Dubow v Warrumbungle Shire Council (No 2)

Publication restriction: Nil

ex-tempore JUDGMENT

1. Pursuant to a notice of motion filed on 31 December 2025, Ms Yolande Dubow, the Applicant to these proceedings, seeks the following orders:

1. That the expense and inconvenience of a site visit in 2026 be considered disproportionate to the matter of counting chickens, in an “appeal” “based on information from 2022 and Orders made in December 2024. It is ultra vires the alleged complaints and issues at hand. The Appellant at no stage consented to the site visit, and the previous pro-bono solicitor cancelled the section 34 Conference Site visit as instructed.

2. That the matter, (not being one to which Section 34A of the Land and Environment Court Act 1979 applies) dispense with the site visit listed on 3 February 2026, given the absence of the Appellant from the site on that date, and likelihood that the property will be sold as at that date.

3. That the matter be referred to Class 4 for Judicial Review, in the absence of any admissible evidence from the Respondent Council; the demonstrated falsehood as to the reasons for the making of the Orders; and the failure to consider the Applicants obligations at law under the Bankruptcy Act, 1966.

4. That the obligations of the Applicant to maintain stock vested in the Bankruptcy Trustee and continuing to do so post Discharge as per section 129 of the Bankruptcy Act 1966 be given consideration as a basis to revoke the Orders of a Local Council, not elected for the past twelve (12) years, on the complaint of one resident out of a total of 9384# census data 2021

2. By way of background, the substantive proceedings involve a Class 2 appeal commenced by the Applicant against an order (the Order) made by the Respondent, the Warrumbungle Shire Council (the Council), under s 124 of the Local Government Act 1993 (NSW) (LG Act) to "not to keep birds or animals on premises other than of such kinds and such numbers or in such manner as specified in the order", at a property known as 28 Digilah Street, Dunedoo (the Premises). The Applicant is the owner of the Premises.

3. More specifically, the order required the following:

“1. Remove all roosters from the Premises.

2. Not to keep any roosters at the Premises.

3. Remove all poultry from the Premises with the exception of ten (10) kept in accordance with (5) below.

4. Not to keep any more than ten (10) poultry at any time at the Premises.

5. Any poultry kept at the Premises must only be kept in accordance with the standards in Schedule 2, Division 2 of the Local Government (General) Regulation 2005, specifically:

a. Poultry must not be kept under such conditions as to create a nuisance or to be dangerous or injurious to health;

b. Poultry yards must at all times be kept clean and free from offensive odours;

c. If a poultry house is located within 15.2 metres of a dwelling, the floors of the poultry houses must be paved with concrete or mineral asphalt underneath the roosts or perches.

d. Fowls (that is, birds of the species Gallus gallus) or guinea fowls must not be kept within 4.5metres of a dwelling, public hall, school or premises used for the manufacture, preparation, sale or storage of food.

e. Poultry yards must be so enclosed as to prevent the escape of poultry.”

4. The Applicant represented herself at the notice of motion hearing via AVL, and the Council was represented by Mr T Ward, solicitor, who also appeared via AVL. The Council also assisted me with written submissions dated 16 January 2025.

5. The Order made by the Council that is now challenged by the Applicant was made following complaints by neighbours concerning poultry kept at the Premises.

6. During inspections of the property a Council employee has observed, I am told, at least 100 mixed poultry on the premises. Affidavit evidence has been filed concerning this. The presence of poultry was audible during the notice of motion hearing, and the Applicant’s submissions were frequently interrupted by at least one very loud rooster.

7. The Applicant's appeal against the Council's orders is made pursuant to s 180 of the LG Act, which provides persons who have been served with an order under s 124 of that Act with a right of appeal to this Court. The appeal has been listed for hearing on 3 and 4 February 2026. When the listing was made on 15 September 2025, Senior Deputy Registrar Holm also ordered that the hearing commence with a site view.

8. The Applicant's motion is supported by two affidavits of hers, one dated 18 December 2025 (A****pplicant's F****irst A****ffidavit) and the other dated 12 January 2026 (A****pplicant's S****econd A****ffidavit).

9. In her First Affidavit, which was read without objection, the Applicant deposes essentially to two matters:

(a) that her son's birthday is 3 February; and (b) that she has difficulty determining the number of animals the Council alleges is on her property.

10. In her Second Affidavit, the Applicant deposes to a number of matters, the relevance of which is not immediately apparent. The Applicant did however refer me in her oral submissions to [17] and [19] of her Second Affidavit concerning representations made to the Council, alleged intimidation relating to neighbours, and issues concerning her bankruptcy.

11. In relation to the bankruptcy, she alleges that ownership of the poultry at the Premises is vested in her bankruptcy trustee, although an email from the trustee attached to the Applicant's Second Affidavit states, unambiguously, that the trustee has no interest in the poultry.

Resolution

12. Orders 1 and 2 in the motion both relate to the site visit on the first morning of the hearing. I appreciate the Applicant may wish to attend her son's birthday or be present with him on his birthday, but that is not a proper basis for either the hearing not proceeding as listed, or for the view not taking place. The site view formed part of the Senior Deputy Registrar’s orders of 15 September 2025. That order was confirmed by Registrar Froh on 13 October 2025. There would appear to have been no challenge to those orders by the Applicant at the time they were made. There is also no evidence to enable a finding to be made that it is likely the Premises will be sold by 3 February 2026.

13. Further, I accept the submission of the Council that:

"The Commissioner presiding over the hearing… will... be assisted by undertaking a site view. A site view will permit the Commissioner to appreciate not only the property the subject of the Order (including any poultry currently being kept and the conditions which they are being kept in) but also the broader locality": Council’s Written Submissions at [2.3].

14. As to the privacy concerns outlined by the Applicant in her submissions to me, Mr Ward has indicated that the Council team for the site view will be limited to persons truly necessary to attend, which may not extend beyond lawyers.

15. As to order 3 in the notice of motion, I can see no proper basis for these Class 2 proceedings to be "referred to Class 4 for judicial review". They are not Class 4 proceedings. Pursuant to s 18(a) of the Land and Environment Court Act 1979 (NSW), an appeal pursuant to s 180 of the L**G Act can be commenced in Class 2 of this Court's jurisdiction. This is what occurred here. The Applicant elected to commence her proceedings in Class 2, and did not bring proceedings in Class 4 in the appropriate manner: see for example Part 59 of the Uniform Civil Procedure Rules 2005 (NSW).

16. As to order 4, whatever the suggested relevance of s 129 of the Bankruptcy Act 1966 (Commonwealth) is said to be (I can see none, given the trustee claims no ownership of the poultry (or any other animals)), what is sought is a revocation of the Order appealed against. That issue – if it truly be one – can be dealt with by the Commissioner presiding at the hearing.

17. For the above reasons, none of the orders sought in the notice of motion should be made. The notice of motion should therefore be dismissed.

18. I make the following orders:

19. The Applicant's notice of motion filed on 31 December 2025 is dismissed.

20. Costs in relation to the notice of motion hearing are reserved.

21. I confirm the hearing dates of 3 and 4 February 2026, including the site view to take place on 3 February 2026.

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