Woollahra Municipal Council v Hitsos

Publication restriction: Nil

ex-tempore JUDGMENT

1. The Woollahra Municipal Council (the Council) has approached the Court this morning on a matter concerning a present risk to public safety. The Council is represented by Mr J Ede, who is the solicitor with the conduct of the matter from Wilshire Webb Staunton Beattie Lawyers. There was no appearance by Mr Nicholas Hitsos (the R****espondent).

2. The Council read an affidavit affirmed by Con Raissis on 20 January 2026. Mr Raissis, who is a building compliance officer employed by the Council, deposes to the matters set out in the following paragraphs.

3. On 13 January 2026, the Council issued to the Respondent an Emergency Order in accordance with Order 21 in the Table to s 124 of the Local Government Act 1993 (NSW) (LG Act) (the Emergency Order). Section 124 of the LG Act relevantly provides:

"A council may order a person to do or to refrain from doing a thing specified in Column 1 of the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table."

4. Item 21 of s 124 relevantly provides the Council with power to order a person:

"To do or refrain from doing such things as are specified in the order to ensure that land is, or premises are, placed or kept in a safe or healthy condition… [in circumstances where] the land or premises are not in a safe or healthy condition".

5. The Emergency Order is behind Tab 8 of Exhibit CR-1 to Mr Raissis' affidavit. It is addressed to the Respondent, who is the occupier of the premises at 6 Gurner Lane, Paddington (the Premises): see Mr Raissis’ affidavit at [40]-[42], and the investigation report at Tab 14 of Exhibit CR-1.

6. Prior to the Council issuing the Emergency Order, Mr Raissis had inspected the Premises on 12 January 2026 after Council received emails from residents who live near to the Premises alerting the Council to safety concerns about a glass panel that appeared in danger of falling from the first-floor verandah of the Premises to the footpath below: see Mr Raissis’ affidavit at [10], [12] and [14].

7. During his inspection, Mr Raissis observed that "the sliding window to the first-floor verandah appeared loose and was displaced from its frame and it was leaning inwards into the premises." He also "formed the opinion that the glass panel was at high risk of dislodging from the premises and falling onto the footpath." He considered that there was an imminent risk to public health and safety because of this: see Mr Raissis’ affidavit at [18]-[19]. Mr Raissis took photographs of the Premises including of the glass panel which show it to be in what appears a loose and precarious position: see Mr Raissis’ affidavit at Exhibit CR-1 Tab 5.

8. Following his inspection, Mr Raissis recommended to the Council that it issue the Emergency Order. In the meantime, the Council installed temporary barricades in front of the Premises in order to seek to reduce the risk to public safety in the event of the panel dislodging and falling onto the street.

9. On 13 January 2026, Mr Raissis further inspected the property and saw that the temporary barricades had been removed by someone. On the same day, he attended to the service of the Emergency Order by placing it in an envelope with a note requesting that the Respondent call him on his phone number. The envelope was placed in a plastic sleeve and taped to the Eastern wall of the Premises, next to the front door (the Premises has no letterbox).

10. On 16 January 2026, Mr Raissis returned to the Premises and observed that the sliding window on the first-floor verandah remained in a loose position. He observed that no works had been carried out to remove the window panel or to fix it. Also on 16 January 2026, Mr Raissis sticky-taped to the Eastern wall a letter from the Council's solicitors addressed to the Respondent. That letter is dated 16 January 2026 and forms part of Tab 11 to Exhibit CR-1 to Mr Raissis' affidavit. The letter informs the Respondent of the service of the Emergency Order, and the reasons for giving it, and advises the Respondent that as he has failed or neglected to comply with the Emergency Order:

"Council may take civil enforcement proceedings against you in Class 4 of the NSW Land and Environment Court's jurisdiction including injunctive proceedings seeking an order from the Court that Council be permitted to access your property for the purpose of completing the requisite works to comply with the terms of the Emergency Order and we are instructed to commence those proceedings if required.

We are instructed that the Council will also seek its costs of any such proceedings.

However, these proceedings will not be commenced if you comply with the terms of the Emergency Order by no later than 12PM on Monday, 19 January 2026".

11. Mr Raissis returned to inspect the Premises on 19 January 2026 at 12:35pm, and observed that the sliding window to the first-floor verandah remained loose and displaced from its frame. He observed that no works had been carried out to remove the window panel or to seek to fix it in place. He therefore formed the opinion that there remained a serious and imminent risk to public safety unless the glass panel was immediately removed: see Mr Raissis’ affidavit at [35]-[36].

12. Mr Raissis also deposed that he considers that the Council would be able to remove the glass panel from the first-floor verandah of the Premises by either climbing a ladder or utilising an elevated work platform. In other words, it will not be necessary in his opinion for the Council to access the inside of the Premises: see Mr Raissis’ affidavit at [38]-[39].

13. Having had no response to the Emergency Order or their solicitors' letter, the Council has commenced proceedings against the Respondent by Summons dated 20 January 2026. The final relief sought in the Summons is a declaration that the Respondent has not complied with the Emergency Order. Council also seeks the following interim relief:

"An order that, pursuant to s 678(10) of the Local Government Act 1993 (“LG Act”), the Applicant (including by its servants and / or agents) execute the Applicant's functions under section 678 of the LG Act by carrying out the works necessary to remove the loose glass panel that is situated on the first-floor verandah facing the Gurner Street elevation at 6 Gurner Street, Paddington (“the Premises”) which were required to be carried out at the Premises pursuant to the Emergency Order (Ref 13/2026) issued by the Applicant to the Respondent in accordance with Order No. 21 in the Table to s 124 of the LG Act dated 13 January 2026 (“the Emergency Order”)."

14. Filed with the Summons and the affidavit of Mr Raissis of 20 January 2026 is a notice of motion in which the following orders are sought:

"1. An order that the time for service of the Applicant's Summons, Notice of Motion and Affidavit of Con Raissis affirmed 20 January 2026 be abridged such that service is to be effected on the Respondent by no later than 3PM on Tuesday, 20 January 2026 by the following means:

…

b. Hand delivering and affixing a copy of the Applicant's Summons, Notice of Motion and Affidavit of Con Raissis affirmed 20 January 2026 to the Eastern wall adjacent to the front door at 6 Gurner Street, Paddington NSW 2021.

2. An order that this Notice of Motion be returnable before the Duty Judge at 10AM on 21 January 2026 (or such other time and date as soon as practically available to the Court)."

Order 3 sought in the motion is in identical terms to the order sought in the Summons set out in [13] above.

15. Section 678 of the LG Act relevantly provides:

"(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."

16. In order to grant the interim relief sought in Order 1 of the Summons and repeated in Order 3 of the notice of motion, I need to be satisfied first that the Emergency Order was properly issued. As stated, the Emergency Order was issued under item 21 of s 124 of the LG Act. The circumstances that must exist for an emergency order to be given under that item are that "[t]he land or premises are not in a safe or healthy condition."

17. Based on the matters referred to above in Mr Raissis' affidavit concerning the glass panel, I am satisfied that the Premises are not safe as there is a real risk of the glass panel falling to the footpath below. It was proper and within power for the Council to issue an Emergency Order under item 21 of s 124 requiring the Respondent to remove the glass panel or to affix it in such a way that it is not in danger of falling to the footpath below.

18. It is also necessary for me to be satisfied that the Emergency Order was served on the Respondent: s 144 LG Act. An emergency order may be served in the manner set out in s 710(2)(e) of the LG Act, that is, "by fixing the notice on any conspicuous part of the land, building or premises owned or occupied by the person". This occurred: see [9] above.

19. I am also informed by a second affidavit of Mr Raissis sworn on 20 January 2026 that yesterday, 20 January 2026, he attached to the Eastern wall of the Premises the Summons in these proceedings, as well as the notice of motion and his first affidavit. Included with these documents was a letter from the Council’s solicitors dated 20 January 2026 referring to those court documents, and also indicating that the matter had been listed before me today at 10am, and that if the Respondent did not appear orders would be sought in his absence.

20. Ordinarily, a notice of motion must be served at least three days before the date fixed for hearing of the motion: r 18.4 Uniform Civil Procedure Rules (2005) (NSW) (UCPR). The Court has power, however, to otherwise order. As for a summons, ordinarily it must be served on a defendant or respondent not less than five days before the return date unless the Court otherwise orders: r 6.15(3) UCPR. The Court further has power to abridge any time fixed by the rules under r 1.12(1) of the UCPR*.*

21. I am satisfied that there is a considerable risk to public safety caused by the glass panel. Therefore, pursuant to r 1.12(1) and r 10.5 of the UCPR I make Order 1 sought in the notice of motion concerning abridgment for the time of service, and for service to be effected by the means chosen of attaching the documents to the Eastern wall of the property. The public safety risk here clearly outweighs the need to observe the usual time periods for service of the summons and the notice of motion.

22. As I am satisfied that the glass panel is causing a considerable risk to public safety, and as I am also satisfied that the Council will be able to remove the glass panel by use of a ladder or elevated work platform without the need to go inside the Premises, I am also persuaded that I should make Order 3 sought in the notice of motion.

23. I make the following orders:

24. The time for service of the Applicant’s Summons, Notice of Motion and Affidavit of Con Raissis affirmed 20 January 2026 be abridged such that service is to be effected on the Respondent by no later than 3pm on Tuesday, 20 January 2026, by the following means:

(a) Hand delivering and affixing a copy of the Applicant’s Summons, Notice of Motion and Affidavit of Con Raissis affirmed 20 January 2026 to the Eastern wall adjacent to the front door at 6 Gurner Street, Paddington NSW 2021.

2. Pursuant to s 678(10) of the Local Government Act 1993 (LG Act), the Applicant (including by its servants and/or agents) execute the Applicant’s functions under section 678 of the LG Act by carrying out the works necessary to remove the loose glass panel that is situated on the first-floor verandah facing the Gurner Street elevation at 6 Gurner Street, Paddington (the Premises) which were required to be carried out at the Premises pursuant to the Emergency Order (Ref 13/2026) issued by the Applicant to the Respondent in accordance with Order No. 21 in the Table to s 124 of the LG Act dated 13 January 2026 (the Emergency Order).
3. The matter is stood over for further directions or orders at 9:30am on 20 February 2026 before Justice Beasley, with the Applicant to notify the Respondent of this listing through the same means as service of the Summons was effected by noon on Friday, 23 January 2026.

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