Bobolas v Waverley Council

Ex parte hearing sought by Council

1. The hearing of these judicial review proceedings challenging the Order was ordered by me on 31 July 2020 to commence on 31 August and 1 September 2020, earlier than the dates first allocated in October 2020, in Bobolas v Waverley Council [2020] NSWLEC 103 (Bobolas No 1). This was based on the public health concerns of the Council's public health officer Mr Schilt identified in affidavits dated 4 June 2020 and 17 July 2020. As identified in the affidavit of Mr Ede sworn 31 August 2020 filed in court with leave this morning, the Applicants applied for a stay of those hearing dates yesterday in the Court of Appeal. That application was heard at 10.15 am yesterday morning by MacFarlan JA in the Court of Appeal. His Honour dismissed the application, giving reasons in Bobolas v Waverley Council [2020] NSWCA 201. Mr Ede's affidavit identifies that all the parties appeared by telephone or audiovisual link in the Court of Appeal proceedings.
2. For completeness I note that the Council attended court yesterday at 10 am and I stood the matter over to the second hearing day allocated being today at 10 am, having been told yesterday by the Registry that someone on behalf of the Applicants had telephoned to say they were seeking a stay in the Court of Appeal.
3. At 9.40 am this morning, my Associate was informed by the Registry that someone had called to say the Applicants were having coronavirus tests today and would not be attending. At 10.01 am this morning Elena Bobolas left a telephone message on my Associate's telephone voicemail. A typewritten note of that message was made by my Associate and provided to the Council which appeared today for the adjourned substantive hearing. That note became Exhibit 1 and was relied on in the application for an ex parte hearing today made by the Council. It states as follows: Message received from Ms Bobolas at 10.01am 1 September: • Yesterday they took their mother to the Sydney Eye Hospital and they have now developed COVID-19 symptoms • They phoned the National COVID line and were advised to get tested and to self isolate. • They are having the test done today at the first available time. • They have no other access to the Court either by telephone or electronically • They were going to rely today on the evidence that they gave as part of the Council's motion on the last occasion before the Court as well as the photographs • They were also going to ask the Court to rely on further evidence today but now they are unable to get this to the Court. • They are seeking to adjourn for 1 week whilst they await their test results.
4. The Council relied on three affidavits of Mr Schilt in which he attests to his opinion on the amount of waste located on the premises and attaches photographs identifying the nature and volume of waste present. Two were before me when Bobolas No 1 was determined. A further affidavit sworn 27 August 2020 by Mr Schilt attests to his latest inspection of the Property and attaches photographs. Mr Schilt states in pars 6, 7 and 8 that from his observations on 25 and 26 August 2020 he continues to be of the opinion that the Property poses a public health risk as described in his two earlier affidavits, the amount of waste at the front of the Property is at least the same as seen on previous inspections identified in his affidavit of 17 July 2020 and the amount of waste in the rear yard of the Property has marginally reduced in the last six months but continues to pose a health risk.
5. An email dated 31 August 2020 from Mr Schilt to Mr Webber, Council's solicitor, attached photographs of the front of the premises (Exhibit 2).
6. The bundle of tendered photographs marked Exhibit 1, referred to in [7] of Bobolas No 1, was tendered as Exhibit 3 by the Council in this substantive hearing. The photographs show large amounts of material at several locations on the Property.
7. In support of its application for an ex parte hearing, the Council submitted that the Applicants were well aware that the hearing was today, given Bobolas No 1 dated 31 July 2020 and their actions in the Court of Appeal yesterday. The Applicants appeared by telephone in the Court of Appeal yesterday, yet according to Exhibit 1 they cannot do so today. No excuse for why they cannot attend by telephone is provided by them. Having a COVID test is not a sufficient excuse when a telephone hearing can be accommodated. The underlying purpose of the Order is the protection of public health, and the reason why earlier hearing dates were ordered. The evidence of Mr Schilt continues to demonstrate that there is a significant public health risk posed by the state of the Property.
8. No proper basis for an adjournment of one week has been provided by the Applicants. The application for adjournment was made very late, at 10.01 am this morning.
9. There is no merit in the various grounds in the summons filed.

Determination - matter to proceed ex parte

1. For the reasons given by the Council I consider the matter should proceed ex parte mindful of the requirements in the Civil Procedure Act 2005 (NSW) for the just, quick and cheap resolution of matters before the Court. I accept all the reasons identified by the Council, particularly emphasising the public health issues underlying the Order issued on 24 January 2020 and in light of Mr Schilt's affidavit evidence, including his latest affidavit sworn on 27 August 2020, of the state of the Property. Additionally, the absence of any explanation of why telephone attendance today was not possible when it occurred yesterday in the Court of Appeal is significant. I consider below the various grounds identified in the Applicants' summons and find them to lack merit, another reason why this matter should proceed ex parte.
2. I also note there are no hearing dates available before a judge in one week's time so that the adjournment period sought is not able to be accommodated by the Court on such short notice. Additionally, had the Applicants provided a telephone number I would have told them of my decision to proceed ex parte and provided the opportunity for them to attend by that means. As no telephone number is available to the Court I could not do so.

Local Government Act 1993

1. Relevant sections of the Local Government Act 1993 (NSW) (LG Act) are: Chapter 7 What are the regulatory functions of councils? Part 2 Orders Division 1 124 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. A person who fails to comply with an order is guilty of an offence - see sec 628 Table Orders Orders requiring or prohibiting the doing of things to or on premises … Division 3 Orders generally … 146 Notice in respect of land or building owned or occupied by more than one person (1) If land, including land on which a building is erected, is owned or occupied by more than one person - (a) an order in respect of the land or building is not invalid merely because it was not given to all of those owners or occupiers, and (b) any of those owners or occupiers may comply with such an order without affecting the liability of the other owners or occupiers to pay for or contribute towards the cost of complying with the order. (2) Nothing in this Division affects the right of an owner or occupier to recover from any other person all or any of the expenses incurred by the owner or occupier in complying with such an order. … 148 Occupier of land may be required to permit owner to carry out work (1) The council may order the occupier of any land to permit the owner of the land to carry out such work on the land as is specified in the order (being work that is, in the council's opinion, necessary to enable the requirements of this Act or the regulations, or of any order under Division 1, to be complied with). (2) An occupier of land on whom such an order is served must, within 2 days after the order is served, permit the owner to carry out the work specified in the order. (3) The owner of the land is not guilty of an offence arising from his or her failure to comply with the requirements of this Act or the regulations, or of any order under Division 1, if, while an order under this section is in force, the occupier of the land refuses to permit the owner to carry out the work specified in the order. (4) Subsection (3) applies only if the owner of the land satisfies the Court that the owner has, in good faith, tried to comply with the requirements concerned. … Chapter 7 What are the regulatory functions of councils? … Part 5 Appeals Division 1 Approvals and orders … 180 Appeals concerning orders (1) A person on whom an order is served may appeal against the order to the Land and Environment Court. (2) (Repealed) (3) The appeal must be made within 28 days after the service of the order on the person or, if an order is given under section 141, within 28 days after the service of the order given under section 141 on the person. The person may make an appeal within the later period whether or not the person has made an appeal within the earlier period. (4) On hearing an appeal, the Court may - (a) revoke the order, or (b) modify the order, or (c) substitute for the order any other order that the council could have made, or (d) find that the order is sufficiently complied with, or (e) make such order with respect to compliance with the order as the Court thinks fit, or (f) make any other order with respect to the order as the Court thinks fit. (5) This section does not apply in relation to order No 22A in the Table to section 124. … Chapter 8 What ancillary functions does a council have? … Part 2 Entry on to land and other powers … 200 In what circumstances can entry be made to a residence? The powers of entry and inspection conferred by this Part are not exercisable in relation to that part of any premises being used for residential purposes except - (a) with the permission of the occupier of that part of the premises, or (b) if entry is necessary for the purpose of inspecting work being carried out under an approval, or (c) under the authority conferred by a search warrant. … Chapter 17 Enforcement Part 1 General Division 1 Legal proceedings … 678 Failure to comply with order - carrying out of work by the council (1) If a person fails to comply with the terms of an order given to the person under Part 2 of Chapter 7, the council may 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. (2) If the council gives effect to an order by demolishing a building, the council - (a) may remove any materials concerned, and (b) may sell the materials, unless the expenses of the council in giving effect to the terms of the order are paid to it within 14 days after removal of the materials. (3) If the proceeds of such a sale exceed the expenses incurred by the council in relation to the demolition and the sale, the council - (a) may deduct out of the proceeds of the sale an amount equal to those expenses, and (b) must pay the surplus to the owner on demand. (4) If the proceeds of sale do not exceed those expenses, the council - (a) may retain the proceeds, and (b) may recover the deficiency (if any) together with its costs of recovery from the owner as a debt. (5) Materials removed that are not saleable may be destroyed or otherwise disposed of. (6) Any expenses incurred by the council under this section (less the proceeds, if any, of any sale under this section) together with all its associated costs may be recovered by the council in any court of competent jurisdiction as a debt due to the council by the person concerned. (7) Nothing in subsection (3), (4) or (6) affects the owner's right to recover any amount from any lessee or other person liable for the expenses of repairs. (8) A reference in subsection (4) or (6) to costs is a reference to costs incurred by the council in seeking to recover the deficiency or expenses otherwise than by proceedings in a court, but nothing in this section prevents the council from receiving costs as between party and party in respect of those proceedings. (9) A council may exercise its functions under this section irrespective of whether the person concerned has been prosecuted for an offence under section 628. (10) In any proceedings before the Land and Environment Court that are brought by a council against a person as a result of the person's failure to comply with an order under Part 2 of Chapter 7, the Court may, at any stage of the proceedings, order the council to exercise the council's functions under this section. Having made such an order, the Court may continue to hear and determine the proceedings or may dismiss the proceedings.

Applicants' evidence

1. As identified in Exhibit 1 bullet point five, the intention of the Applicants was to rely on the evidence at the Council's notice of motion hearing on 29 and 30 July 2020. I have had regard to the summary of that at [5] and [6] of Bobolas No 1. The bundle of tendered photographs marked Exhibit 1, referred to in [7], was tendered as Exhibit 3 by the Council in this substantive hearing.

Council submissions and Court findings

1. The Council submitted that the Applicants have not complied with any timetable to file evidence and have not supported their case with any submissions, also required to be provided by the court ordered timetable for preparation of their case. It could be dismissed summarily for this reason alone. While there is merit in these submissions I will consider the individual grounds of review. Many are not relevant to judicial review proceedings the grounds of which must be directed to the legal validity of the Order. I am not able to undertake a merit review of the Order but a number of grounds essentially seek to do that.
2. The Council's submissions helpfully grouped related grounds together.

Challenge to validity of the Order (Grounds 4, 12, 13, 14)

Ground 4

1. Ground 4 of the summons asserts that the Order should have been addressed to Mary Bobolas, Liana Bobolas and Elena Bobolas rather than simply Mary Bobolas, as both Liana and Elena Bobolas have "items on the property". The ground refers to the decision in the "Vorhauer case", which is assumed to be Justice Pepper's decision in Armidale Dumaresq Council v Vorhauer (No 3) [2014] NSWLEC 50.
2. No evidence has been filed as to the "items" referred to in Ground 4 of the summons, including the nature and location of those items.
3. The Order requires "'waste" to be removed from the Property.
4. Mary Bobolas is the registered proprietor of the Property (Affidavit Schilt 4 June par 7, Annexure A).
5. Section 124 of the LG Act provides that a council may order a person to do or 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 Order at No 22A of the table provides: Colum 1 Colum 2 Column 3 22A To do what? In what circumstances? To whom? To remove or dispose of waste that is on any residential premises or to refrain from keeping waste on those premises The waste is causing or is likely to cause a threat to public health or the health of any individual Owner or occupier of the premises

1. Consistent with and as authorised by s 124 of the LG Act, the Order was issued to Mary Bobolas as owner of the Property.
2. The Order requires the removal of waste from the Property. If there are non-waste items of personal property or any personal effects of Liana Bobolas or Elena Bobolas, the Order does not require or authorise the removal of those items.
3. The Order was served on the owner of the Property, Mary Bobolas, pursuant to the power in s 124 of the LG Act. The Council decided to issue and serve the Order on the owner of the Property, Mary Bobolas, as it was entitled to do.
4. The Council's discretion to elect whether to serve a No 22A Order on an owner, occupier or both is supported by s 146 of the LG Act.
5. The Court would also note that s 148 of the LG Act further provides a mechanism for occupiers to provide access to an owner to carry out works the subject of an order.
6. The Court would be satisfied that the Order was served on Mary Bobolas as owner of the Property, in accordance with the table to s 124 of the LG Act. There is no basis in any evidence for a conclusion that the Council intends, or has threatened to, remove items that are not waste from the Property in the course of taking steps to give effect to the terms of the Order.

Ground 12

1. The Order meets the requirements of Ch 7, Pt 2 of the LG Act. Division 2 does not apply to a No 22A Order. The structure of the Order is sound and it is valid.

Ground 13

1. Section 124 of the LG Act does not restrict the area in which a No 22A Order may be issued, save to say it relates only to "residential premises". The Property comprises the residential premises. Mr Schilt's affidavit of 4 June 2020 disclosed that he undertook inspections of the Property, including the rear yard (at pars 11-14) and formed the view at pars 16-17 that the waste located on the Property, including the rear yard, met the circumstances prescribed in Column 2 to the table that "the waste is causing or is likely to cause a threat to public health or the health of any individual". In those circumstances, the Order validly applies to the rear yard. The Applicants have not filed any evidence to discharge their evidential onus to prove that the circumstances in Column 2 at No 22A of the table existed at the relevant time. The Court would accept the evidence of Mr Schilt.

Ground 14

1. There is no right of merit review under the LG Act for this kind of order, as specified in s 180(5). The reference in the ground to a second reading speech cannot override the clear text of the LG Act.
2. For the reasons given by the Council Grounds 4, 12, 13 and 14 cannot succeed.

Grounds relating to injunction to restrain Council entering onto Property

Ground 11 asserts s 200 prevents entry of the Council

1. In Bobolas v Waverley Council (No 4) [2015] NSWCA 337 (Bobolas No 4) the Court of Appeal considered the validity of an earlier order pursuant to s 124 of the LG Act served on the Applicants.
2. In Bobolas No 4, Leeming JA, with Basten JA and Tobias JA agreeing, considered the relationship between ss 678 and 200 of the LG Act. In those proceedings, the Court was assisted by submissions of an amicus who declined to make positive submissions on whether s 200 of the LG Act qualified the right of entry that was conferred by or pursuant to s 678 or orders made pursuant to s 678. The Court instead heard oral submissions from Elena Bobolas and Liana Bobolas on the issue.
3. Leeming JA confirmed the relationship between ss 200 and 678 of the LG Act at [45]-[48]: 45 What I have already said exhausts the positive submissions advanced in writing and supplemented orally by the amicus. I turn to the oral submissions made by Ms Elena and Ms Liana Bobolas. In support of what was put in ground 52, the Court was taken to s 200 of the Local Government Act, which is in the following terms: The powers of entry and inspection conferred by this Part are not exercisable in relation to that part of any premises being used for residential purposes except: (a) with the permission of the occupier of that part of the premises, or (b) if entry is necessary for the purpose of inspecting work being carried out under an approval, or (c) under the authority conferred by a search warrant. 46. It was said on behalf of the appellants that s 200 qualified the right of entry that was conferred either by s 678 or orders made pursuant to s 678. They relied in particular upon the note following s 678(10) which is in the following terms: Note. Section 193 requires the council to give the owner or occupier of premises written notice before a person authorised to enter premises under Part 2 of Chapter 8 of the Act does so. 47. There are at least two answers to this submission. The first is that the note does not render the power conferred by or pursuant to s 678 subject to s 200. Section 200 in its terms is confined to powers of entry and inspection "conferred by this Part". The powers exercised by Council pursuant to an order made pursuant to s 678 do not fall within that description. 48. In any event, as was pointed out during the course of oral argument, this is a question of law which has already been raised and decided adversely to the appellants by this Court: Bobolas v Waverley Council [2014] NSWCA 131 at [37]: Finally, the applicants argued [before Ward JA] that the orders made by Biscoe J could not authorise the Council to enter their land in the absence of their permission, either as owner or occupiers. They relied upon s 200 in Part 2 of Chapter 8 of the Act. Her Honour did not consider this argument to have merit because that provision is concerned with the exercise by a Council of the power of entry conferred by s 191, whereas the question raised by the applicants was concerned with the width of the power of the Land and Environment Court to make an order under s 678(10). By that provision the Court may order the Council to exercise its function under s 678(1) which in this case was to carry out the work required by its earlier s 124 orders. The power conferred by s 678(10) undoubtedly includes ordering the carrying out of work on premises notwithstanding that the owners or occupiers may not have consented to the work or to anyone entering the premises. Such an order could not, of course, be made without joining those whose rights or interests would be directly affected by it, including, as in this case, the owner and any occupiers so affected: News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 at 524-526 (per curiam); John Alexander's Clubs Pty Ltd v White City Tennis Club Ltd [2010] HCA 19; 241 CLR 1 at [132]-[133] (per curiam). See also the discussion in Ross v Lane Cove Council [2014] NSWCA 50 at [51]-[63] (per Leeming JA).
4. It is clear and well settled that the power of entry conferred on a council pursuant to s 678 of the LG Act is not qualified by s 200. Section 200 deals with the rights of entry and inspection for the purposes set out in Ch 8, Pt 2 of the LG Act. That Part is separate and distinct to the power conferred by s 678 which specifically relates to orders issued under s 124 and also confers a power on the Court in compliance proceedings to order a council to enter and carry out works. The Council does not rely upon s 678(10) for its power to enter the Property and carry out the works as that provision only applies where a council has brought proceedings to the Land and Environment Court of NSW asserting a failure to comply with an order. The Council did not commence such proceedings and instead identifies its authority to enter the Property pursuant to s 678(1), consistent with the observations of Leeming JA at [47] of Bobolas No 4.
5. The Court would be satisfied that the Council is entitled to enter the Property and carry out the works required by the Order in accordance with s 678(1) of the LG Act. No order of the Court is necessary in that respect. But the existence of lawful authority to enter the Property to give effect to the Order is an answer to the Applicants' claim for an injunction and other relief. I agree with these submissions supported as they are by Court of Appeal authority.
6. Ground 11 is not successful.

Grounds seeking exercise of the Court's discretion to extend time for compliance (Grounds 1, 2, 3, 5 ,6, 7, 8, 9, 10,15)

1. As the Council identified, these numerous grounds (Grounds 1, 2, 3, 5, 6, 7, 8, 9, 10, 15) broadly seek the exercise of the Court's discretion to prevent the Council enforcing the Order and allowing further time to undertake the works required by the Order.
2. Given that none of the other grounds of review have been successful and the Order is legally valid, there is no basis on which to exercise any discretion to grant this kind of relief. As identified already these are judicial review proceedings not a merit appeal.
3. Had there been any basis to exercise my discretion I would not do so given the evidence of Mr Schilt concerning the state of the Property, the Order required compliance by 26 February 2020 and it is now some six months later. The Council will give appropriate notice of intention to enter the Property and will take any necessary precautions required because of the COVID-19 virus as a responsible regulatory authority.
4. The Applicants' summons is dismissed. As the Council has been successful in the proceedings, and there is no disentitling conduct on its part, I consider its costs of these proceedings should be paid by the Applicants and will so order.

Orders 1. The summons dated 23 March 2020 is dismissed. 2. The Applicants must pay the Respondent's costs of the proceedings. 3. The exhibits are returned.

Amendments 04 September 2020 - Typographical - at [6] Macfarlan JA 04 September 2020 - Typographical error - cover page - hearing dates 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: 04 September 2020