Waverley Council v M Bobolas and Ors

APPLICANT: Mr G Newport, Barrister SOLICITORS Staunton and Beattie

RESPONDENTS: In person SOLICITORS N/A

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT 1 HIS HONOUR: I now publish my reasons for judgment in respect of the orders that I announced in Court at the end of the hearing on 29 September 2005 but which were not issued in written from until the following day. 2 The present class 4 proceedings brought pursuant to the Local Government Act 1993, s 673 which were commenced by the Council on 13 April 2005, sought declaratory and injunctive relief against each of the three Respondents (who may conveniently be referred to as the "Bobolas family" comprising mother and two adult daughters who reside at residential premises known as No 19 Boonara Avenue, Bondi). 3 The relief claimed was founded upon the existence of a statutory enforcement order that the Council had on 18 March 2005 given to each Respondent pursuant to the Local Government Act, s 124. Each order was in the same terms except for the stipulations of the name of the person to whom it was given and of the capacities of each of those persons, in that the order given to Mrs Bobolas was given to her in the capacity of "owner" of the premises (No 19 Boonara Avenue, Bondi) and each order given to each of the Bobolas daughters was given to her in the capacity of "occupier" of those premises. The substantive relevant requirements of each of the s 124 orders was the same and provided as follows: (a) remove all waste, being garbage and refuse including but not limited to scrap metal, papers, rags, bottles, plastic containers, and putrescible matter which you have collected, accumulated and are storing from all parts of the subject premises; and (b) refrain from using the subject premises for the purposes of collection, accumulation and storage of waste being garbage and refuse including but not limited to scrap metal, papers, rags, bottles, plastic containers, and putrescible matter from all parts of the subject premises. REASONS FOR ORDER This order is given because: (a) the subject premises are a dwelling house located in a residential area; (b) you are storing waste, being garbage and refuse including but not limited to scrap metal, papers, rags, bottles, plastic containers, and putrescible matter on all parts of the subject premises; (c) the garbage and refuse you are storing is a fire risk and is likely to form or afford harbourage for vermin and as such constitutes a serious health risk to the occupants of the subject premises and the neighbouring properties. PERIOD FOR COMPLIANCE WITH ORDER As the storage of waste constitutes a serious health risk you are required to comply with this order within seven (7) days from the date of service of this order upon you. NON COMPLIANCE It is an offence to not comply with this order. The maximum penalty for this offence is $2,200.00. If this order is not complied with, Council m ay carry out the work and recover the costs from you. APPEAL RIGHTS You may appeal to the Land & Environment Court of NSW against this order or a specified part of this order within twenty eight (28) days from the date of service of this order upon you. 4 Upon the same day that the Council commenced its class 4 proceedings, the Respondents commenced class 2 proceedings (Matter No 20363 of 2005) appealing pursuant to the Local Government Act 1993, s 180 against the s 124 orders that had been given to each of the Respondents. (It may be noted that the Council's class 4 proceeding was commenced before the expiry of the 28 days statutory appeal time.) 5 Although in its class 4 application the Council had claimed interlocutory relief, no such relief was granted by the Court during the pendency of the Respondents' class 2 proceedings. Such an outcome, not only reflected the Court's usual practice in relation to concurrent class 4 and class 1 or 2 proceedings (where it is usual to first determine the class 1 or 2 proceedings involving a determination on the planning merits where a possible outcome of that determination will remove the continuing foundation for the grant of relief in the related class 4 proceedings) but reflected the course of the Court initiated intensive case management of both proceedings which was conducted by a Commissioner of the Court and which came very close to resolving the proceedings by way of an inter partes agreement. 6 But following the ultimate failure of settlement negotiations, the Respondents' class 2 appeal was part heard and determined by the then Chief Judge of the Court on 19 July 2005 when he made the following orders and gave the following directions 1. The appeal is upheld in part. 2. The terms of the order given to each of the respondents dated 18 March 2005 is modified by deleting order (a) and replacing it with: i) The Council will remove all material placed on the nature strip in front of 19 Boonara Ave, Bondi every Thursday, commencing on 21 July 2005 and concluding 2 months later on 22 September 2005.

ii) You will remove all waste, being garbage and refuse including but not limited to scrap metal, papers, rags, bottles, plastic containers, and purtrescible matter (if any) which you have collected, accumulated and are storing (the "Waste") from all parts of the property by or before 21 September 2005.

iii) The Waste will be removed from the Property by placing it on the nature strip in front of the property.

iv) By or before 17 August 2005 you will remove all Waste from the "front" of the property. The "front" of the property is that area from the street front fence of the property to the street face of the building.

v) Waste from the remainder of the property must be removed from the property on or before 21 September 2005. 3. The Council will remove all material placed on the nature strip in front of 19 Boonara Ave, Bondi every Thursday, commencing on 21 July 2005 and concluding 2 months later on 22 September 2005.

4. The hearing of the balance of the appeal in relation to the making of order (b) is adjourned. 5. Costs are reserved. The Court makes the following directions: 6. The parties have liberty to restore on 48 hours notice. 7. The proceedings are directed to approach the Registrar to obtain a date for further hearing after 22 September 2005. 8. Any evidence to be relied upon by the applicant in the Class 2 proceedings for the further hearing is to be filed and served by a date which is no later than two weeks prior to the hearing.

7 On 23 September 2005 ie immediately following the expiry of the ultimate time limit specified in the Court's Orders for the removal of all waste from the Respondents' premises, the Council attempted to revive its claim to the following interlocutory relief (as set forth in pars 8,9 and 10 of the class 4 application): 8. An order that the Respondents remove all Waste which the Respondents have collected and accumulated and are storing on the Property within 7 days. 9. In the event that the Respondents fails remove all Waste which the Respondents have collected and accumulated and are storing on the Property with in 7 days, the Court order that the Applicant, by its servants or agents, enter upon the Property known as 19 Boonara Avenue, Bondi and remove from the surrounds of the Property the accumulation of Waste which is likely to afford a harbourage for vermin. 10. An order that the Respondents pay all expenses and associated costs incurred by the Applicant in carrying out or directing to carry out the immediately preceding order. 8 However, in response to the Council's initiative the Respondents raised valid procedural objection to the Council's attempt to obtain on that occasion the claimed interlocutory relief. 9 This objection was based upon the fact that the Council had purported to revive the claim to interlocutory relief in the class 4 proceedings in the exercise of the liberty to restore on two days' notice the class 2 proceedings as has been granted by the orders made on 19 July 2005 in the class 2 proceedings. In other words, the Council had unfortunately confused the two sets of proceedings in exercising liberty to restore. 10 Faced with the Respondents' valid objection on 23 September 2005 I made the following orders: 1. Pursuant to liberty to apply on 3 days' notice granted by orders on 9 June the Applicant's claim to interlocutory relief (as set form in pars 8, 9, 10 of its class 4 application) be listed for hearing before a Judge on Thursday 29 September at 10 am. 2. The following directions shall apply to that hearing: (i) Council to inform Respondents and provide list of affidavits to be relied upon by Council. (ii) Respondents to file and serve any affidavits by midday Wednesday 28 September 2005. 11 The Council later during that day elected to proceed with its claim to interlocutory relief rather than to utilise the fixture on 7 October 2005 for the completion of the class 2 proceedings and the final hearing of the Council's class 4 proceedings. 12 Before that claim came before me for hearing on 29 September 2005 the Respondents had filed their Motion seeking an adjournment of both the class 4 proceedings and the unconcluded related class 2 proceedings pursuant to the Legal Aid Commission Act 1979, s 57 upon the basis that they had appealed to the Legal Aid Review Committee the decision of the Legal Aid Commission not to grant them legal aid in these related proceedings. 13 Section 57 of that Act provides as follows: 57 Adjournment of certain proceedings Where it appears to a court or tribunal, on any information before it: (a) that a party to any proceedings before the court or tribunal: (i) has appealed, in accordance with section 56, to a Legal Aid Review Committee and that the appeal has not been determined, or (ii) intends to appeal, in accordance with section 56, to a Legal Aid Review Committee and that such an appeal is competent, (b) that the appeal or intention to appeal is bona fide and not frivolous or vexatious or otherwise intended to improperly hinder or improperly delay the conduct of the proceedings, and (c) that there are no special circumstances that prevent it from doing so, the court or tribunal shall adjourn the proceedings to such date on such terms and conditions as it thinks fit. 14 The Council was opposed to the grant of the adjournment pursuant to s 57 but ultimately its sole ground for opposing the adjournment was (as the evidence in the case properly constrained the available factual findings) was based upon par (c) of the section, namely that there were "special circumstances" which "prevented" the grant of the adjournment. Those "special circumstances" were said to be the urgency based upon the subject matter of its claim to interlocutory relief for the Council's class 4 proceeding to be determined by the Court.. In so analysing the Council's argument I repeat my observation made in the course of argument that s 57 properly construed, operated so as to mandate the grant of the adjournment upon the Court's satisfaction of each of the separate facts specified in pars (a), (b), and (c) of the section and that the Court did not possess any residual judicial discretion to decide whether or not to grant the adjournment. 15 Although for the reasons that will presently be stated, I did not have to fully determine the Respondent's adjournment application (which was necessarily impliedly withdrawn), I should for completeness say that I was not disposed to the view that the nature of the Council's claim to interlocutory relief and the urgency for that claim to be determined, constituted "special circumstances" that operated to "prevent" the Court from granting the adjournment mandated by the section. 16 However, it was at this point in the proceedings that I urged the parties to embrace a radically realistic approach to be taken to the outstanding proceedings and the obvious need for the problem waste to be removed from the Respondents' residential premises as effectively and as promptly as was reasonable in the circumstances of the case. 17 I did so in the light of some very obvious and telling features of the litigation, namely: (i) the solid statutory basis for the Council's claim to interlocutory relief; (ii) the obvious overwhelming practical problem confronting the Respondents to remove the mountain of waste materials deposited on their premises; (iii) the exacerbation of the problem for the Respondents to be engaged (as litigants in person) with the current litigation which was distracting and disabling them from employing their energies in the more productive physical task of removing the mountain of waste while seeking to be sensitive to the longstanding psychological problems and sensitivities of Mrs Bobolas (who has had an intermittent history these past 20 years of collecting waste materials and storing them at her residential premises); (iv) my assessment that there was little or no possibility on any reasonable basis for the Respondents to successfully defend the class 4 proceedings, even if legal aid were to be ultimately granted to them; and (v) the probability that the grant of the statutory adjournment of the proceedings to enable the Respondents' appeal to the Legal Aid Review Committee to be processed would not only preserve the status quo in the proceedings, but also the status quo in the intolerable condition of the Respondents' premises with the mountainous deposit of waste thereon, in which event both the process and the outcome of any adjournment would probably prove to be counterproductive in stalling the implementation of the required solution to the most obvious problem concerning the physical condition of the Respondents' premises. 18 In calling the parties' attention to the need to see the existing problem as a practical problem crying out for urgent practical solution, I deliberately was inviting the Respondents to set themselves free of the unnecessary legal complications and burdens that they laboured under in the present litigation. They had exercised their right of appeal and obtained a judgment from the Court on the planning merits of the Council's s 124 orders. The Court's orders had required the removal of all wastes from the Respondents' premises by 21 September 2005 but clearly the Respondents had not complied with those orders. It was not suggested that their failure to comply was a contumacious or defiant disregard of the Court's orders. Rather, the required physical task seemed to be simply beyond them, notwithstanding their attempts (with the Council's cooperation, as required by the Court's orders) to undertake that task within the two months period allowed. Their capacity and competence to comply was only likely to be depleted by their intense involvement in ongoing litigation (in which to date they have been litigants in person). Moreover, for the reasons given, the prospect of future legal representation does not carry with it the prospect of a successful defence of the Council's class 4 proceedings, which since the Court's substituted orders in the class 2 proceedings, have assumed the character of the civil enforcement of the Court's orders (whereas originally they were for the civil enforcement of the Council's orders). 19 It appeared to me to be imperative that a necessary feature of the required practical solution was the provision of the physical wherewithal to assist the Respondents in their very substantial physical task. However, this emphasis coupled with the past history of the same type of problem merely exposed the Respondents' collective reluctance to suffer the work to be done by the Council. Again, I did not regard this reluctance to evidence intransigence on their part. Rather, I accept the Bobolas' daughters plea for the sake of their mother's well-being (including her precarious psychological state) that they have the opportunity to essay the task for themselves (mountainous though that task be). This was because they had succeeded in so doing at one stage in the past ie early in 2001 when the same problem (but perhaps of a lesser physical magnitude) had manifested itself and the Council had taken civil proceedings against the Respondents. They said that this successful operation involving their mother constructively in the task, was of therapeutic value to her. 20 As I have earlier noted, there has been unfortunately an intermittent manifestation of the same problem during the past 20 years and I appreciate that the Council has been, and remains, at its wits end. The problem appears to be one that from time to time breaks out. In the past the Council has variously obtained orders from the Local Court for clean up operations and has taken proceedings before the Guardianship Tribunal. It has also undertaken substantial clean-up operations oftentimes at its cost. The abiding problem is its propensity to recurrences. 21 The current manifestation of the problem imposes an intolerable burden on the Respondents, grappling as they collectively are, with Mrs Bobolas' psychological problems. But it also imposes an entirely unacceptable burden on the Council and on the local community, especially that which may be adversely affected by the Respondent's actions. 22 Practical wisdom dictates the necessity for the employment of a practical and effective solution. The Council's suggested solution of an order made by the Court pursuant to the Local Government Act 1993, s 678(10) obviously satisfies that dictate. Section 678(10) provides as follows: 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. 23 However, as I have earlier noted, the Respondents urge me to give them the opportunity to solve the problems for themselves (as they successfully resolved a manifestation of the similar problem that arose in 2000 and early 2001). They say that now that they will be freed from the distraction of continued involvement in legal proceedings, they can by concerted and sustained effort achieve the task within a period of two months. More importantly, they say that this means and mode of solution will be in the best interests of Mrs Bobolas with her psychological difficulties, whereas the default action by the Council would be clearly against her wellbeing. 24 This is surely a case where justice must be tempered with mercy and notwithstanding the Council's opposition, I propose to provide the Respondents with the reasonable opportunity they seek for a self help solution, by suspending for two months the s 678(10) order I propose to make. 25 However, it would be unfortunate and wrong for the Respondents (or indeed anyone else) to regard this judicial solution as giving the wrong message. The physical condition of the Respondents' premises is entirely unacceptable from every reasonable point of view concerning the urban residential environment. It must be remediated and it must be remediated effectively and promptly. If the Respondents can themselves provide the solution by way of self help within the two month period sought by them, that in my judgment will achieve a satisfactory outcome and be most sensitive to Mrs Bobolas' psychological problems. However, if the task is beyond them, either ultimately or progressively, then the problem must be solved by another means, in this case the Council will be the agency operating by virtue of the Court's order pursuant to the Local Government Act 1993, s 678(10). 26 The problem posed by the waste deposit at the Respondents' premises is too real and acute (both in terms of potential health and private and public safety risks) to simply allow the stay of the Court's order pursuant to s 678(10) to run its course for the next two months. For this reason, if the Council perceives the lack of effective progress in the waste clean-up operations being conducted by the Respondents, it will have liberty to apply to the Court to terminate the stay and enliven the Court's order so that the Council may itself solve the problem effectively and promptly. But in the meanwhile, the Respondents should be afforded the opportunity for exploring the self-help solution, especially in the interests of the well-being of Mrs Bobolas and her supporting daughters. 27 In passing, I should note a matter that was raised at the hearing. It concerns the competence and the capacity for the Council to itself undertake the required work pursuant to the Court's s 124 Order without the need for any further order of the Court. This is because of the enabling power conferred by the Local Government Act, s 678(1) which provides as follows: 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 . 28 Notwithstanding the existence of this enabling power, the Council seeks the Court's order pursuant to s 678(10) because so it is said, that without such an order from the Court, the Council (based upon previous experiences) is apt to be confronted with physical resistance from the Respondents if the Council were to seek itself to carry out the required works. Seen in this light, the obtaining of the Court's order is more a precautionary than a legally necessary action on the part of the Council. But in claiming and obtaining the Order the Council has also suffered the Court's order dismissing the proceedings (and for the reasons I have given, this outcome works entirely to the benefit of the Respondents by their being relieved of further involvement in the litigation). 29 It was for all the foregoing reasons, that on 30 September 2005 I made the following orders in the class 4 proceedings: -

1. Pursuant to s 678(10) of the Local Government Act 1993 the Waverley Council is ordered to execute the Council's functions under s678 by carrying out the work which was required to be carried out by paragraph (a) of the order dated 18 March 2005 given to each of the Respondents pursuant to s124 of the Local Government Act , as that order was modified by Order 2 of the Orders made by this Court on 19 July 2005 in proceedings No.20363 of 2005 being work which each of the Respondents was required to do, but failed to do. 2. The operation of Order 1 is suspended until 1 December 2005 so as to provide the opportunity for the Respondents to undertake the required work unless otherwise ordered by the Court pursuant to liberty to apply on 3 days' notice. 3. The Council has liberty to apply for the curtailment of the suspension of Order 1 at any time after the expiry of 3 weeks from the date of these orders should it be established that the Respondents have failed to embark upon the required work and to maintain that work. 4. The Respondents have liberty to apply for any minor extensions of the suspension of Order 1 in the event of wet weather hindering their carrying out of the required work or to complete the work in circumstances where the majority of the required work has been undertaken within the period of the suspension of Order 1. 5. Except for the relief granted in Order 1 the proceedings are otherwise dismissed. 6. The question of costs in the proceedings is reserved with liberty to apply at the expiration of the suspension of Order 1.

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.