Bobolas v Waverley Council

Representation

1. The Council was represented by Mr Lancaster SC. Elena represented herself and was granted leave to represent Mary in the remaining Class 4 proceedings involving Mary. Liana represented herself.

The application to vacate

1. On the first day of the hearing before me of these matters and the associated Class 1 and Class 2 matters, a Notice of Motion was filed on behalf of the Bobolas family seeking to vacate the hearing for all matters. The hearing and determination of that Notice of Motion took the whole of the day on 24 September 2019. I dismissed the application to vacate the various proceedings (Bobolas v Waverley Council [2019] NSWLEC 148).

The issues

1. Although Pepper J made directions, inter alia, requiring the members of the Bobolas family to enunciate their contentions in all four proceedings within a specified time (a specified time later extended by Robson J when he modified Pepper J's orders), no such document was filed or served at any time by or on behalf of any member of the Bobolas family.
2. At several points during the course of the substantive hearing before me, I indicated to Elena and Liana that I would require them to tell me, with a degree of precision, what it was that they sought by way of remedy in the two Class 4 matters (that which was sought in the Class 1 and Class 2 matters being self-evident from the nature of the appeal papers filed in each of those proceedings).
3. Finally, during the course of the proceedings on 3 October 2019, Elena outlined to me, orally, what she said she sought from these proceedings concerning the Class 4 matters. I deal, separately, in the Class 1 and Class 2 proceedings, with the matters pressed in those proceedings by Elena on behalf of Mary.
4. As I understood Elena on 3 October 2019, the remedies she then said she sought in the Class 4 proceedings were: 1. a declaration that the removal of waste elements of the orders made by Sheahan J are exhausted; 2. a declaration that the removal of waste elements of the Pain J orders are exhausted; 3. a declaration that access to the property must be in compliance with s 200 of the Local Government Act, with no access to be authorised by orders of the Court; 4. with respect to elements of the structures on the site: 1. the Bobolases should be permitted to repair the garage rather than being required to have it demolished; 2. to the extent that works are required to rectify problems with the laundry/verandah and the sliding door structure on the western side of the dwelling on the property, the Bobolas family should be required to repair them rather than there being any order for removal of any element; 3. the Bobolas family should be given sufficient time to undertake any removal (if removal was to remain required) or repair (if repair was to be permitted as an alternative to removal.
5. In response to my request for what remedies Liana might seek, she tendered a document on 3 October 2019 (admitted without objection as Exhibit A), a document in the following terms: We do not want Waverley Council to enter onto the premises and the property's yard in any way, shape and form. If any works is/are required, we would like to do it ourselves or by our servants, agents, etcetera in a reasonable time period ie being repairs, removal works etcetera. Damages were caused to the garage, the laundry/or storage structure and other areas in the yard through the use of earthmoving machinery and other means by Waverley Council etcetera, it would be fair and reasonable if they (Waverley Council etcetera) were to pay for costs of repairs of the damages they did. We do not want expenses and costs from Waverley Council, as these are exorbitantly expensive. Wouldn't be fair to allow them to come, as my mother would be affected by removal works by Waverley Council etcetera. Invalid orders - Sheahan J - excessive, stale (old). IV order did not relate to us (alleged).
6. It is to be observed that, prior to the commencement of closing submissions on the afternoon of Monday 14 October 2019, I provided Elena with a copy of a document which set out the above reproduced terms of my understanding of the matters which she sought to have me address in these Class 4 proceedings. I provided her with the opportunity to suggest to me any changes that she might wish to make to what I have set out. She did not propose any changes at that time to what I had set out as my understanding of the relief which she sought.
7. When the closing submissions' hearing recommenced on Tuesday 15 October 2019, Elena and Liana each indicated that they wished to make additions to the terms of the elements set out above as the relief that each of them proposed should be the outcomes of the Class 4 element of the proceedings. Given that there was no objection to this course raised by Mr Lancaster, a hand-revised version of my notes of Elena's proposals for relief was tendered, becoming Exhibit E. I reproduce below the terms of the revised version incorporating the handwritten additions made by Elena to that which I have set out earlier. The totality of Exhibit E was in the following terms: Please also refer to written submissions (Handwritten) (a) a declaration that the removal of waste items elements of the orders made by Sheahan J are exhausted; stay of other orders - time elapse. (b) a declaration that the removal of waste items elements of the Pain J orders are exhausted; (c) a declaration that access to the property must be in compliance with s.194 & s 200 of the Local Government Act with no access to be authorised by orders of the Court; In the alternative, there is a court order required (s. 678(10)), Trespass Law - must show positive law permitting entry - PLENTY V DILLON (1991) 171 CLR 635 F.C 91/04 EPA Act at the time reflects s.200 of LG Act. (d) with respect to elements of the structures on the site: (i)a) the Bobolases should be permitted to repair the garage rather than being required to have it demolished; (i)b) The Ivy works have been complied with to the extent permissible under the act - council orders & court orders were excessive - Bobolases should be permitted to remove remainder of dead ivy; (ii) to the extent that works are required to rectify problems with the laundry/verandah and the sliding door structure on the western side of the dwelling on the property, the Bobolas family should be required to repair them rather than there being any order for removal of any element; The council order is an order for repair in relation to these structures under the Act. (iii) the Bobolas family should be given sufficient time to undertake any removal (if removal was to remain required) or repair (if repair was to be permitted as an alternative to removal. 2 In response to my request for what remedies Liana might seek, she tendered a document (admitted without objection as Exhibit A), a document in the following terms:
8. Similarly, Liana wished to add to what she had originally intended as relief which she sought in the proceedings. The handwritten additions to Exhibit A were tendered, with that annotated document becoming Exhibit D. As a consequence, the relief now sought by Liana was in the following terms: We do not want Waverley Council to enter onto the premises and the property's yard in any way, shape and form. If any works is/are required, we would like to do it ourselves or by our servants, agents, etcetera in a reasonable time period ie being repairs, removal works etcetera. Damages were caused to the garage, the laundry/or storage structure and other areas in the yard through the use of earthmoving machinery and other means by Waverley Council etcetera, it would be fair and reasonable if they (Waverley Council etcetera) were to pay for costs of repairs of the damages they did. We do not want expenses and costs from Waverley Council, as these are exorbitantly expensive. Wouldn't be fair to allow them to come, as my mother would be affected by removal works by Waverley Council etcetera. As would when NO NOTICE &/or REASONABLE NOTICE (& NO ?? INTENT ON S22A. 28 DAYS Invalid orders - Sheahan J - excessive, stale (old). Ivy order did not relate to us (alleged). - neighbours plant. Scope of ?? - we CAN DO WORKS OURSELVES
9. Although the closing submissions made by Elena and Liana on the afternoon of 14 October 2019 were, strictly speaking, to be confined to matters only relevant to the Class 4 issues pressed by them (and not to the Class 1 or Class 2 matters, as I had reserved my decision in those matters), I permitted Elena and Liana to range across all three classes during these submissions. To the extent that either of them raised matters in their closing submissions on 14 October 2019 that related to aspects of the Class 4 proceedings, I have had regard to those submissions (to the extent relevant) in reaching my decision in these Class 4 proceedings.
10. During the course of the closing submissions' hearing on 15 October 2019, in addition to the changes earlier set out to the aspects of relief sought by Elena and Liana, I was also provided with the document authored by Liana that contained eight pages of submissions that ranged across not only the Class 4 matters with which this phase of the proceedings was engaged, but also revisited elements relating to the Class 1 and Class 2 proceedings upon which I had already reserved my decision. I have had regard to anything in these written submissions that relate to those two Class 4 proceedings.
11. As a consequence, to the extent potentially relevant, I have done so. Although it has not been necessary for engaging with the issues I need to consider in these Class 4 proceedings to quote from those submissions, the absence of quotation from those written submissions is not to be seen as any indication that I have not carefully read and had regard to the terms of that document.

Introduction

1. The first of the Class 4 proceedings where the orders are now sought to be challenged were proceedings heard and determined by Sheahan J in 2015 (Waverley Council v Bobolas (No 2) [2015] NSWLEC 66) (the 2015 decision). Those proceedings resulted in a lengthy suite of orders (the 2015 Orders). Those proceedings were initiated by Waverley Council (the Council) because of the accumulation of waste on the property that had occurred over a period of years.
2. Mary, Elena and Liana were respondents to the proceedings before Sheahan J and the orders that were made by his Honour were orders which bound all three members of the Bobolas family.

The 2015 Orders clean-up

1. The 2015 Orders are reproduced as Annexure A. As permitted by orders (7) and (8) of the 2015 Orders, the Council entered the property and undertook a clean-up of the then accumulated waste material on the property.as provided for in those orders.
2. The elements of the 2015 Orders that remain unfulfilled are later dealt with in more detail.

Introduction

1. The second Class 4 proceedings giving rise to orders now sought to be challenged were heard by Pain J, with her Honour's orders being made in a decision delivered on 14 September 2018 (Waverley Council v Bobolas (No 2) [2018] NSWLEC 144). Although Mary, Elena and Liana were respondents in these proceedings when they were commenced, they were subsequently discontinued against Mary, with the result that the orders now sought to be challenged are only ones made against Elena and Liana.
2. Her Honour made a comprehensive suite of orders (the 2018 Orders) which are set out at [5] of her Honour's decision. These orders, although encompassing - as in the 2015 Orders - the ability for the Council to enter the site and effect a clean-up of the now accumulation of waste, differed in their terms and scope from the orders made by Sheahan J in 2015.
3. It is unnecessary to set out, in these proceedings, the whole of the extensive suite of orders made by her Honour in those proceedings. It is sufficient, relevantly, to observe that her Honour made orders which had the effect of permitting the Council to enter the property and undertake a clean-up of the waste which had accumulated on it (a practice with which the Council had a degree of familiarity, given that had undertaken such clean-up activities pursuant to Court orders in the past).
4. The 2018 Orders were confined to permitting a Council clean-up of waste that had accumulated on the site and which had not been removed by the Bobolas family as required by an Order 22A issued to each of them by the Council on 22 November 2017.
5. Also relevant to these Class 4 proceedings is order (4) of the 2018 Orders. This order is in the following terms: (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.

The closing submissions' process

1. The matter had been set down, originally, with an estimate of two hearing days. The first of those hearing days was consumed, entirely, by my consideration and determination of the application by the Bobolases to vacate the hearing of the Class 1, Class 2 and Class 4 elements arising from the two merit appeals against the Council's emergency orders made under the Environmental Planning and Assessment Act 1979 and Local Government Act 1993 (the Local Government Act), respectively, and the Notice of Motion Class 4 elements with which I am dealing in this decision. For the reasons set out in my decision given on 25 September 2019 refusing to vacate these hearings, that application was entirely without merit.
2. However, the first day of the allocated hearing period having been consumed in dealing with that entirely unmeritorious application, it became necessary to find further time to hear the three matters in an omnibus fashion. I therefore allocated two further days, in addition to the single day remaining of the originally allocated hearing period to enable this to occur. I allocated the second additional day on a precautionary basis. This approach proved to be inadequate. The hearing of the matters continued with closing submissions, in the Class 1 and Class 2 proceedings, concluding a little after normal court-finishing time on 3 October 2019. I reserved my decision in the Class 1 and Class 2 proceedings at that time.
3. It was necessary to allocate further time to permit closing submissions in the Class 4 elements with which I was dealing. To permit this to occur, I allocated two further short hearing times between 4.00 pm and 5.30 pm on Monday 14 and Tuesday 15 October 2019. I indicated to the parties that I proposed to impose a timetable for the making of submissions in order to ensure that the Class 4 elements of the proceedings finished in a timely fashion. As a consequence, each of Elena and Liana was allocated 45 minutes for their closing submissions on 14 October 2019, with Mr Lancaster being allocated the first 45 minutes on 15 October 2019 for his closing submissions, with the remaining 45 minutes to be split between Elena and Liana as they saw fit.
4. On Monday 14 October 2019, the members of the Bobolas family arrived late and the hearing did not commence until approximately 4.30 pm. As it had required special arrangements for the Court's extended sitting hours for the purposes of these submissions, it was not possible to make more than a minor further adjustment so that the closing submissions made by Elena and Liana concluded at 5.35 pm that evening.
5. On the Tuesday, a portion of the time was taken up with process matters raised by Elena and Liana, including dealing with the amendments that each of them wished to make to the relief which each was seeking in the Class 4 proceedings (these changes are set out earlier in this decision). However, these proceedings also concluded at 5.35 pm on this second evening.

Introduction

1. I have earlier set out what it is that each of Elena and Liana seek from the Court with respect to matters arising in Class 4 of the Court's jurisdiction. Before embarking on any consideration of what remedies (if any at all) were potentially appropriate to arise in this aspect of the matters with which the Bobolas family sought to have me engage in the Class 4 aspect of these hearings, it is necessary for me to consider whether or not there is any proper procedural basis upon which I might contemplate exercising jurisdiction in this regard.
2. Three separate matters arise to be addressed at this threshold level. They are: 1. What elements of the 2015 Orders remain operative and, with respect to such elements as do remain operative, do I have jurisdiction, in the Class 4 elements of these proceedings, to intervene in the fashion sought by the Bobolas family with respect to any aspect of those orders that remain operative? 2. What elements of the 2015 Orders which remain operative are amenable in these Class 4 proceedings to further orders of a process nature which might be appropriate to be considered pursuant to s 22 of the Land and Environment Court Act 1979 (the Court Act)? 3. Does the order made by the Council on 22 November 2017, being Order 22A of the table to s 124 of the Local Government Act, have continuing effect in the fashion advanced by the Council?

The Council's overall position

1. In essence, the Council's overall position concerning the matters raised by Elena and Liana concerning the orders in the Class 4 proceedings was that there was, whatever might be the merits of the matters advanced (and no merits were conceded by the Council as arising), no jurisdictional basis upon which I could embark on consideration of those complaints. The Council's position was summarised succinctly in its written submissions, at [8], in the following terms (footnotes omitted): 8 In summary, for the reasons set out below, the notice of motion and all of the challenges to orders in the four proceedings should be dismissed because: (a) as to 2014/41027, there is no basis to set aside or vary the orders of the Court (under rules 36.15 or 36.16 Uniform Civil Procedure Rules or otherwise); (b) as to 2018/50888, final orders were made in December 2018, there was no appeal, and the orders have been executed and given effect. There is no occasion to revisit, let alone set aside or vary, those orders; (c) as to 2019/177991, the challenge to the Emergency Order of 20 March 2019 under the Local Government Act 1993 should be rejected because (i) no appeal against the order was commenced by the owner within time; and (ii) in the alternative, the rear of the building is unsafe and the order is justified; (d) as to 2019/178004, the challenge to the Emergency Order of 20 March 2019 under the Environmental Planning and Assessment Act 1979 should be rejected because (i) no appeal against the order was commenced by the owner within time; and (ii) in the alternative, the rear of the building is unsafe and the order is justified.
2. For reasons later set out, this is not the correct position with respect to the 2015 Orders as set out in (8)(a) above, but what is put at (8)(b) is correct for the 2018 Orders.
3. However, it is also necessary to consider whether the 22 November 2017 Order 22A has been exhausted or whether, as proposed by the Council, it has ongoing effect to permit further clean-up activities, with proper notice, until its statutory expiry at midnight on 21 November 2022.

Introduction

1. As can be seen from the terms of the orders made by Sheahan J in 2015 (reproduced as Annexure A to this decision), there were three separate operative elements encompassed by those orders. Each of those topics was given a specific descriptor by his Honour, those descriptors being: 1. The "Removal Works" - being the clean-up of the then accumulated waste on the property; 2. The "Demolition Works" - being the requirement to demolish the garage structure on the property; and 3. The "Safety Works" - being the requirement to remove the vegetation growing over the dwelling, vegetation the Council considered posed structural, health and safety risks.
2. To the extent that there were elements of his Honour's orders that related to all three of these topics, his Honour dealt with those aspects by adopting the collective term, "the Works", to encompass all three of the earlier defined elements.
3. I also observe that, in addition to the three operative Works orders by which the Council was empowered to carry out the relevant, various activities on the property, his Honour also made a fourth relevant order. This order, one reflecting the third of the Order 22A potential order formulations later explained, was one which ordered the three members of the Bobolas family to refrain from future accumulation of waste on the property. This order, order (4) of the 2015 Orders, was in the following terms: (4) orders that from the date of these orders the Respondents and each of them refrain from keeping waste on the Premises, including the front and rear yards, the area between the House and side boundaries and on the front verandah of the House.
4. It is the Council's position in these proceedings that the element of his Honour's orders (whether specifically identified or as encompassed in the collective term, "the Works") that relate to intervention by the Council for the removal of waste from the property, that which was necessary to give effect to such removal had occurred by a subsequent clean-up of the property undertaken by the Council. As a consequence, the Council submitted that that aspect of the 2015 Orders was spent and that, therefore, there was nothing with respect to that aspect with which I could engage, even if, at a more general level, I had jurisdiction to contemplate doing so.
5. However, it was also the Council's position that, with respect to those elements of his Honour's orders (whether individually nominated or encompassed within the collective description of "the Works") relating to the demolition of the garage and relating to the removal of the vegetation growing on the dwelling, those orders remained valid; continued to have work to do; were orders to which the Council remained committed to give effect; and were ones where there was no jurisdictional basis for any intervention by me concerning them arising out of these proceedings.
6. Before Elena and Liana commenced their submissions, I advised them that they would need to address the question of how I had jurisdiction to deal with the matters that each of them sought as outcomes to the Class 4 elements of the proceedings. I drew their attention to the fact that the Council advanced the proposition that there was no valid basis upon which I could have jurisdiction to do any of the things that were sought as outcomes by them.
7. During the course of Elena's submissions, she handed up photocopy of a number of pages from the Civil Trials Bench Book published by the Judicial Commission of New South Wales. The portions of these pages upon which she relied as providing a jurisdictional basis for the Class 4 matters raised by them were marked with green highlighter. Those passages were in the following terms: Rule 36.16(2)(b) provides that the court may set aside or vary a judgment or order after judgment is entered if the judgment or order has been given or made in the absence of a party, whether or not the absent party had notice of the relevant earing or of the application for the judgment or order. That orders have taken effect does not extinguish these powers: Goater v Commonwealth Bank of Australia, above. Mere absence, of itself, is insufficient to justify setting aside an order. There must be some added factor that makes it unjust for the order to stand: Northey v Bega Valley Shire Council [2012] NSWCA 28.
8. I have carefully read the written submissions from Liana in order to endeavour to understand what matters were pressed by her concerning the jurisdictional issues. Given that she is a self-represented litigant, it is unsurprising that the handwritten material is, to some extent, a little difficult to follow. However, on my reading of the totality of the document, it seems to me that the first approximately one-and-a-quarter pages of the document address jurisdictional issues. Those elements of these written submissions are in the following terms: All our affidavits, information in notice of motions (NOMS)/NOMS, & our exhibits, are part of our evidence & submissions; some documents we referred to, evidence in chief, cross examination and please have regard to the transcripts and cases referred to. 1. We have not had enough time to put on all evidence incl. expert evidence and submissions eg: procedural fairness (eg from the court (LEC) & other side. 2 Jurisdictions - general jurisdiction under Supreme Court Act &/or power under LEC Act & Rules. Also note - Waverley Council (incl. servants, agents & legal representatives, etc) ("W.C") has nothing before the court and has not moved the court to seek removal works &/or permission for removal works, other than the exhausted orders of shares in J, & the exhausted orders of Pain J. WC has no proceedings on foot regarding removal works. And no enforcement proceedings in relation to alleged emergency orders, either. 3 LEC judge has power &/or jurisdiction both under legislation &/or common law to set aside &/or vary court (&/or Council order). LEC judge has power &/or jurisdiction to set aside &/or vary court order made by another judge - same level. 4 under 36.15 & 36.16 + Slip Rule (UCPR) & other legislation &/or common law, incl. s63 CPA. 5 LEC court &/or judge has power to set aside &/or vary orders for/reasons of: • irregular, illegal, against good faith • fraud - • interests of justice • procedural fairness • change in circumstances &/or new facts (&/or law, etc) • fair, just & equitable to set aside &/or vary • miscarriage of justice eg: by reason of fraud, suppression &/or omission of evidence, the giving of false evidence &/or any other circumstances which causes the miscarriage. - WC did not give full & frank disclosure to either their alleged "experts" &/or the court about damages caused by WC (see our affidavits & cross-exam. esp. McMillan) eg this affects alleged "experts" observations re wrong/ &/or extraneous &/or false, which affects their conclusions, which are "based on their observations" - (McMillan) & this also, in regard to ownership of ivy [alleged Pomila Ficus] which they (WC) knows is neighbours (No. 21). • Absence of the parties eg: in original Sheahan J proceedings. • Persons (&/or parties) likely to be adversely affected by the orders, have a right to be heard - (orig. Sheahan proceedings & all other cases, including emergency, Pain J, etc) • Also misrepresentation & false representation by W.C. on basis of Council orders & court orders & to alleged "experts" relating to - ivy/vegetation - alleged garage structure - emergency orders - removal works - (that they want to conduct & prior removal works)
9. There is, following the above, a discussion of a range of matters relating to various factual and legal matters not engaged for jurisdictional purposes (except to the extent that it is also asserted that the Council failed to disclose that the vegetation that was growing over the dwelling on the property and which was subject to the Safety Works order originated from a plant growing on the neighbouring property to the south and that this should have been disclosed (by implication) to Sheahan J at the time he made orders in 2015 for the removal of that vegetation).
10. The remainder of the material set out by Liana in her handwritten submissions does not appear to address any matters asserted to relate to jurisdictional issues.

The relevant provisions of the Uniform Civil Procedure Rules 2005

1. Three provisions of the Uniform Civil Procedure Rules 2005 (the UCPR) require consideration. It is appropriate to set out the provisions and then to consider the role that each of them plays in the present proceedings. These provisions are: 36.11 Entry of judgments and orders (1) Any judgment or order of the court is to be entered. (2) Unless the court orders otherwise, a judgment or order is taken to be entered when it is recorded in the court's computerised court record system. … 36.15 General power to set aside judgment or order (1) A judgment or order of the court in any proceedings may, on sufficient cause being shown, be set aside by order of the court if the judgment was given or entered, or the order was made, irregularly, illegally or against good faith. (2) A judgment or order of the court in any proceedings may be set aside by order of the court if the parties to the proceedings consent. 36.16 Further power to set aside or vary judgment or order (1) The court may set aside or vary a judgment or order if notice of motion for the setting aside or variation is filed before entry of the judgment or order. (2) The court may set aside or vary a judgment or order after it has been entered if: (a) …, or (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order, or (c) …

The entry of orders

1. The first of the elements of the UCPR set out above deals with the process by which orders made are taken to be entered, with orders that have the status of being entered being treated differently for the purposes of the other provisions of the UCPR quoted above.
2. There is no doubt that the orders made by Sheahan J in 2015 have been entered in the technical sense required, as they have been recorded on the Court's electronic computer records system. That status defines how I am to approach the next two provisions of the UCPR earlier set out.

The orders were made in the absence of the Bobolases

1. The relevant elements of the Civil Trials Bench Book handed up by Elena take me to consideration of the circumstances of the making of the 2015 Orders by Sheahan J.
2. First, it is to be acknowledged that the orders that his Honour made in 2015 were ones which were made in the absence of any member of the Bobolas family. That, however, does not automatically guarantee that there is a jurisdictional basis automatically arising for subsequent reconsideration of the orders which his Honour made.
3. It is clear that the question of whether or not the making of orders in the absence of a party gives rise to the possibility of such reconsideration is a matter for discretionary assessment of the circumstances which gave rise to the party the subject of the orders being absent from the hearing when those orders were made. That is clear from the use of the word "may" in the relevant rule.
4. This discretionary position is also clearly explained by the second decision in the extract from the Civil Trials Bench Book upon which Elena relied (and Liana adopted this submission), where the judgment of Barrett JA in Northey v Bega Valley Shire Council [2012] NSWCA 28 addressed the necessity for there to be something extra, at [13] saying: 13 … There must be some added factor that makes it unjust for the order to stand.
5. For the purpose of this complaint by the Bobolases, it is necessary to explore whether there is some such additional factor to render the making of the 2015 Orders in their absence "unjust".
6. It is, therefore, necessary to set out, at some length, the relevant elements of the decision of Sheahan J in 2015 that explain the circumstances under which his Honour concluded that it was appropriate to make the 2015 Orders, even though no member of the Bobolas family was present when he considered the Council's application and determined that it was appropriate to make the orders sought (albeit with some minor changes). His Honour said, at [1] to [28] of the 2015 decision, as follows: 1 The summons in this matter was filed on 5 December 2014 and seeks a declaration and a range of orders regarding waste deposited and kept on premises at 19 Boonara Ave, Bondi, and the state of those premises more generally. 2 The first respondent (Mary Bobolas) is the owner-occupier, and her daughters, the second respondent (Elena) and third respondent (Liana) also occupy, the premises. Mary Bobolas has been the registered proprietor since 1973. 3 On 6 February 2015, this matter was fixed for hearing on 23 - 24 April 2015. 4 The respondents have since filed no evidence on the substantive issues, despite specific directions given by Craig J on 6 February and Pain J on 20 March, but two Notices of Motion ("NOM") brought by them, contesting the service of the summons, have been dismissed by the Court. 5 When the matter was called on for hearing, at 10.00 am on 23 April there was no appearance by any of the respondents, and no response to three calls outside the Court. 6 Senior Counsel for the Council (Mr Clay) informed the Court that, at 6.30 pm on 22 April 2015, one of the respondents made contact with Council's solicitor (Mr Webber) to inform him that an application would be made to adjourn the hearing, pursuant to s 57 of the Legal Aid Commission Act 1979 ("LAC Act"), on the basis that the respondents would be appealing against the refusal of an application made by them for assistance with this matter. 7 The caller offered to mention the matter on Council's behalf on 23 April, but Mr Webber declined that offer, and advised the caller to attend Court on 23 April to make the adjournment application in person. Mr Webber later swore an affidavit (23 April 2015) verifying those facts. 8 At 8.32 am on 23 April, a four page document signed on page 2 of 4 by "E Bobolas" was faxed to my chambers from "OW Bondi Junction", which the Court has been informed would be an "Officeworks" shop. It was entitled "Short Minutes of Order" ("SMO"), and included (1) a draft order for a s 57 adjournment and (2) a draft notation of the call made to Mr Webber late on 22 April. 9 It then referred to Lewis v Spencer [2007] NSWSC 1383 and Waverley Council v Bobolas ("Bobolas") [2009] NSWLEC 190, and attached (at p3 of 4) a copy of a heavily redacted fax Coversheet headed "Legal Aid Commission of NSW", bearing the date "22 April 2015" and the title "Re: Refusal of Legal Aid - Land & Environment Court proceedings 41027 of 2014". Also attached (p4 of 4) was a copy of a document headed "Appealing a Legal Aid Decision". 10 At about 9.30 am on 23 April, my associate took a call from a female who (1) introduced herself as "Ms Bobolas", (2) enquired as to whether the 8.32am faxed "SMO" had been received in chambers, and (3) asked that the document be "brought to the Judge's attention". I then had the "SMO" document taken down to Registry for stamping. 11 Relevantly, the fax coversheet (p3 of the "SMO") said: Attached is refusal letter in relation to your application for legal aid for representation in Land & Environment Court proceedings 41027 brought against you by Waverley Council 12 However, no such letter of refusal was included in the "SMO" document. 13 The adjournment application not having been properly made, I made the following orders, in the absence of the respondents: 1. Orders that the document styled "Short Minutes of Order" dated 15 April 2015 delivered to the Court by facsimile at 8:32am today by or on behalf of the Respondents be treated as a Notice of Motion by the Respondents seeking the orders set out therein. 2. Orders that the Respondents' motion be adjourned for hearing at 10am 24 April 2015 before Sheahan J. 3. Adjourns the proceedings to 10am 24 April 2015. 4. Reserves the costs of today. 5. Directs that notice of these orders be given to the Respondents by delivery to the Respondents of a letter from the Registrar of the Court setting out these orders, such delivery to be effected by placing the letter in a plastic envelope and affixing it to the front gate of 19 Boonara Avenue, Bondi Beach by 2pm today. 6. Directs the Registrar to request the Legal Aid Commission to provide the information referred to in s25(4)(l) of the Legal Aid Commission Act in respect of any legal aid application made by any of the Respondents in relation to these proceedings. 14 I asked Mr Clay to have a Council officer or agent deliver the Registrar's letter (in Order 5), on the Court's behalf, and provide an affidavit of service. Council's Mr Schilt has now deposed (24 April 2015) to such service, and to the apparent removal of the document envelope from the gate of the subject property by this morning. 15 The Registrar's letter served with the orders I made yesterday said: Dear Mses Bobolas Re: Waverley Council v Bobolas, Mary (1st Respondent), Bobolas, Elena (2nd Respondent) & Bobolas, Liana (3rd Respondent) File number: 14/41027 I refer to the above proceedings and advise that His Honour, Justice Sheahan made the enclosed orders in court today. The hearing of the proceedings, together with your application for an adjournment, has been adjourned to 10am tomorrow Friday 24 April 2015. You should make yourself available to attend at that time. If you do not attend, the hearing may proceed and orders may be made in your absence. Yours sincerely Joanne Gray Registrar 16 Later yesterday, the Legal Aid Commission responded to the Registrar's inquiries I had ordered (in Order 6), and the Court now has a copy of the Commission's letter of refusal. It was dated 22 April 2015, and it noted that the respondents' "application for extension of legal aid [was] received 22 April 2015". I set out the text of the letter of refusal in full: Dear Ms Bobolas Legal Matter Other Civil (State) Court Sydney Land And Environment Crt EXTENSION OF AID REFUSED Your application for extension of legal aid received 22 April 2015 has been refused. Reasons for refusal Under Legal Aid NSW policies and guidelines, legal aid is not available for matters of this nature. Extension 1 was created by the Grants Division for the purpose of generating this refusal letter. Your (sic) can find information about availability of legal aid here: http://www.legalaid.nsw.gov.au/for-lawyers/policyonline/policies/6.-civil-law-matters-when- legal-aid-is-available As the application has been refused on guidelines, Legal Aid NSW has not considered whether the requirements of its means and merit tests have been satisfied. You should notify the Court of the outcome of your application for legal aid, though we note that Legal Aid NSW is able to provide limited information to the Court about your application if a request is received from the Registry. If it is proposed to appeal to the Legal Aid Review Committee as explained under the heading Appeal Rights towards the end of this letter, it is recommended that you provide the following additional information: A copy of all relevant court documents filed in proceedings for which legal aid is sought. For more information about eligibility for legal aid please go to our website www.leqalaid.nsw.gov.au and click on the link to Policy Online. APPEAL RIGHTS You may have a right of appeal to the Legal Aid Review Committee against the refusal of legal aid. You must lodge any appeal within 28 days of the date you receive this letter. In special circumstances the 28 day period may be extended. You may seek an adjournment of court proceedings under Section 57 of the Act if you appeal or intend to appeal to the Legal Aid Review Committee. A court or tribunal is required to adjourn the proceedings provided that it is satisfied that the appeal is genuine and that there are no special circumstances that prevent granting the adjournment. For more on appeals and the appeal form please read the information sheet enclosed. 17 As noted above ([9]), some of that "information sheet" was attached to the "SMO" document faxed to my chambers (p4 of 4). None of it needs to be included in this judgment. 18 As at 9.47 am this morning, no appeal had been lodged. 19 When I came on the bench at 10.10 am, the three respondents did not appear, nor respond to three calls outside the Court. I, therefore, granted leave to the Council to proceed in their absence - UCPR 29.7 - and I heard its submissions on the NOM. 20 Lewis v Spencer (2007) and Biscoe J's 2009 Bobolas judgment, mentioned by the respondents, are not the only, nor the latest, authorities on adjournments under s 57 of the LAC Act, which provides: 57 Adjournment of certain proceedings Where it appears to a court or tribunal, on any information before it: (a) that a party to any proceedings before the court or tribunal: (i) has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or (ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent, (b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and (c) that there are no special circumstances that prevent it from doing so, the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit. 21 Mr Clay referred me to two more recent Supreme Court decisions. 22 In Prothonotary of the Supreme Court of New South Wales v Yau Hang Chan [2013] NSWSC 1270, Schmidt J said (at [8]): It would, of course, have been a simple matter, entirely within Mr Chan's own hands, either before the Registrar or on the adjournment application today, to tender the document which he says constitutes his appeal, suitably masked, if that was necessary, to preserve confidentiality in anything which might be privileged. Consideration must plainly be given to Mr Chan's position as an unrepresented litigant but that does not explain his failure to take the simple and available step of tendering his appeal document. 23 In Scott-Irving v State of New South Wales [2014] NSWSC 1006, Adamson J said (at [26] - [27]): 26 It does not appear to me that the appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings. That the plaintiff would apply for legal aid after the matter had been set down for hearing and not propound it to the court as a reason why the date ought be vacated until the application had been finally determined (including an appeal) is telling. It is also significant that on 9 May 2014 the plaintiff was prepared to disclose the legal aid application but represent to the Court and the defendant (including by affidavit) that it did not affect his preparedness for the matter to proceed. 27 In these circumstances it was, in my view, incumbent on the plaintiff to provide some explanation to shed light on his conduct which on its face appears to be at least misleading towards the Court and to the defendant. Whether he is reluctant to face the final hearing of this matter is not a question that I am in a position to determine but his silence does not assist him to make the matters referred to in s 57(b) of the LAC Act appear to me. Indeed his silence allows me more readily to infer to the contrary. 24 Mr Clay formally tendered (Exhibit C1) the respondents' NOM dated 6 February 2015, and its supporting affidavit, upon which Pain J based her earlier decision in the present matter: Waverley Council v Bobolas [2015] NSWLEC 57 ([4] above). 25 Those documents make clear that the respondents were well aware of these proceedings on 6 February, yet the LAC confirms that they applied to it for assistance only on 22 April, the last day before this hearing was to commence. 26 The "SMO" document, which I accepted as a NOM for adjournment, said that the respondents "are appealing". They deliberately omitted to include the terms of the refusal letter. No grounds of appeal have been nominated, and the respondents have chosen not to appear, to explain their position, and to prove that their planned appeal is "competent" (s 57(a)(ii)), and/or "bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings" (s 57(b)). 27 On the basis of the authorities to which I have referred, I conclude, and find, in terms of s 57, that the respondents' intentions are not bona fide, and that the foreshadowed appeal is a deliberate device to delay these proceedings. 28 I, therefore, announced to the Court at 10.35 am that I dismissed the respondents' NOM, and would give my reasons later, which I have now done above ([16] - [27]).
7. The only conclusion rationally open to be drawn from the above passage from his Honour's decision, relevant to the question of whether or not I should exercise discretion pursuant to r 36.16(2)(b) of the UCPR to permit reopening of matters dealt with in the 2015 Orders, is that his Honour concluded that the failure of all three members of the Bobolas family to attend and take part in the hearing before him was one which was taken consciously and deliberately by the members of the family in a fully informed fashion and that they were determined not to take part in the proceedings.
8. It is to be observed that his Honour's decision, and the orders which he made in 2015, were appealed by the members of the Bobolas family to the Court of Appeal. That appeal was rejected (Bobolas v Waverley Council [2016] NSWCA 139). It is clear from a close reading of the decision of the Court of Appeal that their Honours, in rejecting the appeal, found no fault in the process undertaken by Sheahan J, let alone any specific fault that could be regarded as arising from his Honour hearing and determining the Council's application in the absence of any member of the Bobolas family.
9. Under the circumstances, the proposal advanced in these present Class 4 proceedings, that the circumstances giving rise to the 2015 Orders being made in the absence of the members of the Bobolas family provides some proper foundation upon which I might proceed to revisit those orders, is risible and is to be rejected as being entirely without substance.

The ongoing life of the 2015 Orders

1. In addition, it was pressed by Elena that elements of his Honour's 2015 Orders arose from statutory orders made by the Council that had a fixed life and, as a consequence of that operative statutory time limit, his Honour's incorporation of those statutory orders into orders of the Court had the effect of importing into the orders of the Court such statutory time limit. Therefore, Elena submitted (as I understood her), these aspects of his Honour's orders did not have ongoing and unrestricted life and were not orders upon which the Council was now entitled to act.
2. This position is untenable. It is not necessary to unpack the elements of the 2015 Orders to reject this proposition. The remaining elements of the 2015 Orders which continue to be operative are the Demolition order, the Safety order and the "refrain" order contained in (4) of the 2015 Orders.
3. The ability to act upon the Demolition order and the Safety order (subject to compliance with the relevant portions of the 2015 Orders) is only restricted by the requirement to give notice pursuant to (9)(a) and (b) of the 2015 Orders. The other operational elements of the 2015 Orders relating to the carrying out of the Demolition order and the Safety order also remain operative.
4. The relevant elements of the 2015 Orders that required the Bobolases to refrain from keeping waste on the property were a declaration and an ongoing order. These were in (3) and (4) of the 2015 Orders and were in the following terms: (3) declares that the Respondents have not complied with the terms of the orders no. 22A dated 1 August 2014 given by the applicant to each of the respondents pursuant to section 124 of the Local Government Act 1993 requiring each of the respondents to refrain from keeping waste on the Premises. (4) orders that from the date of these orders the Respondents and each of them refrain from keeping waste on the Premises, including the front and rear yards, the area between the House and side boundaries and on the front verandah of the House.
5. The order giving power relied upon was contained in s 124 of the Local Government Act, a provision in the following terms: 124 Orders A council may order a person to do or to refrain from doing a thing specified in Column 1 of the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table.
6. The table that follows in s 124 is, as noted in the terms of the provision, one that sets out three columns. The first of those columns is headed To do what?.
7. The entry in Column 1 for Order 22A is in the following terms: To remove or dispose of waste that is on any residential premises or to refrain from keeping waste on those premises
8. As can be seen by the use of the word "or" (twice) in element 22A of Column 1, there are three possible orders able to be issued when circumstances giving rise to such an order are triggered. Those alternative orders are: 1. To remove waste that is on any residential premises; or 2. To dispose of waste that is on any residential premises; or 3. To refrain from keeping waste on those premises.
9. In 2015, his Honour was dealing with elements of Order 22A that fell within both (1) and (3) of the above three types. Although the element of his Honour's orders that permitted the Council to enter and remove waste then on the property was exhausted after that activity was undertaken by the Council in reliance on that element of the 2015 Orders, his Honour also provided, as set out above, a declaration in (3) concerning the potential for a future breach of the Order 22A requiring all three members of the Bobolas family to refrain from keeping waste at the premises and, critically, made order (4) of the 2015 Orders as an order of the Court (one which has an ongoing basis without time limit) requiring the Bobolas family (so described because all three members were respondents to the 2015 decision and orders) to refrain from further keeping waste at the property.
10. This order imposed a continuing obligation on the members of the Bobolas family to refrain from keeping waste on the property. This order only ceases to have effect when varied or discharged by some future order of the Court and no such future order of the Court has been made. Therefore, this order continues to be operative.
11. The substituted performance carried out by the Council was based on order (7) of the 2015 Orders and was one confined to a "removal" order (type (1) described above) and not a "refrain" order (of the type (3) described above). No interference with the "refrain" element of the 2015 Orders is to be implied from the terms of the orders made by Pain J in 2018.
12. As a consequence, the refrain order, order (4) of the 2015 Orders, remains operative and capable of founding further clean-up intervention by the Council if breach of the "refrain" order is demonstrated. Such foundation for further clean-up intervention has no time limit unless some further order of the Court imposes some limitation or expiry.
13. However, with respect to the "refrain" order, no provision for access to address any breach of that order was made.
14. Nevertheless, the Court Act provides, in s 22, an appropriate method by which I can provide the Council with the opportunity to consider whether it might wish to apply for some appropriate order or orders to address this lacuna. The provision in the Court Act is in the following terms: 22 Determination of matter completely and finally The Court shall, in every matter before the Court, grant either absolutely or on such terms and conditions as the Court thinks just, all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by that party in the matter, so that, as far as possible, all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided.
15. I address the potential utilisation of this provision later.

The 2015 Orders were not made in bad faith

1. To the extent that it was also submitted that the orders made by Sheahan J in 2015 were obtained by the Council in bad faith (a separate UCPR pathway to jurisdiction to consider Class 4 matters in these proceedings), it is clear that, from the material set out earlier extracted from the judgment of Sheahan J, there is no rational basis for such an assertion. To the extent that "bad faith" is submitted as providing a second, alternative basis upon which jurisdiction to intervene with Sheahan J's orders could be validly invoked, that proposition is also to be rejected.
2. It is also to be noted that nothing in the decision of the Court of Appeal provides any support for such a proposition.

Conclusion on jurisdiction concerning the 2015 Orders

1. It follows from the foregoing that I am satisfied that, with respect to the orders made by Sheahan J in 2015, there is no valid basis to conclude that I have jurisdiction to make any intervention of the nature proposed by the Bobolases with respect to the orders made in those proceedings.
2. However, a "refrain" order provides, potentially, multiple opportunities for substituted performance if the person to whom a "refrain" order is issued remains in breach after a clean-up activity is undertaken and where waste continues to be kept on the identified property after such clean-up activity in breach of a "refrain" order.
3. The Court's "refrain" order in the 2015 Orders obliges each member of the Bobolas family to act in a fashion that does not cause future accumulation of waste on the property after the Removal order in the 2015 Orders was given effect. This order has ongoing validity and provides a basis for further clean‑up intervention by the Council.

A limited, pragmatic attitude is taken by the Council

1. The complaint made by Liana concerning damage caused by the Council during the course of earlier clean-up activities arises, as far as specific evidence goes, from damage occasioned to the northern brick pier supporting the entrance gates to the property. A picture of the present gate support on the northern side - comprising a wooden post attached to two milk crates which are, in turn, attached to an adjacent solid structure - show the damage that had been occasioned during an earlier clean-up (not the 2019 clean-up, a clean-up conducted by hand without the use of mechanical equipment). A photograph of this gate support in its present condition was at Photo (27) of Exhibit B.
2. Mr Schilt gave evidence that this gate support had been damaged during an earlier council clean-up and that, when he had endeavoured to arrange to have the pier repaired, access to the property for this purpose was refused.
3. As a consequence, purely to avoid future disputation concerning future clean‑up activities and the Council's methodology to be employed if they are to occur, I asked Mr Lancaster to obtain instructions on whether or not the Council was prepared to give an undertaking (responsive to an issue raised by Liana in the matters she sought to have addressed in these Class 4 proceedings) to reflect the position taken by the Council for the February 2019 clean-up activities (namely, that heavy plant or equipment would not be used during such activities).
4. Mr Lancaster subsequently advised me that, on instructions, the Council was prepared to give such an undertaking. I directed that the Council provide me, and the members of the Bobolas family, with the precise terms of such an undertaking. These terms were subsequently e-mailed to my Associate and an undertaking proposed to be given was set out in the following terms: Undertaking of Waverley Council to the Land and Environment Court 1. Waverley Council undertakes to the Land and Environment Court that, for the purposes of the Council carrying out clean up and/removal of waste from the property at 19 Boonara Avenue, Bondi, and during the period from today until 19 November 2022, the following mechanical devices will not be used: a. Bob cats; b. Tractors; c. Any other heavy mechanical earthmoving equipment, such as mechanical back hoes, mechanical diggers, front end loaders and the like. 2. For the avoidance of doubt, Waverley Council notes that the undertaking in para 1: (i) applies only to clean up and/or removal of waste, and does not extend to other works that Council has the authority to carry out, for example the carrying out of works required under an order for the demolition of a structure; (ii) does not extend to or prevent the use of mechanical or electric tools such as whipper snippers, electric saws, chainsaws and the like; and (iii) does not extend to or prevent the use of a removal truck parked in the road reserve in front of the property. 15 October 2019
5. As I discuss below, there is no current ability for the Council to enter the property to effect a clean-up pursuant to order (4) of the 2015 Orders. That means there is nothing arising from these Class 4 proceedings that would engage this undertaking. However, if the Council exercises the right given in the orders I make in in the 2014 Class 4 proceedings, the Council may wish to consider whether such an undertaking might be given with any such specific or ongoing order that I might make.

Introduction

1. The 22A Order was given on 22 November 2017. As earlier noted, a clean-up was undertaken in February 2019, pursuant to the orders made by Pain J on 14 September 2018. The 2018 orders made by Pain J provided a proper statutory basis for substituted performance by the Council of the clean-up of waste on the site. The position with these orders is that they are spent.
2. As observed in Bobolas v Waverley Council (No 2) [2019] NSWLEC 157 and Bobolas v Waverley Council (No 3) [2019] NSWLEC 162, being the related Class 1 and Class 2 decisions, when I undertook the site inspection on 3 October 2019, for the purposes of these Class 1 and 2 proceedings, there was already a significant build-up of bags of rubbish and other items in the front setback of the dwelling on the property, with so much waste having accumulated during the eight months since the clean-up pursuant to Pain J's orders.
3. The Council has given notice on 9 May and on 1 July 2019 to Mary that it intended to enter the premises and carry out works to remove this accumulated waste on the basis of what is said to be the continued operation of the 22A Order given on 22 November 2017.

The relief sought concerning the 22A Order issued on 22 November 2017

1. The final element of matters sought to be agitated in the Class 4 Notice of Motion with which I am dealing (as a result of the matters sought to be agitated by Elena and Liana in their final scope of matters as earlier set out) is that the Order 22A should be declared to be spent and the Council restrained from purporting to act further on it, as it operated only to provide a basis upon which Pain J could make the orders authorising the February 2019 clean-up activities undertaken by the Council.

The Council's position

1. The Council's position is that the order has an ongoing operative life and does not expire until the effluxion of five years from the making of that order.
2. The Council's submissions about jurisdictional issues have been earlier set out. To the extent that those submissions relate specifically to the Order 22A, it is unnecessary to repeat them. Those submissions, in this respect, are self‑evidently correct and do not require further analysis by me.
3. With respect to the ongoing operation of the 22A Order, the Council's written submissions on this point were in the following terms: 31. Order 22A under the Table to s124 of the LG Act provides for an order: "To remove or dispose of waste that is on any residential premises or to refrain from keeping waste on those premises" 32. Section 128A of the LG Act relevantly provides: "(1) An order in terms of order No 22A in the Table to section 124 ceases to have effect, unless earlier revoked under section 153, at the end of the period of 5 years after it is given." 33. The effect of this provision is that there is no need for the Council to issue a fresh 22A order each time waste accumulates on the premises. The 22A order issued on 22 November 2017 continues to have effect for a period of 5 years unless revoked. 34. The order 22A issued to the First Applicant on 22 November 2017 has not been revoked. 35. It is clear that the powers under s124 to issue a 22A order are wide. The purpose of Order 22A under the Table to s 124 and s 128A is to allow such an order to run for a five-year period to allow for a council to re-enter at any time, provided that notice of the council's intention to do so is given. This reflects s 128A (2) of the LG Act which provides that "the protection of public health is the paramount consideration in giving any such order". 36. Order 22A was introduced into s 124 by the Local Government Amendment (Waste Removal Orders) Act 2006. In the Second Reading of the Act, the Minister for Local Government at the time said: "However, if the situation is so serious that the council believes the circumstances constitute a serious risk to the health or safety or are an emergency, the council will be able to require the clean-up to occur immediately. The effect of the order may involve the council officers repeatedly entering land or premises over the maximum five year period. Councils will be required to notify the owner or occupier served with the intention to enter the property on a certain date and at certain time to clean up. This notice will be required each time the council seeks to enter the property during the period the order is in force". 37. The 22A Order issued to the First Applicant, Ms Mary Bobolas, on 22 November 2017 provided for 28 days for compliance with the terms of the order. As it is a standing order, the 28 day period has elapsed and waste fitting the general description in the order has now accumulated again on the property. 38. The Council has formed the opinion that the accumulated waste on the premises is a serious risk to public health and safety. 39. On 9 May and 1 July 2019 the Council gave notice to the First Applicant, Ms Mary Bobolas, that it intended to enter the premises and carry out works to give effect to the 22A order issued to her on 22 November 2017. 40. The Council seeks to exercise its power of entry to "do all such things as are necessary or convenient to give effect to the terms of the order, including the carrying out of any work required by the order". 41. The Court of Appeal in Bobolas v Waverley Council (No.4) [2015] NSWCA 337 at [47] held that s 200 of the LG Act does not qualify the right of entry under s 678 of the LG Act. In particular, s 200 only limits the powers conferred by Part 2 of Chapter 8 of the LG Act. The power conferred by s 678 is not the exercise of power under Part 2 of Chapter 8, but rather a power specifically conferred by Part 1 of Chapter 17 of the LG Act. The power in s 200 is concerned with powers of entry for inspection, not powers of entry pursuant to a separate power to carry out work pursuant to orders (whether Emergency orders or not). 42. Section 678(10) of the LG Act does not confine or qualify the power of the Council to enter into land and carry out works pursuant to s678 (1) of the LG Act. Rather, it is a separate power of the Court to order a council to do the work.
4. In this context, it is appropriate to note that reliance on the relevant portion of the Minister's Second Reading Speech at the time of introduction of the amendments to the Act, for purposes as are here engaged, is one with proper statutory foundation provided by s 34(2)(f) of the Interpretation Act 1987.
5. Such reliance is entirely orthodox and uncontroversial in any legal sense.

Consideration

1. In this context, it is appropriate to turn to the specific terms of the Order 22A of 22 November 2017, particularly what was required to be undertaken by the order, and the reasons for, specified by the order to be undertaken.
2. The 22A Orders of 22 November 2017, relevant for this element of my consideration, contain two pertinent sections. These are headed "Terms of the Order" and "Reasons for the Order". The first of these reads: TERMS OF THE ORDER Remove the accumulation of waste from the outside areas of the Premises, including the front and rear yards, the area between the house and side boundaries and the front veranda of the house on the Premises being garbage (both putrescible and non- putrescible) and refuse including but not limited to plastic containers, polystyrene boxes, metal frames, shelves and similar products, filled plastic garbage receptacles, plastic crates, food containers and wrappers, tins and jars, household furniture and assorted timber products, bedding and cushions, foam, cardboard, papers, clothing and similar products, rags, bottles, and other miscellaneous matter which are likely to form or afford harborage for vermin and insects or constitute a fire risk.
3. The Order then sets out the reasons for the order in the following terms: This order is given because: 1. The Premises is used for the purposes of a dwelling house, is located in a residential area and is adjoined by residential premises. 2. You are storing waste, garbage (both putrescible and non- putrescible) and refuse, including but not limited to plastic containers, polystyrene boxes, metal frames, shelves and similar products, filled plastic garbage receptacles, plastic crates, food containers and wrappers, tins and jars, household furniture and assorted timber products, bedding and questions, foam, cardboard, papers, clothing and similar products, rags, bottles, and other miscellaneous matter and materials on the Premises. 3. The items of waste you are storing are, in the opinion of Council's Senior Environmental Health Officer likely to afford harborage for insects and vermin and as such is causing or is likely to cause a serious health threat the occupants of the premises and the occupants of neighbouring properties. 4. Insects such as cockroaches and vermin such as rats can spread and cause disease and as such are a threat to human health. 5. The items of waste you are storing are, in the opinion of Council's Senior Environmental Health Officer combustible and a fire hazard and are causing or are likely to cause a serious health threat to the occupants of the subject premises and the occupants of neighbouring properties, as well as emergency service works (sic) who may be required to attend at the property or neighbouring properties in the event of a fire. 6. To ensure the premises is returned as to a safe and healthy condition and the serious health threat to occupants of the premises, the adjoining properties and emergency workers is removed.
4. Mary was then given 28 days from the date of service of that order to comply with its terms.
5. As can be seen from the foregoing, that which was required by the 22A Orders of 22 November 2017 was in terms consistent with the first of the three potential outcomes specified for Order 22A in Column 1 of the table to s 124 of the Local Government Act. It was not, in any fashion, consistent with the third of the possible elements arising from that portion of the table to s 124 of the Local Government Act.
6. The orders made by Pain J in September 2018 were expressed to be in terms of facilitating substituted performance by the Council of a clean-up solely consistent with the first of the potential orders earlier set out for which 22A in Column 1 of the table to s 124 makes provision.
7. It is also clear from the terms of order (4) of her Honours orders (as earlier set out) that the access ordered by her Honour to permit substituted performance was confined to running only until the conclusion of the clean-up specified in her Honour's orders.
8. It is to be observed that the 22A Orders whose terms have earlier been set out is the only order of this type given to Mary of which I have evidence and that I have no evidence of any other order (in terms of the third potential articulation of a 22A Order earlier set out) having been given to Mary.
9. Although it is clear from the elements of the Minister's Second Reading Speech earlier set out that an ongoing order is capable of being imposed (this being the nature of the third earlier articulated potentiality from 22A in Column 1 to s 124 of the Local Government Act), no such ongoing order has been given to Mary.
10. It is clear that a 22A Order has a life of five years (128A Orders about removal or keeping of waste - Local Government Act). However, that means for an order that is, in terms of the first or second of the alternative derivations from 22A discussed above, what is preserved for a period of up to five years is the opportunity for a "one shot" enforcement activity by substituted performance.
11. The 22A Orders issued on 22 November 2017 were exhausted as a consequence of the clean-up activities conducted by the Council commencing 13 February 2019 founded on the orders of Pain J made in September 2018.
12. Absent any ongoing "refrain" order in the order issued on 22 November 2017, in that form of potential articulation, it is clear that the giving effect to the September 2018 orders of Pain J commencing on 13 February 2019 not only exhausted the orders that were made by her Honour but also exhausted, in their entirety, the operative elements of the 22A Orders dated 22 November 2017.
13. As the Council has given notice on 9 May and 1 July 2019 that it proposes to enter the property to effect further clean-up activities in purported reliance on the 22A Order of 22 November 2017, it is necessary to consider what relief is appropriate to be given in circumstances where I have concluded that there is no valid basis for any further intervention by the Council at the property in purported reliance on that 22A Order of 22 November 2017.

The notice letters of 9 May and 1 July 2019

1. By letters dated 9 May and 1 July 2019, the Council's solicitors wrote on behalf of the Council to give notice that it was intended that the Council would enter the property for the purposes of: 1. Carrying out the removal of the vegetation growing over the dwelling of the property pursuant to order (5) of the 2015 Orders; 2. Carrying out demolition of the garage structure pursuant to order (6) of the 2015 Orders; and 3. Carrying out removal of waste from the property in reliance on Order 22A issued on 22 November 2017.
2. For the reasons I have earlier explained, the first two of the Council's proposed actions remain authorised by the ongoing effect of the 2015 Orders made by Sheahan J.
3. However, for the reasons I have also earlier explained, Order 22A issued in November 2017 is exhausted. The consequence of this is that the notice purportedly given of the intention to enter the property for the general removal of waste is invalid.
4. I have concluded, with respect to this element of the letters of 9 May and 1 July 2019 concerning the general purpose of waste removal, that it is appropriate to make a declaration that that the November 2017 Order 22A is exhausted and provides no basis for further clean-up activities on the property. As a consequence, it is also appropriate to restrain the Council from entering the property for the purposes of such general waste clean-up in purported reliance on that Order 22A.

Conclusion concerning the Order 22A issued on 22 November 2017

1. I am satisfied that, under the circumstances, it is appropriate to take two steps concerning the Order 22A issued on 22 November 2017: 1. First, it is appropriate to declare that this Order 22A was exhausted by the clean-up activity undertaken in February 2019; and 2. Second, to restrain the Council from any further clean-up activities on the property in purported reliance on that 22 November 2017 order.

Future action to remedy breaches of the continuing, valid 2015 "refrain" order

1. However, the above conclusion does not mean that the Council does not have available to it a lawful basis upon which to seek to enter the property to undertake general clean-up activities of the waste which has now accumulated since the Council effected clean-up in February of this year.
2. This is because, for the reasons I have also earlier set out, the declaration in order (3) of the 2015 Orders and, more importantly, the ongoing operative effect of order (4) of the 2015 Orders does provide the ongoing potentiality for the Council to undertake further general waste clean-up activities on the property if further waste accumulation occurs despite the order that the Bobolas family refrain from doing so.
3. This arises because the "refrain" element of the 2015 Orders is in addition to the Works order (garage demolition) and the Safety order (vegetation removal) and the latter two are of ongoing effect until implemented, whilst the "refrain" order can provide a foundation for future intervention whenever any future breach arises. All the Council needs to be able to remedy any breach of the "refrain" order is a proper basis upon which access to the property can be obtained to effect a clean-up to remedy the breach.
4. Self-evidently, from the site inspection, the requirement imposed by order (4) of the 2015 Orders, that the respondents to those orders (being all three members of the Bobolas family) "refrain" from keeping waste in the areas expressly described in order (4) of the 2015 Orders, remains in effect and has clearly been breached.
5. That breach (and, if it was to recur after any further clean-up of the now accumulated further waste on the property) could also provide a further opportunity for the Council to seek an order authorising it to undertake a clean-up of that waste. The continuing operation of order (4) of the 2015 Orders means that it is open to the Council to take appropriate and lawful steps to effect a clean-up of the waste that has accumulated on the property since the February 2019 clean-up activities were completed. This would be subject to lawful access to the property for this purpose being available to the Council.
6. The consequence of these conclusions means that the element of the Bobolas family's Notice of Motion concerning the 2015 Orders ought be dismissed. However, for the reasons that follow, it is not appropriate to do so immediately as it is appropriate to permit the Council to consider whether it wishes to take some further action (as discussed below) with respect to order (4) of the 2015 Orders.
7. The 2015 Orders set out, at [9a] and [9b], the notice provisions which the Council is obliged to give before it seeks to enter the property to give effect to the Demolition order and the Safety order. The 2015 Orders do not provide any current ability for the Council giving notice for the purposes of ongoing clean-up activities in reliance on the obligation imposed in order (4) to refrain from further accumulation of waste on the property after the clean-up activities authorised by order (7) of the 2015 Orders were carried out.
8. As a consequence, there is no present basis pursuant to the 2015 Orders whereby the Council can enter the property for the purpose of undertaking clean-up of the waste which has accumulated on the property since February 2019 in clear breach of order (4) of the 2015 Orders.
9. As it was blindingly obvious from the site inspection, that which has accumulated on the property since the clean-up activities of February 2019 were completed by the Council has reinstated a significant accumulation of waste of the type described in the Order 22A issued on 1 August 2014 that provided the basis for the making of the declaration in order (3) and the order in order (4) of the 2015 Orders. These were the foundational terms for the ongoing Court order in order (4) of the 2015 Orders that the Bobolas family refrain from keeping waste on the property.
10. The further accumulation of waste that now exists, in breach of order (4) of the 2015 Orders, means it is open to the Council to apply to the Court for a further specific order authorising the Council to enter the property for the purposes of effecting a further clean-up of the waste which has accumulated on the property since February 2019 in order to remove the now existing and, self-evidently, entirely unacceptable risks to public health (as well as to the health of the occupants of the property).
11. I also observe that, in addition to this ability for the Council to seek a specific order to permit it to enter the property for the purpose of removing the present accumulation of waste on the property, it would be open to the Council to apply to the Court for an ongoing order for access to the property if, after a further clean-up activity was effected, circumstances arose whereby an appropriately authorised officer of the Council (such as Mr Schilt, but not confined to Mr Schilt) formed the opinion, on reasonable grounds, that there had been a further breach of order (4) of the 2015 Orders. Order (4) of the 2015 Orders is, for the reasons I have earlier set out, one imposing an ongoing and open-ended obligation on the members of the Bobolas family to refrain from keeping waste on the property.
12. If such an ongoing clean-up access order was made, the Council could enter the property on any future occasion after an opinion was formed by an appropriate council officer, on reasonable grounds, that there had been a sufficient breach of the "refrain" order to constitute a further serious risk to public health and/or the health of the occupants of the property that a further clean-up activity should be undertaken by the Council (after appropriate notice was given to the occupants of the property of the intention so to do).
13. Given what I observed and smelt during the course of the site inspection on 3 October 2019, and the clearly visible (and smelt) breach of order (4) of the obligation imposed on the Bobolas family to refrain from further keeping of waste on the property, it would be open to the Council to seek to exercise the liberty to restore provided by order (20) of the 2015 Orders to seek a further specific order to be permitted to enter the property to clean up the further accumulation of waste and, if the Council considered it appropriate, also to seek an ongoing general access order (one which I consider would be within the Court's power to make) in the terms generally earlier outlined by me immediately above in this conclusion.
14. Such an approach would be consistent with the power given by s 22 of the Court Act to ensure all matters in controversy between the parties may be completely and finally determined and all multiplicity of proceedings concerning any of those matters may be avoided.
15. Because of my visual and olfactory observations during the course of the site inspection, my orders in Matter No 208865 of 2019 (formerly Matter No 41027 of 2014) (this being the foundation for the 2015 Orders) will provide for the adjournment of that aspect of the Bobolases' Notice of Motion for a period of 21 days on the basis that, if the Council concludes that it wishes to apply for a further access order for the purposes of conducting a further clean-up of the property and/or wishes to apply for a general, ongoing access order to remedy future breaches of order (4) of the 2015 Orders, I will hold a short hearing (and I emphasise short hearing) to deal with the terms of such proposed orders.
16. The orders I make in this aspect of the Bobolases' Notice of Motion will provide for short form service of any such application on the members of the Bobolas family to enable any such application to be dealt with in a timely fashion in the interests of protection of public health.
17. The orders I make in this aspect of the Bobolases' Notice of Motion will also provide that, if the Council does not file and serve such an application within 21 days of the date of my orders in these proceedings in Matter No 208865 of 2019 (formerly Matter No 41027 of 2014), this remaining aspect of the Bobolas family's Notice of Motion in Class 4 will be dismissed.

Costs

1. It is appropriate that the issue of costs of the Class 4 Notice of Motion proceedings be reserved.

Orders

1. The orders of the Court in Matter No 208865 of 2019 (formerly Matter No 41027 of 2014) are: 1. The element of the Applicants' Notice of Motion providing foundation for the application in Matter No 208865 of 2019 (formerly Matter No 41027 of 2014) is adjourned until 8.30 am on Tuesday 3 December 2019; 2. If, by 4.30 pm on Wednesday 20 November 2019, the Respondent to the Notice of Motion (Waverley Council) files a further Notice of Motion and supporting affidavit seeking further access orders in these proceedings to undertake waste removal activities at 19 Boonara Avenue, Bondi in order to remedy any present or future breach of order (4) of the orders made by Sheahan J on 24 April 2015, such Notice of Motion is to be made returnable before Moore J at 8.30 am on Tuesday 3 December 2019 for a hearing of a maximum duration of one hour (60 minutes); 3. If a Notice of Motion pursuant to (2) is filed by Waverley Council, service of that Notice of Motion is to be effected on each of Mary Bobolas, Elena Bobolas and Liana Bobolas by: 1. affixing, by no later than 12.00 noon on Friday 22 November 2019, a copy of the further Notice of Motion and supporting affidavit in a clear soft plastic pocket to the outside of the double front gates of 19 Boonara Avenue, Bondi; and 2. posting by prepaid Express Post, addressed to each of Mary Bobolas, Elena Bobolas and Liana Bobolas at 19 Boonara Avenue, Bondi, a copy of the further Notice of Motion and supporting affidavit, with such posting to be lodged with Australia Post by no later than 12.00 noon on Friday 22 November 2019; and 1. If no further Notice of Motion is filed pursuant to (2) and served by Waverley Council as required by (3), that element of the Applicants' Notice of Motion relating to Matter No 208865 of 2019 (formerly Matter No 41027 of 2014) is dismissed and the exhibits will be returned; and 2. Costs are reserved.
2. In Matter No 50888 of 2018, the Court: 1. Declares that the 22A Orders issued by the Respondent on 22 November 2017 to the First, Second and Third Applicants were given full effect by the clean-up of 19 Boonara Avenue, Bondi (the property) commencing on 13 February 2019 and undertaken pursuant to orders made by Pain J on 14 September 2018 (the February 2019 clean-up) and that the February 2019 clean-up has exhausted the operative effect of that 22A Order; 2. Declares that the notices given by the Respondent to the First, Second and Third Applicants on 9 May and 1 July 2019 purportedly pursuant to the 22A Orders made on 22 November 2017 that the Respondent proposed to cause further waste removal activities to be undertaken on the property are invalid and of no effect; 3. Orders that the Respondent, its servants and agents are restrained from undertaking any waste removal activities on the property in purported reliance on the 22A Orders dated 22 November 2017 and issued to the First, Second and Third Applicants; 4. The exhibits are returned; and 5. Costs are reserved.

Annexure A 2015 Orders 1. Orders that the document styled "Short Minutes of Order" dated 15 April 2015 delivered to the Court by facsimile at 8:32am today by or on behalf of the Respondents be treated as a Notice of Motion by the Respondents seeking the orders set out therein. 2. Orders that the Respondents' motion be adjourned for hearing at 10am 24 April 2015 before Sheahan J. 3. Adjourns the proceedings to 10am 24 April 2015. 4. Reserves the costs of today. 5. Directs that notice of these orders be given to the Respondents by delivery to the Respondents of a letter from the Registrar of the Court setting out these orders, such delivery to be effected by placing the letter in a plastic envelope and affixing it to the front gate of 19 Boonara Avenue, Bondi Beach by 2pm today. 6. Directs the Registrar to request the Legal Aid Commission to provide the information referred to in s25(4)(l) of the Legal Aid Commission Act in respect of any legal aid application made by any of the Respondents in relation to these proceedings.

Amendments 15 November 2019 - Jurisdiction added. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 November 2019