Posted on May 21, 2012 by

Court of Appeal strikes down clean-up orders

The NSW Court of Appeal has held in Bobolas v Waverley Council [2012] NSWCA 126 that three orders issued under s124 of the Local Government Act 1993 (LGA) requiring the owners of a residential premises in Bondi to clean up waste located on their property
were invalid.

The s124 orders had been issued to Mrs Bobalas and her two daughters (the owners) in 2009, after a council officer noticed that waste was stockpiled at the front, side and back of the property and formed the view that the waste was causing or likely to cause a threat to public health.

The s124 orders stated in part:

…Waverley Council pursuant to the powers conferred upon it by Section 124 of the Local Government Act 1993 orders you as the owner of the above premises to:

TERMS OF THE PROPOSED ORDER

(a) Remove the accumulation of rubbish from all parts of subject premises…

REASONS FOR THE ORDER

The order will be given…

PERIOD FOR COMPLIANCE WITH THE ORDER

As the storage of waste and refuse constitutes a health risk the order will require that you comply with its terms within twenty-eight (28) days from the date of this order. [Emphasis added]

About one month after the orders were served, the council officer returned to the premises to find that more rubbish had been accumulated and as a result, formed the belief that the orders had not been complied with.

The Council commenced proceedings in the Land and Environment Court seeking an order under s678(10) of the LGA to enable it to enter the premises and remove the waste. Pain J granted the order.

However, the owners successfully appealed against Pain J’s decision to the NSW Court of Appeal.

McColl JA, with whom Macfarlan JA and Tobias AJA agreed, held that the orders were invalid because they did not ‘convey any requirement for immediate implementation or compliance.’ Her Honour stated that s124 of the LGA is expressed in present terms, and an order under this section ‘had to convey clearly to the recipient that that person was being ordered at that time to do or refrain from undertaking the identified action by reason of the receipt of the order.’

Her Honour held that the language used by the orders was expressed ‘in terms of futurity’ (‘proposed’ order) and created the impression that an order was still to be given (the order ‘will require’).

The decision in Bobolas is consistent with other Court of Appeal decisions handed down in recent times where statutory notices were held to be invalid on the basis that they failed to comply with statutory requirements:

• In D’Anastasi v Environment, Climate Change & Water NSW [2011] NSWCA 374 the Court of Appeal held that a notice issued by an officer of the Environment Protection Authority (EPA) under s193 of the Protection of the Environment Operations Act 1997 seeking information and records was invalid. The notice failed to identify, as required by s193, the ‘matter’ that was within the EPA’s responsibilities and functions about which the information was required by the officer
• In Hoxton Park Residents Action Group Inc v Liverpool City Council [2011] NSWCA 349 the Court of Appeal held that a notice issued under s101 of the Environmental Planning and Assessment Act 1979 advising of a grant of development consent was invalid because it was not made ‘in accordance with the requirements’ of the regulations. The notice failed to state that the consent was available for public inspection ‘during ordinary office hours’.

Bobolas is yet another reminder of the care that must be taken when drafting notices or orders under a statute to ensure that there is strict compliance with the requirements of the relevant provisions. In all of the cases referred to in this post, minor changes in the wording of the notices or orders would have likely resulted in their validity being upheld.