Waverley Council v Bobolas (No 2) - [2009] NSWLEC 211

Land and Environment Court

of New South Wales

CITATION: Waverley Council v Bobolas (No 2) [2009] NSWLEC 211

PARTIES: APPLICANT
Waverley Council
FIRST RESPONDENT
Mary Bobolas
SECOND RESPONDENT
Elena Bobolas
THIRD RESPONDENT
Liana Bobolas

FILE NUMBER(S): 40278 of 2009

CORAM: Pain J

KEY ISSUES: CIVIL ENFORCEMENT :- orders sought permitting Council to enter on to residential premises to carry out work pursuant to clean-up orders issued by Council - validity of orders issued by Council -whether proper service - whether opinion of environmental health officer formed that waste causing or likely to cause threat to public or individual health - orders made

LEGISLATION CITED: Civil Procedure Act 2005 s 10
NSW Trustee and Guardian Act 2009
Local Government Act 1993 s 124, 194, 200, 678(10), 697, 710
Uniform Civil Procedure Rules 2005 r 7.14,

CASES CITED: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Council of the City of Sydney v Estate of Sulligoi care of Public Trustee [2007] NSWLEC 778
Manly Council v Moffit (2006) 146 LGERA 215
Waverley Council v Bobolas [2006] NSWLEC 828
Waverley Council v Bobolas [2009] NSWLEC 188

DATES OF HEARING: 9 December 2009
10 December 2009

EX TEMPORE JUDGMENT DATE: 10 December 2009

LEGAL REPRESENTATIVES: APPLICANT
Mr M Staunton
SOLICITORS
Wilshire Webb Staunton Beattie
FIRST RESPONDENT
Submitting appearance by Office of the Protective Commissioner
SECOND RESPONDENT
In person
THIRD RESPONDENT
In person

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

10 December 2009

40278 of 2009 Waverley Council v Bobolas & Anor (No 2)
EX TEMPORE JUDGMENT

Waverley Council (the Council) seeks orders to enable it to enforce three orders issued under s 124 (cl 22A) the Local Government Act 1993 (the LG Act) for the clean up of premises at Bondi (the premises). Section 22A states that such an order can be made where an officer forms the opinion that:

The waste is, in the opinion of an environmental health officer (within the meaning of the Public Health Act 1991), causing or is likely to cause a threat to public health or the health of any individual

2 Under s 678(10) of the LG Act the Council can enter onto premises to carry out work required by an order except in the case of residential premises by virtue of s 200 of the LG Act. As the orders sought against each Respondent by the Council require entry onto residential premises, orders from the Court under s 678(10) of the LG Act are necessary. That section states:

(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.

3 As…

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.

Keep reading for free

Create a free CaseChat account to read Waverley Council v Bobolas (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2009] NSWLEC 211
Decision Date: 10 December 2009

CaseChat Overview and Summary

The applicant, Waverley Council, sought orders permitting entry onto residential premises to carry out a clean-up pursuant to orders issued by the Council. The Land and Environment Court of New South Wales was required to decide on the validity of the orders issued by the Council, whether they were properly served, and whether the opinion of the environmental health officer was valid. The court found that the Council had the authority to issue the orders under the Local Government Act 1993, and that the orders were validly issued and served. The court also found that the Council had established the necessity for the orders to be made, and that there was some urgency to clean up before the summer season. The court made orders as against each of the respondents, enabling the Council's contractors to commence work on the premises.

In reaching its decision, the court considered the evidence of the Council's officer, Mr Schilt, who established the necessity for the order to be made. The court also considered the evidence of Mr Da Rocha, who attested to the service of the orders, and the affidavit evidence of Mr Guerrera, who raised concerns about the health and enjoyment of his tenants due to the rubbish at the respondents' premises. The court rejected the respondents' evidence, finding that it did not suggest that the orders sought in some form should not be made. The court also rejected the respondents' defence, finding that some of the issues raised were misconceived and contrary to the evidence.

In conclusion, the Land and Environment Court of New South Wales found in favour of the applicant, Waverley Council, and made orders as against each of the respondents, enabling the Council's contractors to commence work on the premises. The court found that the orders were validly issued and served, and that there was some urgency to clean up before the summer season. The court rejected the respondents' evidence and defence, finding that the Council had established the necessity for the orders to be made.

Orders