Local Government Legal

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May 2012 – Local Government Act Orders Revisited

The Court of Appeal in the case of Bobolas v Waverley Council [2012] NSWCA 126 has considered the validity of an order issued by the Council under s124 (cl 22A) of the Local Government Act 1993 (LG Act). Section 124(22A) enables a council to order that the owner or occupier of a premises “remove or dispose of waste that is on any residential premises… ”.

McColl JA, MacFarlan JA and Tobias AJA agreeing, noted that s124 spoke in present terms however, the Order was expressed in terms of futurity, including the phrases “Terms of the proposed order”, “the order will be given…” and “… the order will require that you comply…”

The Court of Appeal found that the Order was void as the terms of the Order did not convey any requirement for immediate implementation or compliance such that the recipient could not be certain as to whether it required present compliance or, rather, whether it was some sort of warning notice in anticipation of an order requiring removal of rubbish being issued at a later date. The Court held that “the order 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”.

They added, “We note that a 22A Order is exempt from the usual requirement to provide a notice of intention to serve an order however in this instance, it appears as though the terms of a ‘Notice of Proposed Order‘ had been utilised in the Order.”

The case concerned an appeal from the Land & Environment Court (L&E Court) in which Pain J made Orders (under s 678(10) of the LG Act) allowing the Council to enforce the LG Act Order by entering premises to carry out the work required by the Order.

It is established law that while a Council is prevented from entering residential premises by s200 of the LG Act, there is no limit on the Court’s powers to make orders under s678(10) to enable a council to enter residential premises whether or not the owner or occupier of land consented[1]. The Court of Appeal did not re-open this line of authority but considered, by analogy, the law of search warrants, which the courts have noted must be construed and applied strictly, in the context that warrants involve the “balancing of a person’s private interest in the inviolability of his house, his ‘castle and fortress’, against the pubic interest …” Accordingly, “to insist on strict compliance with the statutory conditions governing the issue of search warrants is simply to give effect to the purpose of the legislation” and “the validity of [an order] is necessarily dependant upon the fulfilment of the conditions governing its issue”.

The Court of Appeal referred to several L&E Court cases which have found Orders purportedly issued under the LG Act and s121B of the EP&A Act to be invalid because the drafting of the terms of the order were uncertain. The Order that was the subject of the proceedings was also found to be drafted in uncertain terms and thus invalid. Accordingly, as the L&E Court had no power to order the Council entry onto the premises to carry out the work, Pain J’s orders were set aside.

This case reinforces the need for careful drafting of the terms of Notices and Orders by council officers. Local councils have powers under several pieces of legislation to issue Notices and Orders and while the specific provisions vary, the need for certainty in drafting Notice / Order is imperative.

Note:  This information is not to be relied upon as legal advice

[1] Manly Council v Moffit (2006) 146 LGERA 215, Waverley Council v Bobolas [2006] NSWLEC 828 and Council of the City of Sydney v Estate of Sulligoi care of The Public Trustee [2007] NSWLEC 778.

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