Inner West Council v Findlay

The present proceedings

1. The present proceedings have arisen as a consequence of orders made by Hussey AC in Class 2 of the Court's jurisdiction. Those orders were made as a consequence of the determinations set out by him, in Findlay v Ashfield Council [2016] NSWLEC 1219 (the 2016 decision), concerning the appropriateness or otherwise of the keeping of the pony at Mr Findlay's property. The trigger for the proceedings dealt with by the Acting Commissioner was an appeal by Mr Findlay against orders made by the Council, pursuant to s 124 of the Local Government Act 1993 (the Local Government Act). The orders, being orders in the table contained in the section, required that the pony be removed from the premises. The basis for the making of those orders by the Council were complaints by Mr Elia and approaches made by elected members of the Council following Mr Elia raising his complaints with those councillors.
2. The terms of the orders made by Hussey AC, at [80], were: 80 The Court orders that: (1) The appeal is dismissed. (2) The Section 124 Order made on 20 November 2015 is superseded by the new S 124 Order in Attachment B. (3) The exhibits may be returned except for 1, 2, 3, 6, 7, A, D and E.
3. In his making of the orders set out above, Hussey AC was standing in the shoes of the Council and exercising the power given to him by s 180 of the Local Government Act to make orders in substitution for the orders that had originally been made by the Council. Those orders made by him substituted for the orders of the Council and were as if they had been made by the Council.
4. The substituted order, in Attachment B, required Mr Findlay to cease keeping the pony at his premises by 21 October 2016.
5. It is to be observed, self-evidently, that Mr Findlay has not complied with the terms of that new order.

These Class 4 proceedings

1. On 13 November 2017, the Council commenced these Class 4 proceedings.
2. The Summons initiating these Class 4 civil enforcement proceedings contains the following prayers for relief: (1) That the Respondent (by itself or through its servant, contactors and/or agents) complies with s124 Local Government Act 1993 ("LGA") Order dated 19 July 2016 a copy of which is annexed and marked "A", issued by the Land and Environment Court ("the Court") in Proceedings No. 2016/00159429 to cease keeping or housing a pony at the premises situated at and known as 35 Moonbie Street, Summer Hill in the State of New South Wales ("the Premises") within 21 days from the date of these orders. (2) An order that upon completion of the actions required by order 1 above, the Respondent be restrained from housing any pony except in accordance with the terms of the s124 LGA Order issued to the Respondent dated 19 July 2016 (a copy of which is annexed and marked 'A'). (3) An order that the Respondent pay the Council's costs of and incidental to these proceedings as agreed or assessed. (4) Such further or other orders as the Court sees fit.

Introduction

1. I have earlier set out the outcome of the proceedings before Hussey AC in 2016. As these proceedings are ones in Class 4 of the Court's jurisdiction, the rules of evidence set out in the Evidence Act 1995 (the Evidence Act) apply. As a consequence, it is necessary to consider the status of the 2016 decision in light of two provisions of the Evidence Act. These are ss 91 and 93 of the Evidence Act. They are in the following terms: 91 Exclusion of evidence of judgments and convictions (1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. (2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose. Note. Section 178 (Convictions, acquittals and other judicial proceedings) provides for certificate evidence of decisions. and 93 Savings This Part does not affect the operation of: (a) a law that relates to the admissibility or effect of evidence of a conviction tendered in a proceeding (including a criminal proceeding) for defamation, or (b) a judgment in rem, or (c) the law relating to res judicata or issue estoppel.
2. Mr Nash and Ms Duggan each made submissions (unsurprisingly, to diametrically opposite effect) concerning how I should regard the 2016 decision when it is considered in the context of these two statutory provisions.

Applicant's submissions on judgment in rem

1. Mr Nash submitted that the findings in the Class 2 proceedings, including the findings in relation to expert evidence, were admissible and relevant in the Class 4 proceedings, as Hussey AC's Class 2 judgment in the earlier decision was a "judgment in rem" (Applicant Submissions in Reply [3]‑[4]). He submitted that as the order given in the earlier decision related to the use of land (per s 735A of Local Government Act), and the Court used its Class 2 jurisdiction to affirm the order as varied, this confirmed that the earlier decision was a judgment in rem (Applicant Submissions in Reply [5]). He asserted that, as the earlier decision was a judgment in rem, the findings in the earlier decision were admissible in the current proceedings (Applicant Submissions in Reply [6]).
2. Mr Nash expanded on this in his oral submissions, stating that "the evidential rules in the Evidence Act about borrowing, as it were, fact findings in earlier proceedings doesn't apply because, in the council's submission, the Class 2 decision and the judgment in the Class 2 proceedings was a judgment in rem" (Transcript, 13 June 2019, page 103, lines 27 to 31).
3. For the purposes of his submissions, Mr Nash principally relied on P E Bakers v Yehuda Pty Ltd (1988) 15 NSWLR 437 (Bakers v Yehuda) to demonstrate the earlier decision by Hussey AC was a judgment in rem (Transcript, 13 June 2019, page 103, lines 33 to 35). Both matters involved an order under s 124 of the Local Government Act and Mr Nash put that "any person can seek to enforce those orders, and in our submission therefore it's plain that the judgment of the acting commissioner was a judgment in rem, with the expectation that the acting commissioner's findings and decision would be something that any member of the public could pick up and work with in order to enforce the rights that flowed from the making or the affirmation of the order" (Transcript, 13 June 2019, page 104, lines 27 to 35).

Respondent's submissions on judgment in rem

1. Ms Duggan submitted that the Council only proposed that I conclude that the earlier decision was a judgment in rem so that the judgment could be used as evidence in the current proceedings. Such a submission was not soundly based, she said (Transcript, 13 June 2019, page 113, lines 23 to 42).
2. She then submitted that the Council sought to rely on the savings provision of Pt 3.5, s 93(b) of the Evidence Act, which states that, "This Part does not affect the operation of a judgment in rem" to enable the earlier decision to be used as a finding of fact in the current proceedings (Transcript, 13 June 2019, page 114, lines 1 to 7). She then further submitted that even if the earlier decision was a judgment in rem, the savings provision in s 93(b) cannot enable a judgment in rem to be used to give evidence of a fact to prove the existence of the fact but only to prove the judgment was given and what the terms of that judgment were. As a consequence, at the highest in the Council's case, the earlier decision could not assist the Council in proving findings of fact for the current proceedings (Transcript, 13 June 2019, page 114, lines 9 to 13).
3. Ms Duggan also proposed that Bakers v Yehuda was to be distinguished from the current proceedings as the earlier decision was not a judicial determination, like the subject of the Court of Appeal proceedings in that matter, but was an administrative function of the Land and Environment Court under the Local Government Act and Land and Environment Court Act 1979 (the Court Act) (Transcript, 13 June 2019, page 114, line 34 to page 115, line 17).
4. Ms Duggan also noted that the earlier decision was not in proceedings where the decision-maker was bound by the rules of evidence, but the current proceedings are (Transcript, 13 June 2019, page 115, lines 23 to 25).

Applicant Submissions in Reply

1. Mr Nash confirmed that the Council relied on s 93(b) of the Evidence Act to support the proposition that the earlier decision was a judgment in rem (Transcript, 13 June 2019, page 126, lines 35 to 39).
2. He then reasserted that a decision of a Commissioner is a judicial decision and therefore Bakers v Yehuda should be followed (Transcript, 13 June 2019, page 126, line 43 to page 127, line 27) and the Council was entitled to rely upon the findings of fact in the earlier decision (Transcript, 13 June 2019, page 127, lines 23 to 27).

Conclusion on the status of the 2016 decision

1. It is unnecessary for me to determine this issue, as I am satisfied that, taking the Council's position at its highest for the purposes of these proceedings (including that Hussey AC's decision was one in rem), the proper exercise of the discretion I am given by s 676(1) of the Local Government Act is not to require the removal of the pony from Mr Findlay's residence.

The relevant legislative provisions

1. Three provisions in the Local Government Act require some consideration in these proceedings.
2. The first of them is that which founded the ability for the Council to make the orders against which Mr Findlay subsequently unsuccessfully appealed to this Court (a process discussed earlier in this decision). This section, s 124, and the relevant extracts of the table forming part of it setting out the basis for the orders originally made against Mr Findlay, are in the following terms: 124 Orders A council may order a person to do or to refrain from doing a thing specified in Column 1 of the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table.
3. The second relevant provision of the Local Government Act is that which founds the Council's right to commence these proceedings. That section is in the following terms: 673 Remedy or restraint of breaches of this Act - the Minister, the Departmental Chief Executive and councils (1) The Minister, the Departmental Chief Executive or a council may bring proceedings in the Land and Environment Court or such other court as may be specified in this Act for the purpose of the proceedings for an order to remedy or restrain a breach of this Act. (2) Subsection (1) does not apply in relation to an alleged contravention of a pecuniary interests duty imposed under Chapter 14 (Honesty and disclosure of interests).
4. As a consequence of the Council invoking its right to commence proceedings as it has done, the power of the Court to give effect to an outcome is then to be found in a subsequent provision of the Local Government Act. This section is in the following terms: 676 Functions of the Land and Environment Court (1) If the Land and Environment Court is satisfied that a breach of this Act has been committed or that a breach of this Act will, unless restrained by order of the Court, be committed, it may make such order as it thinks fit to remedy or restrain the breach. (2) If a breach of this Act would not have been committed but for the failure to obtain an approval under Part 1 of Chapter 7, the Court on application being made by the defendant, may: (a) adjourn the proceedings to enable an application to be made under Part 1 of Chapter 7 to obtain that approval, and (b) in its discretion, by interlocutory order, restrain the continuance of the commission of the breach while the proceedings are adjourned. (3) The functions of the Court under this section are in addition to and not in derogation of any other functions of the Court.
5. As can be seen from the terms of this provision, the incorporation of the words "may make such order as it thinks fit", in s 676(1), vests in the Court (if a breach of the Act is established) a discretion as to what action, if any, is to be taken with respect to that breach.

The sole matter requiring determination in these proceedings

1. Ms Duggan did not seek, in any fashion, to challenge the validity of the process undertaken by Hussey AC. In short, I accept that the position adopted for Mr Findlay in these proceedings is not some backdoor attempt to conduct an appeal pursuant to s 56A the Court Act against the decision made by the Acting Commissioner. What is the sole matter here engaged is the question of whether, as a matter of discretion having regard to the totality of the circumstances (particularly matters arising after the Acting Commissioner's decision and orders), they warrant my exercising the discretion with which I am vested pursuant to s 676(1) of the Local Government Act earlier set out, to determine whether or not to order, in these proceedings, compliance with the requirement that the pony be removed from Mr Findlay's property.

The evidence

1. The evidence in these proceedings on behalf of the Council comprised affidavits deposed by:

• Mr Maurice Morsanuto, the Council's Acting Team Leader, Environmental Health (dated 28 September 2018); and
• Mr John Elia (dated 28 September 2018). Each of the Council's witnesses was required for cross-examination. It will be necessary to traverse their oral evidence later in a little more detail.

1. Evidence was given on behalf of Mr Findlay by:

• his own affidavit dated 9 May 2018; and
• an affidavit of Ms Tanya Carter, a veterinarian (dated 11 May 2018).

1. Neither of them was required by the Council for cross-examination.
2. Three folders of documents, comprising the totality of the material on the relevant Council file, were exhibited to Mr Findlay's affidavit.
3. For the purposes of that with which I need engage for the purposes of these proceedings, it is sufficient to note that the evidence given by Ms Carter was that the pony was in good condition and that there was nothing in the manner of his keeping by Mr Findlay that warranted any veterinary concerns relating to the wellbeing of the animal.
4. As a consequence, there is nothing concerning the arrangements for the housing and management of the pony with which I need engage and the sole matters giving rise to consideration in my exercise of discretion as to whether or not to require compliance with the removal of the pony from the premises where he is currently housed.

Mr Elia's evidence

1. Before turning to matters of detail arising out of Mr Elia's evidence, it is appropriate to make some introductory comments concerning the evidence he gave while being cross-examined by Ms Duggan. First, Mr Elia was somewhat belligerent in the witness box and, on a number of occasions, responded to questions asked by Ms Duggan not by answering the question, but by returning a question of his own. I make this observation because I am satisfied that, because it was clear that Mr Elia was a significantly unsophisticated witness entirely unfamiliar with court processes, this behaviour, to considerable extent (but not entirely), is to be excused.
2. However, there are other aspects of Mr Elia's evidence that caused me to be troubled as to the extent to which I could potentially have confidence that he was genuinely telling the truth in the witness box. It is necessary to explain why I have concluded that I must treat his evidence with a great deal of caution, in weighing matters to be taken into account in my exercise of discretion.
3. I have earlier noted that, exhibited to Mr Findlay's affidavit, were three folders of documents. These became Exhibits 1, 2 and 3. This material had been produced to Mr Findlay in response to a Notice to Produce that had been addressed to the Council.
4. Amongst the tendered material (Exhibit 2, folio 49) was a contemporaneous file note made by Mr Ken McKew, one of the Council's compliance officers, concerning an inspection which he had undertaken (with a colleague, Mr Simon Teng) on 16 February 2015. It is unnecessary, for the purposes of this section of my analysis, to set out the entirety of that file note.
5. It is, however, appropriate to set out that portion of this contemporaneous note that records what can only be regarded as an attempt by Mr Elia to offer an improper financial inducement to Mr McKew to respond in a positive way to the complaints that Mr Elia was making concerning Mr Findlay's keeping of the pony at his property. The relevant portion of this file note is in the following terms: Between the side of Eric's garage and his house, I told Simon that I did not want to discuss this issue with Mr John Elia and to walk to our vehicle and drive back to Council. Mr Elia spotted Simon and I at the front of the property and told us he wanted to discuss the matter. I advised him that we had other outstanding matters and had to leave. Simon approached Mr Elia to discuss the issues relating to the keeping of the pony, however following my request that we should leave to attend to other outstanding matters, Mr Elia pulled out his wallet, started pulling out what appeared to be $50 & $100 notes, and said to me "what does it take for you to listen to me? $100? ... $200?" I said to Mr Elia that "I strongly took offence to his comments" and walked back and sat in the Council car expecting that Simon would also have followed me. Simon continued talking to Mr Elia for approximately 10 minutes whilst I sat waiting in the car. When Simon finally returned to the car, we drove back to Council.
6. Ms Duggan cross-examined Mr Elia concerning this incident. The relevant element of this cross-examination is recorded as being (Transcript, 12 June 2019, page 87, line 27 to page 88, line 20): Q. Do you remember that when they came out of Mr Findlay's property at number 35 you stopped them in the street and you wanted to speak to them and Mr McKew said that he had other things to do and had to leave, do you remember that? A. I can't remember that, sorry. Q. Do you remember you, when he said he couldn't speak to you, pulled out your wallet and started pulling out $50 and $100 notes and said to him, "What does it take for you to listen to me, $100, $200? A. So are you saying that I'm bribing somebody? HIS HONOUR Q. Listen carefully to the question. A. The answer is no. DUGGAN Q. You don't remember doing that? A. No. Q. I put to you, Mr Elia, that in February 2015 when you saw Mr McKew and he declined to discuss the matter with you, you pulled out your wallet, taking about $50 and $100 notes and said words to him, "What does it take for you to listen to me, 100, $200"? A. No, sorry. Q. Mr McKew then said, "I strongly take offence at your comments" and he walked back to his car and sat in it, do you remember that? A. I can't remember that, sorry. Q. And Simon Teng spoke to you, do you remember that? A. Simon Teng, yeah, he's came twice, that fellow, yep. Q. Do you remember him speaking to you on that day? A. Yeah, verbally, yeah. Q. So you remember speaking to him, do you remember speaking to Mr McKew? A. He's came by himself, Simon Teng. Q. Do you remember what date it was? A. I cannot remember that date, sorry.
7. The document was evidence admitted without objection by Mr Nash. Mr Elia's responses concerning it in cross-examination (despite making the earlier allowance I have recorded for his unfamiliarity with court processes) was entirely unconvincing. Indeed, this incident, and his evidence denying it and asserting that only Mr Teng was present on the relevant occasion, has me conclude that I should give little weight to other evidence given by him.

The complaints concerning the pony

1. There have been 10 inspections undertaken of the conditions in which the pony has been kept at Mr Findlay's residence since the first of the complaints was made to the Council in February 2003. It is necessary to set out, in a little detail, the observations recorded by the Council's inspecting officers on those occasions. It is also appropriate to include other relevant material contained in documents in the Council's file.
2. For convenience, because of the necessity to consider the status of the 2016 decision, it is convenient to group these investigations into two separate time periods, these being those inspections made prior to the 2016 decision (including such observations as are recorded in Hussey AC's decision concerning the site inspection he undertook during the course of the proceedings leading up to his giving the 2016 decision) and, in a second table, such inspections as are disclosed as having taken place (or not) since the giving of the 2016 decision and the making of the orders which are now sought to be enforced in these Class 4 proceedings.

Introductory comments

1. Before turning to the detail of each of the inspections, and the other relevant documents, it is appropriate to note that there are four factors to which it is appropriate that I have regard in my consideration of that which is disclosed in the reports from those inspections. Those factors are: 1. Whether the observations recorded were made on Mr Findlay's property or whether they were made by observation over the fence from Mr Elia's property; 2. Whether the observations that are recorded were ones of common experiences of the two council compliance officers undertaking the inspection or if there were different impact perceptions recorded; 3. Any observation made in the report of the inspection about the direction of the wind at the time of the inspection; and 4. The assumptions made by the inspecting officers based on visual observation only when those assumptions are contrary to the uncontested evidence given by Mr Findlay in his affidavit in these proceedings.
2. The table below sets out the relevant information concerning complaints up to and including Hussey AC's decision. It is taken from an examination of all the material in Exhibits 1, 2 and 3. No. Date Content Author Description and Location 1 19 August 2002 Notes complaint by neighbour at 32 Moonbie Street that a pony is on the premises, defecates on neighbouring properties' grass verges and that t owner does not collect faeces. Kim Hong File note, Exhibit 2 2 22 August 2002 Notes complaint about the pet pony and that any further contravention may result in the requirement of the removal of the pet pony from the premises and from within the Municipality of Ashfield. S Teng, for R W Stockham, Manager Environmental Health Exhibit 1, Tab HI 3 28 November 2002 Council inspection revealed no nuisance at time of the inspection N/A Exhibit 2, Pony Complaints Summary Table 4 6 February 2003 Council inspection of the premises unannounced on hot and humid day. No problem was found in regard to smells and yard was maintained. N/A Exhibit 2, Pony Complaints Summary Table 5 17 February 2003 Mr John Elia rang to complain about odours and demanded someone inspect the property. Ken McKew and Simon Teng inspected the site and found no odour. Ken McKew Memorandum, Exhibit 1, Tab WX 6 18 February 2003 Mr John Elia rang to find out result of the inspection. He was not happy with the answer and insisted that another inspection be carried out. Ranger Robert Yildirim visited site and reported that there was no odour within the complainant's house. One slight horse manure smell could be detected infrequently. Mr Yildrim advised Mr Elia to clean up his own backyard of rubbish and old building material and dog faeces which were probably partly the cause of odours and flies. Robert Yildirim Memorandum, Exhibit 1, Tab WX 7 7 August 2003 Notes complaint and that it is genuine, that it is illegal to keep a horse on the property, asks when the horse will be removed. Dr David Niven, General Manager Letter to Mr Findlay, Exhibit 1, Tab JK 8 12 September 2003 Notes telephone complaint from the Elias and inspection of 11 September 2003. Premises was neat and tidy and covered with wood bark and no evidence of odour was evident at the boundary fence or manure in the yard. Letter to Mr and Mrs John Elia, Exhibit 1, Tab WX 9 7 October 2003 Complaint about noise and odour of the pony. Mr Abdul and Mrs Bahia Elia Letter to Council, Exhibit 1, Tab WX 10 10 May 2007 Notes inspection on 9 May 2007. Council was of the opinion during the inspection that the distinct odour of horse manure could be detected from the front of the premises. Indications that the manure was not being collected at least twice a day and a large number of small black beetles amongst the woodchips. A Battistuzzi, Community Enforcement Officer Letter to Mr Findlay, Exhibit 1, Tab WX 11 11 Apr 2008 Notes the complaint made and asks next time that Council is contacted during office hours on day of complaint so it may be resolved on the spot. S Teng, Environmental Health Letter to Mrs B Elia, Exhibit 2, Ref No 38 12 Notes complaint that premises is not in an clean and healthy condition, failure to meet conditions will require pony be removed. No Council visit to premises noted. S Teng, Environmental Health Letter to Mr Findlay, Exhibit 1, Tab PQ 13 14 May 2008 Complaint about horse manure in other bins. No objection to manure in own waste but not neighbour's. No inspection at this time. Ken McKew, Team Leader Environmental Health Exhibit 1, Tab PQ 14 Notes Mr Elia complaining about manure into other bins in the street and manure on the road causing an unpleasant smell. Mr Elia threatened legal action against Council/not paying his rates. KMcK (likely Ken McKew) File note, Exhibit 1, Tab WX 15 11 February 2015 Council officers visited the property. No one was home and a business card was left in the mail box. N/A Exhibit 2, Pony Complaints Summary Table 16 12 February 2015 Council officers visited the property twice that day. At 11 am and 2.40 pm. No one was home. N/A Exhibit 2, Pony Complaints Summary Table 17 16 February 2015 Council officers visited the property. Noted flies, odour, poor hygiene condition and no physical barrier to the side fence to complainant's premises. N/A Exhibit 2, Pony Complaints Summary Table 18 Notes himself and Simon Teng inspected the premises with Mr Findlay. Notes flies and horse manure was present. Interaction with Mr Elia, who pulled out $50 and $100 notes and said, "what does it take for you to listen to me? $100? $200?" and he responded that "I strongly took offence to his comments". Ken McKew File note, Exhibit 2, Ref No 47 19 19 February 2015 Notes complaint and recent inspection on 16 February 2015 that revealed non-compliances with Council's requirement for the keeping of the pony on the premises. Ken McKew, Team Leader Environmental Health Letter to Mr Findlay, Exhibit 1, Tab R 20 1 September 2015 Notes Mr Morsanuto discussed issues with Mr Elia at Council while Simon and Faith were at his property for an inspection to examine the premises. Inspection revealed horse manure not picked up, some flies and a noticeable smell of urine and horse manure. Maurice Morsanuto, Manager Regulatory Services File note, Exhibit 2, Ref No 54 21 8 September 2015 Notes Mr Elia suggested Council inspect the property. Mr Zaragoza and Mr Teng visited the property. Comments that there was a slight breeze from the complainant's rear yard towards the pony premises and that the breeze was carrying the smell of the pony into Complainant's yard. N/A File note, Exhibit 2, Ref No 56 22 15 September 2015 Notes that Jose Zaragoza and Simon Teng conducted inspection at 12pm. Mr Zarazoga could notice the smell of the horse at the complainant's rear yard and on side of the driveway. Mr Teng could only detect a very slight smell when stood near the top of the side fence facing the property where the pony was kept. Some pony faeces, puddle of brown water that appears to be pony urine. N/A File note, Exhibit 2, Ref No 58 23 28 September 2015 Notes Faith Downs and Simon Teng did an inspection at 2.20 pm. No strong odour could be detected, probably due to wind direction. Some pony faeces, no flies and a puddle of light brown water which appears to be pony urine. N/A File note, Exhibit 2, Ref No 60 24 29 September 2015 Notes Faith Downs and Simon Teng did an inspection at 2.15 pm. A strong odour was detected as council officers walked into the driveway gates even though the wind direction was coming from the complainant's rear yard towards the pony's premises. There was also some odour inside the rear yard of the complainant's premises. Some pony faeces and no flies. Still a puddle of light brown water which appeared to be from the pony. N/A File note, Exhibit 2, Ref No 61 25 26 October 2015 Notes Council has conducted further inspections of property over last two months, observations of waste from the pony, urine and droppings, unpleasant smells, and flies as a result of exposed waste. Phil Sarin, Director of Planning and Environment Exhibit 1, Tab S 26 20 November 2015 Notes that in response to complaints, Council has carried out random inspections and monitoring of premises since February 2015. On many occasions, council staff have observed solid and liquid waste from the pony that had not been cleaned up, flies in the near vicinity of the waste and a strong odour easily detected from the footpath. Maurice Morsanuto, Manager Regulatory Services Exhibit 1, Tab UV 27 Not given For a section 34 conciliation conference Acting Commissioner attended the site but did not provide any findings of his inspection relevant to this matter. Acting Commissioner Hussey Findlay v Ashfield Council [2016] NSWLEC 1219

1. The Acting Commissioner's decision recorded the relevant evidence provided from neighbours regarding the state of the site: 22 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. 23 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. 24 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. The table below sets out the relevant information concerning inspections after Hussey AC's decision. It is taken from an examination of all the material in Exhibits 1, 2 and 3. Expressly relevant to the question of exercise of discretion, pursuant to s 676(1) of the Local Government Act, is the fact that the Council file tendered in Exhibits 1, 2 and 3 discloses no complaints since Hussey AC's decision and substituted order in 2016.
3. However Mr Morsanuto, in his affidavit, deposes to the fact that he had undertaken three subsequent inspections, as discussed in the table below. Date Content Description and Location 25 October 2016 Observed common house flies and blue green flies on and around the premises and No. 31. Could smell a distinct odour of animal waste associated with the keeping of livestock and could smell traces of manure and urine emanating from the premises. Affidavit of Maurice Morsanuto dated 28 September 2018 [29]-[30] 12 December 2016 Noticed a strong odour of horse manure in the interior of the premises. Could smell urine and observed stained waste areas that had not been cleaned. Observed an increase in the number of insects (particularly flies/blowflies) that were on and around the premises since the last inspection of 25 October 2016. Affidavit of Maurice Morsanuto dated 28 September 2018 [34]-[35] 21 June 2018 Could smell traces of manure and urine emanating from the premises. And saw that vermin was present on and around the premises and No. 31. Affidavit of Maurice Morsanuto dated 28 September 2018 [41], [43].

1. Ms Duggan cross-examined Mr Morsanuto concerning these three inspections. His oral evidence concerning his inspections was at Transcript, 12 June, page 70 from line 39 to page 78, line 6.
2. It is unnecessary to set out any lengthy extract of this element of his evidence. It is sufficient, in my view, to make the following observations concerning it: 1. First, Mr Morsanuto felt no necessity to attach any notes to the Council's file of the three inspections to which he has referred in his affidavit; 2. The material produced by the Council (that does not include any such notes) was produced pursuant to the lawful obligation of a Notice to Produce; 3. Mr Morsanuto was unable to explain (Transcript, 12 June 2019, page 73, lines 19 to 21) what material he had looked at for the purposes of producing his affidavit recording these three inspections; 4. Mr Morsanuto conceded that the presence of flies during any of his three inspections could have been as a consequence of dog faeces on Mr Elia's property; 5. Mr Morsanuto conceded that any manure or urine odours emanating from the premises during his inspection on 25 October 2016 were not offensive; 6. The manure odour which he detected during his 12 December 2016 inspection was in the interior of Mr Findlay's house; 7. Mr Morsanuto conceded that, on the three occasions when he had undertaken inspections in 2016 and 2018, the amenity impact on Mr Elia's property was that there was a capacity to smell traces of manure and/or urine (Transcript, 12 June 2019, page 77, line 47 to page 78, line 2); and 8. This section of his cross-examination concluded with the following question from Ms Duggan and his answer to it: Q: So that was saying that whilst the odour was detectable it was at the lower level of the end of the scale rather than the high end of the scale, yes? A: Yes.
3. It is also clear from the remainder of Mr Morsanuto's evidence (as recorded in the transcript and from my impression of his giving of it during the course of the hearing) that, at least from time to time, he regarded Mr Elia as pestering him about the continued residence of the pony with Mr Findlay and that Mr Morsanuto undertook his inspections in response to that. Despite this, it is to be noted that a period of almost two years elapsed before Mr Morsanuto considered that there was any imperative for him to undertake a comparatively contemporaneous inspection and that this occurred some six months after the commencement of these proceedings and not prior to their commencement.
4. As a consequence of my weighing up of his written and oral evidence, I am unable to conclude that there is any evidence of any consistent or persistent adverse impacts on Mr Elia demonstrated from either Mr Morsanuto's evidence or from the Council's file since the orders were made by Hussey AC toward the end of 2016.

Evidence concerning other neighbours' attitudes to the pony

1. Amongst the material tendered from the Council's file, there was also information concerning views expressed by immediate neighbours (other than Mr Elia) concerning the presence of the pony at Mr Findlay's premises. There were two documents providing that evidence. Those documents were dated 17 September 2003 and 3 December 2003. It is necessary to set out what is recorded in each instance.
2. The first of the documents (Survey dated 17 September 2003 concerning pony at 35 Moonbie Street - Exhibit 2, Ref No 18) discloses that, of all the neighbours in the proximity of 35 Moonbie Street who were surveyed, only one of the neighbours who were aware of the pony objected to him being on the premises.
3. The second of those documents (Ashfield Municipal Council Meeting Notes Exhibit 2, Ref No 29 - dated 3 December 2003) discloses: Every complaint received has been investigated and on each occasion, the complaint has not been justified in that no odour or nuisance was detected Because Mr Elia was the only complainant, adjacent properties were visited in September 2003 and of the nine where occupiers were home, only one other resident (28 Bartlett Street) objected to the pony being kept at the premises (because she could hear it winnying.)
4. In addition to the fact that no immediate neighbour (other than Mr Elia) has been recorded on the Council's file as complaining to the Council (other than the already noted complaint in 2003 about the pony's whinnying from a then neighbour to the rear) concerning the keeping of the pony at Mr Findlay's home, the Council's file (at Exhibit 2, Ref No 26) discloses that Mr Findlay's then legal representative provided submissions, on 5 November 2003, that were used to show the Council that there was neighbourly support of the pony residing with Mr Findlay. The Council's file does not include copies of the detail of those submissions.
5. It is relevant to note, in the overall context of what I am dealing with (particularly in the context of complaints since the Acting Commissioner's decision in late 2016), that there are no recorded neighbour complaints on the Council's file and that Mr Morsanuto had undertaken three additional inspections (with the first two grouped in the immediate aftermath of the Acting Commissioner's decision, and the third one occurring some two years later). No other specific complaints during the intervening period have been recorded on the Council's file. Mr Morsanuto's evidence about his inspections, as earlier discussed, makes it clear that Mr Elia has been the sole prompt causing those inspections to be undertaken.

The question of the wind direction

1. I have earlier set out the timing and nature of the various complaints made to the Council concerning the pony and, to the extent that detail is recorded on the Council file of the outcome of any resulting inspection, any observations made by the inspecting council officers when this was recorded.
2. One of the matters which was addressed in a number of the council officer's reports concerning odour detection during the course of the relevant inspection was the direction from which the wind was blowing on the occasion when the odour was detected. It is to be observed that, on a number of those occasions (being items 21 and 24 in the table reproduced above at [30]), the direction of the wind was recorded as being from Mr Elia's property towards that of Mr Findlay. No direct observation is recorded in the Council's file material explaining this position.
3. Mr Morsanuto, however, gave oral evidence concerning this (Transcript, 12 June 2019, page 46, lines 35 to 48), saying: … If I've got a comment that, "Fine weather and slight breeze from the complainant's rear yard towards the pony premises", that means that the wind or the breeze is coming from Mr Elia's property towards Mr Findlay's property. A. From a northerly direction, if that would help you understand it. Q. Well let's not use cardinal points. A. Okay. Q. From Mr Elia to Mr Findlay-- A. Yes. Q. --you accept that? A. Yes.
4. It is also to be observed that, during the course of the inspection undertaken by council officers on 18 February 2003 (item 6 of the table), odour from dog faeces on Mr Elia's property had been detected. As a consequence, to the extent that the Council's file documents record odour under circumstances where the wind direction is described as being from Mr Elia's property toward Mr Findlay's property, I cannot have confidence that, on the balance of probabilities, such odour as had been detected was caused by the pony or any solid or liquid wastes deposited by him. Indeed, it would seem unlikely that such an odour would be detectable against the wind.

The present nature of the pony's enclosure

1. The photographic evidence discloses that the fencing of the pony's enclosure, where it acts as a barrier to the animal's movement toward the boundary with Mr Elia's property, is now draped with black plastic sheeting so that Mr Elia can no longer view into the pony's living space. This was confirmed during the course of Mr Elia's cross-examination when the transcript records the following (Transcript, 12 June 2019, page 97, lines 12 to 49): Q. He's just on this paved area near Mr Findlay's house? A. Sorry, but he used to poke his head through that wire that you're talking about to try and eat the grass, which we've got photos. Q. He doesn't anymore though, does he? A. No, he doesn't because there's plastic around, he's compacted in there which is a metre and a half by a metre. Q. You seem to spend some time looking over the fence at what's happening on-- A. No, not really, I've got surveillance cameras on the house. Q. --Mr Findlay's house? A. No, not really. Q. You see him, do you not, picking up the manure? A. Well, sometimes Mr Findlay does pick it up, sometimes he washes it. I've caught Mr Findlay put it in a bucket, mash it up with water and pour it on the side of my fence, which he is growing at the back of the fence he's growing hedges or pine trees or whatever they've called, which is 13 metres high and the neighbour, the poor neighbour is cutting them and screaming at him saying "I need to get some sun". Now-- Q. You have seen Mr Findlay collect the manure, have you not? A. Sometimes. Q. When he collects the manure it's quite a small pile? A. No, it's not. Q. How far in the past, when was the last time you saw him do it? A. It's been a while now because you can't see nothing else anymore, he's covered in plastic. Have you - excuse me, have you been to the Easter Show? Q. So in relation to your observations would it be fair to say that your observations are two years old? A. Well, I don't know how long that plastic's been there. It could be a year and a half, yeah, a year.
2. It is also to be noted that this photographic evidence clearly demonstrates that whatever problems may have arisen in the past, caused by the pony approaching and making contact with the Colorbond fence between the properties, this is no longer possible. Impacts on Mr Elia's acoustic privacy, as may have happened in the past, are no longer possible and that this element of the pony's management regime has been in place for some time.

The evolution of the pony's diet

1. It was Mr Findlay's uncontested evidence that, over the years, he had gradually evolved the nature of the diet with which the pony was fed. He had done so by researching what elements could be comprised in a diet for the pony that would achieve two separate objectives. The first was that the diet would be a balanced and sustaining one for the animal itself. The second, however, relevant in the context of the complaints by Mr Elia, was that the outcome of the consumption of the feed provided, by its component composition and the quantity fed to the animal, would have the effect of minimising the amount of manure that the pony excreted.
2. This dietary evolution now results in the pony being fed a diet that comprises (Mr Findlay's affidavit at [39]): … I presently feed him every 4 hours a mix of the following: a. 30 g sugar b. 40g Oats c. 60g Tritcale d. 25g Sunflower e. 25g Flax f. 52g Sugar Beet g. 3g Salt h. 30g Extra Virgin Olive Oil
3. The current outcome of this evolution of the pony's diet has meant that, on Mr Findlay's evidence, rather than the pony producing six to seven kilograms of manure daily (Mr Findlay's affidavit at [39]), the pony now produced a significantly lesser quantity, being 0.5-1.4 kilograms (Mr Findlay's affidavit at [39]).
4. It seems to me that there are, for present purposes, four inferences to be drawn as being the outcomes resulting from the present diet fed to the pony. These inferences are: 1. First, consistent with the veterinary evidence of Ms Carter, the diet is sufficient to maintain the pony in a healthy fashion; 2. Second, the amount of manure produced being significantly reduced diminishes (but certainly does not eliminate) the risk of odour generation and fly attraction to any manure left on the ground prior to it being collected by Mr Findlay; 3. Third, the volume of manure which Mr Findlay is obliged to collect, bag, and place in his garbage bin for collection as part of the Council's waste removal service is also significantly reduced; and 4. Fourth, apart from a complaint made in 2002, there is no evidence that the pony excreted during the exercise periods when Mr Findlay, on his bicycle, took the pony for the 15- to 30-kilometre exercise walks.

Urine management

1. It was Mr Findlay's uncontested evidence (affidavit at [41]) that he had trained the pony to urinate at a specific location within the fenced-off area established as the pony's living space. Mr Findlay had consent from Sydney Water to have had installed a drainage point connected to the sewer into which he was permitted to hose the pony's urine. This drainage point is, other than on the occasions when such hosing-down takes place, kept plugged so that stormwater cannot enter the sewer system (Mr Findlay's affidavit at [26]).
2. There is a final, relevant observation to be made about the pony's urinary habits and Mr Findlay's management of them, in the context of observations elsewhere described as being made by those undertaking inspections on behalf of the Council. Those inspection reports, on a number of occasions, included the observation that puddles of brown liquid were observed in the pony's living enclosure and that these puddles were assumed to be, by those making the observation, puddles of urine. Photographs of these puddles were included in the material photocopied from the Council's file and incorporated at the appropriate sequential locations in the material contained in Exhibits 1, 2 or 3. It is to be noted that these observations were made from Mr Elia's property in each instance and that the relevant council officer had not sought to access Mr Findlay's property in order to determine whether the puddles were, in fact, urine from the pony or not.
3. It was Mr Findlay's evidence that these puddles were not, in fact, urine but were brown-stained water that resulted from the process he undertook of wetting-down hay prior to its provision to the pony. Mr Findlay deposed (affidavit at 37): • … • The puddle shown in the photograph is not urine but is the water I used to soak the hay in before I fed it to the pony. I am familiar with what that water and urine from the pony looks like as I have seen it many times. This is not urine. • …
4. In circumstances where Mr Findlay's evidence is uncontradicted and the inspections, when the presence of such puddles of brownish liquid were observed, were made from over the fence from Mr Elia's property, Mr Findlay's evidence is clearly to be accepted on this point.
5. It is to be observed that, on none of the occasions, when these puddles of brownish liquid were observed by council officers undertaking inspections, was any specific note made of any urine smell being detected by any such officer.

Mr Findlay's proposals

1. In [51] of his affidavit, Mr Findlay set out his proposals for a future management regime if the pony was to be permitted to remain in residence at Mr Findlay's home. This element of his affidavit was in the following terms: a. Maintain the feeding regime b. Continue to wash down the urine within 30 minutes of it being produced c. Continue to collect the manure within 30 minutes of it being produced d. Continue to Keep written and photographic evidence of compliance with a, b and c and make them available at all times for inspection by the Council; e. Maintain the distance separation of the pony from my neighbour's boundary to the location shown on the site plan; f. Plant bamboo at a height of 1.5m along the boundary fence with my neighbour at 31 Moonbie Street; g. Store the collected manure in a bin with a sealed lid; h. Upon either my death or if I no longer reside at the premises, or the death of Horse, whichever occurs first, no horse or pony will be kept at my premises.
2. After I expressed some concern to Ms Duggan that I might not have the power to make an order in terms of the final point of this proposed management regime, but that, if I was minded to exercise discretion in favour of permitting Mr Findlay to retain the pony at Mr Findlay's home, that element of the proposed future regime might appropriately be effected by Mr Findlay offering undertakings to the Court embodying what he proposed in this regard.
3. Ms Duggan sought instructions from Mr Findlay and advised me that he offered the relevant undertaking on his own behalf and would ensure that his son, Rupert Findlay, who resided upstairs at the premises, would give effect to that element of the undertaking if Mr Findlay predeceased the pony.

Consideration of the exercise of discretion

1. There is no doubt that Mr Findlay is in breach of a requirement imposed by the Court that the pony no longer reside at his property. The basis upon which Ms Duggan proposes that I not enforce the pony's removal is, as a matter of discretion, based on all the circumstances arising since the pony (or his predecessor) first took up residence at Mr Findlay's property in 2002, and particularly since the decision of Hussey AC in late 2016. My consideration of whether or not I should exercise discretion is to be guided, in these circumstances, by the principles set out by Kirby P in Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335.
2. I have earlier set out the various evidentiary matters that require my consideration in determining how I should exercise the discretion with which I am invested for the purposes of these proceedings. It is also clear that, at a broader level of generality, this discretion is to be exercised judicially and not on any capricious or sentimental basis (House v The King (1936) 55 CLR 499).
3. In this instance, what is involved is the weighing of a variety of competing factors in order to establish where, on balance, I should conclude the outcome should fall. In summary, the factors that I am required to consider are set out below.
4. First, I summarise the factors that weigh against permitting Mr Findlay to continue to have the pony reside with him at his home. These factors are:

• the nature of the proceedings before Hussey AC and the conclusion he reached (and the resultant orders);
• the fact that these are enforcement proceedings being undertaken by a public authority for the purposes of upholding the integrity of the regulatory system provided for by the land use planning framework embodied in the Environmental Planning & Assessment Act 1979; and
• the extent of the complaints made by Mr Elia over a lengthy period of time concerning what he describes as the impacts on him and his family of the pony residing at Mr Findlay's premises.

1. On the other hand, there is also a range of factors weighing in favour of permitting the continued residence of the pony at Mr Findlay's premises. These factors can be summarised as:

• there is no existing policy reason within the Council's policy framework that would automatically impose the presumption that a pony should not be permitted to be kept at residential premises within the Council's local government area;
• the evidence of the three inspections in more recent times, is somewhat equivocal as to the existence and/or significance of any real impact that might be made on Mr Elia by the residence of the pony at Mr Findlay's premises;
• in this respect, the evidence suggesting that urine has been permitted to accumulate and puddle is expressly to be set aside in light of Mr Findlay's uncontradicted evidence concerning his straw management process and the absence of any access being sought by the Council's inspecting officers to provide support for some contradictory assumption;
• Mr Findlay's uncontradicted evidence concerning the various ameliorative steps he has taken (including, recently, visual shielding) to remove impacts on Mr Elia. It is to be observed that Mr Findlay's affidavit evidence was not contested as he was not required for cross‑examination;
• the veterinary evidence provided in the affidavit from Ms Carter discloses that there is no veterinary reason, in any animal welfare sense, why the pony should not be permitted to continue to reside with Mr Findlay. This veterinary evidence was not challenged by the Council;
• even making appropriate allowance for Mr Elia's unfamiliarity with the courtroom and court proceedings as earlier noted, I found Mr Elia to be an unimpressive witness. It is clear that he has devoted considerable time and energy, over the years, to his pursuit of the view that the pony was having an unacceptable impact on his amenity and that this warranted persistent (but not consistent) approaches to the Council seeking to have the pony's residence with Mr Findlay terminated. As can be seen from the earlier setting out of the history of complaints, there were significant periods during which Mr Elia made no complaint to the Council and the Council did not feel it was necessary, independently, to undertake any inspection of the pony's residence at Mr Findlay's premises;
• there is no evidence of specific complaints from Mr Elia to the Council concerning the pony's presence after Hussey AC's decision in the earlier decision. The explanation that was proffered by Mr Morsanuto as to why is of limited credibility as has been earlier discussed. The only assumption that is fairly rationally available (particularly given Mr Elia's more general persistent history of complaint) is that there was nothing significant arising out of the pony's residence during this period - particularly under circumstance where the management conditions for the pony continue to evolve - which that warranted further complaint to the Council; and
• the evidence that is available concerning whether or not any other residents in the vicinity of Mr Findlay's premises have experienced adverse impacts of the nature about which Mr Elia makes complaint is, in broad terms, consistent with a conclusion that there have been no such impacts.

1. Although it is a matter of quite fine balance, overall I am satisfied that the factors weighing in favour of permitting the pony to continue to reside with Mr Findlay outweigh those suggesting that it would be appropriate to order that the pony should be rehoused at a different location.
2. I have earlier set out the undertaking which Mr Findlay has proffered as the basis on which future management of the pony's residence at his premises would operate. I am satisfied that an undertaking in those terms (modified in the fashion necessary to address the inability of Mr Findlay to give an undertaking binding his son and to turn them into proper legal form) would provide an appropriate future management regime for the pony's continued residence with Mr Findlay. The consequence of this conclusion is that the Summons should be dismissed.

Costs

1. As these are Class 4 proceedings, costs ordinarily follow the event (Uniform Civil Procedure Rules 2005, r 42.1). There has been nothing in the conduct of these proceedings that would provide any basis to depart from that presumption.

Orders

1. It follows that the orders of the Court are: Noting the undertaking given by the Respondent through his counsel, that: 1. The future management of the pony will be undertaken in accordance with the following obligations accepted by the Respondent that he will: 1. Maintain the feeding regime set out at [68] of the judgement of the Land and Environment Court in Inner West Council v Findlay [2019] NSWLEC 96; 2. Continue to wash down the pony's urine within 30 minutes of it being produced; 3. Continue to collect the pony's manure within 30 minutes of it being produced; 4. Continue to keep written and photographic evidence of compliance with a, b, and c and make them available at all times for inspection by the Council; 5. Maintain the distance separation of the pony from Mr Elia's boundary to the location shown on the site plan; 6. Plant bamboo at a height of 1.5 metres along the boundary fence with 31 Moonbie Street; and 7. Store the collected manure in a bin with a sealed lid; and 1. Upon either the death of the Respondent, or if the Respondent no longer resides at the premises, or the present pony residing with the Respondent dies, whichever occurs first, no horse or pony will be kept at the Respondent's premises.
2. It follows that the orders of the Court are: 1. The Summons is dismissed; 2. The Applicant is to pay the Respondent's costs as agreed or assessed; and 3. The exhibits are returned.

Amendments 31 October 2019 - Incorrect class of matter applied. The matter is a Class 4 matter. 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: 31 October 2019