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

1. 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.   ...

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

3. An extract of the orders in Bobolas No 2 follows:

(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.

4. The two Respondents need more time to undertake the removal work. The Council opposes an extension of the stay. It helpfully admits to the Court that it will not be taking action over the holiday period until at least 18 January 2019. Its counsel tendered proposed short minutes of order in which it agreed to extend the stay of orders to 18 January 2019 on conditions which were not acceptable to the Respondents. I did not therefore make the proposed orders and heard the contested motion.

Evidence

Affidavit of Ms Elena Bobolas

5. Ms Bobolas affirmed an affidavit on 10 December 2018 attesting that in the timeframe provided by the Court to comply with the orders there was extreme weather including heat, wind and excessive rain and a two week period with no clear days. Ms Bobolas attested that she has been sick. This has limited the work she has been able to do. Ms Bobolas stated that she has been working hard and estimates that 60-70 per cent of the work has been completed.

6. Ms Bobolas stated that the Council sought to auction the Property during the allotted time to comply with the orders. This took Ms Bobolas and her family away from the work because they had to raise funds to save the Property and negotiate with the Council through Legal Aid.

7. Ms Bobolas stated that she and her family had put out large loads for pick-up on several occasions including on 22 November, 29 November and 6 December 2018 and that they have also personally removed items from the Property. She stated that Mr Steve Bobolas made arrangements with the Council for double pick-ups on 29 November, 6 December and 13 December 2018. Due to the holiday period there were no more available pick-ups for this year. The first available pick-up is 10 January 2019 which they have booked.

8. Ms Bobolas tendered two sets of photographs which I have marked as Exhibit A. The first set was taken on 12 December 2018. These photographs depict objects placed on the nature strip outside the Property for removal by the Council on 13 December 2018. The second set of photographs was taken on 14 December 2018. They purport to depict various cleared areas of the Property (including the front yard).

9. Ms Bobolas tendered a weather forecast provided by the Bureau of Meteorology for Bondi for 14 to 20 October 2018 and referred to indications of rain.

Affidavit of Mr Bobolas

10. Mr Bobolas affirmed an affidavit on 5 December 2018. He stated that he wanted his family rather than the Council to finish clearing the yard of the Property. He said that the Council has overcharged the Bobolas family and has created damage. Mr Bobolas stated that he arranged double pick-ups by the Council for 29 November, 6 December and 13 December 2018. He stated that he believes that Ms Elena and Liana Bobolas need six to eight weeks to finish the job. In 2000 the problem stopped for about five years.

Affidavits of neighbours

11. Mr Williams resident in Boonara Avenue affirmed an affidavit dated 10 December 2018. He stated that he believes that the Bobolas family can successfully complete the required work, having done it successfully in around early 2001. Mr Williams attested that the family has been placing objects on the nature strip for removal and has done a lot of work. He stated that when the family is allowed to complete the work, the problem goes away for a number of years (more than four and a half years). Mr Williams stated that when the Council has done the work the problem has come back sooner and there are road closures, parking restrictions, damage and noise.

12. Mr Hinchey resident in Tamarama Street (near Boonara Avenue) affirmed an affidavit dated 7 December 2018. On 5 September 2018 Mr Hinchey gave one of his “your call” pick-ups to the Bobolas family to help them but the Council did not honour this. Mr Hinchey stated that the Bobolas family have placed large amounts of objects out for pick-up. He stated that there have been obstacles to the Bobolas family completing the work. These include the need to raise funds to stop the auction of the Property by the Council and the extensive amount of rain that occurred in the allotted period. Mr Hinchey stated that in 2000 the family got an extension of time and was able to complete the work themselves. The problem did not recur for another five years. Mr Hinchey stated that this effect can never be achieved by the Council. The Council’s involvement has been stressful and the Council has overcharged the Bobolas family.

13. Mr Mounjed resident in Boonara Avenue affirmed an affidavit dated 6 December 2018. On 5 September 2018 Mr Mounjed gave one of his “your call” pick-ups to the Bobolas family to help them but the Council did not honour this. He stated that the efforts of the Bobolas family in removing objects from the yard have been extensive and consistent. When the Council does the work the problem recurs but when the family is given the opportunity and adequate time to do it themselves there is a cessation of the problem for a few years. This is what occurred in 2000.

Affidavit of Mr Schultz

14. Mr Schultz senior environmental health officer for Waverley Council swore an affidavit on 14 December 2018. He has coordinated previous removals at the Property. Mr Schultz has seen reports from the waste contractor who has collected and disposed of the waste. He recalled that 310 cubic metres of waste was collected at the last removal. Mr Schultz stated that each waste collection truck can hold approximately 6 cubic metres of waste.

15. On 7 December 2018 between approximately 9:55 and 10:20 am Mr Schultz attended Boonara Avenue and Imperial Avenue in Bondi in order to undertake a site inspection of the Property. Throughout this inspection Mr Schultz took a series of photographs which were exhibited to his affidavit (Exhibit 1). Mr Schultz stated that he observed a large accumulation of waste on the front and rear yards and on the side driveway of the Property.

16. On 14 December 2018 at approximately 6:20 am Mr Schultz took photographs of the Property. These photographs were exhibited to his affidavit (Exhibit 2). Mr Schultz stated that he observed some improvement in the front yard of the Property. He observed that there remains a large accumulation of waste on the side driveway of the Property. Mr Schultz opined that the state of the Property continues to be a threat to public health and safety.

Submissions

17. The two Respondents submit that they have been carrying out the necessary removal work as demonstrated in the photographs in Exhibit A. Numerous council pick-ups have been availed of. The problem will not recur if they are allowed to remove the material the subject of the order. They seek a two month extension of the stay order. They dispute the evidence of Mr Schultz concerning the state of the Property on 7 December 2018 as that was the last day on which work could be carried out. They submitted that his photographs could not be a credible depiction of the Property.

18. The Council submits that substantial waste remains on the Property and it continues to pose a risk to public health. Ample time was given to the Second and Third Respondents to remove the waste under the court orders. It is open to the two Respondents to employ a waste contractor to remove the remaining waste in a shorter timeframe before 18 January 2018.

Exercise of Court’s discretion not to extend stay

19. The original waste removal order issued by the Council pursuant to item 22A in s 124 of the LG Act was dated 22 November 2017 and required compliance within 28 days. The basis for issuing such an order is that waste is causing or is likely to cause a threat to public health or the health of any individual. Because of non-compliance with the order the Council commenced enforcement proceedings. I determined that it was appropriate and necessary for orders to be issued in the terms contained in Bobolas No 2 delivered on 14 September 2018. The stay of the orders enabling the Council to go onto the Property to do the work was generous being calculated as 60 working days up to 7 December 2018. That is nearly 12 months after the original order was required to be complied with. The two Respondents seek a further two months extension of the stay which would be to 7 February 2018.

20. The 60 working days stay to 7 December 2018 was generous. That one of the Respondents was sick for part of the period is accepted but that is not supported by a medical certificate stating Ms Elena Bobolas could not undertake physical work. The meteorological records provided cover one week in October 2018 out of a three month period.

21. The Council accepts that some material has been removed from the front yard in particular and that is confirmed by the evidence of Ms Elena Bobolas. The extent of the waste removed is estimated by Ms Elena Bobolas to be some 60-70 per cent. According to Mr Schultz’ evidence there is still a substantial amount of waste to be removed which I infer is far more than the Respondents’ estimate. The opinion of all the deponents who provided affidavits for the two Respondents that two months is sufficient can have little weight given the lack of any basis for such an opinion being provided and Mr Schultz’ experienced view that very large amounts of waste remain.

22. The Respondents’ method of removal of relying on council pick-ups at a rate of about two or three a month if their neighbours assist is slow. According to the Council this approach will require many months before all the waste has been removed from the Property. The thrust of the Respondents’ submissions and those of some of their neighbours, according to the affidavits filed in support of the two Respondents, is that it is the Council’s responsibility through the provision of regular pick-ups available to all residents to ensure the removal of the waste. That is an unrealistic expectation given the volume of waste to be removed, fails to acknowledge the responsibility of the Respondents to comply with the original s 124 order issued by the Council in 28 days and the generous opportunity provided by the stay of court orders made on 14 September 2018.

23. I am sympathetic to the submissions made that if the Respondents are allowed to remove all the waste themselves there is less likelihood of the problem returning. It is necessary to balance conflicting goals however. I have already provided a generous period for waste removal and the court orders are dealing with a matter of public health. Mr Schultz maintains his opinion that there is a public health risk including from putrescible waste over the summer period. There has already been substantial delay by the Respondents in removing the waste. Efforts to do so could have been commenced from the end of last year when the original order was issued by the Council.

24. I consider it is highly unlikely that the two Respondents will be able to remove the rest of the waste using their current approach even if I grant the two months sought. As the Council does not intend to take action before 18 January 2018 the two Respondents already have the benefit of an extra six weeks to carry out the work in any event and that can be availed of by them. Arrangements could be made for a contractor to attend at the Respondents’ request in that time frame or very shortly afterwards given the holiday period. A further extension of the stay in Order (2A) is not warranted in these circumstances.

25. The bricks and ladders referred to in prayer 1 of the notice of motion should remain on the Property. The bricks are not included in the definition of waste as specified in the court orders in any event as the Council acknowledged. Any ladders which are to be kept can be placed in an appropriate place by the two Respondents. No variation of the court orders issued on 14 September 2018 is necessary.

26. The Second and Third Respondents’ notice of motion is dismissed. The usual costs order in civil enforcement proceedings such as this matter is that costs follow the event. As unsuccessful applicants on the Notice of Motion the two Respondents should pay the Council’s costs.

Orders

27. The Court orders:

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.

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Decision last updated: 20 December 2018