Bobolas v Waverley Council

Orders sought

1. By Summons the Applicants seek the following orders: 1. An injunction prohibiting action proposed by Waverley Council - ie Council want to do "works" on the property 19 Boonara Avenue Bondi 2026 on Tuesday 1st June 2021. (Note also: This would be unsafe with COVID-19) 2. Time for compliance in the order is 28 days. The notice gives only 11 days for compliance (7 Business days). The time for us to do the work ourselves should therefore be minimum 28 days. (ie until, in this instance, time for compliance should end 17th June. minimum. No reasonable time has been given for compliance. 3. Backyard & smaller side boundary should be exempted as there is no waste in the backyard, & was no waste in the Backyard & smaller side Boundary at all relevant times. 4. Each party pay their own costs. 5. Protection of rights/property of L. BOBOLAS & E. BOBOLAS. 6. All Non-waste items are exempted. 7. Return & Earn scheme items can be exchanged for monetary value, & should be exempted to allow us the opportunity to continue to exchange them. 8. Previously exempted items should remain exempted should Council do any "works". 9. Section 200 Local Government Act (1993) prohibits Council entry onto the premises. 10. A reasonable time period in which to comply. 11. An order protecting items that are removed from the property in the event Council does "works". 12. The refrain part of the Council order is unperformable by the person the Council order was given to, as they suffer from a stress-related psychological problem, & should therefore be removed from the Council order. 13. We seek justice, equity & fairness & impartiality, & lack of bias & discrimination. 14. An order that service of the notice by Council was invalid &/or no service or incomplete or incorrect as it does not adhere to the specifications in the Council order.
2. The grounds which were relied upon to justify the making of these orders were also set out in the Summons at [1]-[17].
3. From their oral submissions and the grounds identified in the Summons, I summarise the foundation for the orders sought, as I understand them, as follows: 1. The Council has not given a reasonable period of time to comply with the Order. Twenty-eight days, (as a minimum), would be a reasonable amount of time. The 7 days given in the Notice is not a reasonable amount of time. If 28 days were given the Council would not be able to enter until after 17 June 2021 and the Council would have to give a further 7 days' notice of its intention to enter, which would allow the Applicants time to challenge the Council's right to enter; 2. The Council has no power to enter the Premises as they are residential premises and s 200 of the LG Act precludes entry to residential premises absent a search warrant; 3. Various issues relating to the drafting of the Order and the Notice relating to whether the Order requires the Council to remove and not dispose of items and whether the Notice provides sufficient details as to the steps proposed to be taken; 4. The Applicants would like to do the work themselves. Mrs Mary Bobolas suffers from a stress related psychological condition which is exacerbated by the Council's requirements. The Applicants are implementing a new system of dealing with the accumulated material working co-operatively with Mrs Mary Bobolas to identify from the material: 1. Return and earn items; 2. Items that can be relocated and stored offsite; 3. Items that can be removed from the Premises for disposal. This system is showing results and since the giving of the Notice the Applicants have achieved a significant reduction in the amount of material accumulated on the Premises. The Order, where it requires Mrs Mary Bobolas to "refrain" from accumulating waste could not have been achieved. The Council was setting her up for failure; 1. What is present on the Premises is not all waste. There are items such as recyclables for which income can be obtained from a "return and earn" scheme. There is a depot that accepts such recyclables at Rockdale and a machine at Bondi Junction. The Applicants participate in this scheme and the materials are separated and stored on the Premises awaiting transfer; and 2. The Council has in the past removed items that are not waste and has damaged the Premises whilst conducting works. The Applicants apprehend that the Council will remove material that is not the subject of the Order and will also fail to take care to ensure no damage is done to the Premises in the carrying out of the proposed work.

Issues relating to the requirements of the Orders and Notice (Grounds 1, 2, 9, 10 and 14

1. Grounds 1, 2, 9, 10 and 14 of the Summons all relate to issues pertaining to the validity of the Order and/or the Notice. I will deal with them together.
2. Dealing firstly with the issue of time. Section 137 of the LG Act provides: 137 Period for compliance with order (1) An order must specify a reasonable period within which the terms of the order are to be complied with, subject to this section. (2) An order may require immediate compliance with its terms in circumstances which the council believes constitute a serious risk to health or safety or an emergency.
3. In this case, the time period given in the Order for compliance with paragraph 1 was a 28 day period. That period expired and the Council exercised its power to carry out the work to comply with the terms of the Order in October 2020.
4. The Council now seeks to carry out work to bring the Premises into compliance with paragraphs 1 and 2 of the Order. The requirements which are now sought to be carried out relate to an ongoing requirement to refrain from keeping waste. This requirement is ongoing during the currency of the term of the Order, which has been fixed at 5 years in accordance with the provisions of s 128A of the LG Act. This is an obligation that does not have a fixed start or end date (apart from the expiration of the Order in 5 years). It is an ongoing obligation. The Order then provides that if either paragraph 1 or 2 of the Order is not met, the Council, after consideration, is required to give not less than 7 days' notice of its intention to carry out the work itself.
5. Having regard to the terms of the Order and the provisions of the LG Act there is no statutory requirement that a period in excess of 7 days is required to permit the Council to exercise its powers under s 678(1) of the LG Act. Therefore, I find no breach of the LG Act in the time period of the Notice given by Council to the Applicants of its intention to give effect to the terms of the Order. The Notice, as it relates to the period of time, was validly given.
6. As to the power of the Council to enter the Premises being precluded by operation of s 200 of the LG Act, this issue was raised by the Applicants in proceedings before the Court of Appeal and determined in proceedings Bobolas v Waverley Council (No 4) [2015] NSWCA 337. It was held at [47]: …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.
7. This submission as it related specifically to a Council exercising the power under s 678(1) was also addressed by Pain J in Bobolas (No 2) at [37]-[41] where her Honour found: 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.
8. As explained to the Applicants I am bound to apply the law as found by the Court of Appeal. The Applicants have unsuccessfully raised this issue in the past and there is no basis upon which I can decide the matter other than that as found in Bobolas (No 4). Further, to the extent that Pain J adds further consideration to this issue in Bobolas (No 2), I agree with the reasons of her Honour and adopt them here.
9. Accordingly, the provisions of s 200 of the LG Act do not operate to prevent or constrain the Council exercising the power conferred by s 678(1) of the LG Act.
10. It was contended that the terms of the Order required the Council in the Notice to set out "the steps it proposes to take" in exercising the power under s 678(1). It was contended that the Notice failed to provide such steps as it did not provide details of the process or pathway to achieving the end result proposed by the exercising of the power.
11. There is no statutory requirement relating to the outlining of steps to be taken by the Council if it exercises the power under s 678(1). What it is empowered to do is: 678 Failure to comply with order - carrying out of work by the council (1) If a person fails to comply with the terms of the 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.
12. The terms of the Order required the Council to: Non-Compliance with the Order In the event that you fail to comply with this Order, the Council will consider whether to take such steps as are necessary or convenient to give effect to the terms of this Order, including the Council (by its employees, contractors or agents) entering onto the Premises and carrying out the removal and/or disposal of waste from the Premises. If the Council decides to take such steps, it will give written notice of no less than seven (7) days to you of the steps it proposes to take, by placing that notice in an envelope in a clear plastic sleeve and attaching it to the front fence of the Premises and also by posting the notice by pre-paid registered post to you.
13. In this case the Notice described the steps in the following manner: ...to take all such steps as are necessary or convenient to give effect to the terms of the 22A Order, including the Council (by its employees, contractors or agents) entering onto the Premises and removing or disposing of waste from the Premises. ...will enter onto the Premises, without further notice, to give effect to the 22A Order and remove and/or dispose of waste from the Premises in accordance with the 22A Order.
14. The precision with which the "steps" the Council is proposing to take are to be detailed is to be ascertained from the terms of the Order and the circumstances of the case. The Order required, in essence, to limit the amount of material kept at the Premises. The circumstances are such that until the Council exercises the power under s 678(1) it is only able to ascertain at a very general level (from a visual inspection from points outside the boundaries of the Premises) the amount and the composition of the material accumulated at the Premises. It would be impossible for the Council to set out in any greater detail what the material comprised or the quantity of the material to be removed. Further, the three important steps being: 1. The proposal to enter upon the Premises; 2. The date upon which such entry is proposed; and 3. The proposal to remove and/or dispose of the material currently upon the Premises in breach of the Order as at the date of entry; has been made plain by the terms of the Notice. There is no requirement for further detail or description of the steps that the Council proposes to be taken that could reasonably be inferred from the terms of the Order or the circumstances of the case. Accordingly, I find that the terms of the Notice were sufficient to meet the obligation of notice as required by the Order.
15. It was also asserted that the Notice was not served in accordance with the requirements of the Order. The Order required that a Notice of the Council's intention to exercise the power under s 678(1) be given to Mrs Mary Bobolas in two ways: by registered post; and by affixing a copy of the Notice to the front fence of the Premises. There is no dispute that the Notice was affixed to the front fence or that the Applicants received the Notice. It is asserted that either the Council did not send the letter by registered post or that, if it was sent, it was not received by the Applicants.
16. The evidence of Mr Schilt was that he sent the Notice "by registered post, however, on 20 May 2021 it was returned to Council with the word "Refused" written on it". In cross examination Mr Schilt indicated that he was not aware as to whether the letter was sent by registered post or express post, but he indicated that the delivery was by a means that required an acknowledgement of receipt. He was unaware as to who wrote the word "Refused" on the letter, but in his view the return indicated that the letter had not been acknowledged by the addressee, so he could not say whether the addressee received the letter at all.
17. The requirement of the Order is that the letter be posted, not that it be received. For that reason, on the available evidence, I find that the letter was sent by a form of post that was sufficient to meet the requirements set out by the Order. If I be wrong in this respect, I would, in the exercise of my discretion, decline any relief based on this ground, as the Order is seeking to bring the proposed actions to Mrs Mary Bobolas' attention. To ensure that Notice is given, two means of notification are provided. On the evidence in this case I am satisfied that Mrs Mary Bobolas and the other occupants of the Premises were made aware of the Council's proposed actions by one of the means of notification provided for in the Order, and, therefore, the requirement of notification was adequately met.
18. For the reasons I have outlined, I dismiss grounds 1, 2, 9, 10 and 14 of the Summons.

Is there a requirement to remove only (and store) materials that have value? (Grounds 5, 6, 7 and 11)

1. It was firstly submitted that as the Order and the Notice indicated that the Council would remove and/or dispose of the material, the Council had to retain and not dispose of items that had some value (either monetary or intangible) rather than dispose of such items. There is nothing in the terms of the Order or of the Notice that would generate such a requirement. There is no relevant provision in s 124 of the LG Act or s 678 of that Act that obliges the Council to determine, firstly, whether the item has value, and if so, to store it and not dispose of such items. There being no obligation to do so, there is no power in the Court to require the Council to undertake such actions.
2. The purpose of the Notice and the period of time in such Notice is to give the Applicants some time to either remove the items of value (such as deposition as the return and earn facilities) or to store the inherently valuable items in a location other than in the yard of the Premises. If the Applicants do not undertake such actions before the Council enters upon the Premises to carry out the work, it cannot be expected that the Council will do so.
3. The use of "and/or" in the Notice and the Order does not alter this position. Whilst the Council has the capacity to exercise its discretion in this regard there is no power to compel the Council to remove and not dispose of items.
4. Therefore, any proposal to dispose of material or remove material (to the extent that this may infer some differentiation in treatment of the material) is not a requirement of the LG Act, the Order, or the Notice, such that the Court has any power to require Council to conduct itself in any particular manner once the material is collected from the Premises.
5. For those reasons, I dismiss grounds 5, 6, 7 and 11 of the Summons.

Anticipated breach (Grounds 3 and 8)

1. The Applicants submitted that there were areas of the Premises that did not have an accumulation of materials or if there was an accumulation the materials were of a class that had been agreed between them and the Council to be "exempt" from the terms of the Order. It was contended that the Council should be precluded from dealing with those parts of the Premises or those classes of materials. Whilst not directly identified in the Summons the Applicants in their oral submissions suggested that they were apprehensive that the Council would remove material not classed as waste and that the Council's past actions demonstrated a real risk that the actions of the Council would cause unreasonable damage to the Premises.
2. Ms Liana Bobolas sworn an affidavit on 2 June 2021 in which she deposed: 3. We do not want Waverley Council to attend in the yard to do alleged "works" as when they do, they cause damages, both to persons (being us) and to property - they have removed the front gate and instead of replacing it properly, they merely stood it up and used a rusted pole (metal) and some wire to prop it up - this was aided and abetted by police in this. They have knocked down the wooden barrier at the door that has an outdoor light attached to it and propped it diagonally on bricks. Last year, they tore down the storeroom and laundry and took items (personal) from it. They had class 1 and 2 orders to "secure" the storeroom and laundry but instead on February 9th they began to demolish it and remove and take the goods from there in. We verbally objected to there actions and Mr Schilt had to stop his instigated action. the storeroom and laundry had been previously damaged by the use of heavy earth moving machinery and by men with shovels (Waverley Council, or agents servants etc) - we complained about this, but they did not rectify it. In order to cover their actions Waverley Council issues a false order about the storeroom and laundry, which was unfulfillable - it was issued to be fulfilled in 24 hrs. It would have been impossible to demolish the storeroom and laundry and remove goods from it as the same time Waverley Council were conducting multiple "works" in the yard at the time. I was attempting to remove goods from the storeroom; I was dragged away by police, on behest of Waverley Council, with such force as to cause the lodgement of a thick piece of wood (approx 1Ocm- 12cm) inside my body. The new order was unwarranted, false, and contradicted the class 1 & 2 orders issued prior. Also, last year, potted plants, bricks and garden furniture which have always been exempted by the Court, were removed and/or destroyed - a tap in front yard was torn off and demolished, the tap head and attached pipe were removed in the trucks. Roof tiles from the storeroom/garage were removed and my mother assaulted by police, behest of Waverley Council when she wanted to keep them. The roof tiles were intact and in (mostly) excellent/very good condition - however Mr Schilt told the men to break them and take them -the rood tiles were in the main, removed whole by lnfinitus (agents and/or servants of the Council) - however, no sales proceeds came to us; neither from lnfinitus or Waverley Council. Furthermore - in 2020, Waverley Council was given orders by Pain J not to take personal effects and personal items of Elena and Liana Bobolas. However, this was breached multiple times and not followed. Waverley Council has chopped down, completely, fruit trees from the property, comprising: stand of banana trees, plum tree, lemon tree, citron tree, rose bushes, berry & cumquat trees & etc. "Work" is done by hand; and items placed into trucks, instead of a compacting truck done in order to run up expenses. Furthermore, lnfinitus on sells everything in the jobs they take - but no sale proceeds to us. They uprooted and/or destroyed and/or the ?? (driveway) - not fixed to this date and brought workers to allegedly put the damaged bricks back. But they had a lapsed licence and upon that coming to light upon questioning from us - they left, without fixing the driveway last year, they tore the metal door from the sink cabinet in the storeroom laundry and attempted to tear and pull the water pipes, from the walls. Virtually no personal items were recovered from the storeroom laundry. It is a fact that they have caused damages, each and every time they are on the property. We have no reason to conclude they would act otherwise and Mr Schilt's words "everything on the property is waste" confirms this. 4. There are items on the property that are not waste and not subject to the orders, but these items will be removed if they attend.
3. Section 672 of the LG Act defines a breach of the Act to include a threatened or apprehended breach. Section 674(1) of the LG Act provides: 674 Remedy or restraint of breaches of this Act - other persons (1) Any person may bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of this Act.
4. I have taken these submissions made by the Applicants to suggest that either by entering onto part of the Premises where there is no accumulation of material or to remove "exempt" material is an apprehended breach of the LG Act.
5. During the course of the hearing I raised with both parties what was meant by the term "exempt" material. This term was used by both the Applicants and Mr Schilt. Neither party was able to identify with any clarity what such items were, but I was able to ascertain from the Applicants and Mr Schilt that from time to time over the years and during the course of attendances by Council there had been negotiations as to whether certain identified items were to be left by Council on the Premises when exercising powers under s 678(1) of the LG Act. On the evidence, I am unable to identify whether these items were a constant class of items or specific items identified at a particular time. I am therefore unable, on the evidence, to be satisfied that there was an identified ascertainable class of items that could be said to be exempt from the operation of the Order.
6. That being said, the Council only has power pursuant to s 678(1) to enter upon the Premises if there is, at the time of entry, a failure to comply with the terms of an order. This much was accepted by Council. The consequence is that the enquiry in this case is not whether a particular item or items could be considered to be "waste" (however that term is to be defined), or exempt, but whether the terms of the Order has been met.
7. In this case, the power to issue the Order arose due to the circumstances provided for in s 124, namely: Orders requiring the preservation of healthy conditions Column 1 Column 2 Column 3 To do what? In what circumstances? To whom? 22A 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. The reasons for the giving of the order as stated in the Order included: (e) The waste on the Premises harbours, or is likely to harbour, insects and vermin. Insects (such has cockroaches and flies) and vermin (such as rats) can cause and spread germs and disease. As such, the waste on the Premises is causing or is likely to cause a threat to public health and is causing or is likely to cause a threat to the health of individuals who occupy the premises, any individual who enters on to the Premises, the individuals in residential premises near the Premises, and individuals who pass by the Premises on the adjacent public footpath. (f) The waste on the Premises is (or is in part) combustible and a fire hazard. The risk of a fire in the waste is a threat to the health of persons in and around the Premises, both from the fire itself and from smoke and fumes from burning waste. As such, the waste on the Premises is causing or is likely to cause a threat to public health and is causing or is likely to cause a threat to the health of the individuals who occupy the premises, any individuals who enters on to the Premises including emergency service workers, the individuals in residential premises near the Premises, and individuals who pass boy the Premises on the adjacent public footpath. (g) This Order is necessary and appropriate to ensure that the Premises are put in a condition that reduces or removes the threats to public health and to the health of individuals as described in paragraphs (e) and (f) above; and to ensure thereafter that waste causing those threats to health is not kept on the Premises.
2. Accordingly, a breach of the Order is not evidenced by the mere presence of an item that could be described as waste. As to construe the Order in such a manner would take it beyond the scope of the power to issue to the Order in the first instance. The relevant question is whether there is material being kept on the Premises, or whether the recipient of the Order has refrained from keeping waste on the Premises, which is causing or is likely to cause a threat to public health or the health of any individual. The present Order, as identified above, identifies the threat as relating to vermin and fire safety. If there are no materials on the Premises (as at the date upon which the Council seeks to enter the Premises) causing or likely to cause a threat to public health or the health of individuals, the Council has no power to enter and remove the material.
3. Accordingly, if certain nominated areas are "clear" of material, and by that I understand the Applicants to be saying that there is not an accumulation of material that poses an actual or likely threat to health, then the material is not the subject of the requirements of the Order and the Council cannot, under s 678(1) seek to remove it.
4. From the evidence in these proceedings as at the date of the giving of the Notice by the Council and continuing to the date of the hearing, there remains a significant accumulation of material on the Premises, including in the rear yard and the side passage. On my assessment of the accumulation of the material and on the evidence of Mr Schilt and the Applicants, I accept that at the date of the giving of the Notice, circumstances did exist that would warrant the Council exercising its powers under s 678(1). The material was densely placed across all outdoor areas of the Premises in a manner that impeded access, presented areas for the harbourage of vermin and a potential risk to the health of the Premises and adjoining properties.
5. However, due to the commencement of these proceedings and the undertaking given by the Council, the Council did not enter the Premises on 1 June 2021. The evidence of the Applicants discloses that since the giving of the Notice, they have achieved an improvement in the condition of the Premises. I am advised by the Applicants that the new system of sorting they have adopted is permitting their mother to take greater and speedier action in relation to the removal of the accumulated material. This improvement, shown by photographic evidence, is that there are at least some areas of the Premises at the date of the hearing that had been cleared of all material. However, the Premises are not yet in a state that the Order has been complied with. The Applicants accepted that more work was required to be done to bring the Premises into a state where it could be said that the requirements of the Order had been met. In this respect, they anticipated that they required some more time (at least until 17 June) to complete the work.
6. I recognise that the Applicants and the Council have a long history. I also recognise that in the exercise of its powers to carry out work itself the Council and the Applicants have disagreed on the extent of material removed and the causes of damage to the Premises whilst such work is being undertaken. Notwithstanding that history, I am not satisfied that there is sufficient evidence for me to find that there is a threat or apprehension that the Council will fail to comply with the policies of the LG Act.
7. Accordingly, I dismiss grounds 3 and 8 of the Summons.

Grounds 12 and 13

1. The remaining grounds deal with matters personal to the Applicants. Firstly, the Applicants contend that they have been discriminated against in the treatment by the Council in relation to the issuing of the Order and the manner in which they are provided with services. The jurisdiction of this Court is limited by statute. There is no jurisdiction conferred to determine the issues of discrimination generally. There was no particularisation of this asserted treatment that would raise for consideration any matter within the Court's jurisdiction. Accordingly, this ground must be dismissed.
2. The next contention was that as Mrs Mary Bobolas suffers from a psychological condition she has no control over her collection and accumulation of material on the Premises. Therefore, it was said, the order requiring her to refrain from accumulating the material on the Premises could never be met by her. In this respect the provisions of s 124 Order 22A, includes the capacity of the Council to order the owner of the Premises to refrain from certain activities. The fact that Mrs Mary Bobolas has a condition that compels her to act in a manner that contradicts this requirement of the LG Act and the Order does not prevent the Council from giving such an Order. These are not proceedings where the element of a person's intention is relevant to their liability under the legislative provisions. Whilst I sympathise with the Applicants in relation to the cause of the accumulation, the psychological condition of Mrs Mary Bobolas does not give rise to a legal basis on which to prevent the giving or the enforcement of the Order.
3. For those reasons, grounds 12 and 13 are dismissed.

Costs

1. The Applicants sought an order that each party pay its own costs of the proceedings. The Council wished to consider my reasons before making submissions on costs. It is appropriate in the circumstances that I reserve costs of the proceedings such that each party may consider this judgment before determining any question of costs.

Conclusion

1. The work done to date since the giving of the Notice is admirable. However, whilst the Order remains operative the Applicants cannot wait until the Council issues the Notice to take steps to comply with the Order. As no breach has been identified and no anticipated or threatened breach has been identified, there is no residual power in the Court (such as a general discretion) that would permit the Court to determine whether to give the Applicants more time to complete the work they have now commenced. However, in recognition of the work done the Council has undertaken to refrain from entering the Premises until after 16 June 2021. I hope, that notwithstanding the outcome of these proceedings, that the Applicants continue to remove the accumulated material such that the Council will have no basis in which to enter the Premises and carry out the works itself. However, I observe that if the Order remains outstanding, the Council has the capacity to exercise the s 678(1) power without further notice to the Applicants. They should be on notice that unless the necessary work is completed by the 16 June 2021, the Council expects that it will enter the Premises on 17 June 2021 to carry out the necessary work to comply with the terms of the Order.

Orders

1. The Court orders that: 1. The Summons filed on 27 May 2021 is dismissed; 2. The exhibits are returned; and 3. Costs are reserved.
2. The Court notes the undertaking of the Council that it will not enter the Premises for the purposes of giving effect to the order on or before 16 June 2021.

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 June 2021