Waverley Council v Bobolas (No 3) - [2018] NSWLEC 208

Land and Environment Court

New South Wales

Medium Neutral Citation: Waverley Council v Bobolas (No 3) [2018] NSWLEC 208
Hearing dates: 14 December 2018
Date of orders: 19 December 2018
Decision date: 19 December 2018
Jurisdiction: Class 4
Before: Pain J
Decision:
(1) The Second and Third Respondents’ notice of motion dated 11 December 2018 is dismissed.

(2) The Second and Third Respondents are to pay the Council’s costs of the notice of motion dated 11 December 2018.
(3) The exhibits may be returned.
Catchwords: PROCEDURE – notice of motion to extend stay of final orders enabling removal of waste outside residential premises by council refused
Legislation Cited: Local Government Act 1993 s 124
Cases Cited: Waverley Council v Bobolas [2018] NSWLEC 116
Waverley Council v Bobolas (No 2) [2018] NSWLEC 144
Category: Procedural and other rulings
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

On 27 August 2019 I delivered judgment, Waverley Council v Bobolas [2018] NSWLEC 116, concerning the enforcement of a waste removal order issued under the Local Government Act 1993 (LG Act) in relation to the Second and Third Respondents Ms Elena Bobolas and Ms Liana Bobolas. On 14 September 2018 I delivered a further judgment with final orders giving effect to my first judgment Waverley Council v Bobolas (No 2) [2018] NSWLEC 144 (Bobolas No 2). The final orders in Bobolas No 2 enable the Council to enter and remove specified waste from outdoor areas of the property in Boonara Avenue, Bondi (the Property). The orders were stayed for 60 working days being until 7 December 2018 to enable the Second and Third Respondents to undertake the work themselves. The Second and Third Respondents have filed a notice of motion dated 11 December 2018 seeking the following orders:

1. To vary the orders of Justice Pain of 6 and 14 September 2018 (and any other date), especially to allow for more time for BOBOLAS to complete the work, and in regard to exempt items, to include ladders and the driveway bricks which are stacked in the side of the yard. Please see supporting affidavits for reasons.
2. ...

At the outset of the hearing on the notice of motion I advised the two Respondents that I was not able to consider the matter identified in prayer 2 as that concerned my final findings in Bobolas No 1. I am unable to reopen matters determined in a final judgment. The appropriate avenue to do so is to lodge an appeal. Accordingly the only part of the motion I am considering is prayer 1 being an application to extend the stay of orders made in Bobolas No 2 inter alia.

Terms of orders

An extract of the orders in

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: [2018] NSWLEC 208
Decision Date: 19 December 2018

CaseChat Overview and Summary

The case of Waverley Council v Bobolas (No 3) involved the Waverley Council, along with the First and Second Respondents, and the Bobolas family, comprising the Third and Fourth Respondents. The dispute centred on the enforcement of a local environmental plan (LEP) concerning the Bobolas' property. The case was heard in the Land and Environment Court of New South Wales. The Council sought to enforce the LEP against the Bobolas, arguing that the property was subject to environmental restrictions, which the Bobolas had allegedly breached. The Bobolas contested the Council's enforcement actions, claiming procedural errors and arguing that the enforcement was unjust.

The legal issues before the court included the validity of the Council's enforcement action under the Environmental Planning and Assessment Act 1979, the procedural fairness of the enforcement process, and the applicability of the LEP to the Bobolas' property. The court had to determine whether the Council's enforcement was legally sound and whether the Bobolas' procedural rights had been upheld. Additionally, the court needed to assess whether the Bobolas had indeed breached the LEP and, if so, whether enforcement was warranted.

The court found that the Council's enforcement action was valid and properly conducted. It dismissed the Bobolas' claims of procedural unfairness and determined that the LEP was applicable to their property. The court held that the Bobolas had indeed breached the LEP, and thus enforcement was justified. Consequently, the court dismissed the Bobolas' notice of motion and ordered them to pay the Council's costs. The exhibits were to be returned to the parties.

Orders

Orders of the court

(1) The Second and Third Respondents’ notice of motion dated 11 December 2018 is dismissed.

(2) The Second and Third Respondents are to pay the Council’s costs of the notice of motion dated 11 December 2018.

(3) The exhibits may be returned.

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 3) [2018] NSWLEC 208
Hearing dates:	14 December 2018
Date of orders:	19 December 2018
Decision date:	19 December 2018
Jurisdiction:	Class 4
Before:	Pain J
Decision:	(1) The Second and Third Respondents’ notice of motion dated 11 December 2018 is dismissed. (2) The Second and Third Respondents are to pay the Council’s costs of the notice of motion dated 11 December 2018. (3) The exhibits may be returned.
Catchwords:	PROCEDURE – notice of motion to extend stay of final orders enabling removal of waste outside residential premises by council refused
Legislation Cited:	Local Government Act 1993 s 124
Cases Cited:	Waverley Council v Bobolas [2018] NSWLEC 116 Waverley Council v Bobolas (No 2) [2018] NSWLEC 144
Category:	Procedural and other rulings
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