Waverley Council v Bobolas (No 2) [2009] NSWLEC 211

Waverley Council v Bobolas (No 2) [2009] NSWLEC 211

The Council established that the premises were residential, that the s 124 (cl 22A) orders were validly issued to the owner and occupiers and validly served, that the environmental health officer had the relevant expertise and formed the required opinion that the accumulated waste was causing or likely to cause a threat to health, and that the waste had increased and required urgent removal. The Court had power under s 678(10) of the Local Government Act 1993 to authorise Council entry despite restrictions on council entry to residential premises, and the evidence of previous interference justified restraints against hindering the clean-up.

Jurisdiction
Australia
Judgment Date
10 December 2009
Procedural Posture
Civil Enforcement Proceedings Under the Local Government Act 1993 / Ex Tempore Judgment on Application for Orders Permitting Council to Enter Residential Premises and Carry Out Clean Up Works
Outcome
Council's application allowed; late Notice of Motion dismissed; leave to file cross-claim refused; later leave to amend defence granted but amended defence rejected; costs orders stood over.
Legal Topics
['clean Up Orders' 'entry Onto Residential Premises' 'validity and Service of Local Government Orders' 'public Health Risk From Waste' 'case Management' 'tutor for Person Under Legal Incapacity']
['environmental Law' 'local Government Law' 'civil Procedure'] ['clean Up Orders' 'entry Onto Residential Premises' 'validity and Service of Local Government Orders' 'public Health Risk From Waste' 'case Management' 'tutor for Person Under Legal Incapacity']

Case Brief

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Procedural Posture

Civil Enforcement Proceedings Under the Local Government Act 1993 / Ex Tempore Judgment on Application for Orders Permitting Council to Enter Residential Premises and Carry Out Clean Up Works

Legal Issues

  1. 1 ['Whether the Council could obtain orders under s 678(10) of the Local Government Act 1993 permitting entry onto residential premises to carry out work required by orders under s 124 (cl 22A).' 'Whether the clean-up orders were validly issued to the owner and occupiers of the premises.' 'Whether the clean-up orders were properly served.' 'Whether the environmental health officer formed the opinion required by s 124 (cl 22A) that waste was causing or likely to cause a threat to public health or the health of an individual.' 'Whether the Second and Third Respondents should be restrained from hindering or obstructing the clean-up works.' 'Whether the Second and Third Respondents should be permitted to pursue late procedural steps including a Notice of Motion and cross-claim.']

Ratio Decidendi

The Council established that the premises were residential, that the s 124 (cl 22A) orders were validly issued to the owner and occupiers and validly served, that the environmental health officer had the relevant expertise and formed the required opinion that the accumulated waste was causing or likely to cause a threat to health, and that the waste had increased and required urgent removal. The Court had power under s 678(10) of the Local Government Act 1993 to authorise Council entry despite restrictions on council entry to residential premises, and the evidence of previous interference justified restraints against hindering the clean-up.

Court Disposition

Council's application allowed; late Notice of Motion dismissed; leave to file cross-claim refused; later leave to amend defence granted but amended defence rejected; costs orders stood over.

Orders

  • ['Orders made permitting the Council, through its contractors, to enter the premises and remove rubbish from external areas of the premises.' 'Orders made restraining the Second and Third Respondents from hindering the clean-up works.' "The Second and Third Respondents' Notice of Motion handed up during the hearing...