Waverley Council v Bobolas & Ors - [2007] NSWLEC 52

Land and Environment Court

of New South Wales

CITATION: Waverley Council v Bobolas & Ors [2007] NSWLEC 52

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

FILE NUMBER(S): 40916 of 2006

CORAM: Jagot J

KEY ISSUES: Civil Enforcement :- application to restrain Council from complying with Court orders - application to set aside or vary Court orders

LEGISLATION CITED: Local Government Act 1993 s 200, s 678

DATES OF HEARING: 25/01/2007

EX TEMPORE JUDGMENT DATE: 25 January 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr M Staunton (solicitor)
SOLICITORS
Staunton Beattie
RESPONDENTS
Ms L, M and E Bobolas (in person)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Jagot J

25 January 2007

40916 of 2006

WAVERLEY COUNCIL
Applicant

MARY BOBOLAS
First Respondent

LIANA BOBOLAS
Second Respondent

ELENA BOBOLAS
Third Respondent
JUDGMENT

Jagot J:

1 This is a notice of motion filed by the respondents with respect to certain orders that I made on an ex parte basis on 15 December 2006. In terms, the notice of motion says that it seeks an emergency injunction against the Council from carrying out any part of the orders made by the Court on 15 December 2006 pending the determination of an appeal lodged by the respondents in the Supreme Court of New South Wales. The notice of motion also refers to the position that the Council had not given any indication of what machinery it intended to use even after requests and no notice of the intended date of 29 January 2007 or start time, finish time, length, number of works, et cetera.

2 As I indicated at the outset of the hearing of this notice of motion (which has been brought on an urgent basis by the respondents, in circumstances to which I shall refer shortly) it seemed to me that the notice of motion should be treated as one seeking to do one or more of three things. First, to set aside the orders that I made on 15 December 2006 altogether. Secondly, to vary the orders that I made on 15 December 2006 in various ways. Thirdly, to stay the orders that I made pending the hearing and determination of the appeal which is referred to in the notice of motion.

3 The urgency with which the notice of motion has been brought is a consequence of the fact that in the 15 December 2006 orders, which I stayed for a period of 28 days, provision was made for the Council thereafter to give the respondents seven days’ notice of the date upon which the Council intended to enter upon the property in order to execute the Council’s functions under s 678 of the Local Government Act 1993 as identified in para 1 (a) of my orders. On the evidence the Council did so, notifying the respondents that the relevant date would be 29 January 2007 - which is next Monday - and of course tomorrow is a public holiday - and…

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.

Continue reading Waverley Council v Bobolas & Ors

Details

AGLC: Waverley Council v Bobolas [2007] NSWLEC 52
Case: [2007] NSWLEC 52
Decision Date: 25 January 2007

CaseChat Overview and Summary

The Land and Environment Court of New South Wales presided over by Jagot J considered an urgent application by the respondents, Mary, Liana, and Elena Bobolas, seeking to restrain Waverley Council from complying with Court orders and to set aside or vary those orders. The original orders, made on an ex parte basis on 15 December 2006, required the respondents to comply with certain waste removal directives by the Council. The respondents argued that the orders should be set aside on both procedural and substantive grounds, and they sought a stay of the orders pending an appeal to the Supreme Court.

The court identified three potential aims of the application: to set aside the orders entirely, to vary the orders, or to stay the orders pending the appeal. The urgency of the application stemmed from the Council's intention to execute the orders on 29 January 2007, a date that was imminent given the timing of the hearing. The respondents raised numerous objections, including issues with service, the definition of waste, and concerns about the impact on Mrs. Mary Bobolas's psychological condition. They also argued that they should be given two weeks to complete the clean-up themselves.

In evaluating the application, the court considered the substantive findings made in the original orders, which concluded that the property was in an unsafe and unhealthy condition and that the Council needed to carry out the clean-up. Jagot J found that the procedural and substantive arguments made by the respondents did not justify setting aside or varying the orders. The court also rejected the request for a stay of the orders, noting that the appeal appeared to be a holding appeal with no apparent arguable ground. Finally, the court concluded that it was not practical to formulate amendments to the orders that would be implementable and that the interests of justice required the orders to be carried out by the Council as scheduled.

The court dismissed the respondents' notice of motion and ordered that the original orders remain in effect. Costs were reserved for further consideration.

Orders