Bobolas v Waverley Council (No 4) [2019] NSWLEC 163

Bobolas v Waverley Council (No 4) [2019] NSWLEC 163

Order 22A issued by the Council on 22 November 2017 was exhaustively given effect by the February 2019 clean-up (substituted performance per Pain J's orders); it cannot serve as basis for further council access/removal. However, court orders requiring the Bobolas family to refrain from keeping waste remain valid and ongoing, and are breached; Council may seek further access orders from Court to remedy breach. No ground for reopening Sheahan J's 2015 Orders on basis of applicants' absence, as absence was deliberate and procedure upheld. 2018 Orders given full effect and exhausted.

Jurisdiction
Australia
Judgment Date
31 October 2019
Procedural Posture
Class 4 Proceedings; Notice of Motion / Post Judgment Review of Prior Class 4 Orders
Outcome
In Matter No 208865 of 2019, part of Applicants' motion adjourned for Council to seek further access orders for waste removal; if Council does not apply, motion dismissed. In Matter No 50888 of 2018, declaration that Order 22A is exhausted and Council restrained from relying on it for further waste removal. Costs...
Legal Topics
['review of Prior Orders' 'waste Accumulation' 'substituted Performance' 'access for Works' 'statutory Exhaustion' 'council Powers' 'procedural Fairness' 'remedy and Restraint' 'public Health and Safety']
['administrative Law' 'local Government Law' 'environmental Law' 'judicial Review'] ['review of Prior Orders' 'waste Accumulation' 'substituted Performance' 'access for Works' 'statutory Exhaustion' 'council Powers' 'procedural Fairness' 'remedy and Restraint' 'public Health and Safety']

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Procedural Posture

Class 4 Proceedings; Notice of Motion / Post Judgment Review of Prior Class 4 Orders

Legal Issues

  1. 1 ['Are earlier waste removal orders (2015, 2018) exhausted or ongoing?' 'Does Order 22A issued under s 124 of Local Government Act 1993 permit ongoing council access/removal?' 'Is a court order needed for council access for waste removal after exhaustion of prior orders?' 'Does the Court have jurisdiction to vary or set aside prior orders made in absence of applicants?' "Do 'refrain' orders provide an ongoing basis for waste removal intervention?"]

Ratio Decidendi

Order 22A issued by the Council on 22 November 2017 was exhaustively given effect by the February 2019 clean-up (substituted performance per Pain J's orders); it cannot serve as basis for further council access/removal. However, court orders requiring the Bobolas family to refrain from keeping waste remain valid and ongoing, and are breached; Council may seek further access orders from Court to remedy breach. No ground for reopening Sheahan J's 2015 Orders on basis of applicants' absence, as absence was deliberate and procedure upheld. 2018 Orders given full effect and exhausted.

Court Disposition

In Matter No 208865 of 2019, part of Applicants' motion adjourned for Council to seek further access orders for waste removal; if Council does not apply, motion dismissed. In Matter No 50888 of 2018, declaration that Order 22A is exhausted and Council restrained from relying on it for further waste removal. Costs...

Orders

  • ["Matter No 208865 of 2019: Applicants' Notice of Motion adjourned for 21 days to permit Council to seek further access orders for waste removal; short form service ordered; if no application filed/served within time, Notice of Motion dismissed." 'Matter No 50888 of 2018: Declaration that Order 22A issued 22...