Findlay v Ashfield Council

Statutory and merit consideration context

1. Insofar as the Order was issued pursuant to s124 of the LGA 1993, the particulars refer to Division 3 of Schedule 5 of the Local Government (General) Regulation 2005 ("the LG Reg") provides relevant standards for the keeping of horses and cattle, enforceable by orders. CI 21, Div 3, Schedule 5 is as follows:- 21. Horses and cattle not to be kept near certain premises 1. Horses and cattle must not be kept within 9 metres (or such greater distance as the council may determine in a particular case) of a dwelling, school shop, office, factory, workshop, church or other place of public worship, public hall or premises used for the manufacture preparation or storage of food. 2. The floors of stables must be paved with concrete or mineral asphalt or other equally impervious material, and must be properly graded to drain. 3. Horse yards and cattle yards must be so enclosed as to prevent the escape of horses and cattle. 4. The standards in this clause apply to a person only if the council has served an order under s124 of the Act to that effect on the person.
2. The Ashfield Municipal Council Local Orders Policy 1999, which commenced on 1 January 2000 was also mentioned. It was to be revoked after the expiration of 12 months after the declaration of the poll for the next Local Government election, unless revoked earlier. However, I understand from Mr Patterson's submissions that this policy is now inoperable.
3. Contention 2 deals with the maintenance of cleanliness of the yard and refers to the following guidelines NSW Department of Primary Industry's Guidelines for Minimum Standards for Keeping Horses in Urban Areas (Factsheet 16) ("DPI Guidelines"). It includes minimum standards for the housing of horses which provide for a more functional and easily maintained environment; happier and healthier horses; fewer complaints from neighbours and, consequently, more enjoyable and rewarding horse ownership together with the following specific guidelines: ● 1.5 Maintenance Fences and gates should be kept in a good state of repair with yards in a clean and hygienic condition. Manure should be removed daily along with uneaten feed with the aim of discouraging flies, vermin and unpleasant odours. Water troughs should be cleaned regularly to maintain hygiene and discourage mosquito breeding. ● 6.1 Cleaning Stables, shelters and yards should be cleaned daily. Manure, refuse, soiled bedding and uneaten food should be removed daily and placed in a storage bin. Fresh bedding should be provided daily. ● 6.2 Manure Storage Bins Refuse should be placed in a receptacle such as a large metal bin with a flanged-fitting metal lid which is water-proof, prevents access to flies and vermin and reduces the emission of noxious odours. The bin should be emptied and disinfected weekly. ● 7.1 Maintenance of hygiene Control of flies and vermin can be aided by the use of proper storage bins; prompt removal of spillage; daily cleaning of stables and surrounds; and proper disposal of waste. ● 7.2 Elimination of breeding places Walls and floors should be constructed so that there are no cracks or crevices which can provide breeding places for pests. Proper maintenance should be carried out regularly to keep buildings in a good state of repair. This should include the cleaning, filling and sealing of cracks and crevices. ● 7.3 Use of pesticides and insecticide Suitable measures such as the use of fly baits and surface residual insecticidal sprays should also be used if necessary. Safety precautions are also essential when using chemicals to protect both the users and horses, keep all chemicals out of reach of children and animals; store away from foods; and read the label and safety precautions.

The site

1. No 35 Moonbie Street, Summer Hill is located within the R2 low density residential zone along with the neighbouring properties. The subject land is 493 sq m in area with an approximate width of 13 m and length of 37 m. There is a 2 - storey house erected on the site, which appears to be used for 2 separate dwelling units with Mr E Findlay occupying the ground floor area.
2. At the side of the dwelling is a garage, which has a street setback in the order of approximately 6m. This then leaves an area in the order of 120 sq m for the rear yard area (Yard) for the ground floor unit. The overall backyard is divided by a fence so that the occupants of the upper level unit can use the southern side. The ground floor unit contains a dining room and kitchen/ancillary rooms which lead to a 1.5 m wide concrete paved verandah which is used as part of the designated "stable" area.

The evidence

1. Evidence in the matter for council was presented by: 1. Mr M Morsanuto; Council's Manager Building /Regulatory Services - qualified Health and Building Surveyor. 2. Mr K McKew; Council's Team Leader Environmental Health. Qualified Health Inspector (No 1443) 3. Mr J Elia; Neighbour from 31 Moonbie Street, Summer Hill.
2. Evidence for the applicant was presented by: 1. Mr D Robinson, Farrier for Horse for the past 2 - 3 years. 2. Ms K Bergin (Affidavit); Resident from 1/31 Regent Street Summer Hill 3. Ms N Bamback (Affidavit); Resident from 6/43 Moonbie Street, Summer Hill
3. Mr Findlay relied mostly on his own experience with the management of Horse as shown in his primary evidence (Ex A and D). But he also sought to introduce evidence from the Messers Nash and Emery in the form of very brief affidavits. As they did not comply with the Expert Witness Practice Direction and the Deponents were not available in Court for any cross examination, the evidence was not allowed as expert evidence.
4. However the details of the affidavits were attached to the applicant's Statement of Facts and Contentions Reply (Ex D), wherein Dr G Nash (Veterinarian) said that on 16 February 2016 the stallion was in good health and this was not challenged by council. Professor D Emery (Entomologist) apparently visited the site on 15 January 2016 and considered the waste disposal arrangements satisfactory and he did not observe any brown blowflies or biting stable flies on that day. The other affidavit of Ms L Apthorpe dealt with ammonia measurements and odour information.
5. As noted initially, this matter has a long history involving neighbour complaints and many council compliance inspections where on occasions no unsatisfactory odours were detected from manure and/or urine on the subject property.
6. From my consideration of the evidence it is apparent that a pony has been kept on the premises since April 2002 when Merrs I, E, and R Findlay wrote to Council describing the pony as "Jack" and included a photograph of what appears to be a predominantly black coloured pony.
7. Following a number of complaints and inspections on 3 December 2003 Council resolved that: That the pony "Harley" be permitted to remain on the property subject to the following conditions: (1) All waste from the pony is to be removed twice a day from the premises. (2) Install a barrier to keep the pony away from the common side boundary fence with No. 31 Moonbie Street Summer Hill. (3) Maintain a satisfactory layer of wood chips in the rear yard. (4) Council reserves the right to require that the horse be removed from the premises at any time. (5) That no other pony or horse be kept on the premises at any time. (6) The yard area where the pony "Harley" is kept to be maintained in a clean and tidy condition at all times.
8. But according to Mr Findlays SoFC in Ex D (Reply), the pony's name is "Horse" and it is a piebald Shetland pony that has been residing at the subject property since April/May 2002 and that is the horse observed at the view. Whilst the difference in the pony name and colour around this time was not satisfactorily explained, I accept that the most critical aspect is the compliance with the aforementioned, six approved management conditions, which I deal with subsequently.
9. In terms of the compliance with these conditions it then appears from Mr Findlay's Reply that he instituted a management program involving:

• Regular exercise walks external to the site.
• Initially placing woodchips in the yard obtained from a tree next door and then replacing it with mulch.
• Then in June 2014 the woodchip and mulch was replaced with Rhodes grass because of the difficulty in maintaining the cleanliness of those materials.
• Erection of a temporary wire fence setback about 1 m inside the common boundary with No 31 to prevent Horse rubbing against the fence and causing disturbance.
• Erection of a 1300 mm high fence partially covered by a builders plastic sheet along the edge of the undercroft path and the Yard to provide and area of approximately 13 sq m (i.e. 1.5m x 8 m).
• Provision of a further area of approximately 4 sq m on the verandah adjacent to the dining room with a foam bed and cover for Horse to rest/sleep.
• Provision of 2 fans in the sleeping area near the dining room and another pedestal fan to keep Horse cool on hot days and to "reduce the number of flies".
• The undertaking of a strict clean up regime for the horse manure and urine, which includes collection and disposal of the waste via a small pit with a manual control plug into the sewer near the back of the garage.

1. It is apparent from Mr Findlay's Reply that he endeavours keep the yard area clean so as to minimise adverse amenity impacts on the residents of No 31 Moonbie Street. He says that he sleeps about 1 m away the Horse's bed and therefore he is able to prevent any noise intrusions and remove any manure and urine during the night. Furthermore he has introduced a low protein diet for Horse to restrict waste production.
2. In response to the matters discussed at the s34 Conference, Mr Findlay submitted a management plan (MP) in Ex A, which provides: 1. The Shetland pony name "HORSE" will be monitord from 6am to midnight everyday, as is the case now. 2. He usually defecates 9 times a day and urinates about 8 times a day. 3. "HORSE" is fed Rhodes hay 4 times a day and grain 3 to 4 times a day. 4. As soon as any manure appears, it is placed in a closed bin which has a plastic bag to go out in the rubbish when it's full. 5. The urine is hosed when ever it happens, into a sewer access pipe, and channel, the sewer access pipe has a plug in it that lets the water out slowly 6. An email from Sydney water gives approval for discharge of washdown water to sewer.annexure "A" 7. There are 32 pages of photo's (with time and date) that show how the system will operate annexure "B" 8. The reason that there is little or no smell from the "HORSE" urine and manure is that the pony is on low protein diet. 9. Any left over hay is placed in the green bin along with any garden wast. 10. "horse is taken for a walk twice a day and is allowed to graze on the back
3. Mr Robinson said that was a farrier/stable manager and that he has attended "Horse" over the past 2 - 3 years. During his site visits he has found the yard area reasonably clean and has not smelt manure or seen excessive flies.
4. In terms of the current management of the property, a nearby resident Ms Bergin says that she has visited the property on an impromptu basis 11 times since 23 April 2016 and observed that:

• The Shetland pony "Horse" was present at the time of every visit. Horse was always immaculately groomed the coat was clean, the main & tail were tangle free, hooves were clean & solid, the teeth were all present, clean & white. Horse obeyed all instructions when given by its owner, Eric Findlay.
• On 23 & 24 April 2016 a small quantity of manure was in a l sq m area being dried out. There was no other manure on the property. There was no odour anywhere, nor where there any flies.
• Between 25 April 2016 and 3 may 2016 the practice of drying out the manure had ceased.
• Between 25 April 2016 and 3 May 2016 there were six days when there were no flies present. On the following three days there were between one to five flies present: 25 April 2016, 26 April 2016 and 3 May 2016.
• Between the same date range, there were four days where there was a slight, insignificant odour. Those dates being: 26, 27, 29 April & 3 May 2016. The following five days had NO odour: 25, 28 30 April 1 May 2016. On all of the occasions when there was the slight odour it was totally confined to the small passage between the home & garage on the property. It should be noted that in this space is where 1 red, 1 green & 2 yellow council garbage bins are kept.
• Between 25 April 2016 & 3 May 2016 there were no days that I found any horse manure.
• On 27 & 30 April 2016 whilst I was making notes about my visit, Horse did empty his bowels, not odourful & it was cleaned up instantaneously.

1. Another local resident Ms N Bamback affirmed that she visited the subject property on 2nd and 3rd May 2016 and observed that the area where "Horse" is kept was very clean and there were no flies, no manure and no smell. However the rear yard had a few flies and a slight smell.
2. However, the principal complainant was Mr J Elia whose family has lived next door to the subject site for approximately 40 years. He confirmed making numerous complaints regarding noise from the horse especially during the night time, adverse odour impacts from manure and urine which sometimes is not removed effectively and dependant on the wind direction. He says that these amenity impacts have caused him to keep shut the side windows of his house to minimise odour intrusion.
3. Mr Elia says that the odour impact is often such that his family is unable to BBQ and eat outside as recently occurred on Mothers Day. He is also concerned about the attraction of flies because his dogs have been bitten on the ears as have some members of the family.
4. Mr Morsanuto's expert evidence referred the contentions and in response to Contention 1 he considers that the site being inappropriate for the keeping of a horse because:

• The subject site area of 493 sq m and approximate width of 13m relative to the neighbouring properties limits opportunities to minimise negative impacts on neighbouring properties.
• The existing physical improvements and management practices are inadequate.
• The site has virtually no improvements regarding stabling or structures.
• The waste management and drainage practices are unrealistic as they rely on at a persistent level of effort that he considers would be extremely high and unrealistic.
• In the absence of a clear, detailed management plan that includes structures that manage waste, drainage, odours and insects the site is unsuitable to permanently house a pony.

1. In response to Contention 2, Mr Morsanuto says that Mr Findlay lives in conditions that have not been common in western urban cities since the early 20th century and he supports the Order for the following reasons:

• The totality of Mr Findlay's efforts to date include an unsatisfactory steel star post fence with wire and plastic and the use of the existing footpath under the lee of the existing dwelling and recently, the non compliant construction of a grated drain to prevent pollution of councils storm water system.
• The portion of the residence where Mr Findlay resides directly abuts the area where the pony is normally kept. This portion of the dwelling is open to the outside with windows and doors having been removed. It is assumed this is to increase the level of access Mr Findlay has with the pony. Whilst this no doubt demonstrates the care and affection that the owner has for the pony it has also results in his complete refusal to acknowledge that other residents may and do not wish to live in such intimate housing with livestock.
• Mr Findlay has refused to provide to Council a proposal that may include physical improvements such as proper drainage, stabling and other means to improve the impacts on neighbours. He has instead insisted that he will be available to immediately remove manure and hose or mop areas where the pony normally lives. This is unrealistic when Mr Findlay needs to carry out normal activities away from home such as shopping, business and medical treatment apart from when he may be unwell or asleep and unable to carry out cleaning functions. It is considered that such a proposal is doomed to failure not only based on Mr Findlay's past history in this regard but also in the inherent pressures and impractical nature of his proposed verbal stated cleaning routine
• Mr Findlay has not complied with Council's original conditions imposed keeping of the pony. Following complaints, council staff confirmed from site inspections the presence of waste that has not been removed and the marked increase in flies.

1. Regarding Contention 4, Mr Morsanuto says that at some site inspections there has been a distinct odour of animal wastes associated with the keeping of livestock. The odours vary depending on climatic conditions as well as the length of time since the property was last cleaned. In his opinion, the ongoing smell of a pony and its waste products is resulting in conditions considered unacceptable in a residential neighbourhood such as Summer Hill.
2. Mr McKew has spent about 20 years at Ashfield Council working in the environmental health field. He supports the Order for the removal of the horse because he considers the relatively small overall lot size and configuration, together with the holding area is inadequate for keeping the pony. He included a comprehensive set of photos showing the drainage collection pit for the receipt of the hosed urine from the holding area, which is required to be plugged during wet weather to prevent this contaminated water entering the sewer. His concern is that that contaminants may flow into council's stormwater system if the "plug" is not effectively managed.
3. With regard to Contention 2, he has seen manure storage bins situated against the side fence of 31 Moonbie Street, which has been accessed by neighbours for their manure collection. Insofar as Sydney Water does not allow horse manure discharge into the sewer, Mr Findlay says this issue has now been resolved because he has abandoned the supply of horse manure and instead packages it and disposed via the garbage bin.
4. Mr McKew says that the control/reduction of odour from urine/manure depends entirely on the frequency, continuation and cooperation from Mr Findlay in removing the urine and faeces immediately from the property. However, random inspections show this cleaning has not been effectively undertaken.

Conclusions Merits

1. I have carefully considered the evidence, the submissions and undertaken a view and it appears to me that in addition to the merit issues raised in the contentions, consideration is also required to the form of the s124 Order as served.
2. I also note that the Applicant chose to present his own case and did not tender any admissible expert evidence. Instead he relies primarily on his dedication to Horse and his commitment to maintain the pony and its containment area in a managed healthy condition, which minimises impacts on neighbours. Based on his lay evidence this requires 7 day supervision from very early morning until around midnight. Furthermore, because Horses' sleeping area is in close proximity to where Mr Findlay sleeps, he says that he is able to clean up during the night period.
3. As the keeping of a horse at the subject property has been undertaken since 2002, I understand from the evidence that the management and cleaning routine has been updated as explained by Mr Findlay. This includes changing the diet to minimise all waste, stopping distribution of manure to the public so as to enable better storage and disposal by the regular garbage service, thereby reducing the opportunity for odour nuisance and flies.
4. All of this involves a demanding 7 day commitment, which I accept Mr Findlay agrees to, notwithstanding his compromised living amenity. Accordingly this has resulted in Horse being apparently kept in a healthy condition and in a generally clean, confined area.
5. But on consideration of the merit issues, it seems to me from the evidence that there has been a significant ongoing issue with odour from urine and manure as stated by Mr Elia and the council experts. From my observations of the site, I consider it would be extremely difficult to maintain the overall horse containment area odour free, especially considering the proximity of about 8.4m from the "stable" area to No 31. In this regard, I also acknowledge that odour impacts can cause different levels of discomfort to various people depending on their sensitivities.
6. Notwithstanding Mr Findlay's cleaning regime, I accept there will be times when manure and urine is left in the open before removal as has been observed in the past. In this regard I have some difficulty in accepting that Mr Findlay is available to remove such waste practically immediately. It seems to me that there must be times when Mr Findlay leaves the premises during the day and therefore there is a reasonable likelihood of manure odours and flies attraction at times and this supports the s124 Order intent.
7. The stabling arrangement as shown in the sketch plan produced during the hearing (Ex. E) is unconventional in my view because it adjoins the living rooms of the house and takes up full width of the pathway under the house verandah, which is the main route for residents access to the rear yard. The fencing in the form of star pickets, wire strands and partial builders plastic to a height of about 1 - 1.5m presents very much as an ad hoc structure. Considering its location adjacent to the kitchen and dining room and that the pathway is the main location for the collection of manure and hosing of urine, I accept Mr McKew's opinion that this is an unacceptable health amenity outcome.
8. Another contentious component of the "stable" concerns the drainage. The drainage system involves a constructed collection pit adjacent to end of the verandah and the rear of the garage and includes a connecting grate, that all discharges into the sewer. Importantly, this system includes a plug that is to remain in place, except when there are wash downs of the pathway, so that general rainwater runoff is excluded from the sewer. This is to prevent contaminated water and possibly manure flowing into the sewer line.
9. According to the details in Ex 6, Sydney Water is satisfied with "plug/bung" system to allow the wash down area to operate. Notwithstanding this, Mr Morsanuto is dissatisfied with this arrangement because taking into account the overall drainage flows, he considers that it is likely urine and faeces will pool for extended periods and in periods of heavy rain there is strong likelihood the overflows down the driveway into council's stormwater system that leads to Hawthorne Canal.
10. In my assessment, I am persuaded to accept Mr Morsanuto's opinion that this drainage relies heavily on someone maintaining a high level regime of cleaning so as to prevent contaminated runoff into the road stormwater system, and therefore presents an unreasonable risk to the environment, notwithstanding Sydney Water's acceptance of part of the wash down water. As existing, I do not consider the drainage disposal system, which includes runoff from the yard area is fail/safe to protect the downstream environment and this conclusion supports the intent of the s124 Order.
11. However, as mentioned previously I have some concerns about the form of the s124 Order. During the submissions reference was made to the matter of Kathy Anne Pope v Tumut Shire Council [2013] NSWLEC 1238 that I determined. In that matter reference was made to the Chief Judges determination in the matter Pittwater Council v Bolitho [2007] NSWLEC, where he dealt with the appropriate service of orders and said: 100 In Part 5 of Schedule 2 to the Local Government (General) Regulation, the only clause of relevance to horses is cl 21. That clause specifies certain standards for the keeping of horses. However, the standards in the clause apply to a person only if the Council has served an order under s 124 of the Act to that effect on the person: see cl 21 (4) of the Regulation. As the Council properly conceded, it has not served on Ms Bolitho an order under s 124 specifying that the standards in cl 21 will apply to her and need to be complied with. Accordingly, the standards in cl 21 of the Local Government (General) Regulation do not apply to Ms Bolitho and could not be used as a basis for making an Order No 18 against Ms Bolitho. 101 In any event, even if the Council had served an order specifying that the standards in cl 21 were to apply to Ms Bolitho, the order that properly would be made under Order No 18 would be an order requiring that Ms Bolitho keep the horses in compliance with the standards. The Council's order did not require Ms Bolitho to keep the horses in compliance with the standards in cl 21. Rather, the Council's order required Ms Bolitho not to keep if horses on the property at all.
12. Whilst Mr Patterson made submissions about the status of the Local Orders Policy and the s124 Order, it is apparent that the s124 Order specifically refers to Order Nos 18 and 21. But Order 18 does refer to cl 21 of the Regulation and consequently following the line of authority in Bolitho, the cl 21 standards do not apply. Notwithstanding that the cl 21 standards are included in the particulars for contention 1, they were not referred to in the expert evidence except for Mr McKew noting that the pony is kept within 9m from the adjoining property dwelling and adjacent to the owners dwelling.
13. Insofar as Mr Findlay was aware of the Bolitho judgement he did not make objection (understandably) to the form of the served s124 Order. The Order No 18 required the removal of the horse on the basis that it was not being kept appropriately i.e. in accordance with the conditions stipulated in Council's 2003 resolution.
14. As stated previously, Mr Findlay produced no technical/expert evidence to support his objection to the Order. However, the DPI guidelines that were identified in the particulars for Contention 2 and contained in council's bundle of documents were discussed. Mr Findlay dismissed these guidelines as irrelevant because the subject context is a much smaller site.
15. Nevertheless I consider they do contain some information that is useful for consideration in this 'sensitive' matter. In any case, I consider it important to have some reliable benchmarks considering the relatively small overall lot size in this built up residential area where about 120 sq m is available for the horse. Whilst the various criteria is listed in the guidelines, it states that where a horse is kept in a paddock and not a stable the paddock should have a minimum size of 0.4 ha. It also has specifications for appropriate fences, stables and cleaning requirements, none of which is compliant in the subject circumstances.
16. In summary then, this matter has been somewhat difficult to resolve due to Mr Findlay's presentation and absence of any reliable technical evidence. As noted, I accept Mr Findlay's commitment to properly manage Horse but I accept that there have been significant breaches of Councils 2003 management conditions resulting in adverse amenity impacts on the residents and their pets next door.
17. Assuming that the s 124 Order has been properly executed, my finding is that its intention to cease keeping the pony at the subject premises should be upheld. In this regard, I rely on the merit evidence that:

• The pony has not always been kept in accordance with the management and cleanliness conditions imposed by Council in 2003.
• At times manure and urine waste has been observed on the premises and accordingly I accept this can generate unacceptable odours depending on weather conditions.
• The manure on the property can attract flies as stated by the neighbour and observed by council officers, which are undesirable within a close residential neighbourhood.
• The owner has not presented a reasonable or effective management plan for the management of the horse and its containment area that is supported by some recognised and reliable evidence. Instead he has changed the original woodchips and replaced them with grass without undertaking proper discussions with council officers.
• Also, he has apparently changed the horse diet to reduce waste but this was not corroborated. Despite apparently being aware of the Pope judgement, Mr Findlay did not address chemical treatment to minimise odour and flies nuisance. Accordingly, I give diminished weight to Mr Findlay's personal opinions.
• Considering the site constraints due to its size and configuration, the drainage disposal arrangements are critical to ensure that in storm events there is no overflow of contaminated water into Council's street drainage. I consider the proposed system to prevent ponding and relying on the plug removal is highly labour intensive and does not represent a fail/safe system.

1. In reaching the conclusion that Order has merit, Mr Patterson submitted that a period of 3 months would now be reasonable for compliance. Mr Findlay was unable to state a reasonable time frame because he does not contemplate Horse being removed.
2. Considering the procedural matter concerning the service of the s 124 Order, I intend to adjourn the matter for a period of 1 month to allow the parties to make any further submissions on this point. Any submissions should deal with the question of if either element relied upon is invalid, is it severable to leave an otherwise valid order remaining.

Background

1. On 3 June 2016 I delivered findings on this matter concerning an appeal against a Section 124 Order requiring the removal of a horse from the property situated at 35 Moonbie Street, Summer Hill. Prior to the making of final orders, I invited the parties to make further submissions concerning the status and service of the original s124 Order (Attachment A) in terms of its reference to Orders No 18 and 21. In particular I sought a response to the relevance of the line of authority presented by the Chief Judge in Pittwater Council v Bolitho [2007] NSWLEC 355.
2. In the findings, I referred to the following para 100 and 101 in Bolitho: 100 In Part 5 of Schedule 2 to the Local Government (General) Regulation, the only clause of relevance to horses is cl 21. That clause specifies certain standards for the keeping of horses. However, the standards in the clause apply to a person only if the Council has served an order under s 124 of the Act to that effect on the person: see cl 21 (4) of the Regulation. As the Council properly conceded, it has not served on Ms Bolitho an order under s 124 specifying that the standards in cl 21 will apply to her and need to be complied with. Accordingly, the standards in cl 21 of the Local Government (General) Regulation do not apply to Ms Bolitho and could not be used as a basis for making an Order No 18 against Ms Bolitho. 101 In any event, even if the Council had served an order specifying that the standards in cl 21 were to apply to Ms Bolitho, the order that properly would be made under Order No 18 would be an order requiring that Ms Bolitho keep the horses in compliance with the standards. The Council's order did not require Ms Bolitho to keep the horses in compliance with the standards in cl 21. Rather, the Council's order required Ms Bolitho not to keep if horses on the property at all.

Submissions

1. Both Mr A Isaacs (Applicant) and Mr S Patterson (Respondent) provided written and oral submissions.
2. Applicant: Mr Isaacs submits that Order No. 18 is an order that is concerned with animals not being kept on premises to a particular standard, so much is clear from the words of Order No. 18 which relevantly provides: 18 Not to keep birds or animals on premises, other than of such kinds, in such numbers or in such manner as specified in the order
3. The order is directed at the numbers of the particular animals permitted and/or the manner of their keeping, in other words the standards that apply to the keeping of animals. In Bolitho the animal the subject of the order was a horse. However, the issue identified in both cases is the same, namely, whether the horse (in Bolitho) and the pony (in this case) is being kept in an inappropriate manner.
4. Accordingly, Order No. 18 is identified in the Order as a circumstance relied upon for issuing the Order. Order No. 21 is also relied upon as a circumstance for issuing the Order. Preston CJ in Bolitho describes Order No. 18 as being concerned with the standards by which animals are kept at particular premises (see Pittwater Council v Bolitho [2007] NSWLEC 355 at [100]-[101]).
5. In this case, Clause 92 of the Regulation relevantly provides: 92 Relevant standards for keeping of birds or animals For the purposes of Order No 18, the standards for the keeping of birds or animals set out in Part 5 of Schedule 2 are relevant standards referred to in Column 2 of the Table to section 124 of the Act. Note. An Order can be made requiring compliance with these standards if they are not being complied with.
6. The submission is that an order relying on Order 18 must first be proceeded by an order requiring the above standards to be complied with. However the subject Order does not make any reference the above standards. Even though there was some reference to the Council local policies (i.e. 2003 Resolution), this is not a proper basis for issue of the S124 Order.
7. As no notice of the standards prescribed in the Regulation was provided by the Council before reliance upon Order No. 18 was made by the Council, the purported reliance upon Order No. 18, in circumstances where the mandatory requirement to bring the standards prescribed by the Regulation to the attention of the recipient of the Order was not fulfilled, results in the Council's reliance upon this Order being invalid. A purported exercise of the statutory power has no validity where a condition for the exercise of the power has not been fulfilled.
8. A further difficulty that confronts the Council relying upon Order No. 18 as a basis for the removal of the pony from the premises is that it is a circumstance concerned with the maintenance of prescribed standards for keeping the animal (to which notice has not been given in this case). It is not a circumstance that can be relied upon to ground an order issued to remove the pony. As Preston CJ in Bolitho relevantly finds at [101] and [106] respectively: 101. In any event, even if the Council had served an order specifying that the standards in cl 21 were to apply to Ms Bolitho, the order that properly would be made under Order No 18 would be an order requiring that Ms Bolitho keep the horses in compliance with the standards. The Council's order did not require Ms Bolitho to keep the horses in compliance with the standards in cl 21. Rather, the Council's order required Ms Bolitho not to keep horses on the property at all. 106. For these reasons, cl 21 of the Local Government (General) Regulation did not and still does not provide a foundation for the Council issuing an order under s 124 of the Local Government Act 1993 to Ms Bolitho that she not keep horses on the property.
9. Consequently, as part of the order is invalid, then the entire order is invalid as the invalid part cannot be severed to leave an otherwise valid order remaining based on the judgement of Lloyd J in in Holmes v Director-General of the Department of Infrastructure Planning and Natural Resources (2005) 139 LGERA 102,108 (Holmes): i. There is no presumption of severability of statutory instruments thus the Order must stand or fall as a whole. ii. The presumption that the instrument is not separable is particularly important in circumstances where it forms part of a regulatory scheme with penal provisions such as in this case. iii. Accepting that s. 32 of the Interpretation Act 1987 may permit a construction that separates valid from the invalid, that part of the Order that might be said to be valid necessarily forms part of the inseparable context of the invalid Order and, therefore, cannot be construed in such a manner.
10. Furthermore, the circumstances said to give rise to the Council's authority to issue the Order are both the circumstances provided for pursuant to an Order No. 18 and an Order No. 21. But the Order does not distinguish between which of the circumstances set out in the Order it relies upon in order to obtain the relief that it seeks. The Order provides both of those circumstances as a basis and does not suggest that they act independently of each other or that they are provided as an alternative basis for the same result. It must be presumed that the Order is incapable of being severed and ought not to be severed.
11. Mr Isaacs also submits that an important principle of construction is that where an order, has penal consequences for a failure to comply and can be the subject of criminal prosecution, such an order must be strictly construed in favour of the recipient of that order (refer; Holmes v Director General of the Department of Infrastructure Planning and Natural Resources [2005] 139 LGERA 102,113). A failure to comply with the Order clearly brings with it potential penal consequences and may be the subject of a criminal prosecution. So much is clear from the consequences set out under the heading in the Order described as 'non-compliance.'
12. Consistent with Holmes, the Order must be strictly construed in favour of the recipient. The importance of a strict construction with respect to an order that gives rise to potential criminal prosecution against a recipient is that the recipient must be in a position, on the basis of what is set out in the order, to be able to adequately defend themselves in criminal proceedings against an allegation of non-compliance. To that end the recipient must know that the order is in conformity with the requirements of the legislation that enables it to be issued.
13. Lastly, Mr Isaac's submission regarding strict construction relates to the severability of the Order, being the inseparable context in which the Order was issued, including the reasons given for the Order being issued. Just as the Order does not distinguish between which of the circumstances set out in the Order it relies upon in order to obtain the relief that it seeks, similarly, the Order does not distinguish between those reasons given for the Order that relate to Order No. 18 and those that relate to Order No. 21. This evidences the inseparable context in which the Order was issued. The invalid part of the Order has been inextricably fused with that part of the Order that might be said to be valid. Thus, the invalid part of the Order is unable to be excised in order to save what may be regarded as valid from operating in this case
14. Accordingly, the Applicant's ultimate submission is that the invalidity of the Order should lead to the appeal being upheld, consistent with the findings by Lloyd J in Holmes.
15. Respondent: Mr Patterson's alternative submission is that as the merit assessment has been made and findings in that regard presented, then there are no procedural concerns because Section 180 of the Local Government Act 1993 allows for an appeal against an order. Pursuant to s 180(4) the Court can revoke the order, modify the order, substitute for the order any other order that the council could have made, find that the order is sufficiently complied with, or make such order with respect to compliance with the order as the Court thinks fit. This is a very wide power and is not limited in the manner suggested by the Applicant.
16. In response to the Applicant's submissions, Mr Patterson says that: 8. The Applicant's written submissions dated 4 July 2016 fail to refer to case authority which is directly against the propositions which the Applicant now seeks to advance -see McCudden v Cowra Shire Council [2016] NSWLEC 14 at [91] - [152], per Craig J. McCudden recognises that an applicant, having appealed in the Court's Class 2 merits jurisdiction against the issue of an order by a local council under s 124 of the Act, is inviting the Court to 'look afresh' at the order by way of merits review. 9. Matters that may relate to the 'validity' of the order are, for the purposes of merit review proceedings, 'put to one side' so that the merits of the order can be considered, with the consequence that the terms of the order may (or may not) be reframed, as provided for by wide discretionary powers under s 180 of the Act. The powers of the Court on appeal set out in s 39 of the Land and Environment Court Act 1979 coupled with the broad discretion afforded the Court by s 180(4) of the Act enables the Court to consider the decision of a council to give an order under s 124 of the Act afresh and that ample jurisdiction has the consequence that any defect in the order first given by the council may be superseded or overcome by the appeal process - see McCudden at par [116]…. 10. That the order in the present case did not, in terms, refer to Sch 2, Pt 5 cl 21 of the Local Government (General) Regulation 2005 is completely irrelevant to the matter under review in any event but further, in a general sense it is completely irrelevant once the Applicant commenced proceedings invoking the Court's merit review Class 2 jurisdiction. The Applicant's references to 'severance' and 'penal construction' principles do not assist the Court as to its role and task in the merit review jurisdiction as plainly recognised in McCudden. 11. The fact is, the merits review relating to the order has now been undertaken, and the Court has made factual findings adverse to the Applicant. Accordingly, the 'procedural matter' referred to in par [51] of the Court's principal judgment is not a matter which presents any hurdle whatsoever to the Court making final orders consistent with the merit findings as set out in the principal judgment.
17. Mr Patterson makes the further observation that no part of Bolitho is authority for the proposition that Sch 2, Pt 5 cl 21 of the Local Government (General) Regulation 2005 is the sole basis for the issue of any order under Order 18 of s 124 of the Act. The basis for Sch 2, Pt 5 cl 21 of the Local Government (General) Regulation 2005 is found in s 139 of the Act. Section 139 provides that an order may specify the standard that the premises are required to meet. However, an order under Order 18 of s 124 is not required to adopt the standards in Sch 2, Pt 5 cl 21 of the Local Government (General) Regulation 2005. If this is not abundantly clear from a plain reading of ss 124 and 139 (which it is) it is clear from the cl 91 and the Note to cl.92 of the Local Government (General) Regulation 2005 which are as follows: 91 Keeping of birds or animals Without limiting Order No 18, failure to comply with relevant standards or requirements set or made by or under the Act constitutes a circumstance that is taken to be included in the circumstances specified in Column 2 of the Table to section 124 of the Act as circumstances in which Order No 18 may be made. 92 Relevant standards for keeping of birds or animals For the purposes of Order No 18, the standards for the keeping of birds or animals set out in Part 5 of Schedule 2 are relevant standards referred to in Column 2 of the Table to section 124 of the Act. Note. An Order can be made requiring compliance with these standards if they are not being complied with.
18. Mr Patterson submits that an order under Order 18 of s 124 can relate to a wide range of circumstances and is not limited to Sch 2, Pt 5 cl 21 of the Local Government (General) Regulation 2005. No part of the operation of the Act or the Local Government (General) Regulation 2005 can prevent a local council (or the Court on appeal) from finding that the keeping of a single horse is inappropriate. The Applicant's submission, which seeks to read down the operation of Order 18 of s 124 as being confined to the matters in Sch 2, Pt 5 cl 21 of the Local Government (General) Regulation 2005, is unarguable.
19. Further, he submits that it must be understood that Bolitho related to a council's application for injunctive relief to remove two horses from a residential property in the Class 4 jurisdiction of the Court. On the hearing of this application the Court did not have the wide ranging powers set out in s180 of the Act available to it nor did the Court find it necessary for the horses to be removed - see par [151]. The jurisdiction, the application and the findings in Bolitho are fundamentally different to the matter under review.
20. Mr Patterson's submissions are that:

• In Bolitho the council gave a number of reasons for the issue of the s 124 order including that the horses are being kept inappropriately. The manner in which the council stated that the horses were being kept inappropriately was firstly, that a council policy was not being complied with in specified ways and secondly, that the horses were not being kept in accordance with the requirements of Sch 2, Pt 5 cl 21 of the Local Government.
• At par [100] in Bolitho the Court determined that the standards in that clause apply to that person only if the council has served an order under s 124 of the Act to that effect. At par [101] the Court determined that even if the council had served an order specifying the standards in cl 21 were to be complied with the order could only require the recipient of the order to keep the horses in compliance with the standards. Further, at par [106] the Court determined that cl 21 did not provide a foundation for the council to issue an order that the horses not be kept at the property.
• The Order that has been issued by Council does not refer to Sch 2, Pt 5 cl 21 of the Local Government (General) Regulation 2005 nor was any evidence or submissions put to the Court seeking to rely on cl 21. To the contrary, the Court was advised cl 21 was not relevant to the proceedings. Although there is reference to cl 21 in particular (d) of contention 1 of Council's statement of facts and contentions, cl 21 was not pressed and indeed could not be pressed in circumstances where the Order did not refer to that clause and where Council's position was that the horse should be removed from the site.
• Further, Council's Order also includes an order pursuant to Order No. 21 in the table to s 124 of the Act. It is important not to misunderstand the distinction between the inclusion of Order No. 21 in the Order and cl 21 set out in Sch 2, Pt 5 of the Local Government (General) Regulation 2005. By dint of cl 91 of the Local Government (General) Regulation 2005 cl 21 necessarily relates to Order No. 18 if the order seeks compliance with standards. At par [44] of the principal judgement there is comment that Order 21 does not refer to cl 21 then there is reference to the line of authority in Bolitho. Order 21 need not refer to any standard and is not in any way constrained by Sch 2, Pt 5 cl 21 of the Local Government (General) Regulation 2005. The Court should have no procedural concerns with respect to Order 21.

1. Consequently, Mr Patterson's ultimate submission is that in light of the recent authority of McCuddin, even if the Court has any procedural concerns the Court should proceed to determine the appeal on the basis of the merit findings which it has already made utilising its powers under s 39 of the Land and Environment Court Act 1979 and s 180(4) of the Act. There is no procedural impediment to the making of final orders in accordance with those merit findings.

Conclusion Final

1. The aforementioned submissions contain divergent opinions regarding the issue of the s 124 Order in the current circumstances. Insofar as I initially gave consideration to the Bolitho judgement, which was Class 4 proceedings dealing with civil enforcement of orders, I accept from the submissions that the more recent cases, particularly McCudden have more relevance in the current Class 2 proceedings.
2. Consequently in the Class 2 proceedings I am not able to make a finding on the validity of the subject s124 Order. Instead, I think it appropriate to follow the procedure as submitted by Mr Patterson, which relies on the recent authority in McCudden v Cowra Shire Council [2016] NSWLEC 14.
3. Insofar as this matter was a Class 4 matter concerning the validity of a s 124 Order, paras 108 to 114 deal with the Courts power to deal with such orders. Relevantly the following is stated: 115. I have earlier made reference to s 39 of the Court Act. The section relevantly provides: "39 Powers of Court on appeal (2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal. (3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal. (5) The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly." 116 Those provisions, coupled with the broad discretion afforded to the Court by s 180(4) of the Local Government Act, demonstrate the capacity of an appellant under s 180(1) to have considered afresh the decision to give an order under s 124 and, if applicable, the terms of such an order. That ample jurisdiction of the Court so to determine an appeal has the consequence that any defect in the order first given by a council may be superseded or overcome by the appeal process provided by s 180 (Twist v Randwick Municipal Council [1976] HCA 58; 136 CLR 106, per Barwick CJ at 110-111 and Mason J at 116; Calvin v Carr at 10).
4. Accordingly, I rely on Mr Patterson's submissions that it is appropriate to apply the recent authority in McCudden, which allows the Court on appeal under s 180 of the LGA to consider the merits of the order afresh in the Class 2 proceedings. Then s 39 of the Court Act allows the Court to make appropriate orders based on the evidence presented. If any appeal arises concerning the validity of orders that would be determined in other proceedings, presumably along the line of Mr Isaacs submissions.
5. As the parties are aware, I have undertaken a comprehensive review of the evidence and my presented findings on 3 June 2016. Based on these findings, I am satisfied that a modified order in the form in Attachment B should be made.

Court orders

1. The Court orders that: 1. The appeal is dismissed. 2. The Section 124 Order made on 20 November 2015 is superceded by the new S 124 Order in Attachment B. 3. The exhibits may be returned except for 1, 2, 3, 6, 7, A, D and E. R Hussey Acting Commissioner 159429.16 - Annexure A (38.1 KB, pdf) 159429.16 - Attachment B (67.8 KB, pdf)

Amendments 19 July 2016 - Addendum - Final Orders DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 July 2016