The Applicants commenced Class 2 proceedings yesterday 13 October 2020 challenging an emergency order issued by Waverley Council (the Council) pursuant to No 21 in the Table in s 124 of the Local Government Act 1993 (NSW) (LG Act) dated 12 October 2020 (No 21 Order). The No 21 Order concerns premises in Boonara Avenue Bondi (the Premises). The order requires that the owner of the Premises:
1. Remove in an appropriately safe manner the waste, refuse, debris and building material including fibrous cement sheet cladding that has resulted from the collapse of the old laundry in the south western corner of the rear of the dwelling so as to ensure the safety of the occupiers of the premises and the public including neighbouring properties no later than 24 hours after receiving this order.
Reasons for the No 21 Order include that the old laundry on the south west corner of the rear of the dwelling at the Premises has collapsed and may contain asbestos. The collapse of asbestos sheeting has the potential to cause the dispersal of asbestos fibres, endangering the occupants and surrounding residents. The Council considers the Premises are not in a safe and healthy condition. The emergency No 21 Order gives the Applicants 24 hours to comply.
Bobolas v Waverley Council [2020] NSWLEC 144 | Case summary | Zoe
By email to the court registry this morning an urgent injunction application to restrain the Council from demolishing the laundry structure and/or removing and disposing of items from within it is sought and has been heard by me as duty judge.
It is necessary to observe that an order issued under No 22A of the Table in s 124 of the LG Act (No 22A Order) is in force and action to enforce that has been taken by the Council following Bobolas v Waverley Council (No 2) [2020] NSWLEC 127 in which the Applicants' application for judicial review of that No 22A Order was dismissed. The No 22A Order provides for the removal of waste items from the Premises.
Following Bobolas v Waverley Council (No 2) [2019] NSWLEC 157 an emergency development control order under s 9.34 and Sch 5 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) is also in effect (Order 5) which requires that the owner of the Premises:
1. Engage a suitably qualified structural engineer to provide engineering specifications of the works necessary to stabilise and make safe the enclosed verandah and rear walls of the dwelling at the Premises for approval by Council
2. Upon approval of the engineering specifications by Council, provide Council with confirmation in writing of the engagement of a suitably qualified structural engineer to oversee the carrying out of the Approved Works and that such works are able to commence on site.
3. Provide Council with certification, from a suitably qualified structural engineer, that the Approved Works have been completed and the rear of the dwelling on the Premises does not pose a threat to the occupiers of the Premises or the public.
The Council submitted that there was a need for Order 5 to be complied with in relation to the stability of the rear verandah structure at the Premises.
I will not resolve in this judgment who is a proper party. I observe the appeal has been commenced by three members of the Bobolas family. I note that the No 21 Order was addressed to Mary Bobolas, owner of the Premises. Appeal rights are provided under s 180 of LG Act which states that a person on whom an order is served may appeal against the order. Elena Bobolas appeared for the Bobolas family. Liana Bobolas also addressed the Court.
The Applicants submitted that the Council's emergency No 21 Order was unreasonable, given without notice and made without authority. In coming onto the Premises to remove the structure, the Council breached ss 193, 194 and 200 of the LG Act. The work to remove the structure commenced illegally on 9 October 2020, before the No 21 Order was given.
The No 21 Order refers to the structure as the "old laundry". In Order 5 that was before Moore J in Bobolas v Waverley Council (No 2) [2019] NSWLEC 157, the structure was referred to as an "enclosed verandah". Those two structures are the same thing. Order 5 only referred to securing the enclosed verandah. If, as the Council submitted, the structure has already been removed in works undertaken today, the Council should not need to return to the Premises to do any further works as there is nothing left to secure. Mr Schilt has said he will return to the Premises tomorrow to remove more items.
Personal items remain on the Premises which should not be removed by the Council as they are not waste. These include pots, bricks, garden benches, tables, chairs, a clothesline, garden umbrellas and roof tiles. It is also unclear what the Council intends to do with items that were previously within the old laundry structure and items that have been placed on a concrete slab which used to have a garage on it. I note that the Council states that it will not be removing further items from the laundry area.
The Applicants submitted that they have a right to be heard regarding orders that affect them and a right to the peaceful enjoyment of their land. They are concerned by the Council's use of police at the Premises during the clean-up and related works. They sought to have their notice of motion heard instanter. After telephoning the Court at 8:45 am, the notice of motion was not heard until 1:00 pm, after the work removing the structure had been completed. This was against the interests of justice and showed bias and prejudice against them. They assert there is no asbestos in the structure.
I note that the Council was not required to give notice of intending to do the work pursuant to the No 21 Order as ss 193, 194 and 200 of the LG Act do not apply to these kinds of orders as they are provided for by a different part of the LG Act. This issue has been the subject of Court of Appeal decisions concerning the same parties and is settled, in my view (see Bobolas v Waverley Council (No 4) [2015] NSWCA 337 at [45]-[48] per Leeming JA).
The Council, through its counsel Ms Reid, submitted that work necessary for removal of a collapsed structure has been done in that part of the rear structure known as the laundry and no further work to remove the structure is required. The Council is prepared to give an undertaking that no further work be done on this area to the Court today. Such an undertaking to the Court has the same effect as a court order.
The principles for determining whether an urgent interlocutory injunction should be issued are as stated in Shoalhaven City Council v Bridgewater Investments Pty Ltd [2010] NSWLEC 103 at [4] and [5]. I should consider whether there is a serious question to be tried and where the balance of convenience lies.
There is a dispute about whether the laundry is separate from the rear enclosed verandah and rear wall the subject of Order 5. The Applicants assert that there is only one structure at the rear of the house. It is clear from the different orders before me, Order 5 and the No 21 Order issued under s 124, that the Council is treating the structure at the rear of the Premises as two separate areas, which it is clearly able to do, contrary to assertions from the Applicants that they should be treated as one structure only.
I do not consider that the removal of items is relevant to the emergency No 21 Order before me today. The existing No 22A Order is relevant to that issue. I will not make any order in relation to preventing the removal of items which are otherwise the subject of the No 22A Order.
Given that the Council has offered the undertaking, it is strictly unnecessary to consider the matter further. That certainly answers the balance of convenience consideration. Given that two orders, one under the LG Act and the other under the EPA Act are extant and should be given effect by the Council, it is important that the Court not make any order in these proceedings which affects what can already be done lawfully by the Council. The interlocutory order sought to restrain the Council from removing items arguably does that. The further matters raised by the Applicants are more appropriately heard at the merits appeal hearing in these Class 2 proceedings. No serious question to be tried is otherwise identifiable from the Applicants' submission, taking their assertions of fact at face value as I must given the urgency of this matter, to suggest another order ought be made now.
While reference was made to the decision of Schmidt J in the Court of Appeal in Bobolas v Waverley Council [2014] NSWCA 66, each case must be determined on its own facts and that decision can provide little assistance.
I also observe that while the Applicants say they telephoned the Court early today requesting an urgent ex parte injunction, their email to the court registry outlining what relief was sought and why was not sent until 10.30 am with no indication that the Council had been informed of their application or the Class 2 proceedings served. In an email to the court registry at 11.20 am the Applicants advised they had served the Class 2 application on the Council this morning but did not refer to the urgent injunction application they sought to have heard today. Given the important public health considerations at stake in light of the No 21 Order it was clearly important that the Council participate as a relevant party. The matter has been dealt with as much expedition as possible in the circumstances enabling participation of all affected parties.
The Court accepts that the Council undertakes that it will not remove any further components of the laundry at the rear of the dwelling house on the Premises.
The Council seeks its costs of this application. As these are Class 2 proceedings in which parties generally pay their own costs and the Council has given an undertaking, the preferable costs order at this stage is that costs are reserved.
This concludes the Applicants' notice of motion.
The Court notes the Council undertakes that it will not remove any further components of the laundry at the rear of the dwelling house on the Premises at Boonara Avenue Bondi. Costs are reserved.
[3]
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Decision last updated: 06 November 2020