Waverley Council v Bobolas

6Section 678 of the Local Government Act provides: 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. ... (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. ...

Procedural history of the proceedings 7The originating summons filed on 9 June 2013 was to be served by 26 June 2013, and was made returnable on 12 July 2013. 8At the first directions hearing on 12 July 2013 Sheahan J extended the return date of the summons to 9 August 2013 and granted the Council leave to file a notice of motion seeking substituted service, and to serve the respondents with the notice of motion by post and by securing a copy of it to the front gate of the premises. 9On 15 July 2013 the Council sent a letter to each respondent advising of the orders made 12 July 2013. 10On 12 July 2013 the second and third respondents filed a notice of motion seeking an order that the summons had not been served on the respondents. 11The Council's notice of motion seeking substituted service of the summons and any documents in the proceedings was filed on 19 July 2013 and made returnable on 26 July 2013. 12On 19 July 2013 the Council sent a letter to each respondent serving Council's notice of motion and affidavits in support. 13On 19 July 2013 the respondents were also served with a sealed clear soft plastic pocket containing the documents referred to in the said letter of 19 July 2013 and a copy of that letter. Service was effected by affixing the plastic pocket with cable ties to the front gate of the premises. 14At the hearing of both motions on 26 July 2013, on the second and third respondents' motion I declared that the originating process had not been served and I stood the Council's motion over to 9 August 2013 to allow the Council's process server to be cross examined as required by the second and third respondents: Waverley Council v Bobolas [2013] NSWLEC 119. 15On 9 August 2013 there was no appearance for the respondents. I continued to hear the Council's motion for substituted service ex parte. I ordered that service of the summons was to be effected by affixing the summons, the Council's motion, the affidavits in support and the Court's orders to the outside of the gates of the premises and by ordinary pre-paid post to each respondent, and that subsequent service may be effected by prepaid post: Waverley Council v Bobolas (No 2) [2013] NSWLEC 130. 16On 23 August 2013 Pain J ordered that the date for service of the summons be extended to 6 September 2013 and the return date be extended to 20 September 2013. 17On 4 September 2013 the Council sent a letter to each respondent by express post in accordance with the orders made on 9 and 23 August 2013. 18On 5 September 2013 the Council caused the respondents to be served with a sealed clear soft plastic pocket containing a copy of the letter of 4 September 2013 and copies of the summons, the Council's notice of motion, the affidavits in support of Michele Silver sworn 17 July 2013 and James Twigg sworn 18 July 2013, and the orders made on 9 and 23 August 2013. Service was effected by affixing with cable ties the plastic pocket to the front gate of the premises. 19On 20 September 2013 at the second directions hearing, orders were made for the conduct of the matter. 20On 23 September 2013, the Council filed its points of claim and an affidavit of Mr Schilt, a Council Senior Environmental Health Surveyor. 21On 23 September 2013, the Council sent a letter to each respondent by express post attaching the short minutes of order made on 20 September 2013. 22On 23 September 2013 the Council sent a letter to each respondent by express post attaching its points of claim and the affidavit of Mr Schilt. 23The proceedings were listed for a further directions hearing on 1 November 2013, when the timetable was extended to allow the respondents to file and serve evidence. 24On 1 November 2013, the Council sent a letter to each respondent by express post enclosing the short minutes of order made on 1 November 2013 and advising that the matter was relisted for 22 December 2013. 25On 22 November 2013, the second and third respondents appeared and the timetable was again extended to allow the respondents further time to file and serve evidence and the matter was relisted for 20 December 2013. Pain J recorded on the Court file that when the second and third respondents appeared on 22 November 2013 they alleged that they had not been served with the Council's summons, points of claim and affidavit of Mr Schilt. The Council's solicitor said they had been sent by pre-paid post in accordance with orders made on 9 August 2013. He made copies available to the second and third respondents at the bar table; but they declined to pick them up. 26On 20 December 2013 at a further directions hearing, the respondents did not appear and the hearing was fixed for 4 March 2014. 27On 20 December 2013, the Council sent a letter to each respondent by express post advising of the Court's orders allowing the respondents until 3 February 2014 to serve any points of defence and evidence and advising of the hearing date. 28On 26 February 2014, the Council sent a letter by express post to each respondent enclosing affidavits of service of 26 February 2014 and an affidavit of that date concerning an inspection by a Council officer. 29On 28 February 2014, the Council's chronology of events, list of documents, list of authorities and submissions were served on the respondents by affixing them in plastic pockets to the front gate of the premises. 30The respondents have not filed any points of defence or any evidence and, as I have said, they have not appeared at the hearing before me today.

Consideration 31In order to grant relief the Court needs to be satisfied that the s 124 orders were properly issued and served on the owner or occupier of the premises, that when the orders were made the waste was causing or likely to cause a threat to public health or the health of any individual, and that the waste continues to cause or is likely to cause a threat to public health or the health of any individual. I am satisfied as to these matters. 32As to the issue and service of the orders, their terms are clear and reasons were provided; a title search confirms that at all material times Mary Bobolas has been the owner; a process server and a neighbour attest to regularly seeing each of the respondents at the premises such as to establish that they were and are occupiers of the premises; and a licensed commercial agent attests to having served each of the respondents with the s 124 order directed to that respondent by affixing it to the front gate of the premises. 33As to the other matters, the evidence establishes that at the time the orders were issued and continuing to the present time a large amount of waste, including putrid and offensive smelling waste, had accumulated at the premises. The waste has not been removed from the premises and has further accumulated. The premises are within a residential neighbourhood with residences on either side and opposite the premises. Mr Schilt attended the premises on 27 and 28 June 2012, 24 January 2013, 18 July 2013 and 25 February 2014 and has observed that the waste and rubbish has increased significantly over this time, and is the worst that he has seen it since commencing employment with the Council in mid 2006. In the opinion of Mr Schilt, which I accept, at the time of the issue of the orders and continuing to the present time waste and rubbish at the premises is causing or is likely to cause a threat to the health of the occupants of the premises and neighbouring properties, is a potential public health risk generally, and is a potential fire risk both to the premises and the neighbouring properties. On 27 and 28 June 2013 Mr Schilt observed pooling water and smelt stagnant water containing a slurry of decaying vegetation and on both occasions smelt an unpleasant odour coming from the premises. Ms Silver, a neighbour, attests to the accumulation of rubbish and garbage and to having smelt a disgusting odour of rotting garbage coming from the premises, particularly in the hot summer months.

Orders 34The orders of the Court are as follows: (1)Pursuant to section 678(10) of the Local Government Act 1993 the applicant, Waverley Council, its servants and agents is ordered to execute the Council's functions under s 678 by carrying out work which was required to be carried out at the Premises at 19 Boonara Avenue, Bondi ("the Premises") under "Terms of the Orders" of the orders dated 5 December 2012 given to each of the respondents pursuant to s 124 of the Local Government Act 1993 ("the Works"), being removal of all accumulations of waste from the front and rear yards, the area between the house and side boundaries, the front verandah and side entrance of the house on the premises being work which each of the respondents was required to do but failed to do. (2)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 these orders and between reasonable hours of the day during weekdays, being 7am to 3pm on Monday 17 March 2014, Tuesday 18 March 2014, Wednesday 19 March 2014, Thursday 20 March 2014 and Friday 21 March 2014. (3)A structural engineer employed by the applicant 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 other than in the house or garage between 7am and 3pm on the dates specified above and any further dates pursuant to paragraph 11 below in order to assess the structural integrity of the garage and driveway and make any recommendations to the applicant, its servants and agents as to the carrying out of these orders in a safe and effective manner. (4)The applicant its servants and agents are permitted during the clean-up works, if in their opinion it is prudent to do so, to disconnect the electricity or other utility services to the Premises. Where such a disconnection has occurred it must be reconnected at the conclusion of the day's work. (5)The applicant its servants and agents are permitted during the clean-up works, to forcefully unlock and remove any gates on the premises including the gates located at the side boundaries of the premises and the front of the premises in order to gain access to the front and rear yards, the areas between the house and side boundaries, the front verandah and the side entrance of the house on the Premises. Any locks or gates removed shall be replaced by the Council so as to restore the locks and gates to the condition prior to removal by Council or its servants and agents. (6)Provided a sealed copy of these orders are served on the respondents by affixing the Orders in a sealed clear soft plastic pocket to the outside of the double front gates of the Premises 3 days before the works commence, the works may commence on the Premises on 17 March 2014. (7)The respondents must remove from the front and back yard, the side of the house, front verandah and entry recess of the premises any object of value which they do not wish to be removed by the applicant, its servants and agents by 7am on the day when the works commence. (8)The respondents, their servants and agents must abstain from doing any act which might interfere with or impede the entry by the applicant, its servants and agents onto the premises and then remaining on the premises pursuant to these orders and which might interfere with and impede the applicant, its servants and agents in complying with these orders. The respondents, their servants and agents must stay a safe distance of at least 10 metres from any operating machinery and trucks on the site. (9)All objects located anywhere outside the dwelling house at the Premises at 7am on the day when the works commence will be deemed to be waste and the applicant, its servants and agents are authorised to remove same. (10)The applicant its servants and agents may cut vegetation at the Premises if that is reasonably required to facilitate the clean-up works. (11)Any motor vehicle (registered or otherwise) which is parked in the driveway in front of the premises or on the road in front of the driveway and which impedes or poses a danger to the clean-up works may be removed by an appropriate towing company a sufficient distance from the premises to allow the clean-up works to proceed in an efficient and safe manner. (12)The applicant has liberty to apply on 24 hours' notice for the purpose of extending the time to clean up the property should that be required. (13)The respondents are to pay the applicant's costs of the proceedings. 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: 07 March 2014