Bobolas v Waverley Council (No 4) [2015] NSWCA 337

Bobolas v Waverley Council (No 4) [2015] NSWCA 337

The appeal was dismissed because no appellable error was shown. The primary judge was entitled to find that the s 124 orders were valid and that service was effected, including by affixing them to the front gate. The evidence supported the conclusion that waste at the premises was causing or likely to cause a threat to public health or individual health. The appellants did not appear at the final hearing or raise the relevant objections below, and no demonstrated prejudice or procedural unfairness arose from the late-filed affidavits. Section 200 of the Local Government Act 1993 (NSW) did not limit the power of the Land and Environment Court to make orders under s 678(10). The allegations...

Jurisdiction
Australia
Judgment Date
23 October 2015
Procedural Posture
Appeal From Orders of the Land and Environment Court of New South Wales in Class 4 Proceedings Under S 678(10) of the Local Government Act 1993 (nsw) / Appeal Dismissed
Outcome
Appeal dismissed, with costs.
Legal Topics
['enforcement of Council Order to Remove Waste' 'validity and Service of S 124 Order' 'orders Under S 678(10) of the Local Government Act 1993 (nsw)' 'procedural Fairness' 'substituted Service' 'adjournment and Non Compliance With Court Directions']
['local Government' 'civil Procedure' 'practice and Procedure' 'land and Environment Court Jurisdiction'] ['enforcement of Council Order to Remove Waste' 'validity and Service of S 124 Order' 'orders Under S 678(10) of the Local Government Act 1993 (nsw)' 'procedural Fairness' 'substituted Service' 'adjournment and Non Compliance With Court Directions']

Case Brief

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Procedural Posture

Appeal From Orders of the Land and Environment Court of New South Wales in Class 4 Proceedings Under S 678(10) of the Local Government Act 1993 (nsw) / Appeal Dismissed

Legal Issues

  1. 1 ['Whether the s 124 orders requiring removal of waste were invalid, should not have been issued, or were unreasonable.' 'Whether service of the s 124 orders was an essential precondition to orders under s 678(10) and whether service was effected by affixing the orders to the front gate.' 'Whether the appellants were denied procedural fairness because Council relied at the final hearing on affidavits filed shortly before the hearing.' "Whether the Land and Environment Court erred by hearing and determining the matter on 4 March 2014 in the appellants' absence." 'Whether s 200 of the Local Government Act 1993 (NSW) limited the entry authorised by orders made under s 678(10).' 'Whether the final orders were affected by bias, apprehended bias, or errors concerning service of interlocutory processes.']

Ratio Decidendi

The appeal was dismissed because no appellable error was shown. The primary judge was entitled to find that the s 124 orders were valid and that service was effected, including by affixing them to the front gate. The evidence supported the conclusion that waste at the premises was causing or likely to cause a threat to public health or individual health. The appellants did not appear at the final hearing or raise the relevant objections below, and no demonstrated prejudice or procedural unfairness arose from the late-filed affidavits. Section 200 of the Local Government Act 1993 (NSW) did not limit the power of the Land and Environment Court to make orders under s 678(10). The allegations...

Court Disposition

Appeal dismissed, with costs.

Orders

  • ['Appeal dismissed.' "The appellants are to pay the Council's costs of the appeal."]