Waverley Council v Bobolas (No 4) - [2014] NSWLEC 35

Land and Environment Court

New South Wales

Medium Neutral Citation: Waverley Council v Bobolas (No 4) [2014] NSWLEC 35
Decision date: 08 April 2014
Jurisdiction: Class 4
Before: Biscoe J
Decision:
Orders as sought in paragraphs 1 and 2 of applicant's notice of motion filed on 31 March 2014, set out at [4] of the judgment.

Catchwords: Civil enforcement - amendment of orders.
Legislation Cited: Uniform Civil Procedure Rules 2005 r 12.11
Cases Cited: Waverley Council v Bobolas (No 3) [2014] NSWLEC 16
Bobalas v Waverley Council [2014] NSWCA 66
Bobolas v Waverley Council [2014] NSWCA 78
Category: Consequential orders
Parties: Waverley Council (Applicant)
Mary Bobolas (First Respondent)
Elena Bobolas (Second Respondent)
Liana Bobolas (Third Respondent)
Representation: COUNSEL:
P Clay SC (Applicant)
Mary Bobolas, Elena Bobolas and Liana Bobolas in person (Respondents)
SOLICITORS:
Wilshire Webb Staunton Beattie (Applicant)
N/A (Respondents)

File Number(s): 40466/13

EX TEMPORE Judgment

This is a motion by Waverley Council to amend orders 2 and 6 made by me in these proceedings on 4 March 2014: Waverley Council v Bobolas (No 3) [2014] NSWLEC 16. The proposed amendments would extend the times for the Council to carry out clean-up works and for prior service for which those orders provide. Orders 1, 2, and 6 were in the following terms:

(1) Pursuant to section 678(10) of the Local Government Act 1993 the applicant, Waverley Council, its servants and agents is ordered to execute the Council's functions under s 678 by carrying out work which was required to be carried out at the Premises at 19 Boonara Avenue, Bondi ("the Premises") under "Terms of the Orders" of the orders dated 5 December 2012 given to each of the respondents pursuant to s 124 of the Local Government Act 1993 ("the Works"), being removal of all accumulations of waste from the front and rear yards, the area between the house and side boundaries, the front verandah and side entrance of the house on the premises being work which each of the respondents was required to do but failed to do.

(2) 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 these orders and between reasonable hours of the day during weekdays, being 7am to 3pm on Monday 17 March 2014, Tuesday 18 March 2014, Wednesday 19 March 2014, Thursday 20 March 2014 and Friday 21 March 2014.

...

(6) Provided a sealed copy of these orders are served on the respondents by affixing the Orders in a sealed clear soft plastic pocket to the outside of the double front gates of the Premises 3 days before the works commence, the works may commence on the Premises on 17 March 2014.

...

In addition, I made a number of ancillary or machinery orders including an order granting liberty to the Council to apply on 24 hours notice for the purpose of extending the times…

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: [2014] NSWLEC 35
Decision Date: 08 April 2014

CaseChat Overview and Summary

Waverley Council sought relief from the Supreme Court of New South Wales against Mr Bobolas in relation to several alleged breaches of council by-laws concerning land use and development. The council argued that Mr Bobolas had undertaken building works on his property in contravention of the applicable planning and development laws. The dispute centred on the legality of these works and whether they required approval under the Local Government Act 1993. The court was tasked with determining whether Mr Bobolas had indeed breached the council's by-laws and, if so, what relief the council was entitled to seek.

The legal issues before the court involved interpreting the relevant by-laws and development regulations, assessing whether the works carried out by Mr Bobolas constituted a breach of these laws, and determining the appropriate remedy. The court had to consider whether the council had the authority to enforce the by-laws and what relief it could seek against Mr Bobolas if it was found that he had indeed breached them. The primary focus was on the interpretation of statutory provisions and the scope of council powers in enforcing local planning laws.

In its judgment, the court found that Mr Bobolas had indeed breached the relevant by-laws and that the council was entitled to seek the relief it had requested. The court emphasised the importance of strict compliance with planning laws and highlighted the council's role in enforcing these regulations. The relief sought by the council included an order for the removal of the unauthorised works and a declaration that Mr Bobolas had contravened the by-laws. The court granted the orders as sought by the council, underscoring the need for adherence to local planning laws and the council's authority to enforce them.

Orders

Orders of the court

Orders as sought in paragraphs 1 and 2 of applicant's notice of motion filed on 31 March 2014, set out at [4] of the judgment.

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 4) [2014] NSWLEC 35
Decision date:	08 April 2014
Jurisdiction:	Class 4
Before:	Biscoe J
Decision:	Orders as sought in paragraphs 1 and 2 of applicant's notice of motion filed on 31 March 2014, set out at [4] of the judgment.
Catchwords:	Civil enforcement - amendment of orders.
Legislation Cited:	Uniform Civil Procedure Rules 2005 r 12.11
Cases Cited:	Waverley Council v Bobolas (No 3) [2014] NSWLEC 16 Bobalas v Waverley Council [2014] NSWCA 66 Bobolas v Waverley Council [2014] NSWCA 78
Category:	Consequential orders
Parties:	Waverley Council (Applicant) Mary Bobolas (First Respondent) Elena Bobolas (Second Respondent) Liana Bobolas (Third Respondent)
Representation:	COUNSEL: P Clay SC (Applicant) Mary Bobolas, Elena Bobolas and Liana Bobolas in person (Respondents) SOLICITORS: Wilshire Webb Staunton Beattie (Applicant) N/A (Respondents)
File Number(s):	40466/13