Waverley Council v Bobolas (No 2)

[2018] NSWLEC 144

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Waverley Council v Bobolas (No 2) [2018] NSWLEC 144
Hearing dates:	6 September 2018
Date of orders:	14 September 2018
Decision date:	14 September 2018
Jurisdiction:	Class 4
Before:	Pain J
Decision:	See [5] of judgment
Catchwords:	ORDERS – final orders issued following judgment
Legislation Cited:	Local Government Act 1993 s 678
Cases Cited:	Waverley Council v Bobolas [2018] NSWLEC 116
Category:	Consequential orders (other than Costs)
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):	18/50888

Judgment

Final orders issued

1. In Waverley Council v Bobolas [2018] NSWLEC 116 (Bobolas No 1) I held that orders arising from s 678(10) of the Local Government Act1993 should be issued as against the Second and Third Respondents. I stated that no orders would be made against the First Respondent Mrs Mary Bobolas for the reasons identified in [3] of Bobolas No 1. I attached draft orders to the judgment and provided an opportunity to all three Respondents as the orders have the potential to affect Mrs Mary Bobolas, and the Council, to comment on these as identified in [88]. The First Respondent Mrs Mary Bobolas did not appear on 6 September 2018.

2. Having heard further extensive argument about the terms of the draft orders from the Council and the Second and Third Respondents on 6 September 2018 I have now finalised them as set out below. I have stayed the substantive orders for 60 working days from the date of these orders being until 7 December 2018.

3. No orders have yet been made in the proceedings against Mrs Mary Bobolas. The proceedings against her will be stood over before me to a date after these orders should have been executed at 9.30 am on Wednesday 30 January 2019. The Council can then advise whether it wishes to pursue orders against Mrs Mary Bobolas or have those proceedings dismissed.

4. As advised to the parties on 6 September 2018 I have issued the final orders in chambers. This judgment which includes the orders will be posted to all the Respondents as the Second and Third Respondents requested as well as to the Council. For abundant caution I also ask the Council to place this judgment in a sealed soft plastic pocket on the outside of the double front gates of the premises at 19 Boonara Avenue Bondi within three days of receiving it.

Orders

5. The Court makes the following 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 Act 1993 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 subject to compliance with the notice provision in Order 3 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 60 working days from the date of making these orders to permit the Respondents to undertake the Removal Works being 7 December 2018.

(2B)   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 within three (3) working days after the expiration of the 60 day stay period, being 12 December 2018.

3. An order that provided a sealed copy of these orders are served on the Respondents by affixing the orders in a sealed soft plastic pocket to the outside of the double front gates of the Premises five (5) working days before the Works are to commence, and that a copy of these orders are sent by pre-paid post eight (8) working days before the Works are to commence, the Works may commence on the Premises.

4. An order that 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.

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 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 Removal Orders under s 124 Local Government Act 1993 "waste" means all objects as described in the terms of the Removal Orders located anywhere outside the House at 7.00am on the day when the Works commence excluding pot plants found in the yard of the house.

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

11. 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.

12. An order that the Second and Third Respondents pay the Council's legal costs of or incidental to these proceedings as assessed or agreed with any barrister's costs limited to a junior barrister's fee.

(12A)   Liberty reserved to the Respondents to apply to the Court with 3 days' notice in the event of notice in accordance with Order 3 if the Respondents wish to assert that the Removal Works have been satisfactorily completed.

13. The proceedings against Ms Mary Bobolas, the First Respondent, are stood over to Wednesday 30 January 2019 at 9.30am.

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Amendments

17 December 2018 - paragraph 5: typographical error in sub-paragraph numbering.

Decision last updated: 17 December 2018