Waverley Council v Bobolas

[2018] NSWLEC 116

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Waverley Council v Bobolas [2018] NSWLEC 116
Hearing dates:	27, 30 July 2018, 24 August 2018
Decision date:	27 August 2018
Jurisdiction:	Class 4
Before:	Pain J
Decision:	See [89] of judgment
Catchwords:	CIVIL ENFORCEMENT – orders to remove waste under Local Government Act 1993 not complied with – service of orders proved – service of summons effected – exercise of discretion to enforce orders
Legislation Cited:	Environmental Planning and Assessment Act 1979 Local Government Act 1993 ss 124, 128A, 129, 132, 138, 144, 180, 191, 193, 200, 672, 674, 678, 710 Protection of the Environment Operations Act 1997 Public Health Act 2010 Uniform Civil Procedure Rules 2005 rr 10.5, 10.21, 10.26
Cases Cited:	Bobolas v Waverley Council (2016) 92 NSWLR 406; [2016] NSWCA 139 Bobolas v Waverley Council (No 4) [2015] NSWCA 337 Great Lakes Council v Lani; Great Lakes Council v Lani and Lampo Pty Ltd (2007) 158 LGERA 1; [2007] NSWLEC 681 Halliday v Neville (1984) 155 CLR; [1984] HCA 80 Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 Plenty v Dillon (1991) 171 CLR 635; [1991] HCA 5 Warringah Council v Ulrich [2001] NSWLEC 120 Waverley Council v Bobolas [2005] NSWLEC 577 Waverley Council v Bobolas [2006] NSWLEC 828 Waverley Council v Bobolas (No 2) [2009] NSWLEC 211 Waverley Council v Bobolas (No 3) [2014] NSWLEC 16 Waverley Council v Bobolas (No 2) [2015] NSWLEC 66
Category:	Principal judgment
Parties:	Waverley Council (Applicant) Mary Bobolas (First Respondent) Elena Bobolas (Second Respondent) Liana Bobolas (Third Respondent)
Representation:	COUNSEL: A Pickles SC and J Reid (Applicant) N/A (First Respondent) Elena Bobolas in person (Second Respondent) Liana Bobolas in person (Third Respondent)   SOLICITORS: Wilshire Webb Staunton Beattie (Applicant) N/A (Respondents)
File Number(s):	2018/50888

Judgment

1. Waverley Council (the Council) has commenced Class 4 proceedings by way of Summons filed 15 February 2018 in relation to premises at 19 Boonara Avenue Bondi (the Property) arising from a failure of Mary Bobolas, Elena Bobolas and Liana Bobolas (the Respondents) to comply with three orders issued pursuant to item 22A of s 124 of the Local Government Act1993 (LG Act) (the Orders). The Orders dated 22 November 2017 issued to each Respondent required the removal of waste from the Property within 28 days of the Orders.

2. The matter was set down for two days of hearing. On the first day of hearing 27 July 2018 the Court registry received a telephone call from someone identifying themselves as Ms Elena Bobolas saying that Mrs Mary Bobolas her mother, had to go to hospital and sought an adjournment. I stood the matter over to 10.00am on the second hearing day on 30 July 2018. The Respondents were each separately notified of that decision by hand delivered letters that day to the Property from the Court registry sent at my request. The Court ordered the Council’s solicitor to hand deliver a letter to each of the Respondents that day informing them of my decision. The Council also tendered an email dated 27 July 2018 from Mr Schilt senior environmental health surveyor with the Council to a Ms Baker senior environmental health surveyor. The email stated that Mr Schilt had attended the Property on 27 July 2018 and attached three letters to the fence of the Property. Mr Schilt stated that he would go past the Property that afternoon to see if the letters had been removed from the fence. Attached to the email were three letters, one to each of the Respondents informing them that the hearing on 27 July 2018 had been adjourned to 10.00am 30 July 2018. A photograph of the three letters attached to the fence of the Property was also attached to the email. The email and attachments were Exhibit A.

3. At the commencement of the adjourned hearing on 30 July 2018 Ms Liana Bobolas and Ms Elena Bobolas appeared. They made an application that the matter be adjourned as Mrs Mary Bobolas was in hospital and tendered a less than informative medical certificate stating that their mother was unfit to study. I declined to grant the adjournment and suggested that in these circumstances the matter proceed but that no orders ought be sought against Mrs Mary Bobolas. The two Respondents stated later in the day that none of the letters sent by the Court or the Council on 27 July 2018 had been received by them.

4. The declaration and orders sought in the Summons are:

1.   In these orders:

“House” means the dwelling house erected on the Premises;

“Premises” means the premises at 19 Boonara Avenue, Bondi;

“Removal Order” means the orders no. 22A dated 22 November 2017 given by the applicant to each of the Respondents pursuant to section 124 of the Local Government Act 1979 [sic] requiring each of the Respondents to carry out the Removal Works;

“Removal Works” means the works required to be carried out at the Premises by the Removal Order;

“Works” means the Removal Works.

2. A declaration that the Respondents have not complied with the terms of the orders no. 22A dated 22 November 2017 given by the applicant to each of the Respondents pursuant to section 124 of the Local Government Act 1993 requiring each of the Respondents to remove the accumulations of waste from the outside areas of the Premises.

3. An order that pursuant to section 678(10) of the Local Government Act 1993 the applicant, its servants and agents execute the Council's functions under s 678 by carrying out the Removal Works which were required to be carried out at the Premises by the Removal Order being works which each of the Respondents was required to do but failed to do.

4.   An order that subject to compliance with order 8 below, 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 7am to 3pm.

5.   An order that provided a sealed copy of these orders are served on the Respondents by affixing the orders in a sealed clear soft plastic pocket to the outside of the double front gates of the Premises 3 days before the Works commence, the Works may commence on the Premises.

6.   An order that the applicant its servants and agents be permitted during the Works, if in their opinion it is prudent to do so, to disconnect the electricity or other utility services to the Premises. Where such a disconnection has occurred it must be reconnected at the conclusion of the day's work.

7   An order that the applicant its servants and agents be permitted during the Works, to forcefully unlock and remove any gates on the Premises including the gates located at the side boundaries of the Premises and the front of the Premises in order to gain access to the front and rear yards, the areas between the House and side boundaries and the front verandah of the House on the Premises. Any locks or gates removed shall be replaced by the applicant so as to restore the locks and gates to the condition prior to removal by applicant or its servants and agents.

8   An order that the Respondents may remove from the front and rear yards, the area between the House and the side boundaries, the front verandah of the House and the garage any object of value which they do not wish to be removed by the applicant, its servants and agents by 7am on the day when the works commence.

9   An order that the Respondents, their servants and agents abstain from doing any act which might interfere with or impede the entry by the applicant, its servants and agents onto the Premises and then remaining on the Premises pursuant to these orders and which might interfere with and impede the applicant, its servants and agents in complying with these orders, and that the Respondents, their servants and agents stay a safe distance of at least 10 metres from any operating machinery and trucks on or in the vicinity of the Premises.

10 An order that for the purposes of these orders and the orders under s 124 Local Government Act waste means all objects located anywhere outside the House at 7am on the day when the Works commence.

11   An order that the applicant its servants and agents may cut vegetation at the Premises if that is reasonably required to facilitate the Works.

12   An order that any motor vehicle (registered or otherwise) which is parked in the driveway in front of the Premises or on the road in front of the driveway and which impedes or poses a danger to the Works may be removed by an appropriate towing company a sufficient distance from the Premises to allow the Works to proceed in an efficient and safe manner.

13   An order that the Respondents pay the Council's reasonable expenses incurred by Council in its execution of these orders

14   An order that the Respondents pay the Council's legal costs of or incidental to these proceedings as assessed or agreed.

15   Such further or other orders as the Court deems appropriate.

5. A declaration is sought in relation to all three Respondents and will be issued only in relation to two in light of the absence of Mrs Mary Bobolas if I determine to make it. The Council is seeking orders which enable its personnel or contractors to enter the Property and remove waste. The various orders sought facilitate that activity. Prayer 9 restrains the Respondents from interfering in the removal activity and/or going within 10 metres of any machinery. Prayer 8 provides the opportunity to the Respondents to remove items of value before the removal occurs.

6. If I determine that I should make these orders I will provide an opportunity to Mrs Mary Bobolas to comment on them as they potentially affect her interests as the owner and an occupier of the Property.

Terms of orders issued under item 22A of s 124 Local Government Act 1993

7. The orders issued by the Council pursuant to item 22A in s 124 provided as follows:

22 November 2017

Ms Mary Bobolas

19 Boonara Avenue

BONDI NSW 2026

Dear Madam

TERMS OF THE ORDER

Remove the accumulations of waste from the outside areas of the Premises including the front and rear yards, the area between the house and side boundaries and the front verandah of the house on the Premises being garbage (both putrescible and non-putrescible) and refuse including but not limited to plastic containers, polystyrene boxes, metal frames, shelves and similar products, filled plastic garbage receptacles, plastic crates, food containers and wrappers, tins and jars, household furniture and assorted timber products, bedding and cushions, foam, carboard, papers, clothing and similar products, rags, bottles, and other miscellaneous matter which are likely to form or afford harborage for vermin and insects or constitute a fire safety risk.

REASONS FOR THE ORDER

This Order is given because:

(a)   The Premises is used for the purposes of a dwelling house, is located in a residential area and is adjoined by residential premises.

(b)   You are storing waste, garbage (both putrescible and non-putrescible) and refuse including but not limited to plastic containers, polystyrene boxes, metal frames, shelves and similar products, filled plastic garbage receptacles, plastic crates, food containers and wrappers, tins and jars, household furniture and assorted timber products, bedding and cushions, foam, cardboard, papers, clothing and similar products, rags, bottles, and other miscellaneous matter and materials on the Premises.

(c)   The items of waste you are storing are, in the opinion of Council’s Senior Environmental Health Officer likely to afford harborage for insects and vermin and as such is causing or is likely to cause a serious health threat to the occupants of the Premises and the occupants of neighbouring properties.

(d)   Insects such as cockroaches and vermin such as rats can spread and cause disease and as such are a threat to human health.

(e)   The items of waste you are storing are, in the opinion of Council’s Senior Environmental Health Officer combustible and a fire hazard and are causing or are likely to cause a serious health threat to the occupants of the subject premises and the occupants of neighbouring properties as well as emergency service works [sic] who may be required to attend at the property or neighbouring properties in the event of a fire.

(f)   To ensure the Premises is returned to a safe and healthy condition and the serious health threat to occupants of the Premises, the adjoining properties and emergency workers is removed.

PERIOD FOR COMPLIANCE WITH THE ORDER

This Order requires that you comply with its terms within twenty-eight (28) days from the date of service of this Order upon you.

NON COMPLIANCE WITH THE ORDER

It is an offence pursuant to Section 628 of the Local Government Act 1993 to fail to comply with this Order. The maximum penalty for the offence is $2,200.00. If this Order is not complied with, Council may carry out the work itself and recover the costs from you.

APPEAL RIGHTS

Pursuant to section 180(5) of the Local Government Act 1993 the right of appeal does not apply in relation to Order No. 22A in the table to section 124 of the Local Government Act 1993.

Should you require any further information please contact Fred Schilt on XX8010.

Yours faithfully

Waverley Council

…

Local Government Act 1993

8. Relevant provisions of the LG Act provide:

Chapter 7 What are the regulatory functions of councils?

…

Part 2 Orders

Division 1 Giving of orders

124 Orders

A council may order a person to do or to refrain from doing a thing specified in Column 1 of the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table.

…

A person who fails to comply with an order is guilty of an offence—see sec 628.

Table

Orders

…

Orders requiring the preservation of healthy conditions

Column 1 To do what? …		Column 2	Column 3
		In what circumstances?	To whom?
		…	…
22A	To remove or dispose of waste that is on any residential premises or to refrain from keeping waste on those premises	The waste is causing or is likely to cause a threat to public health or the health of any individual	Owner or occupier of the premises

…

128A Orders about removal or keeping of waste

(1) An order in terms of order No 22A in the Table to section 124 ceases to have effect, unless earlier revoked under section 153, at the end of the period of 5 years after it is given.

(2)   The protection of public health is the paramount consideration in giving any such order.

Division 2 Procedures to be observed before giving orders

…

129 Circumstances in which compliance with this Division is required

(1)   Before giving an order, a council must comply with this Division.

(2)   This section does not apply to:

…

(a1) an order in terms of order No 22A in the Table to section 124 (except to the extent that this section would otherwise require compliance with section 131A), or

…

132 Notice to be given of proposed order

(1)   Before giving an order, a council must give notice to the person to whom the order is proposed to be given of its intention to give the order, the terms of the proposed order and the period proposed to be specified as the period within which the order is to be complied with.

(2)   The council’s notice must also indicate that the person to whom the order is proposed to be given may make representations to the council as to why the order should not be given or as to the terms of or period for compliance with the order.

(3)   The notice may provide that the representations are to be made to the council or a specified committee of the council on a specified meeting date or to a specified councillor or employee of the council on or before a specified date being, in either case, a date that is reasonable in the circumstances of the case.

…

Division 3 Orders generally

…

138 Notice of right to appeal against order

(1)   A council must, in giving a person notice of an order:

(a)   state that the person may appeal to the Land and Environment Court against the order or a specified part of the order, and

(b)   specify the period within which an appeal may be made.

(2) This section does not apply in relation to order No 22A in the Table to section 124.

…

144   Giving and taking effect of orders

An order is given by serving a copy of the order on the person to whom it is addressed and takes effect from the time of service or a later time specified in the order.

…

Part 5 Appeals

Division 1 Approvals and orders

…

180 Appeals concerning orders

(1)   A person on whom an order is served may appeal against the order to the Land and Environment Court.

…

(5) This section does not apply in relation to order No 22A in the Table to section 124.

…

Chapter 8 What ancillary functions does a council have?

…

Part 2 Entry on to land and other powers

191 Power of entry

(1)   For the purpose of enabling a council to exercise its functions, a council employee (or other person) authorised by a council may enter any premises.

(2)   Entry may only be made at any reasonable hour in the daytime or at any hour during which business is in progress or is usually carried on at the premises.

…

193 Notice of entry

(1)   Before a person authorised to enter premises under this Part does so, the council must give the owner or occupier of the premises written notice of the intention to enter the premises.

(2)   The notice must specify the day on which the person intends to enter the premises and must be given before that day.

(3)   This section does not require notice to be given:

(a)   if entry to the premises is made with the consent of the owner or occupier of the premises, or

(b)   if entry to the premises is required because of the existence or reasonable likelihood of a serious risk to health or safety, or

(c)   if entry is required urgently and the case is one in which the general manager has authorised in writing (either generally or in the particular case) entry without notice, or

(d)   if entry is made solely for the purpose of reading a meter or other device for measuring:

(i)   the supply of water to the premises from the council’s water mains, or

(ii)   the discharge of sewage or other waste matter from the premises into the council’s sewer mains.

…

200 In what circumstances can entry be made to a residence?

The powers of entry and inspection conferred by this Part are not exercisable in relation to that part of any premises being used for residential purposes except:

(a)   with the permission of the occupier of that part of the premises, or

(b)   if entry is necessary for the purpose of inspecting work being carried out under an approval, or

(c)   under the authority conferred by a search warrant.

…

Chapter 17 Enforcement

Part 1 General

Division 1 Legal proceedings

672 What constitutes a breach of this Act for the purposes of this Part?

In this Part:

(a)   a breach of this Act means:

(i)   a contravention of or failure to comply with this Act,

(ii)   a threatened or an apprehended contravention of or a threatened or apprehended failure to comply with this Act, and

(b)   this Act includes:

(i)   an approval under Part 1 of Chapter 7, and

(ii)   an order under Part 2 of Chapter 7, and

(iii)   the regulations.

…

674 Remedy or restraint of breaches of this Act—other persons

(1)   Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act.

…

678 Failure to comply with order—carrying out of work by the council

(1)   If a person fails to comply with the terms of an order given to the person under Part 2 of Chapter 7, the council may do all such things as are necessary or convenient to give effect to the terms of the order, including the carrying out of any work required by the order.

(2)   If the council gives effect to an order by demolishing a building, the council:

(a)   may remove any materials concerned, and

(b)   may sell the materials, unless the expenses of the council in giving effect to the terms of the order are paid to it within 14 days after removal of the materials.

(3)   If the proceeds of such a sale exceed the expenses incurred by the council in relation to the demolition and the sale, the council:

(a)   may deduct out of the proceeds of the sale an amount equal to those expenses, and

(b)   must pay the surplus to the owner on demand.

(4)   If the proceeds of sale do not exceed those expenses, the council:

(a)   may retain the proceeds, and

(b)   may recover the deficiency (if any) together with its costs of recovery from the owner as a debt.

(5)   Materials removed that are not saleable may be destroyed or otherwise disposed of.

(6)   Any expenses incurred by the council under this section (less the proceeds, if any, of any sale under this section) together with all its associated costs may be recovered by the council in any court of competent jurisdiction as a debt due to the council by the person concerned.

(7)   Nothing in subsection (3), (4) or (6) affects the owner’s right to recover any amount from any lessee or other person liable for the expenses of repairs.

(8)   A reference in subsection (4) or (6) to costs is a reference to costs incurred by the council in seeking to recover the deficiency or expenses otherwise than by proceedings in a court, but nothing in this section prevents the council from receiving costs as between party and party in respect of those proceedings.

(9) A council may exercise its functions under this section irrespective of whether the person concerned has been prosecuted for an offence under section 628.

(10)   In any proceedings before the Land and Environment Court that are brought by a council against a person as a result of the person’s failure to comply with an order under Part 2 of Chapter 7, the Court may, at any stage of the proceedings, order the council to exercise the council’s functions under this section. Having made such an order, the Court may continue to hear and determine the proceedings or may dismiss the proceedings.

Note. Section 193 requires the council to give the owner or occupier of premises written notice before a person authorised to enter premises under Part 2 of Chapter 8 of the Act does so.

…

Part 2 Proceedings by the Council of its employees

…

Division 3 Notices by the council

…

710 Service of notices on persons

(1)   A notice required by or under this Act to be served on a person may be served as provided by this section.

(2)   The service may be:

(a)   personal, or

(b)   by delivering the notice at or on the premises at which the person to be served lives or carries on business, and leaving it with any person apparently above the age of 14 years resident or employed at the premises, or

(c)   by posting the notice by prepaid letter addressed to the last known place of residence or business or post office box of the person to be served, or

(d)   by transmitting the notice by facsimile transmission to a number specified by the person (on correspondence or otherwise) as a number to which facsimile transmissions to that person may be sent, or

(d1)   by transmitting the notice by electronic mail to an email address specified by the person (on correspondence or otherwise) as an address to which electronic mail to that person may be transmitted, or

(e)   by fixing the notice on any conspicuous part of the land, building or premises owned or occupied by the person, or

(f)   in the case of an offence involving a vehicle, by attaching the notice to the vehicle, or

(g)   if the person to be served maintains a box at a document exchange established in New South Wales, by depositing the notice in that box or leaving it at another such exchange for transmission to the firstmentioned exchange for deposit in that box.

…

(7)   If a notice has been served by any of the means prescribed by this section, all inquiries required under this section are taken to have been made, and the service is conclusive evidence of them.

(8)   Proof by affidavit or orally that a notice has been posted, or its transmission by electronic mail has been initiated, in accordance with this section is conclusive evidence of service.

(9)   For the purposes of this section, a justice of the peace is authorised to take and receive an affidavit, whether any matter to which the affidavit relates is or is not pending in any court.

Section 131A concerning orders that make or are likely to make a resident homeless referred to in s 129(2)(a1) has no application.

Uniform Civil Procedure Rules 2005

9. Relevant provisions of the Uniform Civil Procedure Rules 2005 (UCPR) provide:

Part 10 Service of documents generally

…

Division 2 Manner of service

10.5 The various methods of service (cf SCR Part 9, rules 3 and 4; DCR Part 8, rules 3, 9 and 12; LCR Part 7, rules 3, 9 and 12)

(1)   Subject to these rules, a document may be served on a person:

(a)   by means of personal service, or

(b)   by posting a copy of the document, addressed to the person:

(i)   to the person’s address for service, or

(ii)   if the person is not an active party, to the person’s business or residential address, or

(c)   by leaving a copy of the document, addressed to the person:

(i)   at the person’s address for service, or

(ii)   if the person is not an active party, at the person’s business or residential address,

with a person who is apparently of or above the age of 16 years and apparently employed or residing at that address, or

(d)   in the case of service on a corporation, by serving the document on the corporation in any manner in which service of such a document may, by law, be served on the corporation.

…

Division 3 Personal service

…

10.21 How personal service effected generally (cf SCR Part 9, rule 3; DCR Part 8, rules 3 and 14; LCR Part 7, rules 3 and 14)

(1)   Personal service of a document on a person is effected by leaving a copy of the document with the person or, if the person does not accept the copy, by putting the copy down in the person’s presence and telling the person the nature of the document.

(2)   If, by violence or threat of violence, a person attempting service is prevented from approaching another person for the purpose of delivering a document to the other person, the person attempting service may deliver the document to the other person by leaving it as near as practicable to that other person.

(3)   Service in accordance with subrule (2) is taken to constitute personal service.

…

10.26 Personal service on person who “keeps house”(cf DCR Part 8, rule 13; LCR Part 7, rule 13)

(1)   If a person keeps house (that is, remains in premises to which a person attempting service cannot lawfully or practicably obtain access), the person attempting service may serve the document on the person keeping house:

(a)   by doing one of the following:

(i)   placing the document in the mail-box for the premises,

(ii)   affixing the document to an outer door of the premises,

(iii)   if the person attempting service cannot lawfully or practicably obtain access to any such mail-box or door, affixing the document to some part of the premises, or to some fence or wall surrounding the premises, as near as practicable to the principal door or entrance to the premises, and

(b)   within 24 hours after doing so, by posting a notice to the premises, addressed to the person keeping house, informing the person of the fact that the document has been so placed or affixed.

(2)   Service in accordance with subrule (1) is taken to constitute personal service.

Evidence

Affidavits of Mr Schilt

10. Mr Schilt senior environmental health surveyor with the Council affirmed an affidavit dated 15 February 2018 in which he stated that he attended the Property on 16 November 2017 following complaints received by the Council. On that day he observed an accumulation of a large amount of waste and rubbish specified and took a number of photographs which were annexed. He formed the view that items of waste were combustible and a fire hazard and were likely to cause a serious health threat to the occupants of the Property. He formed the opinion that the waste and rubbish was a source of vermin and insects such as flies and cockroaches and was causing or likely to cause a threat to the health of the occupants of the Property and adjoining properties. On 22 November 2017 Mr Schilt signed three orders pursuant to item 22A in s 124 of the LG Act for service on each Respondent. A copy of the Orders was annexed to his affidavit. Mr Schilt described how he caused the Orders to be placed in envelopes and put in the Council’s mail collection system for posting. On 22 November 2017 he went to the Property and attached three plastic sleeves on the front gates of the Property which contained the Orders addressed to each Respondent. A photograph showing the plastic sleeves attached to the gates of the Property was annexed to Mr Schilt’s affidavit. Mr Schilt went to the Property on 23 November 2017 and observed that the plastic sleeves containing the Orders addressed to each of the Respondents had been removed from the front gates.

11. Following a complaint by a neighbour received on 21 November 2017, Mr Schilt attended 52 Imperial Ave Bondi on 15 December 2017. He smelt foul odours and observed flies and liquid discharge on the ground between the fence and garage at the rear of that property. He formed the view that this liquid was coming from the Property. Mr Schilt was and continues to be concerned that inadequate disposal of human waste is occurring at the Property.

12. Mr Schilt inspected the Property on 21 December 2017 and observed that large amounts of waste remained accumulated in the front yard and northern access side of the Property. Photographs were taken at a number of locations and annexed. He attended the Property again on 30 January 2018 and observed large amounts of waste remaining accumulated in the front yard. He again took photographs which were annexed. On 1 February 2018 he attended 52 Imperial Avenue and observed a large number of umbrellas with sheets and blankets underneath them in the rear yard of the Property. Accumulated waste and vegetation otherwise covered the rear yard. A foul odour was emanating from the rear yard, flies were observed and liquid discharged on the ground between the fence and the garage. He took photographs of the rear yard of the Property from 52 Imperial Avenue. He formed the opinion that the Orders had not been complied with.

13. Mr Schilt affirmed an affidavit dated 23 March 2018 stating that he attended the Property on 20 March 2018. The conditions in the front yard and towards the side driveway and rear yard were similar to the earlier inspections on 16 November 2017, 15 and 21 December 2017, 30 January 2018 and 1 February 2018. The amount of rubbish observed on 20 March 2018 was at least the same as observed on earlier occasions. Mr Schilt continued to hold the view that the Orders had not been complied with and the general amenity and safety of the Property and of neighbours was adversely affected.

Cross-examination of Mr Schilt by both Respondents

14. In cross-examination by Ms Elena Bobolas Mr Schilt was asked whether he liked the Bobolas family. Mr Schilt stated that he dealt with many families and always accepted them as they were and without prejudice. He had been involved with matters at the Property for 12 years. In response to questioning about how he spoke to council staff about the Bobolas family Mr Schilt stated that he spoke about the issues with the Property with Council staff but did not do so in a derogatory manner.

15. Mr Schilt denied that he had told council contractors to attack members of the Bobolas family on 20 and 21 July 2015. He further denied that he had instructed police to physically attack the Bobolas family.

16. Ms Elena Bobolas asked Mr Schilt how many complaints he had received about the Property which led to his attendance on 16 November 2017. Mr Schilt could not recall the exact number of complaints. He had spoken to a number of neighbours over many years. Complaints were mostly received by telephone. In response to further questioning by Ms Liana Bobolas about the number of complaints Mr Schilt stated that he had received complaints from approximately 10 different groups of people.

17. Ms Elena Bobolas asked Mr Schilt whether he had seen any members of the Bobolas family on 16 November 2017. Mr Schilt could not recall seeing any members of the Bobolas family but had seen some members on previous occasions.

18. Mr Schilt was asked by Ms Elena Bobolas what he considered to be a “serious health threat” as described in his affidavit affirmed 15 February 2018 (at [10] above). He stated that a “serious health threat” would occur where conditions were such that they were likely to create a harbourage for vermin or insects and would therefore threaten occupants of nearby properties. Mr Schilt was asked by Ms Liana Bobolas whether he had seen fleas, mice, rats or cockroaches when he attended the Property on 16 November 2017. He had not seen them on that occasion but had seen them in the past. Mr Schilt agreed that he had observed polystyrene boxes at the Property on 16 November 2017. He had not been aware that they were used to water plants and that the water in them was changed daily.

19. In response to questioning by Ms Elena Bobolas about Mr Schilt’s understanding of the “amenity of the area”, Mr Schilt stated that he understood the area around Boonara Avenue, Denham Street and Imperial Avenue to be of good sanitation and health.

20. Mr Schilt confirmed that he had written the Orders in consultation with the Council’s solicitors. He had written the Orders whilst at work. He could not recall what time he had commenced work on that day but usually commenced at 6.30am. Mr Schilt stated that he would go past properties which the Council was concerned about as a matter of course during his commute to work. He would do this one to two times per week. In response to questions about how often he monitored Boonara Avenue Mr Schilt stated that he usually went past it once per fortnight. In the week before the hearing he had driven past it twice. In response to questions by Ms Liana Bobolas about what he monitored during these observations Mr Schilt stated that he looked for anything unusual.

21. Ms Liana Bobolas asked Mr Schilt if he had directed council rangers to approach Mrs Mary Bobolas and prevent her from removing items from the Property. Mr Schilt said he had not and that he was not in control of council rangers. Ms Elena Bobolas asked Mr Schilt who was in control of council rangers. He responded that a Mr Holt manager of health and regulatory services with the Council was in charge of rangers. In response to further questioning about council rangers Mr Schilt stated that he had not spoken to Mr Holt about preventing Mrs Mary Bobolas from removing items from the Property.

22. Ms Liana Bobolas asked Mr Schilt why the Council had removed the wheelie bins from the Property in 2015. Mr Schilt stated that he did not control domestic waste removal. In any event the bins had been removed because members of the Bobolas family did not place the bins out for collection. It was put to Mr Schilt that the Council had removed the wheelie bins and not replaced them. Mr Schilt stated that the Council had removed some 20 bins from the Property in addition to other items including a worm farm and recycling crates. In response to questioning by Ms Elena Bobolas Mr Schilt said that he did not know why replacement bins were not provided. He was not aware that the Respondents had taken rubbish to neighbouring properties due to their lack of wheelie bins. Mr Schilt disagreed that it was obstructive for the Council to remove wheelie bins and require the Bobolas family to comply with the Orders.

23. Mr Schilt was asked by Ms Liana Bobolas if he recalled a conversation with her to the effect that they had placed items for collection in a council clean-up which had not been collected. Mr Schilt could not recall this conversation. Mr Schilt was asked by Ms Elena Bobolas why he would interfere with a council clean-up. Mr Schilt denied that he had interfered with a council clean-up.

24. Mr Schilt was asked by Ms Elena Bobolas why he had not taken clearer photographs of the Orders before he had mailed them (see affidavit of Mr Schilt affirmed 15 February 2018 at [10] above). Mr Schilt believed that the photographs were sufficiently clear. When shown the photographs and asked if he could read the text of the Orders from them Mr Schilt stated that he had not intended that the text would be readable in the photographs. Mr Schilt agreed that he had not personally mailed the Orders. He agreed that he had attached the Orders to the front gate of the Property. Mr Schilt agreed it was possible that a passer-by could have removed the Orders from the front gate. He further stated that it was possible for mail to be removed from letterboxes at any property.

25. In response to questioning about damage to the Property’s letterbox Mr Schilt stated he believed the damage to have been caused by a council contractor. He was unaware that parts of a brick fence beneath the letterbox had been removed. The Council had offered to replace the letterboxes but the offer was not accepted.

26. It was put to Mr Schilt that the Property did not share a common boundary with the property at 52 Imperial Avenue. Mr Schilt stated that the two properties were diagonally opposite each other. He was not sure if they shared a common boundary but in any event they were very close.

27. Mr Schilt was asked by Ms Elena Bobolas whether he had taken any photographs of flies or liquid discharge he deposed to having seen in his affidavit affirmed 15 February 2018 at [12] above. Mr Schilt said he had not taken photographs of flies or liquid discharge as he had not thought it appropriate to do so. Mr Schilt disagreed that he had not taken any photographs of the liquid discharge because it was flowing from 52 Imperial Avenue. He disagreed that there was no liquid discharge or flies.

28. In response to questions about how he had taken certain photographs Mr Schilt stated that he had borrowed a ladder from a resident of a neighbouring property and used it to take photographs over the fence of the Property. He disagreed that it was inappropriate to mention the flies and liquid discharge in his affidavit but not take photographs. Mr Schilt was asked why he decided to take photographs of the Property if he could not see through the fence. Mr Schilt replied that he had seen the waste in the Property and formed an opinion that the liquid discharge and flies were coming from the Property. Mr Schilt agreed that he had seen Ms Elena Bobolas on that day and that she had requested he not take photographs of her. It was put to Mr Schilt that he had nonetheless taken photographs against Ms Elena Bobolas’ request. Mr Schilt replied that he had not taken any photographs of Ms Elena Bobolas.

29. It was put to Mr Schilt that the observations in his affidavit regarding the lack of sanitation facilities at the Property were false. Mr Schilt stated he had concerns about human waste disposal at the Property as he had never seen any sanitation facilities and the Council could not access the Property as the side passages were always blocked. Ms Elena Bobolas stated that the side passages could not always have been blocked as the Council had accessed the Property on previous occasions. Mr Schilt agreed, stating that the Council had accessed the side passages on one occasion.

30. In response to questions about why he had not discussed the Orders with members of the Bobolas family on his visits to the Property in December 2015 Mr Schilt could not recall discussing the issuing of the Orders with any members of the Bobolas family. He stated that members of the Bobolas family had not had regard to previous orders made by the Council. Mr Schilt disagreed that there was pressure from the Council to have the Council clear out the Property rather than have members of the Bobolas family clear the Property. Mr Schilt stated that there had been no attempt in the past by members of the Bobolas family to clear the Property. Ms Liana Bobolas put to Mr Schilt that members of the Bobolas family had placed items on the verge before a council clean-up on 20 July 2015. Mr Schilt stated that this had occurred outside of the time for the council clean-up.

14. Mr Schilt could not recall a conversation with Mrs Mary Bobolas on 1 February 2018 in which he was alleged to have told Ms Bobolas to “get out of the road” if she did not want her photograph to be taken. Mr Schilt had not informed Mrs Mary Bobolas on that occasion of the Orders and disagreed that it would have been common sense to do so.

15. Mr Schilt was asked how he had taken Photograph 13 annexed to his affidavit affirmed 15 February 2018. He stated that he had leant over the Property’s fence to take the photograph. It was put to Mr Schilt that this was trespass. The Council objected to this proposition stating that s 200 of the LG Act did not apply in this instance.

16. Mr Schilt was shown a photograph of a plank of timber at the Property which was diagonal to the ground and asked whether the Council had displaced the timber. Mr Schilt did not know how the timber came to be in that position. Mr Schilt was asked how he had come to the opinion that on 20 March 2018 the amount of material at the Property was similar to the amount on previous occasions (see [13] above). Mr Schilt stated he based this belief on his prior observations of the Property.

Further affidavit of Mr Schilt

34. Mr Schilt affirmed an affidavit on 15 August 2018 which was served on the Respondents. I allowed this to be read over objection of the Respondents on 24 August 2018. The Respondents submitted that they needed to get legal advice about the affidavit. The affidavit was prepared at my request. It confirms Mr Schilt’s delegated powers under the LG Act inter alia. The matters affirmed are straightforward and not controversial legally. In Mr Schilt’s current role he is responsible for investigating and managing public health complaints, food shop inspections, noise, contaminated land investigations, hoarding and development assessment referrals. Mr Schilt’s duties include preparation, execution and service of notices and orders pursuant to the LG Act, Public Health Act 2010 and the Protection of the Environment Operations Act 1997 (POEO Act). He undertakes preliminary investigations including consultation with complainants and residents, site visits and property observations to determine whether there is a risk to public health due to nuisances, vermin and insect infestations inter alia.

35. Mr Schilt’s duties are undertaken pursuant to a delegation from the Council’s general manager. Annexed to Mr Schilt’s affidavit was a signed and sealed instrument of delegation signed by the general manager dated 7 July 2017 and a list of the delegations from the general manager applying to Mr Schilt’s role as a senior environmental health officer as in force during the relevant period. A delegation to Mr Schilt for issuing orders pursuant to s 124 of the LG Act was in force at the time of issuing the Orders.

36. Mr Schilt is an authorised officer of the Council and holds an “authorised officer” card issued by the general manager dated 6 December 2007. The back of the authorised officer card listed the legislation under which Mr Schilt has authority and included the LG Act. A copy of Mr Schilt’s authorised officer card was annexed to his affidavit.

Affidavit of Mr Bricknell concerning service of summons

37. Mr Bricknell a process server swore an affidavit dated 9 March 2018 which stated in part:

I say on oath:

1.   I am a licensed commercial agent and process server.

2.   I am over the age of 16 years.

3.   On or about 15 February 2018 I received a letter from Wilshire Webb Staunton Beattie Solicitors instructing me to serve three letters which each had attached a Class 4 Summons (2018/50888) filed on 15 February 2018 and an affidavit of J F Schilt affirmed 15 February 2018 (documents) on each of the three Respondents in these proceedings.

4.   I knew the three Respondents and what they looked like as I have previously been involved in the service of documents on them.

…

8.   On Tuesday 20 February 2018 at approximately 0500 hours, I attended the property in the company of my colleague, Mr Robert Fahim and undertook surveillance.

9.   At approximately 0830 hours on that day I called Bondi Police and requested assistance in serving documents on the three Respondents.

10.   At approximately 0930 hours three police officers from Bondi Police arrived at the property.

11.   At approximately 1010 hours I walked to the property and entered through an open front gate at the right of the property. I then walked through an open side gate and through to the backyard of the property. I was able to clearly identify the three Respondents who were lying amongst rubbish under two umbrellas.

12.   I walked to within approximately 3 metres of the Respondents and placed three letters attaching the documents addressed to each of the three Respondents near Mary Bobolas on a pile or rubbish.

13.   I said to the three Respondents “Mary, Elena and Liana Bobolas, I am serving you documents from Land and Environment Court of NSW, Case Number 2018/50888”.

14.   Annexed hereto and marked with the letter “A” is a copy of the letters serving the documents on Mary, Elena and Liana Bobolas referred to in paragraph 12 above.

15.   I later compiled a report of the service of the documents on the three Respondents dated 20 February 2018.

…

Cross-examination of Mr Bricknell

38. In cross-examination by Ms Elena Bobolas, Mr Bricknell agreed that he did not have permission to enter the Property on 20 February 2018. He disagreed that he had lied in previous affidavits of service. Mr Bricknell was asked whether he had continually been in the presence of his colleague Mr Fahim when he attended the Property on 17 February 2018. Mr Bricknell stated he had not continually been in Mr Fahim’s presence. In response to questions about his view of the Property Mr Bricknell stated that he had had a very poor view from approximately 50 metres away. He had observed the Property on foot and from inside his vehicle. He had also observed the Property from a neighbouring property. Mr Bricknell could not recall the name of the neighbour or which number property.

39. Mr Bricknell agreed that he had not attempted service on 17 February 2018. He believed he would not have an opportunity to serve documents on that day as he could not confirm that the three members of the Bobolas family were present. Mr Bricknell was asked why he had attempted service at 8.30am on 20 February 2018. He replied that he had not attempted service at that time. He had called the police at that time. Mr Bricknell had attempted service on 20 February 2018 at 10.00am as he had sighted three members of the Bobolas family at the Property. He had called the police to “protect the peace” as on previous occasions he had been in fear of harm. Mr Bricknell was asked what evidence he had of previous harm. He replied that he may have had video evidence and had been approached by a person with a baseball bat on one occasion. It was put to Mr Bricknell that none of the Bobolas family members owned a baseball bat. Mr Bricknell did not respond to this proposition.

40. Ms Elena Bobolas put to Mr Bricknell that he could not have entered the Property through an open gate as the gate was always closed. Mr Bricknell stated that the gate had been open. He stated that had the gate been closed he would have contacted the Council’s solicitors to obtain instructions. Mr Bricknell disagreed that he had failed to describe the documents sufficiently when serving them. Mr Bricknell stated that he had said the words in par 13 of his affidavit (at [37] above) and had done so in the presence of Mr Fahim and three police officers. In response to questions about the presence of the police officers and Mr Fahim, Mr Bricknell replied that the police had been situated in a neighbouring property and Mr Fahim had videoed service being effected. He had not mentioned the video recording in his affidavit as he was not permitted to record voices when effecting service. It was also put to Mr Bricknell that Ms Elena Bobolas had asked him to leave the Property.

Respondents’ evidence

41. The two Respondents present tendered two medical certificates. One medical certificate was for Mrs Mary Bobolas (Exhibit 1) and the other was for Ms Liana Bobolas (Exhibit 2).

42. Leave to rely on the following evidence was necessary as it was tendered well after the order for filing of evidence made by court order on 14 May 2018. An affidavit of Ms Liana Bobolas was filed in the Court registry between 10.00am and 10.30am on the day of the adjourned hearing 30 July 2018. Leave to rely on a further affidavit prepared by Ms Liana Bobolas sworn 30 July 2018 during the afternoon of the adjourned hearing was granted. Ms Elena Bobolas was also provided with leave to rely on a signed statement prepared in the course of the afternoon of 30 July 2018. The Council did not object to this extremely late material being read provided this was subject to relevance. That is the basis on which I have allowed it to be read as evidence.

43. Ms Liana Bobolas’ affidavit dated 29 July 2018 affirmed and filed on 30 July 2018 stated that there was no waiver of the right to object to non-service by filing her affidavit and that no council order had ever been received by any of the Respondents. She sought equity, natural justice, fairness, impartiality, lack of discrimination and duty of care in the proceedings. She stated that 52 Imperial Avenue does not share a common boundary with the Property, that loud noises have been heard from that property and that the Respondents have smelt a bad smell emanating from that property. Ms Liana Bobolas stated that workmen have been observed engaging in some activity relating to the pipes on that property on several occasions. She said that a smell was detected on 5 May 2018 and that she observed a workman working on pipes and heard loud sucking noises. Photographs of a plumbers’ truck were attached to the affidavit. The truck was clearly operating. The same smell was also said to have had been detected in mid June 2018 and that on other occasions the same sucking noise has been heard.

44. Following Mr Schilt’s cross-examination, Ms Liana Bobolas swore an affidavit in the course of the afternoon on 30 July 2018 stating that she had conversations with Mr Schilt in 2015 when she asked for bins to be supplied like every other household and was told they would not be supplied. A free council clean-up was booked by the Respondents in July 2015 and was confirmed in a telephone call but did not take place. The Respondents were directed to Mr Schilt who said the load would not be picked up that day but on a later date when collection under a court order would be carried out on 20 July 2015. Items have been removed permanently from the Property during 2017 and 2018. The Respondents have removed and discarded collections of items that were on the Property during 2017 and 2018. Mr Schilt caused an assault to be committed on the Respondents during 20 and 21 July 2015 and damaged or caused damage to the large white gates on the Property during the same period. Allegedly attaching documents to the gate had not proven service to be effective.

45. Ms Elena Bobolas’ statement signed 30 July 2018 stated that the Respondents were never served with the Orders, that Mr Bricknell did not identify the Summons at the time of alleged service and that the Respondents have cleaned up on other occasions which caused a cessation of the psychological problem for many years. The Council exacerbates the problem when it causes the work to be carried out. The Respondents removed items from the Property in October 2017 and have since removed other items. The Respondents have been hampered by illness, rain and lack of transport. The Respondents would like the Court to order Ms Elena Bobolas and Ms Liana Bobolas to carry out the work and allow them reasonable time in which to complete it, see WarringahCouncil v Ulrich [2001] NSWLEC 120 at [18], of three to six months. The Council should supply bins. Some items are able to be sold, a receipt was attached for one item sold. Section 200 of the LG Act precluded the granting of the Orders sought in the Summons. The Respondents do not accept the complaints from 52 Imperial Avenue. Mr Schilt has trespassed by leaning over the fence into the Property and most of his photographs cannot be relied on.

46. Following the hearing Ms Elena Bobolas affirmed an affidavit on 24 August 2018 for which leave was given to be read. She deposed that the Respondents had been working on their yard. A free scheduled council clean-up for the Property was on 13 August 2018. The Respondents had placed a large amount of items out for the clean-up on 12 and 13 August 2018. Annexed to Ms Elena Bobolas’ affidavit were photographs showing items on the verge outside of the Property.

47. Ms Elena Bobolas stated that the Respondents had also booked a “your-call” council clean-up, being one of two such clean-ups able to be requested by residents in the Council’s local government area. The Respondents put items out for collection for that clean-up which were collected on 23 August 2018. Ms Elena Bobolas deposed that Mr Schilt was aware of the two clean-ups.

48. Ms Elena Bobolas estimated that 45-50 percent of the work to be carried out at the Property had been completed. She annexed photographs taken on 13 August 2018 of the Property purporting to show the work that had been completed. Ms Elena Bobolas annexed two photographs showing damage allegedly caused by the Council to the concrete front fence during previous work at the Property. She had taken further photographs of the Property but these had not turned out so had not been annexed. She stated that the Respondents were able to continue the necessary work to completion.

49. Ms Elena Bobolas had received Mr Schilt’s affidavit affirmed 15 August 2018 by express post. The Respondents had not received a copy of the affidavit on the front fence of the Property. They had not received any submissions from the Council regarding Mr Schilt’s affidavit. The affidavit was lengthy and the Respondents required legal advice.

Council’s submissions

50. The Orders required the removal of waste kept around the external areas of the Property within 28 days. The waste being kept in the external areas of the Property is causing and is likely to cause a threat to public health and the health of individuals. Mr Schilt’s evidence establishes that there was a basis for issuing the Orders. The Court should make the declaration and orders sought under s 678(10) of the LG Act in the exercise of its discretion.

Respondents’ submissions

51. The Respondents submitted that the Orders were never received and were therefore not properly served. If the Respondents were unaware of the Orders they could not comply with them. Mr Schilt should have brought the Orders to the Respondents’ attention when he attended the Property on 15 and 21 December 2017. Mr Schilt did not have the correct delegation to undertake enforcement of the Orders. No delegation to him to act as an enforcement officer was made under the LG Act, unlike the POEO Act delegation in the list attached to his affidavit. Nor was Mr Schilt properly authorised to represent the Council in these proceedings.

52. The Summons was not properly served by Mr Bricknell as he trespassed at the time of purported service. Mr Bricknell was told he could not enter the Property and must leave by Ms Elena Bobolas. He did not speak the words stated in par 13 of his affidavit or he did not refer to the documents being a summons (above at [37]-[40]).

53. The Respondents submitted that the Court should order Ms Elena Bobolas and Ms Liana Bobolas to undertake the work and provide sufficient time for this to occur. The Respondents submitted that they had attempted to remove items in the past, having placed large amounts of material on a truck and placed material out for a council clean-up. The receipt attached to Ms Elena Bobolas’ statement referred to above at [45] demonstrated that items at the Property were of value and had been sold. The Council should provide garbage bins for the Property as they are for all other properties in Boonara Avenue.

54. The Respondents submitted that the Court had no jurisdiction to grant the orders sought by the Council which would permit it to disconnect electricity and water to the Property if prudent to do so, to unlock and remove gates and to cut vegetation.

Finding

55. There has been extensive litigation by the Council against the three Respondents concerning a requirement to remove waste and other items from around the dwelling house on the Property in the Court. Mrs Mary Bobolas and her daughters Ms Elena Bobolas and Ms Liana Bobolas have been the Respondents in proceedings where similar orders enabling the Council to take similar action have been made in the past.

56. On 30 September 2005 in Waverley Council v Bobolas [2005] NSWLEC 577 at [29] the Court ordered that the Council execute its functions under s 678 of the LG Act by carrying out work required to be carried out by the Bobolas’ pursuant to an order issued under s 124 of the LG Act inter alia.

57. On 15 December 2006 in Waverley Council v Bobolas [2006] NSWLEC 828 at [28] the Court ordered that the Council execute its functions under s 678 of the LG Act to carry out work required to be carried out by the Respondents pursuant to an order issued under s 124 of the LG Act inter alia.

58. On 11 December 2009 in Waverley Council v Bobolas (No 2) [2009] NSWLEC 211 the Court ordered that the Council be permitted to execute its functions under s 678(10) of the LG Act to carry out work required by an order issued under s 124 of the LG Act for the clean up of the Property.

59. On 4 March 2014 in Waverley Council v Bobolas (No 3) [2014] NSWLEC 16 at [34] the Court ordered that the Council was to execute its functions under s 678 of the LG Act to remove waste from the Property inter alia.

60. On 24 April 2015 in Waverley Council v Bobolas (No 2) [2015] NSWLEC 66 at [70] the Court ordered that the Respondents refrain from keeping waste at the Property, that the Council could execute any orders made in the proceedings under s 678(10) of the LG Act and that the Respondents remove any objects of value by 7.00am on the day the works were to commence inter alia.

61. The Council as the moving party bears the onus of proof on the civil standard of establishing the matters necessary to justify the making of the declaration and orders in the exercise of the Court’s discretion. Similar issues arise in these proceedings as in the past.

Orders properly issued, served and not complied with

62. There is no requirement in the LG Act that notice be given of an order issued pursuant to item 22A of s 124, representations about it are not required and there is no appeal right to the Court. The purpose of such orders is to protect public health as is emphasised in s 128A(2) which requires that such consideration is paramount.

63. The Council must establish that the Orders were issued and served by a duly authorised officer. Mr Schilt’s affidavit sworn 15 August 2018 identifies that he is a delegate of the Council’s general manager for various functions including to issue orders under s 124 of the LG Act. The Respondents made submissions challenging the validity of his actions. That there is provision for the delegation of the role of enforcement officer under the POEO Act and no such specific delegation under the LG Act is irrelevant to his delegations under the LG Act as the two statutes are different. Nor is Mr Schilt representing the Council in this case, the Council itself is the plaintiff.

64. Mr Schilt is an experienced council officer and holds a number of delegations under the LG Act, Environmental Planning and Assessment Act and POEO Act. I find that he was properly authorised to issue the Orders. Mr Schilt’s uncontested evidence which I accept is that following his inspection on 18 November 2017 he formed the opinion that an order pursuant to item 22A of s 124 should be issued and he did so on 22 November 2017. The Respondents challenge service of the Orders signed by Mr Schilt. They deny receiving it. The evidence of service of the Orders is set out in Mr Schilt’s affidavit to the effect that he caused the Orders addressed to each Respondent to be posted through the Council’s postal system. Mr Schilt also personally took copies of the Orders for each Respondent, placed them in a plastic sleeve and attached them to the front fence of the Property. He took photographs of them attached in this manner which he annexed to his affidavit. His evidence is not discredited because the whole of the documents photographed are not legible in the photographs, a matter about which he was cross-examined. The affidavit annexed legible copies of the Orders which he photographed with envelopes before posting and when affixed in plastic sleeves to the front fence of the Property. The purpose of the photographs was to confirm his actions not to confirm the content of the Orders.

62. Service of orders issued under s 124 is required under s 144 of the LG Act. The manner of service is specified in r 10.5(1) of the UCPR (in similar terms to s 710(2) of the LG Act which applies to a notice of intention to issue an order). Service can be effected by subs (b) posting by prepaid letter addressed to the last known place of residence of the person to be served and subs (c) by leaving a copy of the document at the person’s address for service, here the Property. Both methods were applied by Mr Schilt. By fixing the notice on any conspicuous part of the land, building or premises owned or occupied by the person as Mr Schilt did, more than what was required by r 10.5(1) was carried out by him.

63. Receipt of the Orders by the Respondents does not have to be proved by the Council to establish that service was effected. Provided the service requirements are complied with service of an order is considered to have been effected per Bobolas v Waverley Council (2016) 92 NSWLR 406; [2016] NSWCA 139 at [126] where McColl JA (Simpson JA and Sackville AJA agreeing) stated that proof of non-receipt is not proof of non-delivery or proof of non-service if there is evidence of service in a permitted manner. I find that the Council has established that the Orders were properly issued and served on the Respondents.

64. The Council must establish that the Respondents are occupiers of the Property. Mr Schilt’s evidence was that the Respondents were seen on the Property. The Respondents did not submit they were not occupiers. Given the history of the Property and its occupants known to the Court that is a matter that is well known.

65. The Council must establish whether the Orders have been complied with in the timeframe specified in the Orders, here 28 days. Mr Schilt’s affidavit evidence confirms that the Orders were not complied with in the 28 days specified therein. He visited the site on 1 February 2018 and 20 March 2018 and formed the opinion that the amount of waste had not diminished as stated in his affidavit. His affidavit evidence is not seriously contested and I accept it. The Respondents alleged that Mr Schilt trespassed when he leaned over the fence into the Property and took photographs so that these were illegally obtained. Whether he can lawfully lean over the boundary fence to take photographs of the Property need not be determined. A number of photographs were not obtained in this manner. His affidavits record his personal observations.

66. There was no evidential challenge by the Respondents to the state of the Property at the time the Orders were issued, a jurisdictional fact as it underpins the issuing of the Orders. Mr Schilt’s observations of what was located in the front, side and rear yard of the Property on various dates before and after the Orders were issued was not directly challenged. As no evidence was adduced by the Respondents on this issue the Council did not choose to rely on updated evidence of the current state of the Property. No photographs were taken of some of the matters referred to by Mr Schilt, in particular flies and liquid coming from the Property onto 52 Imperial Avenue. The Respondents implied these were not observed. Mr Schilt did not accept that suggestion in cross-examination, and nor do I, in light of his clear evidence that he did see such matters.

67. The evidence in the first affidavit of Ms Liana Bobolas of her opinion that unpleasant smells were emanating from 52 Imperial Avenue and that work was carried out at 52 Imperial Avenue suggesting drainage problems was, I infer, to undermine Mr Schilt’s opinion evidence that odour was coming from the Property. The purpose of this evidence I infer was to challenge the opinion of Mr Schilt that liquid was seeping from the Property onto 52 Imperial Avenue and that the smell he detected came from the Property. No sensible challenge to Mr Schilt’s personal observations as a senior environmental health surveyor has been made. I accept his evidence. That there may have been issues at 52 Imperial Avenue does not necessarily conflict with Mr Schilt’s evidence in any event. The Council has established that the Orders have not been complied with in the specified timeframe.

68. At the original hearing the Respondents did not otherwise provide any evidence of the state of the Property at the end of 2017 when the Orders were issued up to now. They did submit in the course of the hearing that some items had been removed and sold. Additional information has been provided by the Respondents in that regard since the hearing as I discuss below in [83].

69. The second affidavit by Ms Liana Bobolas concerned her version of events in 2015 during an earlier cleaning up of the Property and alleged altercations with Mr Schilt on that occasion. In cross-examination by the Respondents Mr Schilt denied this evidence. It is irrelevant to whether I should make the orders sought by the Council.

70. The statement of Ms Elena Bobolas largely deals with the nature of the orders the Court might make. It also states that some of Mr Schilt’s evidence is refuted. Disagreement with evidence is not evidence, it is a submission.

Court has power to issue orders

74. Another submission of the Respondents is that the Court does not have power to order the Council or its agents and contractors to come onto the Property and remove material around the dwelling as it is residential premises. By virtue of the note referring to s 193 at the end of s 678, s 200 applies. Section 200 prevents these orders being made according to the Respondents. An order pursuant to item 22A of s 124 in relation to the Property was the subject of Bobolas v Waverley Council (No 4) [2015] NSWCA 337. Some of the issues raised here were dealt with in that decision. That decision is binding on me. At [46]-[48] Leeming JA (Basten JA and Tobias AJA agreeing) stated:

[46] It was said on behalf of the appellants that s 200 qualified the right of entry that was conferred either by s 678 or orders made pursuant to s 678. They relied in particular upon the note following s 678(10) which is in the following terms:

Note. Section 193 requires the council to give the owner or occupier of premises written notice before a person authorised to enter premises under Part 2 of Chapter 8 of the Act does so.

[47] There are at least two answers to this submission. The first is that the note does not render the power conferred by or pursuant to s 678 subject to s 200. Section 200 in its terms is confined to powers of entry and inspection “conferred by this Part”. The powers exercised by Council pursuant to an order made pursuant to s 678 do not fall within that description.

[48] In any event, as was pointed out during the course of oral argument, this is a question of law which has already been raised and decided adversely to the appellants by this court: see Bobolas v Waverley Council [2014] NSWCA 131 at [37]:

Finally, the applicants argued [before Ward JA] that the orders made by Biscoe J could not authorise the Council to enter their land in the absence of their permission, either as owner or occupiers. They relied upon s 200 in Part 2 of Chapter 8 of the Act. Her Honour did not consider this argument to have merit because that provision is concerned with the exercise by a Council of the power of entry conferred by s 191, whereas the question raised by the applicants was concerned with the width of the power of the Land and Environment Court to make an order under s 678(10). By that provision the Court may order the Council to exercise its function under s 678(1) which in this case was to carry out the work required by its earlier s 124 orders. The power conferred by s 678(10) undoubtedly includes ordering the carrying out of work on premises notwithstanding that the owners or occupiers may not have consented to the work or to anyone entering the premises. Such an order could not, of course, be made without joining those whose rights or interests would be directly affected by it, including, as in this case, the owner and any occupiers so affected: News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 524–526 (per curiam); John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1 at [132]-[133] (per curiam). See also the discussion in Ross v Lane Cove Council [2014] NSWCA 50 at [51]-[63] (per Leeming JA).

75. The argument that s 200 applies in these circumstances is not open legally in light of the Court of Appeal decision in Bobolas (No 4). The Court has power to make the orders sought by the Council.

Summons served in accordance with the UCPR

76. The Respondents submitted that the service by Mr Bricknell of the summons commencing these proceedings was unlawful as he was not entitled to enter the Property and serve documents at all and/or not after he was told to leave by Ms Elena Bobolas. The Respondents relied on Plenty v Dillon (1991) 171 CLR 635; [1991] HCA 5 (Plenty). In that case two police officers entered land to serve a summons and were sued for trespass, having no express or implied consent to go onto the relevant land. Mason CJ, Brennan and Toohey JJ held at 645 that the police officers had trespassed and that the plaintiff was entitled to damages. The High Court was silent on whether service was effected in that instance. It cannot be concluded from Plenty that service will be ineffective if a trespass is committed in effecting service. I should state that I make no finding that Mr Bricknell did trespass.

77. To the extent there is any case law on the topic of entering private property, in Halliday v Neville (1984) 155 CLR; [1984] HCA 80 at 7 the High Court (Gibbs CJ, Mason, Wilson and Deane JJ) held:

While the question whether an occupier of land has granted a licence to another to enter upon it is essentially a question of fact, there are circumstances in which such a licence will, as a matter of law, be implied unless there is something additional in the objective facts which is capable of founding a conclusion that any such implied or tacit licence was negated or was revoked (cf Edwards v Railway Executive [1952] AC 737 at 744. The most common instance of such an implied licence relates to the means of access, whether path, driveway or both, leading to the entrance of the ordinary suburban dwelling house. If the path or driveway leading to the entrance of such a dwelling is left unobstructed and with entrance gate unlocked and there is no notice or other indication that entry by visitors generally or particularly designated visitors is forbidden or unauthorized, the law will imply a licence in favour of any member of the public to go upon the path or driveway to the entrance of the dwelling for the purpose of lawful communication with, or delivery to, any person in the house. Such an implied or tacit licence can be precluded or at any time revoked by express or implied refusal or withdrawal of it…

78. This passage suggests that Mr Bricknell did not trespass as his evidence is that he entered through open gates at the front and side of the Property. He served the court documents before leaving as Ms Elena Bobolas told him to. That appears to be lawful service.

79. The inference arising from r 10.21(1) UCPR is that personal service can be effected within the boundaries of a person’s home. Where service cannot be so effected r 10.26(1) provides for other means to effect personal service on a person who “keeps house” if lawful or practicable access cannot be obtained. Rule 10.26(1) does not apply in the circumstances before me.

80. The purpose of personal service is to ensure that an intended respondent in court proceedings is aware of the proceedings. These are civil enforcement proceedings which have now been heard. The Respondents were and are aware of the proceedings having attended court for directions hearings for the matter and the adjourned hearing before me. Even if service was ineffective it would not result in these proceedings being dismissed in any event.

Exercise of discretion

81. I must consider whether to exercise my discretion to make the declaration sought against the two Respondents and the orders sought. The orders are made pursuant to the provisions of the LG Act intended to protect public health and safety. The neighbours of the Property are affected by the substantial volume of waste accumulated in it as identified by Mr Schilt.

82. Ms Elena Bobolas submitted in her statement that orders could be made requiring them to remove the waste as the execution of such orders causes further stress to them. As I stated during the hearing the Respondents can do work regardless of whether a court order to that effect is made. Such orders are not sought by the Council.

83. The ability of the Respondents to carry out the necessarily substantial work of clearing the very large volume of waste around the Property at all and certainly in a timely fashion is doubtful. The unfortunate history of earlier court orders made on five occasions commencing in 2005 allowing the Council to carry out waste removal through their contractors becomes relevant in relation to such submissions. Throughout the long history of removal of waste from the Property the Respondents have not been able to undertake the work required in any useful timeframe. Having said that at the last mention of this matter on 24 August 2018 Ms Elena Bobolas read an affidavit identifying that steps were being taken to remove furniture and other non-putrescible items, as summarised above in [46]-[49]. As it appeared that genuine and reasonably substantial steps were being taken the parties were given the opportunity to discuss how additional removal could occur without the involvement of the Council’s contractors acting under court orders. As a result the orders sought by the Council have been amended.

84. Considering the declaration sought, as identified in Great Lakes Council v Lani; Great Lakes Council v Lani and Lampo Pty Ltd (2007) 158 LGERA 1; [2007] NSWLEC 681 at [21] a declaration need not be made in every civil enforcement application to the Court. I do not consider I need make the declaration sought. It is not necessary to make it to found the orders sought by the Council as I have made findings of fact and law sufficient for that purpose.

85. It is appropriate to exercise my discretion to make orders enabling a clean up by the Council largely in the terms sought. Most of the orders are aimed at facilitating a clean up at the Property and are appropriate.

86. The circumstances of the Respondents and their neighbours and the necessity for expensive court proceedings by the Council and expensive clean up operations at the Property is very unfortunate. It is appropriate that the Council’s legal costs of taking these proceedings be paid as reflecting the usual approach to costs in successful civil enforcement matters. There is no disentitling conduct on the Council’s part. Costs are compensatory per Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 at 543 (Mason CJ).

87. The Council also seeks an order that its costs incurred in undertaking the clean up be paid, if it is ultimately necessary for the clean up to occur. Under s 678(6) of the LG Act a council is entitled to recover any costs incurred as a debt. Whether an additional order from the Court in advance of it being incurred is appropriate will be discussed with the Council.

88. As to the form of orders, I intend to make orders in the terms most recently discussed on 24 August 2018 with the parties. Draft orders are annexed and marked “A”. I will provide an opportunity to all three Respondents most relevantly Mrs Mary Bobolas to comment on these before finalising them. I have stated above in [3] that no orders will made in relation to Mrs Mary Bobolas. Her interests are potentially affected by the orders concerning the Council and she should have the opportunity to comment if she wishes to.

89. The matter should come before me again in seven days to allow the opportunity for any final submissions by the Respondents on the form of the draft orders. The orders will then be finalised and made.

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                                                                                                       ANNEXURE A

Draft orders

1. In these orders:

“House” means the dwelling house erected on the Premises;

“Premises” means the premises at 19 Boonara Avenue, Bondi;

“Removal Order” means the orders no 22A dated 22 November 2017 given by the applicant to each of the Respondents pursuant to s 124 of the Local Government Act1993 requiring each of the Respondents to carry out the Removal Works;

“Removal Works” means the works required to be carried out at the Premises by the Removal Order;

“Works” means the Removal Works.

2. An order that pursuant to s 678(10) of the Local Government Act 1993 the Applicant, its servants and agents execute the Council's functions under s 678 by carrying out the Removal Works which were required to be carried out at the Premises by the Removal Order being works which each of the Respondents was required to do but failed to do.

(2A)   Order 2 is stayed for 45 days from the date of making these orders to permit the Respondents to undertake the Removal Works. In the event that the Applicant is satisfied that the Removal Works have been carried out the Applicant will give written notice to the Respondents of sufficient compliance.

3. An order that subject to compliance with order 7 below, 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 7.00am to 3.00pm.

4. An order that provided a sealed copy of these orders are served on the Respondents by affixing the orders in a sealed clear soft plastic pocket to the outside of the double front gates of the Premises 5 working days before the Works commence, the Works may commence on the Premises.

5. An order that the Applicant its servants and agents be permitted during the Works, if in their opinion it is prudent to do so, to disconnect the electricity or other utility services to the Premises. Where such a disconnection has occurred it must be reconnected at the conclusion of the day's work.

6. An order that the Applicant its servants and agents be permitted during the Works, to forcefully unlock and remove any gates on the Premises including the gates located at the side boundaries of the Premises and the front of the Premises in order to gain access to the front and rear yards, the areas between the House and side boundaries and the front verandah of the House on the Premises. Any locks or gates removed shall be replaced by the Applicant so as to restore the locks and gates to the condition prior to removal by the Applicant or its servants and agents.

7. An order that the Second and Third Respondents may remove from the front and rear yards, the area between the House and the side boundaries, the front verandah of the House and the garage any object of value which they do not wish to be removed by the Applicant, its servants and agents by 7.00am on the day when the Works commence.

8. An order that the Second and Third Respondents, their servants and agents abstain from doing any act which might interfere with or impede the entry by the Applicant, its servants and agents onto the Premises and then remaining on the Premises pursuant to these orders and which might interfere with and impede the Applicant, its servants and agents in complying with these orders, and that the Second and Third Respondents, their servants and agents stay a safe distance of at least 10 metres from any operating machinery and trucks on or in the vicinity of the Premises.

9. An order that for the purposes of these orders and the orders under s 124 Local Government Act 1993 “waste” means all objects located anywhere outside the House at 7.00am on the day when the Works commence.

10. An order that the Applicant its servants and agents may cut vegetation at the Premises if that is reasonably required to facilitate the Works.

3. An order that any motor vehicle (registered or otherwise) which is parked in the driveway in front of the Premises or on the road in front of the driveway and which impedes or poses a danger to the Works may be removed by an appropriate towing company a sufficient distance from the Premises to allow the Works to proceed in an efficient and safe manner.

4. An order that the Second and Third Respondents pay the Council's legal costs of or incidental to these proceedings as assessed or agreed.

5. (12A)   Liberty reserved to the Respondents to apply to the Court with 48 hours’ notice in accordance with Order 5 in the event the Respondents have completed the Removal Works.

Amendments

18 December 2018 - typographical error in numbering of paragraphs in Annexure A

14 February 2019 - Typographical - cover page - hearing dates omitted

Decision last updated: 14 February 2019