Waverley Council v Bobolas & Ors

KEY ISSUES: Civil Enforcement :- application to restrain Council from complying with Court orders - application to set aside or vary Court orders

LEGISLATION CITED: Local Government Act 1993 s 200, s 678

APPLICANT Mr M Staunton (solicitor) SOLICITORS LEGAL REPRESENTATIVES: Staunton Beattie

RESPONDENTS Ms L, M and E Bobolas (in person)

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Jagot J: 1 This is a notice of motion filed by the respondents with respect to certain orders that I made on an ex parte basis on 15 December 2006. In terms, the notice of motion says that it seeks an emergency injunction against the Council from carrying out any part of the orders made by the Court on 15 December 2006 pending the determination of an appeal lodged by the respondents in the Supreme Court of New South Wales. The notice of motion also refers to the position that the Council had not given any indication of what machinery it intended to use even after requests and no notice of the intended date of 29 January 2007 or start time, finish time, length, number of works, et cetera.

2 As I indicated at the outset of the hearing of this notice of motion (which has been brought on an urgent basis by the respondents, in circumstances to which I shall refer shortly) it seemed to me that the notice of motion should be treated as one seeking to do one or more of three things. First, to set aside the orders that I made on 15 December 2006 altogether. Secondly, to vary the orders that I made on 15 December 2006 in various ways. Thirdly, to stay the orders that I made pending the hearing and determination of the appeal which is referred to in the notice of motion.

3 The urgency with which the notice of motion has been brought is a consequence of the fact that in the 15 December 2006 orders, which I stayed for a period of 28 days, provision was made for the Council thereafter to give the respondents seven days' notice of the date upon which the Council intended to enter upon the property in order to execute the Council's functions under s 678 of the Local Government Act 1993 as identified in para 1 (a) of my orders. On the evidence the Council did so, notifying the respondents that the relevant date would be 29 January 2007 - which is next Monday - and of course tomorrow is a public holiday - and it is that reason why this notice of motion has been brought before me on an urgent basis this afternoon. In these circumstances I do not propose to identify expressly all factual and other matters set out in the various affidavits which have been read in support of the notice of motion by the respondents and in support of the Council's case defending the notice of motion.

4 In summary, the respondents say that the orders that were made on an ex parte basis should be set aside for a range of procedural and substantive reasons. In particular, the respondents objected to an order for substituted service (which was made earlier in the Class 4 proceedings) and indicated that they have appeared thereafter under protest. They say that they did not receive a copy of the 15 December 2006 orders until 15 January 2007. They identified that they have issues with the fact that those orders enabled service to be effected by leaving sealed copies in the letterbox of the property at 19 Boonara Avenue, Bondi because documents had been removed from the letterbox in the past. They also objected to the service of the original Council order on the second and third respondents in particular (that is, on Ms Liana Bobolas and Ms Elena Bobolas) on the basis that they are mere occupiers of the property and had not been responsible for collecting and waste and storing it on the property. They also observe that their mother, Mrs Mary Bobolas, contrary to the Council's case, does not collect putrescible waste but collects goods. They make the point that it is not possible to have an objective identification or definition of what is waste and what is not waste.

5 The respondents have made numerous other points in support of their application. They have placed particular emphasis on the following matters: - They say they did not fail to comply with the Council's order. They had been gradually doing work, but rain and poor weather had interfered with work. Being self represented, they had to undertake tasks of dealing with legal issues, all of which took time. They also emphasise that Mrs Mary Bobolas has a psychological condition that will be exacerbated by the Council entering upon the property and carrying out the removal of the waste. They submit that events from 2000 demonstrate that if Mrs Bobolas herself has the opportunity to clean up the waste, it is therapeutic for her psychological condition - in that instance leading to a cessation of the problem for a period of four to five years. They say that the Council has no right to enter upon the property having regard to s 200 of the Local Government Act 1993. Also, if the Council is permitted to enter onto the property on the 29th, they will not have had an adequate opportunity to set aside goods that should not be removed pursuant to the orders. They have now discovered that they can arrange, and indeed have arranged, for large containers to be made available at the property where they can, they say, rapidly sort through the items and identify what should be retained or removed from the property, whereas before they did not know about these large containers. Further, they say that the situation has altered - a neighbour who previously exacerbated Mrs Bobolas's condition has now moved. They are extremely concerned, based upon what occurred in 2005, that the Council will go beyond what is necessary to comply with the order, will cause damage to their property, and will carry out the works in a way which leads to excessive costs and charges. They also are extremely concerned about the level of distress which they suffered during the previous clean-up works by the Council in 2005 where I understand the police were called and one or more of the respondents was removed from the property and arrested. They were extremely distressed by these events and obviously are concerned that there be no repeat. They ask - what is the problem with giving them the opportunity to carry out the clean-up in circumstances where they have sought to assure me that they can do this work within two weeks and where they now have access to the container bins and are confident that for that reason and because an issue with the neighbour has now been resolved by the neighbour moving away, this will be an end to the problem? This will act as therapy for Mrs Bobolas and moreover will restore their sense of dignity - which they felt was undermined by the events which occurred in 2005.

6 I should also indicate that the respondents have made submissions to me that, irrespective of all of those matters, the form of orders I made on 15 December 2005 is too wide and should be amended. The matters that the respondents have drawn to my attention are: - the absence of start or end times for the days, the absence of an overall time period for the carrying out of the works, the fact that the orders do not nominate who may attend the property or how many people, or the machinery to be used, and in this respect, my attention has been drawn to submissions they make that on the last occasion the use of certain machinery caused damage to the property. They are concerned there are no restrictions on the movement of machinery. They say that the extent of the works has not been specified and, for example, they have referred on a number of occasions to the desire to retain some potted plants and a ladder. They are concerned that the orders do not identify a safe place where certain items could be kept which would be exempt from the reach of the orders. They are concerned that order 1(d) (which orders them to abstain from doing any act which might interfere with or impede the entry by the Council and the Council complying with the Court's orders) is too wide and, for example, have expressed concern that it might be construed to prevent them even asking questions about the way in which the works are carried out.

7 For its part, the Council submits that the evidence in the substantive proceedings which I heard on 15 December 2006 demonstrates that there has been more than ample opportunity for the respondents to deal with the problem and that none of the submissions that have been made by the respondents deal with the case on the merits - that is, there has been no identification of a bona fide defence on the merits. Moreover, having regard to the background to the matter in terms of the evidence that was before me on 15 December 2006, I should have no confidence that there will be a quick and effective solution to what I found to be a health and safety risk associated with the condition of the premises, in contrast to the Council complying with the Court's orders which will bring resolution to the still unacceptable situation.

8 In terms of the orders being too broad, Mr Staunton for the Council has drawn my attention to the fact that the orders require the work to be done between reasonable hours of the day during the weekday. He says that what is intended is an 8.00am entry onto the property on Monday 29 January 2007 and thereafter 7.30am entries on each day until the works are completed, with the works on each day intended to cease at 4.00pm and where the estimated time to complete the works is two to four days. It is intended that the work continue until the terms of order 1(a) have been satisfied albeit on weekdays only, not weekends. Mr Staunton points out that the terms of the Court's order of 15 December 2006 are more restrictive than the terms of s 678 itself which empowers the Council to do all such things as are necessary or convenient to give effect to the terms of the order. He also indicates that when one has regard to the photographs that were in evidence before me on 15 December 2006 it is evident that it would be extremely difficult to formulate any words to narrow the scope of order 1(a). For example, if a safe place is identified for goods to be kept but those goods fall within the definition of waste in the modified order then there will be a difficulty potentially created - so that it is difficult to work out a more effective form of order than that which was made on 15 December 2006.

9 Dealing first with the substantive issue of setting aside the orders, I found in my reasons on 15 December 2006 that it was clear from the evidence that the respondents had not complied with the order and that the property was in an unsafe and unhealthy condition, and that the continued condition of the property was unacceptable and must be rectified. I also found that the circumstances were such that I accepted the submissions of the Council that in order for the property to be placed in a safe and healthy condition, it was necessary that the Council itself carry out the works.

10 I accept that all of the circumstances surrounding this matter are extremely distressing to the respondents. However, given the findings that I made on 15 December 2006 it does not seem to me that any of the procedural or substantive matters to which the respondents have drawn my attention today would lead me to set aside the orders that I made on that day. In short, I do not accept the procedural submissions, for example, relating to matters such as substituted service or the operation of s 200 of the Local Government Act 1993. I also do not think that the substantive submissions that have been made would lead to setting aside the orders. I remain of the view, having heard what has been said today, that it is clear that the property clean-up in accordance with those orders should be carried out.

11 There is then the issue of the stay. I accept that the overriding issue of principle is identified in, for example, Ritchie's Supreme Court Procedure (NSW) at [51.15.3A]: The overriding principle in any stay application is that of upholding the interests of justice in the particular circumstances.

12 Here, as Mr Staunton has pointed out to me, what has been lodged with the Court of Appeal is a holding appeal. Moreover, nothing I have heard today persuades me that there is an arguable ground of appeal. I accept Mr Staunton's submission that there is not apparent in any of the submissions made by the respondents or the material in their affidavits any actual bona fide defence on the merits. Indeed, as I indicated in my reasons of 15 December 2006, the evidence overwhelmingly supported the orders that the Council sought and which orders I made.

13 Accordingly, the issue that requires more detailed consideration by me is the weighing up of the request that the respondents have made to vary my order so as to seek two weeks in which they can carry out the works as opposed to the Council carrying out the works on 29 January 2007 - where, as I have said, the respondents emphasise that their position is in effect that they should be permitted that short period of two weeks to solve the problem for themselves, that they can now solve the problem for themselves because they have discovered the container bin proposal, because their neighbour has gone and because in all those circumstances the therapeutic benefits of them being permitted to do so will be sufficient to satisfy me that the problem will end once and for all and, thereby, restore their sense of dignity. In contrast, the Council's position is that I should not have confidence in that occurring and that there has been more than adequate opportunity for the respondents to comply with the Council's order.

14 Having heard all of the submissions, I am satisfied that I should not grant any further stay of the orders that I made on 15 December 2006 and that I should leave on foot those orders. In particular I am satisfied that the interests of justice require this matter to be brought to a timely end and that this will be done by the Council complying with the orders made on 15 December 2006. The evidence that was before me on that day disclosed a very extensive history of a quite serious problem on this property that needs to be brought to resolution as soon as possible. While I accept that the circumstances are distressing to all of the respondents and particularly to Mrs Mary Bobolas given her psychological condition, theirs are not the only relevant interests. The Council comes to the Court representing a public interest in ensuring that property within its local government area is maintained in a safe and healthy condition. Having regard to the findings I made on 15 December 2006, I am of the view that the interests of justice require the orders that I made on that day remain on foot and not be varied by, in effect, a further two week, or more, stay.

15 That brings me to the question of the terms of the orders. Having considered all of the respondents' submissions, I am unable to see how amendments could be formulated which would be capable of practical implementation. The Council has made clear its intention with respect to the works - that is, that they will continue on weekdays until they are completed, but not on weekends, that they will commence at 8.00am on Monday the 29th and thereafter at 7.30am each day until they are completed, that the works will cease at 4.00pm each day, and that they are estimated to take two to four days but obviously that may depend on weather. The orders are more restrictive than s 678, which uses a necessary or convenient formulation in contrast to the terms of order 1(a). With regard to the photographs, I accept that attempting to formulate exclusions from the orders or exclusion zones will lead to the potential for impracticality in the orders being implemented. In this regard, I also take into account the information provided to me by the respondents, that the container will arrive tomorrow, Saturday, in circumstances where the works are not scheduled to commence until 8.00am on Monday. In all of these circumstances, I accept Mr Staunton's submissions that seeking to specify a precise way in which the works must be carried out given the amount or number and nature of items on the property as shown in the photographs is simply not practical and that it is also not practical to have an item by item removal - so that it may well be that some form of use of machinery is required. Again, as Mr Staunton has said, the Council cannot act with impunity but must comply with the Court's orders.

16 For these reasons, I can see no justification for granting the emergency injunction in the terms sought in order 2 of the notice of motion the respondents filed on 25 January 2007, no justification for setting aside the orders I made on 15 December 2006, or staying those orders, or otherwise varying those orders. In my view the interests of justice require the notice of motion to be dismissed and for the orders to remain on foot, and I so order with respect to the notice of motion: (1) The respondents' notice of motion filed 25 January 2007 is dismissed.

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