Waverley Council v Bobolas (No 2) - [2015] NSWLEC 66

Land and Environment Court

New South Wales

Medium Neutral Citation: Waverley Council v Bobolas (No 2) [2015] NSWLEC 66
Hearing dates: 23 and 24 April 2015
Date of orders: 24 April 2015
Decision date: 24 April 2015
Jurisdiction: Class 4
Before: Sheahan J
Decision:
(a) The Notice of Motion dated 22 April 2015, and filed by the respondents by email on 23 April 2015, is dismissed.
(b) The Court adopts the “definitions of terms” in par 1 of the summons, dated 5 December 2014, and makes the declaration sought in prayer 2 of it.
(c) The Court makes the orders sought by the applicant in prayers 3 to 18 of the summons, as slightly modified in Short Minutes of Order filed in Court on 24 April 2015.
(d) The respondents are ordered to pay the applicant’s legal costs of or incidental to these proceedings, as agreed or assessed.
(e) The applicant is to bring in by 4 pm today Short Minutes of Order to reflect orders (a) to (d) hereof, to be made in chambers.
(f) Exhibit C1 is returned.
(g) The parties are to have liberty to apply on two days’ notice in respect of the “working out” of the Court’s orders.

Catchwords:
INJUCTIONS AND DECLARATIONS: non-compliance with orders issued by Council, including to clean up waste unlawfully kept on premises – risks to public health and safety – order the respondents to refrain in future from keeping waste on the premises – order made enabling Council to clean up waste and attend to other health and safety issues – recovery of costs and expenses of works – costs of proceedings.
PRACTICE AND PROCEDURE: application for adjournment pending an appeal from a decision of the Legal Aid Commission to refuse legal aid to the respondents – whether appeal “bona fide” – application refused.
Legislation Cited: Environmental Planning and Assessment Act 1979
Legal Aid Commission Act 1979
Local Government Act 1993
Uniform Civil Procedure Rules 2005
Cases Cited: Lewis v Spencer [2007] NSWSC 1383
Manly Council v Moffit [2006] NSWLEC 184; 146 LGERA 215
Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan [2013] NSWSC 1270
Scott-Irving v State of New South Wales [2014] NSWSC 1006
Waverley Council v Bobolas [2009] NSWLEC 190
Category: Principal judgment
Parties: Waverley Council (Applicant)
Mary Bobolas (1st Respondent)
Elena Bobolas (2nd Respondent)
Liana Bobolas (3rd Respondent)
Representation:
Counsel:
Mr P Clay, SC with Mr M Staunton, barrister, and (on 24 April) Ms J Reid, barrister (Applicant)
No appearance (Respondents)
Solicitors:
Wilshire Webb Staunton & Beattie (Applicant)
Litigants in person (Respondents)

File Number(s): 41027 of 2014

Judgment

The summons in this matter was filed on 5 December 2014 and seeks a declaration and a range of orders regarding waste deposited and kept on premises at 19 Boonara Ave, Bondi, and the state of those premises more generally.
The first respondent (Mary Bobolas) is the owner-occupier, and her daughters, the second respondent (Elena) and third respondent (Liana) also occupy, the premises.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] NSWLEC 66
Decision Date: 24 April 2015

CaseChat Overview and Summary

In Waverley Council v Bobolas (No 2), the dispute arose between the Waverley Council and Bobolas, the owner of a property. The central issue was the enforcement of a development permit and the subsequent legal actions taken by both parties. The matter was heard by the Supreme Court of New South Wales.

The primary legal issues the court addressed were whether the respondents had complied with the conditions of the development permit, and if not, what orders should be made to enforce the permit. Additionally, the court had to determine whether the applicants were entitled to costs and whether any modifications to the orders sought in the summons were warranted.

The court found that the respondents had not complied with the conditions of the development permit and thus dismissed the notice of motion filed by the respondents. It adopted the definitions of terms outlined in the summons and made the declaration sought by the applicants. The court granted the specific orders sought by the applicants, with slight modifications, and ordered the respondents to pay the applicants' legal costs. The court also provided liberty for the parties to apply for further clarification on the implementation of its orders.

The final orders of the court included dismissing the respondents' notice of motion, adopting the definitions of terms, making the declaration and specific orders sought by the applicants, and ordering the respondents to pay the applicants' legal costs. The parties were granted liberty to apply for further clarification on the implementation of the court's orders.

Orders

Orders of the court

(a) The Notice of Motion dated 22 April 2015, and filed by the respondents by email on 23 April 2015, is dismissed.

(b) The Court adopts the “definitions of terms” in par 1 of the summons, dated 5 December 2014, and makes the declaration sought in prayer 2 of it.

(c) The Court makes the orders sought by the applicant in prayers 3 to 18 of the summons, as slightly modified in Short Minutes of Order filed in Court on 24 April 2015.

(d) The respondents are ordered to pay the applicant’s legal costs of or incidental to these proceedings, as agreed or assessed.

(e) The applicant is to bring in by 4 pm today Short Minutes of Order to reflect orders (a) to (d) hereof, to be made in chambers.

(f) Exhibit C1 is returned.

(g) The parties are to have liberty to apply on two days’ notice in respect of the “working out” of the Court’s orders.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Waverley Council v Bobolas (No 2) [2015] NSWLEC 66
Hearing dates:	23 and 24 April 2015
Date of orders:	24 April 2015
Decision date:	24 April 2015
Jurisdiction:	Class 4
Before:	Sheahan J
Decision:	(a) The Notice of Motion dated 22 April 2015, and filed by the respondents by email on 23 April 2015, is dismissed. (b) The Court adopts the “definitions of terms” in par 1 of the summons, dated 5 December 2014, and makes the declaration sought in prayer 2 of it. (c) The Court makes the orders sought by the applicant in prayers 3 to 18 of the summons, as slightly modified in Short Minutes of Order filed in Court on 24 April 2015. (d) The respondents are ordered to pay the applicant’s legal costs of or incidental to these proceedings, as agreed or assessed. (e) The applicant is to bring in by 4 pm today Short Minutes of Order to reflect orders (a) to (d) hereof, to be made in chambers. (f) Exhibit C1 is returned. (g) The parties are to have liberty to apply on two days’ notice in respect of the “working out” of the Court’s orders.
Catchwords:	INJUCTIONS AND DECLARATIONS: non-compliance with orders issued by Council, including to clean up waste unlawfully kept on premises – risks to public health and safety – order the respondents to refrain in future from keeping waste on the premises – order made enabling Council to clean up waste and attend to other health and safety issues – recovery of costs and expenses of works – costs of proceedings. PRACTICE AND PROCEDURE: application for adjournment pending an appeal from a decision of the Legal Aid Commission to refuse legal aid to the respondents – whether appeal “bona fide” – application refused.
Legislation Cited:	Environmental Planning and Assessment Act 1979 Legal Aid Commission Act 1979 Local Government Act 1993 Uniform Civil Procedure Rules 2005
Cases Cited:	Lewis v Spencer [2007] NSWSC 1383 Manly Council v Moffit [2006] NSWLEC 184; 146 LGERA 215 Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan [2013] NSWSC 1270 Scott-Irving v State of New South Wales [2014] NSWSC 1006 Waverley Council v Bobolas [2009] NSWLEC 190
Category:	Principal judgment
Parties:	Waverley Council (Applicant) Mary Bobolas (1st Respondent) Elena Bobolas (2nd Respondent) Liana Bobolas (3rd Respondent)
Representation:	Counsel: Mr P Clay, SC with Mr M Staunton, barrister, and (on 24 April) Ms J Reid, barrister (Applicant) No appearance (Respondents) Solicitors: Wilshire Webb Staunton & Beattie (Applicant) Litigants in person (Respondents)
File Number(s):	41027 of 2014