Waverley Council v Mary Bobolas and Ors. [No 2]

[2005] NSWLEC 715

Land and Environment Court

of New South Wales

CITATION:

Waverley Council v Mary Bobolas and Ors. [No 2] [2005] NSWLEC 715

PARTIES:

APPLICANT:
Waverley Council

RESPONDENTS:
Mary Bobolas and Ors.

FILE NUMBER(S):

40328 of 2005

CORAM:

Bignold J

KEY ISSUES:

Practice and Procedure :- competing applications pursuant to liberty to apply (i) to curtail suspension of mandatory order and (ii) to extend the suspension.

DATES OF HEARING:

23/11/2005

EX TEMPORE JUDGMENT DATE:

11/23/2005

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

23 November 2005

40328 of 2005 WAVERLEY COUNCIL v MARY BOBOLAS AND ORS.

JUDGMENT

HIS HONOUR:

1 In these proceedings on 30 September this year I made orders for the civil enforcement of the Local Government Act, s 124 order issued by the Court upholding in part an appeal brought by Mrs Bobolas and her daughters against a Council order given them pursuant to the Local Government Act, s 124 on 18 March 2005 requiring them, as owners and occupiers respectively, of premises known as No 19 Boonara Avenue, Bondi, to remove all waste, garbage and refuse, etcetera, from their premises. The Court by its decision on 19 July 2005 allowed a period of a further two months, expiring on 22 September 2005, for the removal of all waste and rubbish deposited at the aforesaid premises owned and occupied by the Respondents. Those orders had been made in Class 2 proceedings and the Council, soon after the expiry of the two-month period allowed by the Court in the Class 2 proceedings for the works to be undertaken, sought civil enforcement relief in its Class 4 proceedings which had been commenced about the same time as the Bobolas family had commenced their Class 2 proceedings by way of appeal against the Council’s s 124 order. The Class 4 proceedings had been held in abeyance pending the outcome of the Class 2 proceedings, and it was at the expiration of the two-month period allowed by the Court in the Class 2 proceedings for the completion of the works that the Council sought urgent relief in its civil enforcement proceedings.

2 These matters are all detailed in my reasons for judgment published on 12 October 2005 which were reasons published subsequent to the making of the orders that I had made on 30 September in the Class 4 proceedings. The principal relief granted in those proceedings was the making of an order pursuant to the Local Government Act, s 678(10) addressed to the Council ordering it to execute the Council’s functions under the Act under that section by carrying out the work which was required to be carried out in the s 124 order as amended by the Court on 19 July in the Class 2 proceedings.

3 The operation of order 1 was suspended until 1 December 2005, as the order states “so as to provide the opportunity for the Respondents to undertake the required work”. But that suspension was itself subject to the proviso “unless otherwise ordered, pursuant to liberty to apply on three days notice”.

4 The Council exercised that liberty to apply when, by letter of 11 November addressed to the Registrar of the Court, copies of which were sent to the Respondents on the same day, the Council applied for the curtailment of the suspension of order 1 so as to enable the Council to immediately execute order No 1.

5 The application exercising liberty to restore was supported by an affidavit sworn by Robert Cairns, Council environmental health surveyor, on 11 November, deposing to the outcome of his inspection of the subject premises on 3 November. In his affidavit he annexes a series of photographs taken on that occasion and in par 10 of his affidavit he deposes to the observation or opinion that there was as much accumulated rubbish at the property during his inspection on that occasion as there was during his inspection on 18 July 2005. His inspection undertaken on that occasion is the subject of an earlier affidavit sworn by him in the proceedings.

6 Order No 3 of the orders that I made on 30 September 2005 granted Council liberty to apply for the curtailment of the suspension of order 1 at any time after the expiry of three weeks from the date of orders “should it be established that the Respondents have failed to embark upon the required work and to maintain that work”.

7 The reasons for granting that liberty were set forth in my reasons for judgment published on 12 October, and in particular I refer to what I said in pars 23, 24, 25 and 26. In par 26 I noted that the purpose of the suspension of order 1 was not to simply allow the Court’s order to run its course for the next two months, and I quote:

And for this reason if the Council perceives the lack of effective progress in the waste cleanup operations being conducted by the Respondents it will have liberty to apply to the Court to terminate the stay and enliven the Court’s order, so that the Council may itself solve the problem effectively and promptly.

I went on to say:

But in the meanwhile the Respondents should be afforded the opportunity for exploring the self-help solution, especially in the interests of the wellbeing of Mrs Bobolas and her supporting daughters.

8 The Council’s application to curtail the suspension of order 1 came before the Court last Friday, 18 November. On that occasion the Respondents appeared and opposed the application. They sought and were granted the opportunity to prepare a case and directions were given at the request of the Council for the Council to bring up to date the evidence contained in Mr Cairns’s affidavit of 11 November, recalling that it had deposed to the observations on his inspection on 3 November.

9 Orders were made, over the opposition of the Respondents, for Mr Cairns to be given access to the yard areas of the Respondents’ property for the purpose of making observations and taking photographs. That occurred on the Monday of this week when Mr Cairns attended the premises. As it turned out, he barely exercised the access order granted by the Court for reasons that he gave in his evidence, namely his concern for matters of workplace safety and health and occupational safety. In the result he took photographs of the subject premises in the main from either the street or from the adjoining premises at No 17 Boonara Avenue, including from the upstairs apartment occupied by Mr Cahill, a long time complainant of the Respondents’ activities. He did later in the course of his inspection enter the rear yard area of the Respondents’ property, when he again made observations and took photographs.

10 In his affidavit sworn on 21 November he deposes to his observations, annexes a series of 24 photographs taken of various scenes in the yard area showing rubbish deposited in various parts of the yard, and proffers a number of opinions in respect of the deposition of rubbish observed by him. For example, he notes that the rubbish appeared to be in parts decaying; that it had a strong and unpleasant odour; that it created an unsatisfactory risk to the health of occupiers of the property and adjoining residents; it created an unsatisfactory risk of fire and it was likely to provide harbourage for insects and vermin. He also expresses the opinion that there appeared to him to be as much rubbish deposited on the premises as there had been in the course of his previous inspections, all of which are deposed to in affidavit evidence that had been filed either in these proceedings or in the related Class 2 proceedings.

11 In par 53 of his affidavit he expresses the opinion that there had been no noticeable reduction in the amount of accumulated rubbish from the property since 30 September (that is the date upon which the Court made its orders).

12 Mr Cairns was cross-examined by the Respondents who were represented by Miss Elena Bobolas, one of the Respondents, and the daughter of Mrs Bobolas. They were not legally represented but they were represented efficiently by Miss Bobolas. Miss Bobolas cross-examined Mr Cairns extensively. The thrust of the cross-examination was that his photographs were selective, were taken from vantage points including elevated positions which tended to exaggerate the build-up of rubbish, and it was put to him that his opinions were either not sound or were exaggerated. Photographic evidence was tendered by the Respondents. These photographs included photographs that they had taken of the premises last Friday, 18 November, and again on Monday. The photographs do not mirror the photographs taken by Mr Cairns but they do show various scenes of the yard area. In parts they do give a different visual complexion.

13 The Respondents’ case opposing the Council’s application was presented, as I say, by Miss Elena Bobolas, who gave evidence in addition to tendering the photographs that were taken last Friday and on Monday of this week. That evidence is essentially encapsulated in a witness statement that she prepared, and was tendered as exhibit A, and which the Council accepted as a witness statement. Miss Elena Bobolas deposed to its accuracy and truth in the witness box. In addition she gave evidence concerning previous history of the case and in particular the occasion last before the present proceedings when, as a result of complaints, the Council took action in this Court. This was in December 2000. Her evidence, which is not challenged by the Council, is that the proceedings were resolved by the Respondents agreeing with the Council to themselves undertake the cleanup work, which was undertaken in January of 2001. The evidence indicates some three or three and a half years were to pass without complaint of neighbours or others concerning the use of the Respondents’ property, and in particular the accumulation thereon of rubbish.

14 It was put on behalf of the Respondents that this incident against a background of similar incidents occurring intermittently over the past 20 years, indicated in relation to the problem besetting Mrs Bobolas, a psychological or psychiatric condition causing such conduct, a more lasting and satisfactory outcome than other outcomes which had been achieved in the past by the Council itself executing cleanup operations on the premises.

15 Miss Bobolas gave evidence of the trauma experienced by Mrs Bobolas when such action by the Council in the past has been undertaken. The evidence gives rise to concern in matters of civil liberty, and one is concerned to ensure that such conduct is not repeated in the future. Nonetheless, relying heavily upon the different outcomes of past remedies to the same type of problem manifesting itself intermittently over the years, the Respondents again today urge the Court to give them the opportunity to complete the work. In this respect, not only did they resist the Council’s application for curtailment of the suspension of order 1, but sought an extension of time of some thirty days in which to undertake the required works.

16 The basis for the extension of time is set out in Miss Bobolas’s evidence. It accounts for 16 days on which she said bad weather, rain, prevented work being undertaken on some fifteen days. The interest of the media in the case was said to have created interference by their attendance at the premises on a number of occasions, taking photographs and making television programmes and the like. This was said to account for four days hindrance in the work. Miss Bobolas herself suffered bronchitis for an extended period of time but three days loss was claimed, though the illness was longer, on the grounds that Mrs Bobolas and Miss Bobolas’s sister, who were not ill while Miss Bobolas was ill, were able to continue work.

17 In addition, two days were claimed in respect of interference created by Mr Cahill, the next door neighbour. The evidence that was given against him reflects poorly upon him if it is true. There was no suggestion from the Council that it wasn’t true. The evidence of Miss Bobolas was that a disturbance was caused by action taken by him which necessitated the calling of police and fire brigade to the premises to avert a threatened conflagration. I do not stay on this matter because Mr Cahill has not given evidence in the case and was not called in the case. He was a witness in the Council’s case that was before the former Chief Judge in hearing the Class 2 proceedings, and an affidavit had been sworn by him deposing to events in the past. He no doubt has been a longstanding complainant, but he is not alone in the local community. But clearly he has agitated the Council to take action. The evidence of what he did by way of disturbing and alarming the Respondents is reprehensible.

18 A further four days impedance in the work was claimed by dint of the appearances by the Respondents on the four days that this matter has at various times been before me since last Friday up until today. In total a 30 day extension is claimed by the Respondents.

19 In giving this evidence the Respondents rely upon the liberty that was reserved to them by order 4 of my orders made on 30 September this year which gave them liberty to apply “for any minor extension of the suspension of order 1 in the event of wet weather hindering their carrying out of the required work or to complete the work in circumstances where the majority of the work has been undertaken within the period of the suspension of order No 1”.

20 The Council has challenged the application for extension grounded on any cause other than the effect of wet weather. It rightly points out that wet weather hindering the cleanup work was the only basis provided for in the Court’s Order for an application for an extension of time. I put aside the question of a “minor extension” in the event of the majority of the work having been undertaken at the time of application because it is clear on the evidence that the majority of the work has not been undertaken, a matter to which I will return presently.

21 But in respect of the other causes relied upon by the Respondents, the Council’s submission is that those matters are not relevant and cannot provide the basis of any extension of time that the Court may grant conformably to its orders, and in particular order 4 made on 30 September.

22 In relation to the wet weather claim the Council has tendered the October and November rainfall records issued by the Bureau of Meteorology which indicate five days of the thirty-one days in October, and three days in the November days to date, or as at Friday last week, in which rainfall of more than two millimetres was recorded.

23 Accordingly, in the Council’s submission, any application for extension of time could at the maximum claim the eight days of the recorded rainfall in the two months period. But the Council strenuously urged the Court not to grant that extension. It did so for the reason that the Court on the evidence could have no confidence that the cleanup work would be completed even if the whole of the thirty-day extension were to be granted. This was only a notional consideration because in the Council’s submission it would be unthinkable that the Court would grant any extension other than in respect of the possible eight days wet weather extension. But in respect of that more limited period the Council urged the Court not to grant the extension because it would be a futility in that the Court could have no confidence on the evidence that the work would be completed, if not in the 30 sought, far less in the eight days.

24 This submission brings me to the vital question of what has happened at the premises in terms of cleanup since the orders were made on 30 September. The evidence is conflicting. Ultimately I do not accept the opinion of Mr Cairns that as much rubbish exists today at the premises as existed at the time the orders were made. This is clearly incorrect. The evidence clearly establishes that large amounts of rubbish have been put out on the verge for collection each week by the Council’s servants or agents. Photographic evidence indicates that the Respondents have embarked upon the cleanup process. And I am satisfied by their evidence that they have embarked upon it conscientiously and seriously. However, at the end of the day the evidence leaves me with the overwhelming sense of conviction that the task is well beyond them, beyond their physical resources and beyond their mental and psychological capacities.

25 In granting the suspension of the mandatory order, I did so because of my deference to the case made out, especially by the daughters, on behalf of their mother. I of course accept the genuineness of this continuing concern on the part of the whole family, and I do not understand the Council to dispute it, even though I did not have the benefit of psychiatric or psychological evidence in the case. Nonetheless, it has been consistently maintained and the evidence of past activity when this problem intermittently manifests itself, as it has over the past twenty years from time to time, seems to suggest that the Council accepts that Mrs Bobolas, the owner of the property, is afflicted with psychological and psychiatric problems which manifest themselves in this obsessive behaviour of gathering possessions and rubbish and storing them in the yard.

26 The daughters, who are also Respondents in these proceedings, have supported their mother to the hilt and steadfastly stood by her. They have assisted her greatly and are concerned for her wellbeing. Unfortunately the Court is not able to take initiatives in relation to matters of mental health and wellbeing. And as I have pointed out more than once, the case has left me with an overwhelming sense that the courtroom is hardly the place for this problem to be resolved.

27 The Respondent daughters have urged me to continue with a compassionate understanding of their problem and of their mother’s problem, and to assist them to assist her. I am strongly affected by their sense of loyalty and commitment to their mother. However, the problem, as I have said, is of a scale and magnitude which is simply beyond them. It may be that given time they could do it. It may be that given time they could do it in a manner which would be more satisfactory to Mrs Bobolas and her wellbeing. However, that is only one factor which I must weigh in the balance.

28 The other factors concern the acute nature of the problem, the problem for the community, the problem to the Council and the problem of health and hygiene both to the residents and neighbours. This is not a way that any civilised society can live in suburbia. And as I pointed out in my reasons for judgment, in making the mandatory order for the Council to execute the outstanding clean-up work, the situation calls out for a prompt and effective remedy. In granting the orders that I did on that occasion I sought to balance my concerns for the legitimate wellbeing of the Respondents, and their mother in particular, with the Council’s civic responsibilities to their community. Although I am entirely satisfied that the Respondents have sought conscientiously and to the best of their ability to undertake the work, and have undertaken the work in more than an incidental or insignificant fashion, I am concerned that given the magnitude of the outstanding task and given the risks that inhere in allowing it to continue to exist, that the time has come for the Court to recognise that the task is beyond their capacity to be fulfilled within the urgent timeframe in which a remedy must be found for this community problem.

29 For these reasons I have come to the conclusion that the application for extension of time should not be granted.

RESPONDENT M BOBOLAS: Can I say something, your Honour?

HIS HONOUR: When I am finished, yes, certainly Miss Bobolas. Did you want to say something now? Yes, speak?

RESPONDENT M BOBOLAS: If you give me please this time, I promise I finish and I don’t want an extension.

HIS HONOUR: How much--

RESPONDENT M BOBOLAS: If you give me this time or even less I promise I finish, I don’t want an extension.

HIS HONOUR: Thank you Mrs Bobolas, thank you. I understand, thank you.

30 I do not grant the extension of time because if it were granted, limited to wet weather, it would only extend the time by eight days which is clearly, on the evidence, insufficient for the work to be significantly completed. I do, however, consider that the decision I made on 30 September should be maintained; that is that the orders made should stand. In so concluding, it appears upon enquiry, that if the Council were to obtain the curtailment of the suspension of order 1 it would be willing and prepared to undertake the work commencing on next Monday, 28 November. On the other hand, if no curtailment of the suspension of order is granted, I am told the Council is willing, ready and able to commence the work the following week, 5 December. And I am told that the work may involve up to three days.

31 The Council exercised the liberty reserved to them under order 3. They have not established that the Respondents have failed to embark upon the required work and to maintain that work. In that sense I do not accept the evidence of Mr Cairns, and I do accept the evidence of the Respondents that they have conscientiously attempted to undertake the work.

32 The Council was given that liberty if it perceived the lack of effective progress in the cleanup operations. That is their perception. They were entitled to move the Court, but they have not substantiated their claim.

33 In my view both the application for extension and the application for curtailment should be dismissed.

34 The Court orders made on 30 September should continue unaffected by the outcome of the applications that I have rejected.

35 The Council has notified the Court and notified the Respondents that it proposes to execute the works on and from Monday week, that is 5 December this year. In my view, in all of the circumstances, and having regard to the respective cases presented, that is a satisfactory outcome and is the one that should subsist.

36 The exhibits will be returned with the publication in typescript of my reasons.

37 For the reasons given, the application to curtail the suspension of order 1 is refused.

38 The Respondents’ application to extend the time is refused.

39 The orders made on 30 September this year stand, upon the basis that the Council has indicated that it proposes to itself execute any outstanding works under the order 1 commencing on Monday 5 December 2005.

40 The exhibits will be returned with the publication of the written script of my reasons which I have extemporised, and the question of costs is reserved.