Waverley Council v Bobolas

[2006] NSWLEC 828

Land and Environment Court

of New South Wales

CITATION:

Waverley Council v Bobolas & Ors [2006] NSWLEC 828

PARTIES:

APPLICANT
Waverley Council

FIRST RESPONDENT
Mary Bobolas

SECOND RESPONDENT
Liana Bobolas

THIRD RESPONDENT
Elena Bobolas

FILE NUMBER(S):

40916 of 2006

CORAM:

Jagot J

KEY ISSUES:

Civil Enforcement :- orders to clean-up premises - failure of respondents to comply with Council's orders - orders made for Council to carry out orders

LEGISLATION CITED:

Local Government Act 1993 s 124, s 678(1)

DATES OF HEARING:

15/12/2006

EX TEMPORE JUDGMENT DATE:

12/15/2006

LEGAL REPRESENTATIVES:

APPLICANT
Mr M Staunton (solicitor)
SOLICITORS
Staunton Beattie

RESPONDENTS
No appearance

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

15 December 2006

40916 of 2006

WAVERLEY COUNCIL
Applicant

MARY BOBOLAS
First Respondent

LIANA BOBOLAS
Second Respondent

ELENA BOBOLAS
Third Respondent

JUDGMENT

Jagot J:

1 These are class 4 proceedings in which Waverley Council seeks declarations and orders against three respondents, Mary Bobolas, Liana Bobolas and Elena Bobolas. The declarations and consequential orders the Council seeks arise from an order which the Council served on the respondents dated 7 March 2006 pursuant to s 124 of the Local Government Act 1993.

2 Section 124 provides that a Council may order a person to do or to refrain from doing a thing specified in column 1 of the 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. Relevantly, item 21 of the table provides that a council may order the owner or occupier of land or premises to do or refrain from doing such things as are specified in the order to ensure that land is or premises are placed or kept in a safe or healthy condition in the circumstances where the land or premises are not in a safe or healthy condition.

3 The order served by the Council on each of the respondents, relevantly, on the first respondent in her capacity as the owner of certain premises and the second and third respondents in their capacity as occupiers of those premises, required the respondents to remove all waste being garbage and refuse including but not limited to scrap metal, papers, rags, bottles, plastic containers and putrescible matter which has been collected, accumulated and stored from all parts of the subject premises within a period of twenty-eight days.

4 The Council now comes to the Court in these class 4 proceedings contending that each of the respondents has failed to comply with that order as subsequently amended by the Court on appeal and accordingly that the jurisdiction of the Court with respect to breach of the Local Government Act 1993 is enlivened, enabling the Court to make an order pursuant to s 678(1) of that Act requiring that the Council do such things as are necessary or convenient to itself give effect to the terms of the order by carrying out the work required by the order.

5 When the matter was called for hearing this morning the respondents did not appear. I provided to Mr Staunton, who appears for the Council, a copy of a facsimile forwarded by one of the respondents to the Court indicating that each of the respondents was presently suffering from a medical condition and requesting that this hearing date be vacated and adjourned with no order as to costs on the ground that it would be unjust and unfair to conduct the hearing without giving the respondents a chance to be heard. The facsimile annexed a medical certificate from the Sydney Hospital and Sydney Eye Hospital with respect to the second respondent and medical certificates from an unknown medical practitioner for each of the first and third respondents indicating unfitness for work due to illness and/or injury from the period collectively of about 11 December through to 26 December inclusive.

6 Mr Staunton for the Council applied to have the matter proceed on an ex parte basis on the ground that there were wider public interest issues involved, including fire and health risks arising from the condition of the premises both to the occupants of the premises and also to neighbouring properties and emergency services. In circumstances where the respondents had appeared before the Court in these proceedings on two previous occasions and having regard to the evidence in the proceedings relied upon by the Council and the absence of any evidence filed or served by the respondents as well as, importantly, the fire and health risks which are apparent from the evidence relied upon by the Council, I determined that I would proceed to hear this matter ex parte and have done so.

7 Relevantly, an order under s 124 may be served if the requirements set out in the table are satisfied. Mr Staunton has pointed me to evidence in the proceedings establishing that the first respondent is the owner of the premises known as 19 Boonara Avenue, Bondi being the land comprised in folio identifier 56/9503. According to the affidavit of Mr Cairns, the Council’s Co-ordinator of Environmental Health and Compliance, during his inspection of that property (which, as he said, he has inspected on many occasions) he has almost always seen the second and third respondents at the property. In addition, there is an affidavit of Michelle Silver who owns and resides in the property known as 26 Boonara Avenue, Bondi which is located diagonally opposite 19 Boonara Avenue, Bondi. Ms Silver has deposed to the fact that she has seen one of the first respondent’s daughters (that is, either the second or third respondent) collecting rubbish in 2005 and early in the morning and during the day of the cleanup in December 2005 placing garbage bags into the roof cavity of the property.

8 In these circumstances I am satisfied on the evidence that the first respondent is both an owner and occupier of the property and that the second and third respondents are each occupiers of the property.

9 The relevant circumstances in which an order can be served are that land or premises are not in a safe or healthy condition, in which event the owner or occupier may be ordered to do or refrain from doing things specified in the order to ensure that land is or premises are placed or kept in a safe or healthy condition.

10 After the Council served the order on 7 March 2006, the respondents commenced class 2 proceedings in this Court appealing against the terms of the order. Those proceedings were heard and then determined on 21 July 2006. The Court upheld the appeal in part and modified the order by deleting para (a) under the heading “Terms of Proposed Order” and replacing it with these words:

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 the side boundaries and the front veranda of the house,

and by 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 days from the date of service of this order upon you.

11 Mr Staunton swore two affidavits in the class 4 proceedings deposing to the fact that he served the Land and Environment Court’s order modifying the Council’s order and a copy of the judgment on each of the second and third respondents by way of personal service on 2 August 2006. In addition, I have an affidavit of Karen Mary White, who is a solicitor employed by Mr Staunton, deposing to the fact that pursuant to an order made by the Court for substituted service on the first respondent, being an order of 18 August 2006, she placed a sealed copy of the order for substituted service and various other documents (including relevantly the order of the Court of 21 July 2006 modifying the Council’s order on the first respondent) in the letter box of the premises known as 19 Boonara Avenue, Bondi, consistent with the terms of the order for substituted service, that having occurred on 18 August 2006.

12 Mr Cairns has deposed to the fact that after the Council carried out a clean-up of the property between 5 and 9 December 2005 pursuant to orders of the Court made in another set of class 4 proceedings, he carried out further inspections of the property. As a consequence of his observation that after the December 2005 clean-up further rubbish was accumulating on the property, he arranged for the service of the Council’s order of 7 March 2006.

13 At that time he observed that rubbish covered most of the front yard, the entire driveway at the side of the house to the fence lines to a depth of approximately one metre and was also being stored on the front veranda behind a shade cloth, and that it extended into the back yard. He formed the opinion that the accumulation of rubbish was unsightly, a health risk to residents of the property and surrounding residents, a potential harbourage for insects, a potential harbourage for vermin and a potential fire hazard.

14 After the Court modified the Council’s order in the class 2 proceedings, Mr Cairns again inspected the property on 18 September 2006 and took a series of photographs on that day which show an accumulation of various items of waste and rubbish apparently surrounding the house on the property including the whole of the front yard area and the side area between the dwelling and a fence.

15 Ms Silver, who lives diagonally opposite the property, observed the Council clean-up in December 2005 and says that since that time rubbish has accumulated on the property very quickly. She also estimated at the time that she swore her affidavit that the accumulated rubbish was almost one metre high in the front and the side of the property. She had not noticed any reduction in the amount of accumulated rubbish since March 2006. Over the last month she had observed that the temperature had increased, this being throughout October 2006, and has deposed to the fact that she can smell the odour of the rubbish when she is in Boonara Avenue and in her own home and that she finds this odour disgusting and even more so when the wind blows towards her house.

16 Ms Holton, who is an Executive Planner with the Council, also inspected the property in March and September 2006 and made observations consistent with those of both Ms Silver and Mr Cairns, including to the effect that she could smell decaying rubbish while at the property.

17 Mr Featherstone is the Co-ordinator of Building Regulation and Compliance at the Council. He inspected the property in June 2006 and observed what he described as a large accumulation of rubbish around the perimeter of the dwelling. He says that the rubbish was combustible and flammable material including cardboard boxes, polystyrene boxes, large volumes of paper, plastic crates, plastic bags, timber furniture and timber lattice. He expresses the view that the combustible materials represent a large fire load and a potential fire hazard. He particularly notes that the amount of rubbish would inhibit movement onto and off the property, that people on the property would have difficulty escaping from the property in the event of fire and that emergency service workers would have difficulty accessing the property to rescue occupants or extinguish the fire. He concludes that the amount of rubbish at the property results in an unacceptable level of fire safety. He made the same observations on 28 September 2006.

18 Each of Ms Holton, Mr Featherstone and Mr Cairns attended the property again on 14 December 2006. Ms Holton said that she observed that the amount of rubbish accumulated within the front yard of the property and the northern side of the dwelling was less than what she had observed during her last inspection on 28 September. Sections of the front yard were vacant of any accumulated rubbish and the soil was visible. She also viewed the rear yard of the property from a neighbouring property. It appeared to Ms Holton that the amount of rubbish accumulated in the rear yard on 14 December 2006 was greater than what she had observed when she saw the rear yard on 2 March. She saw paint tins, mattresses and other furniture items, various types of paper, cardboard, including many plastic bags, bottles, clothing and material. She did not see any decaying food or drink matter during this inspection but did observe an odour emanating from the property and flies.

19 Mr Featherstone observed a similar amount of rubbish on the property as his previous inspections in September and June except for less rubbish within the front yard area and the northern side of the dwelling. The remaining rubbish located in the front yard was to a depth of approximately 500mm. He saw mattresses, lounges, various plastics including crates, containers and stools, a metal fuel drum, an old outdoor table, an old kitchen type bench top, rolled up newspapers, polystyrene crates, plastic bags, a paint tin, clothes, shoes, cardboard boxes and containers. Again, he thought that the amount of rubbish inhibited movement on to and off the property and that the rubbish located at the entrance of the dwelling was to a depth of 1.2 to 1.5 metres and inhibited access to the dwelling on the property. He saw that the front veranda was full of various rubbish items. He concluded again that the rubbish constituted a large fire risk, which would increase with the summer months approaching. He expressed concern that the amount of rubbish located at the property would make it difficult for the residents to escape during a fire and difficult for emergency workers to access the property to extinguish the fire or rescue the residents.

20 Mr Cairns said that when he went to the property on 14 December he observed a similar amount of rubbish as when he inspected the property on 18 September except that approximately one half of the front yard had been cleared. Based on his observations he remained of the view that the property was unsightly, a health risk to residents and surrounding residents, a potential harbourage for insects and vermin and a potential fire hazard. During that inspection on 14 December Mr Cairns took a series of photographs of the property that have been tendered in evidence. Those photographs show large amounts of a variety of rubbish between the house and the fence line and in other areas of the property including behind a green shade cloth on the veranda as well as within what appears to be the rear yard area generally consistent with the observations which I have described of the three Council officers who attended the premises on 14 December 2006.

21 I accept the evidence of the Council officers and the neighbour, Ms Silver, with respect to their observations and the conclusions which they drew from those observations which lead inevitably to the conclusion that the property is not in a safe or healthy condition and that to be placed in a safe and healthy condition it is necessary that the works in accordance with the modified order of the Court of 21 July 2006 be carried out.

22 It is clear from the evidence that the respondents have not complied with the modified order under s 124 item 21 of the Local Government Act 1993.

23 It is also clear from the evidence that the fact that the respondents have not complied with the order means that the property is in an unsafe and unhealthy condition and that this continued condition of the property is unacceptable and must be rectified.

24 As I have said, the Council has sought orders pursuant to s 678(1) of the Act which provides that if a person fails to comply with the terms of an order given to the person under s 124, 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. The Council issued notice of intention to serve orders on each of the respondents on 14 February 2006 and received representations in response on 24 February 2006. These representations are included in Mr Cairns’ affidavit. In them, the respondents strenuously object to the issue of the order on the basis that they had not carried out the acts as set out in the order. They made other objections with respect to the date of service and the method of service. They identified that there was a stress related problem operating upon the respondents - in circumstances where it is obvious from that representation that the respondents found the clean-up by the Council extremely stressful. They otherwise objected to many aspects of what occurred in relation to that clean-up and concluded with the observation that they were in the process of sorting and removing unnecessary items from the property.

25 While I accept from that representation that the respondents are, indeed, suffering from stress related issues (and, as I have also said, they have forwarded a facsimile to the Court referring to various medical conditions from which they are currently suffering) the fact is that, although they said that they were removing items from the property, the evidence in these proceedings overwhelmingly establishes that there is a very significant amount of various wastes on the property as at yesterday’s date. Although half of the front yard area does appear to have been cleared of rubbish, it also seems that there is a larger amount of rubbish in the rear yard area than before and, as the photographs make clear, there is a very significant volume of rubbish on the property on any view that might be taken of those photographs.

26 In all of these circumstances I am satisfied that this is a matter where orders should be made pursuant to s 678(1) of the Act because I am satisfied that the order as modified was properly served within the meaning of s 124 item 21, that the respondents have not complied with that order as required or, indeed, within any reasonable time thereafter, and that the current condition of the premises is not safe or healthy and must be rectified. As I think it is readily apparent from the evidence that the Council itself must be the party to achieve rectification, I am willing to make the order sought by the Council ex parte.

27 There is, however, an issue as to the framing of that order and of course whether that order, as I think should be the case, should be stayed. I have in mind that I would hear submissions on a stay for a period of twenty-eight days and I am also of the view that I need to hear from Mr Staunton about steps that will be taken to give notice to the respondents having regard to the issues that have occurred previously with respect to service. By notice, I mean particularly prior notice of entry itself by the Council.

[Discussion with respect to the form of orders]

28 On an ex parte basis, the Court orders that:

1. (a) Pursuant to section 678(10) of the Local Government Act 1993 the applicant Waverley Council, its servants and agents is ordered to execute the Council’s functions under section 678 by carrying out the work which was required to be carried out at the premises at 19 Boonara Avenue, Bondi (“Premises”) by paragraph (a) of the orders dated 7 March 2006 given to each of the respondents pursuant to section 124 of the Local Government Act 1993, as those orders were modified by order 2 of the orders made by this Court on 21 July 2006 in proceedings no. 20267, 20268, & 20269, being work which each of the respondents was required to do but failed to do.


(b) The applicant, its servants and agents for the purpose 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 these orders at and between reasonable hours of the day during the weekdays.

(c) The applicant must give the respondents not less than 7 days notice in writing of its intention to carry out the works, such notice to be given by a letter to the respondents to be placed in the letterbox at the Premises.

(d) 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 on the Premises and then remaining on the Premises pursuant to these orders and which might interfere with and impede them in complying with these orders.


2. The operation of order 1 is suspended until 28 days after the date of service of these orders upon the respondents.

3. The applicant is to serve these orders on the respondents by 4.00pm on Monday 18 December 2006 by leaving a sealed copy of these orders in the letterbox of the Premises at 19 Boonara Avenue, Bondi.

4. Costs reserved.

5. The applicant is to give Waverley Police 7 days’ written notice of its intention to enter on the Premises and carry out the works.

29 For the reasons that I have given I make the above orders.

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