Waverley Council v Bobolas

Case [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…

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Details
AGLC
Waverley Council v Bobolas [2006] NSWLEC 828
Case
[2006] NSWLEC 828
Decision Date

CaseChat Overview and Summary

In the case of Waverley Council v Bobolas, the plaintiff, Waverley Council, sought to enforce certain obligations under the Local Government Act 1993 against the defendants, Bobolas, who were the owners of premises at 19 Boonara Avenue, Bondi. The dispute centred around the Council's requirement to execute specific works at the premises, which the defendants had failed to perform. The defendants' non-compliance had resulted in the Council issuing orders under the Act, which were subsequently modified by the court. The defendants challenged these orders, leading to the current proceedings.

The central legal issues before the court were whether the orders issued by the Council were valid and enforceable under the Local Government Act 1993, and if the Council had the right to enter the premises to carry out the necessary works. The court had to determine the extent of the Council's authority to enforce its orders and the procedural requirements the Council must follow in executing these orders. Additionally, the court considered the defendants' obligations to refrain from interfering with the Council's actions and the implications of any interference.

The court found that the Council's orders were valid and enforceable under the Act. It held that the Council had the authority to execute the required works on the premises, provided it followed the statutory requirements, including giving the defendants reasonable notice. The court also emphasised the need for the Council to ensure that the defendants and their agents did not impede the execution of these works. The court suspended the operation of the orders for 28 days to allow the defendants to potentially challenge the orders further or to comply with them voluntarily. The court further stipulated that the Council must notify the local police of its intention to enter the premises, ensuring that the entry was conducted in an orderly manner.

The court's final orders mandated the Council to carry out the required works on the premises, subject to specific conditions including providing notice to the defendants and refraining from interfering with their activities. The court reserved the issue of costs, indicating that it would be determined at a later stage. The Council was directed to serve the orders on the defendants by a specified date and to give written notice to the police of its intention to enter the premises.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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