a dwelling houses located in a residential area;
(b) you are storing waste, being garbage and refuse including but not limited to scrap metal, papers, rags, bottles, plastic containers, and putrescible matter on all parts of the subject premises;
(c) the garbage and refuse you are storing is a fire risk and is likely to form or afford harbourage for vermin and as such constitutes a serious health risk to the occupants of the subject premises and the neighbouring properties.


PERIOD FOR COMPLIANCE WITH ORDER
As the storage of waste constitutes a serious health risk you are required to comply with this order within twenty eight (28) days from the date of service of this order upon you.

The site view

5 The hearing commenced with a site view at 9:30 am on 7 July 2006. Ms Mary Bobolas, Ms Liana Bobolas and Ms Elena Bobolas were present at the time of the site view. Mr Michael Staunton, the council’s solicitor was also present as were a number of council staff and local residents. As I understand the council staff and local residents present had prepared affidavits for the proceedings.

6 Access to the site was not readily available because of an accumulation of waste on the area from the front gate to the dwelling so the site was viewed from the street frontage and along the length of the northern boundary over the fence of the adjoining property.

7 I observed that the front yard, the southern side setback and rear yard were covered in a range of material to a height of approximately 0.5 m to 1 m and greater in some areas. The open front verandah of the house had material to a height of approximately 2 m behind shade cloth material that covered the openings of the verandah.

8 The material consisted of various containers with some containing stagnant water, boxes, paper, bottles and a large amount of plastic garbage bags some of which had torn open and others remained unopened. Other items such as furniture were also observed. A plastic bag containing two loaves of bread covered in mould was pointed out to the Court near the front fence. An odour I associated with the decaying waste was noticeable coming from the site.

The council's case

9 The council filed affidavits on 2 June 2006 from council officers Mr Robert Cairns, an Environmental Health Surveyor, Mr Mark Featherstone, the Coordinator, Building Regulation and Compliance and Ms Ruth Holten, Executive Planner and local residents Ms Michele Silver and Ms Barbara Lake. Letters from local residents Ms Stephanie Sandor, Mr Rodney Inder, Ms Debbie Madgwick and Mr Luigi Guerrera were also filed at the same time. These documents responded to directions given by the Court on 26 May 2006.

10 The directions also required that the documents be served by 2 June 2006 and the applicants were to file and serve any evidence on which they relied on by 23 June 2006.

11 Prior to leaving the site view, the applicants indicated that they had not received the documentation required by the Court’s direction of 26 May 2006. At the request of the Court copies of the affidavits and letters were provided to the applicants at this time.

12 When the hearing recommenced in Court, the applicants repeated the comments on site that they had not received the council’s documents. They further stated that they were unable to properly respond to the documents in the time between receiving the documents and the recommencement of the hearing. In response, the council provided an affidavit of service by Mr Gordon Hartley, a solicitor formerly in the employee of the council's solicitors that indicated that the documents were placed in the letterbox on the site on 2 June 2006. The applicants required Mr Hartley for cross-examination where he confirmed the contents of the affidavit and further added that the documents were placed in the letterbox between 3.30 pm and 4.00 pm on 2 June 2006. A taxi receipt was provided to the Court to support his evidence.

13 Notwithstanding the evidence of Mr Hartley, the applicants maintained that they had not received the documentation and were prejudiced by the lack of time to understand and respond to the contents of the affidavits and letters. An affidavit sworn by E Bobolas on 7 July 2006 stated, in part, that:

2. No documents have been served or received for any of the three cases to the present day.

14 The evidence indicated that the affidavits and letters were served in accordance with the directions of the Court however to address the prejudice the applicants stated that they had incurred, I advised the parties that I would not read the affidavits but rely on my observations at the site view to consider the issues in the appeals. Mr Staunton, the council’s solicitor, did not oppose such a course of action.

The applicant’s case

15 Each of the applicants appeal papers contained an affidavit sworn by E. Bobolas on 4 April 2006 that stated:

1. I believe that the orders were issued by council in an attempt to hinder and delay proceedings relating to the conduct and damages caused in the proceedings 40328/05 and 20363/05.
2. We did not receive a written reply to our representations to council.
3. The terms, reasons for order and period for compliance are false.
4. Matters discussed in the proceedings above mentioned (which were for similar orders/matter) before the judge have not been taken into account in the issuing and wording of these orders.

16 As I understand the oral submissions, Ms Liana Bobolas and Ms Elena Bobolas submit that appeals No. 20268 of 2006 and No. 20269 of 2006 should be upheld and the orders revoked, as neither person was responsible for the collection of the material stored on the site.

17 In accepting that Ms Mary Bobolas was responsible for collecting and bringing the material to the site, it was submitted that her psychological disorder would be best managed through her personally sorting and removing the material on the site. A period of six months was a proposed as an appropriate time for this to occur. In support of the six month period, it was submitted that there was a no record of health problems with the site or a proven risk of fire.

Findings
The basis for assessment

18 In Wollongong City Council v McLean [2006] NSWLEC 295, Preston CJ addressed a similar situation and made the following relevant comments at pars 1 – 3:

HIS HONOUR : Carolyn Ruth McLean lives in a suburban house at 183 Jacaranda Avenue, Figtree. There is nothing unusual about the house. It is a red brick, single storey dwelling house with a tiled roof and a single car garage. But there is something unusual about the yard surrounding the house. It is unkempt and full of rubbish.

2 True it is that not everyone aspires to have a beautiful garden or is motivated to keep their yard especially neat and tidy. Some latitude in living is permitted.

3 But there are limits. One of the limits is imposed by the Local Government Act 1993 (NSW) (“the Act”) that land or premises must be kept by the owner or occupier in a safe or healthy condition. If the owner or occupier of premises fails to keep land or premises in a safe or healthy condition, the council of the local government area in which the land is or premises are located can give an order under the Act requiring the owner or occupier to do or refrain from doing certain things to ensure that the land is, or the premises are, placed or kept in a safe or healthy condition: order 21 of s 124 of the Act.

19 Section 180(4) of the LGA Act states:

On hearing an appeal, the Court may:
(a) revoke the order, or
(b) modify the order, or
(c) substitute for the order any other order that the council could have made, or
(d) find that the order is sufficiently complied with, or
(e) make such order with respect to compliance with the order as the Court thinks fit, or
(f) make any other order with respect to the order as the Court thinks fit.

Conclusions from site view

20 From my observations at the site view I am satisfied that the land surrounding the dwelling and garage is not in a safe or healthy condition. Using the words in McLean, a reasonable level of latitude in house neatness and tidiness has been well exceeded in this case.

21 In my view, the potential fire risk is high considering the amount of combustible material that surrounds the dwelling. If ignited, a fire could create serious safety issues with evacuating people from the dwelling and also pose unacceptable risks to fire fighters because of the difficulty in accessing the dwelling. The potential risk to adjoining properties and residents is also unnecessarily high because of the extent of combustible material stored up to the boundary fences on the site.

22 I also agree that the accumulation of material poses an unacceptable health risk. While the Court did not enter the premises, the odour and the existence of the putrescible matter such as of the mouldy loaves of bread clearly suggest the existence of material that would attract vermin to the site. Without knowing the contents of the unopened garbage bags, there is potential for further putrescible matter to be located on the site than could be observed from the restricted inspection of the property.

23 While the applicants submitted that there was no record of health problems with the site or a proven risk of fire, there was no evidence to support this submission. I do not accept that there can be any reasonable basis for the submission. It is not necessary or appropriate for a record of health problems to be established prior to an order being issued. Similarly, a most cursory view of the site would lead to the indisputable conclusion that the amount of combustible material stored on the site creates an unacceptably high risk of fire.

24 The matters raised in 1. and 4. of the applicant’s affidavit of 4 April 2006 are matters that flow from previous actions to remove material from the site. As these orders are independent to the previous actions, they are not relevant considerations in the Courts determination. The matter in 2. was not explained during the hearing however I note that there was no challenge to the validity of the orders. The contention in matter 3. that the terms, reasons for order and period for compliance are “false” are addressed in pars 25 to 30, to the extent that I understand the issues raised by this part of the affidavit.

Terms of proposed order

25 The submission that Ms Liana Bobolas and Ms Elena Bobolas were not responsible for collecting the material on site was not disputed. I am not however convinced that the orders to Ms Liana Bobolas and Ms Elena Bobolas, occupiers of the premises, should be revoked because they did not bring any material to the site. Order 21 of s 124 does not require the identification of those persons responsible for bringing the waste to the site so any reference to this can be simply deleted from the order. Order 21 allows for an order to be given to the "owner or occupier of land or premises".

26 The terms of the proposed order should also be more specific in terms of the area on the site requiring the removal of material. The order identifies that waste to be removed "from all parts of the subject premises" however I did not understand that the order to relate to the interior of the dwelling or the garage as neither has been inspected by council staff. This part of the order should specify the area outside these buildings and include the front verandah of the dwelling.

27 In accordance with s 180(4)(b), the terms of the proposed order are modified to read:

TERMS OF THE PROPOSED ORDER
(a) Remove all waste, being garbage and refuse including but not limited to scrap metal, papers, rags, bottles, plastic containers, and putrescible matter which are accumulated and are stored in the front and rear yards, the area between the house and side boundaries and the front verandah of the house.

Period for compliance with order

28 The applicants sought a period of six months to remove material from the site. The council opposed this time and maintained that 28 days was the appropriate time to comply with the order. While it was argued that the psychological disorder of Ms Mary Bobolas would be best managed through her personally sorting and removing the material on the site (although there was no evidence to confirm this) I am not convinced that a period of six months to remove the material is an appropriate time. Any therapeutic value to Ms Mary Bobolas must be balanced against the potential health and fire risks to the nearby residential community. In my view, the balance must fall heavily in favour of the protection of the residents of the house, fire fighters and the nearby residential community. On this basis, I accept that the period for compliance with the order should be 28 days.

29 This part of the order should also be amended to include fire risk.

30 In accordance with s 180(4)(b), the terms of the proposed order are modified to read:

PERIOD FOR COMPLIANCE WITH ORDER
As the storage of waste constitutes a serious health and fire risk you are required to comply with this order within twenty eight (28)

Orders

31 The orders of the Court for Appeal No. 20267 of 2006, Appeal No. 20268 of 2006 and Appeal No. 20269 of 2006 are:

1) The appeals are upheld in part.
2) The terms of the order given to each of the applicants dated 7 March 2006 is modified by:
(i) Deleting (a) under the heading “Terms of Proposed Order” and replacing it with:
(a) Remove all waste, being garbage and refuse including but not limited to scrap metal, papers, rags, bottles, plastic containers, and putrescible matter which are accumulated and are stored in the front and rear yards, the area between the house and side boundaries and the front verandah of the house.

(ii) Deleting the paragraph under the heading “Period for Compliance with Order” and replacing it with:

As the storage of waste constitutes a serious health and fire risk you are required to comply with this order within twenty eight (28) days from the date of service of this order upon you.
_____________
G T Brown
Commissioner of the Court