Waverley Council v M Bobolas - [2005] NSWLEC 577

Land and Environment Court

of New South Wales

CITATION:
Waverley Council v M Bobolas and Ors [2005] NSWLEC 577

PARTIES:
APPLICANT:
Waverley Council
RESPONDENTS:
M Bobolas and Ors

FILE NUMBER(S):
40328 of 2005

CORAM:
Bignold J

KEY ISSUES:
Injunctions and Declarations :- civil proceedings to enforce s 124 Order made by Council to clean up premises

LEGISLATION CITED:
Local Government Act 1993, ss 124, 180, 673, 678(1) and 678(10)

DATES OF HEARING: 29/10/2005

DATE OF JUDGMENT:

10/12/2005

LEGAL REPRESENTATIVES:
APPLICANT:
Mr G Newport, Barrister
SOLICITORS
Staunton and Beattie
RESPONDENTS:
In person
SOLICITORS
N/A

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

12 October 2005

40328 of 2005 WAVERLEY COUNCIL v M BOBOLAS & ORS
JUDGMENT

1 HIS HONOUR: I now publish my reasons for judgment in respect of the orders that I announced in Court at the end of the hearing on 29 September 2005 but which were not issued in written from until the following day.

2 The present class 4 proceedings brought pursuant to the Local Government Act 1993, s 673 which were commenced by the Council on 13 April 2005, sought declaratory and injunctive relief against each of the three Respondents (who may conveniently be referred to as the “Bobolas family” comprising mother and two adult daughters who reside at residential premises known as No 19 Boonara Avenue, Bondi).

3 The relief claimed was founded upon the existence of a statutory enforcement order that the Council had on 18 March 2005 given to each Respondent pursuant to the Local Government Act, s 124. Each order was in the same terms except for the stipulations of the name of the person to whom it was given and of the capacities of each of those persons, in that the order given to Mrs Bobolas was given to her in the capacity of “owner” of the premises (No 19 Boonara Avenue, Bondi) and each order given to each of the Bobolas daughters was given to her in the capacity of “occupier” of those premises. The substantive relevant requirements of each of the s 124 orders was the same and provided as follows:

(a) remove all waste, being garbage and refuse including but not limited to scrap metal, papers, rags, bottles, plastic containers, and putrescible matter which you have collected, accumulated and are storing from all parts of the subject premises; and

(b) refrain from using the subject premises for the purposes of collection, accumulation and storage of waste being garbage and refuse including but not limited to scrap metal, papers, rags, bottles, plastic containers, and putrescible matter from all parts of the subject premises.

This order is given because:

(a) the subject premises are a dwelling house located in a residential area;

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 M Bobolas

Details

AGLC: Waverley Council v M Bobolas [2005] NSWLEC 577
Case: [2005] NSWLEC 577
Decision Date: 10/12/2005

CaseChat Overview and Summary

The Land and Environment Court of New South Wales heard a case brought by Waverley Council against M Bobolas and others, seeking to enforce a statutory order for the removal of waste from their residential premises. The Council had issued enforcement orders under the Local Government Act 1993, which the respondents failed to comply with, leading to the Council's application for injunctive and declaratory relief. The respondents appealed the enforcement orders, which were partially upheld by the Court, modifying the original orders to allow the Council to remove waste from the nature strip and setting new deadlines for the respondents to clear their property. Despite the modified orders, the respondents did not comply with the deadlines, prompting the Council to seek interlocutory relief, which was initially objected to by the respondents on procedural grounds. The Court then urged the parties to find a practical solution to the ongoing issue.

The court considered the legal and practical aspects of the case, including the statutory framework, the nature of the enforcement orders, and the respondents' failure to comply. The court acknowledged the psychological issues faced by Mrs Bobolas, the primary respondent, and the potential therapeutic benefit of allowing the respondents to manage the clean-up themselves. However, the court emphasized the urgent need to address the health and safety risks posed by the waste accumulation. The court ultimately decided to suspend the enforcement of its order for two months to allow the respondents an opportunity to clean up their premises, while reserving the right for the Council to intervene if necessary. The court also noted the Council's precautionary motivation for seeking its order despite having statutory power to act independently. The proceedings were dismissed except for the suspended enforcement order, with costs reserved for later determination.

Orders