King v Maitland City Council

Land and Environment Court (NSW)|2021-02-26

Judgment

COMMISSIONER: This is a Class 2 - Miscellaneous Appeal pursuant to s 180 of the Local Government Act 1993 (LGA) being an Appeal against an order issued by the council under the LGA namely Order No. 18 dated 4 June 2020 issued by the Respondent pursuant to s 124 of the LGA to the Applicant requiring the following to be done (the Order) in relation to the premises at Lot 4 DP222302 being located at the address of 16 Richardson Street East Maitland (the Premises): "Not to keep any more than two (2) cats at any one time at the Premises (this excludes offspring to 3 months of age), in accordance with Maitland City Council's Policy - Keeping of Animals."
The hearing commenced with an onsite inspection of the Premises and the adjoining neighbouring property at 18 Richardson Street, East Maitland. The Court was provided access to the backyard of the Premises via the house in which Ms King resides. A number of fragrant candles were observed alit inside the house and one cat was observed indoors. Upon stepping into the backyard there was an orange/citrus like smell noticeable. Ms King showed the Court the row of cage enclosures along the boundary fence with 14 Richardson Street East Maitland. Only four (4) of these enclosures along the boundary fence were occupied by a cat in each. One cat climbed up the front cage wall as we approached. One or more cats meowed a couple of times during the inspection. The height of the ground relative to the neighbouring property at 18 Richardson Street, East Maitland was pointed out. The Court was then shown inside a room the Applicant refers to as the 'back room' which is located inside the garage like structure in which cats are sometimes kept. A cat located under a comforter rug inside an enclosure was observed. No noise was heard from this cat. Ms King pointed out some 'show' award ribbons in this back room. Approximately two (2) animals were also observed to be kept in a separate cage together in this room which may be ferrets. No noise from these animals was heard. There were a number of empty cages in this room.

The legal context of the Local Government Act Order 18

The legal context of these proceedings is relevant as the Applicant made submissions regarding the Respondent's prior actions regarding the Applicant and her cats and referred the Court to the decision of Gray C in King v Maitland City Council [2020] NSWLEC 1005 (the Previous Proceedings). A copy of the judgment of Gray C is annexed to the Affidavit of Chris Thompson and the Applicant tendered a copy of the Statement of Facts and Contentions filed 8 October 2019 in proceedings 2019/283436 (Stop Use SOFAC), (Exhibit D).
There is a preliminary finding required as to the relevance, if any, of the previous proceedings. The Applicant stops short of submitting that the Council is estopped from considering this Appeal. I will first set out the legal context of this Appeal.
The Order the subject of this Appeal was issued by the Respondent pursuant to s 124 of the LGA. Section 124 of the LGA includes a table of Orders which may be issued by the Respondent including Order 18 and s 124 relevantly provides as follows: 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. Table Orders Orders requiring or prohibiting the doing of things to or on premises
Maitland City Council adopted the Keeping of Animals Policy on 8 July 2008, drafted pursuant to s 159 of the LGA which provides at subsection (2) that "a draft local orders policy is to specify the criteria which (if the policy were to be adopted) the council must take into consideration in determining whether or not to give an order under section 124."
The Keeping of Animals Policy stipulates a number of aims, the first being to minimise the incidence of nuisance being caused to persons. The scope of the Keeping of Animals Policy is as follows: "This policy applies to animals kept for domestic purposes as companion animals, pets, or for hobby interests. The principals [sic] contained in the prescriptive requirements will also apply to the keeping of animals for commercial purposes including boarding, breeding, grooming, caring, treatment, training, racing, exhibiting, trading or selling. However, where it is intended to keep animals for any commercial purposes, it is necessary that a development application be submitted to Council and planning consent obtained. Consent to the operation of Commercial Animal Management Establishments may not be allowed where Council considers that the proposal would be harmful to the amenity of the locality. This policy relates to Order Numbers 18 and 21 of Chapter 7 of the Local Government Act, 1993."
The Previous Proceedings involved an appeal against a Development Control Order issued by the Respondent to the Applicant pursuant to s 9.34(1)(a) of the Environmental Planning and Assessment Act 1979 (EPA Act) relating to the keeping of cats for commercial purposes on the Premises, specifically the Applicant was ordered to stop using the Premises for the purpose of an animal boarding establishment or training establishment (Stop Use SOFAC). That appeal was brought by the Applicant pursuant to s 8.18 of the EPA Act which provides as follows: 8.18 Appeals concerning orders (4) On hearing an appeal, the Court may - (a) revoke the development control order, or (b) modify the development control order, or (c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or (d) find that the development control order is sufficiently complied with, or (e) make such order with respect to compliance with the development control order as the Court thinks fit, or (f) make such other order with respect to the development control order as the Court thinks fit.
The Court, on hearing this Appeal pursuant to s 180 of the LGA has a similar number of options available being that the Court may: (a) revoke the order, or (b) modify the order, or (c) substitute for the order any other order that the council could have made, or (d) find that the order is sufficiently complied with, or (e) make such order with respect to compliance with the order as the Court thinks fit, or (f) make any other order with respect to the order as the Court thinks fit.
Although the remedies pursuant to s 8.18 of the EPA Act and s 180 of the LGA are substantially the same, the legal principles and matters the Court must consider and take into account are subject to different provisions in different pieces of legislation namely, the EPA Act and the LGA, which have different aims and purposes and the Orders issued pursuant to s 9.34 of the EPA Act vary significantly from the Orders issued pursuant to s 124 of the LGA. The appeal rights are similar in terms of process however the consequences or penalties for breach of each are significantly different, for instance the EPA Act includes Civil enforcement and criminal offence provisions at Divisions 9.5 and 9.6 which includes in Part 9 Implementation and enforcement s 9.37 failure to comply with order being an offence Tier 1 with maximum penalty of $1,000,000 compared with LGA Chapter 16 s 628 criminal offence attracting 20 penalty units as the max penalty or $2,200.
The Previous Proceedings were in relation to the keeping of animals for commercial purposes and the Keeping of Animals Policy did not apply. It is noted that the Keeping of Animals Policy refers to the application of the principles set out in the Prescriptive Requirements to the keeping of animals for commercial purposes however, it clearly states that "the Policy relates to Orders number 18 and 21 of Chapter 7 of the LGA". That is to say that the Keeping of Animals policy does not apply to the keeping of cats for commercial purposes other than a consideration of the principles which are set out in the Prescriptive Requirements.
By comparison, this Appeal is pursuant to the LGA and relates to the keeping of animals for domestic purposes as companion animals, pets, or for hobby interests and the Keeping of Animals Policy is relevant and expressly relied on.
I note that in the Affidavit of Clare Louise King filed 9 February 2021 (King Affidavit), the Applicant states that the cats are her pets and that breeding and showing the cats are her hobby. She does not sell the kittens but gifts or relinquishes them. In relation to the Previous Proceedings regarding commercial purposes Ms King at par 8 of her affidavit states that "Since the Court orders after the Conciliation Conference on 19 December 2019 were made, I have strictly complied with those orders." I accept this evidence to be a confirmation that the cats are not kept on the Premises for commercial purposes and that the cats are kept for domestic purposes as pets and as part of a hobby.
I am satisfied that the previous proceedings are separate proceedings and have no relevance to this Appeal other than perhaps a sharing of history of the keeping of cats on the Premises. Likewise, these proceedings will not have any effect on the orders from the Previous Proceedings.

Were reasons given for the giving of the Order as required by s 136 of the LGA?

I will now proceed to address the Respondent's contentions and the Applicant's propositions starting with a preliminary proposition by the Applicant that the Order is deficient or otherwise defective as a result of reasons not being given as required by s 136 of the LGA. The Applicant submits that the Order should be set aside because reasons for the giving of the Orders were not provided as required by s 136 of the LGA. I have referred to the Order and note that the Order states in Schedule A the following statement of reasons which appear to satisfy s 136 of the LGA: "REASONS WHY THE ORDER IS GIVEN 1. The premises has an area of 635m2 and is zoned R1 (General Residential) under the Maitland Local Environmental Plan 2011. It is situated in a built-up area in close proximity to neighbouring residential premises. 2. Council has received complaints in relation to the offensive noise and odour coming from the Premises. Complaints have specifically referred to the number of cats being kept on the Premises and the smell and noise coming from the cats being kept on the Premises. 3. Council officer's inspections of the Premises observed at least 9 cats being kept at the Premises. 4. The observations made at the inspections led Council Officers to form the view that: a. There is an inappropriate number of cats being kept at the Premises; b. There is a distinct and offensive odour coming from the cats being kept on the Premises. c. There is offensive noise coming from the cats being kept on the Premises. d. There is inappropriate management of manure and urine run-off from the cats being kept on the premises that is causing water and land pollution."
The reasons for the issue of an order need to satisfy circumstances in which an Order 18 can be issued is specified in s 124 of the LGA being Birds or animals kept on premises are - (a) in the case of any premises (whether or not in a catchment district) - of an inappropriate kind or number or are kept inappropriately, or (b) in the case of premises in a catchment district - birds or animals (being birds or animals that are suffering from a disease which is communicable to man or to other birds or animals) or pigs
I am satisfied that sufficient reasons are given by the Respondent in the Order issued as required by s 136 of the LGA. The reasons clearly identify and describe the nature of the premises being residential premises and the proximity to neighbouring residential premises, followed by the fact that complaints have been received and the nature of those complaints. The reasons then confirm the number of cats observed by the council officer as well as setting out the observations of the council officer. The reasons provided by the Respondent expressly refers to the circumstance threshold of the number of cats, namely nine (9) cats, being kept on the premises was inappropriate because of the 'distinct and offensive odour' and the 'offensive noise' coming from the cats and additionally, the circumstance threshold of the cats being kept inappropriately is referred to and the reason given is that the management of manure and urine run-off from the cats being kept on the premises is causing water and land pollution.
Accordingly, I find that the Order is not defective and that it complies with the requirements of s 136 of the LGA. I reject the Applicant's proposition that the Order should be set aside for lack of reasons given.

Is the Policy invalid because criteria not specified and/or fetters discretion to make an order?

I will now deal with the next 2 propositions by the Applicant in the context of the first contention in the SOFAC, namely, the contention that the Applicant is not complying with the Keeping of Animals Policy.
I find firstly that a requirement to comply with the Keeping of Animals Policy purports to elevate the status of the Keeping of Animals Policy to a document which requires strict compliance with it by members of the community within the Maitland local government areas whereas the purpose of the Keeping of Animals Policy is pursuant to ss 131 and 159 of the LGA as I set out in more detail below.
The Applicant submits that the Policy is invalid because it does not specify criteria (s 159(2) LGA) and, or in the alternative, the Policy is invalid because it fetters the discretion of the Council in an impermissible way. Specifically, the Applicant in written submissions in reply at par 5 submits that: "The Applicant is not seeking a declaration by way of collateral challenge to the Policy. And nor does it need to. Rather it is submitted that the Policy is invalid (and I provide reasons) and hence is unhelpful to the resolution of the contest. The Policy unlike an environmental planning instrument is not presumed to be valid (s45 Interpretation Act 1987), and is unlike a development consent or complying development certificate in which validity is limited by privative s 4.59 Environmental Planning and Assessment Act 1979)."
I agree with the Respondent at par 35 of written submissions that "these proceedings are a merits review in relation to an Order 18 issued by the Council and are not judicial review proceedings in relation to the Council's Policy." In response to the Applicant's submission that the Keeping of Animals Policy does not benefit from any presumption of validity, the Respondent relies on the decision of Tanious v Georges River Council [2017] NSWLEC 1023 (Tanious). In Tanious, Commissioner Morris was giving consideration to an appeal against a Council Order 18 regarding the number of poultry to be kept on residential premises and quotes Morris C at [24] where she refers to there being no evidence before her that the Local Orders Policy had not been validly made. I too have no evidence before me that the Keeping of Animals Policy has not been validly made and in any event my task is not to make any such declaration.
As I have determined that I am not required to make a finding as to the validity of the Keeping of Animals Policy, I will briefly address the s 159 LGA requirement that the Policy specify criteria and secondly whether the Policy fetters the discretion of the Council to make and give an order under s 124 of the LGA.
The requirement for the Keeping of Animals Policy to specify criteria is specified in s 159(2) and s 131 of the LGA. Firstly, s 159(2) of the LGA provides that: A draft local orders policy is to specify the criteria which (if the policy were to be adopted) the council must take into consideration in determining whether or not to give an order under section 124.
Secondly, pursuant to s 131 of the LGA: If the council has adopted criteria in a local policy under Part 3 on which it is to give an order, the council is required to take the criteria into consideration before giving the order.
So the requirement is firstly to specify and adopt criteria in the Keeping of Animals Policy, and secondly to take these criteria into consideration in determining whether or not to give an order (s 159(2) LGA) and before giving the order (s 131 LGA).
I am satisfied that the Keeping of Animals Policy complies with s 159(2) of the LGA because it specifies sufficient criteria which can be readily discerned when the document is read as a whole. I have referred to the heading "Prescriptive Requirements" and I read this together with the "Table of Requirements" which also includes "relevant considerations regarding the keeping of animals". The criteria specified in the Keeping of Animals Policy which are relevant to this Appeal include, but are not limited to the following: 1. The number of cats, that is, the number of cats that is considered to be the appropriate number of cats kept for domestic purposes in many situations; 2. The size of the available yard area and the proximity to the nearest dwelling; 3. The manner in which the cats are kept by listing what should not result for instance: 1. unclean or unhealthy conditions for people or for the cats; 2. offensive noise or odours; 3. waste disposal or pollution problems; 4. unreasonable annoyance to neighbouring residents; 1. The suitability of shelter(s).
I am also satisfied that the above criteria have been considered by the Respondent prior to issuing the Order as detailed above in the "Reasons Why the Order is Given" specifically, the criteria listed at [35(3)(b)] is addressed in reasons 4(b) and 4(c) in the statement of reasons regarding noise and odour, and the criteria listed at [35(3)(c)] is addressed in reason 4(d) in the statement of reasons regarding inappropriate management.
Relevantly, I am satisfied that the Respondent considered these criteria in determining whether or not to give the Order. I form this satisfaction having considered the written and oral evidence of Council's officer Mr Thompson to the effect that he issued the Notice of Intention to Issue an Order only after considering the complaints by Mr and Mrs Lauder and after attending the Premises himself and making his own observations regarding odour. It is noted that the Order itself was issued by Mr Thompson's former colleague, Mr George Knezevic, who was quoted and present with Mr Thompson at the various inspections until June 2020 described in his affidavit.
I reject the alternative proposition by the Applicant that the Keeping of Animals Policy is invalid because it fetters the discretion of the council to make and give an order. The Applicant submits that to apply the Policy in the manner suggested by the Respondent is an impermissible fetter of the discretion to give an order (written submissions in reply at par 3). The basis upon which the Applicant makes this submission is "that the Respondent is applying the Policy as a mandatory standard or prohibition, which either causes a miscarry of the exercise of discretion, or if the Respondent on its own submission is correct, causes the Policy to be invalid because it fetters the discretion to make and give an order under s 124 LGA." (written submissions in reply at par 9). Although I accept that the Order was issued on the preliminary basis that there are more than two (2) cats kept on the Premises I do not accept that the Respondent issued the order because there are more than two (2) cats, that is to say, consistent with the evidence of Mr Thompson, following observations made during his inspections of the Premises he formed certain opinions after considering the criteria set out in the Policy, as he is required to do, and upon forming those opinions he exercised his discretion to issue the Order. I do not accept that the Respondent Council was compelled, or had no choice other than to issue the Order merely because there are more than 2 cats on the Premises.
The Respondent correctly submits that the Keeping of Animals Policy does not say that an Order must be issued (at written submissions at par 47). I note that one of the objectives of the Keeping of Animals Policy is: "d. To publicly notify the circumstances that the Council will consider in determining whether to serve an Order under section 124 of the Local Government Act, 1993 to prohibit, restrict or in some other way, require things to be done regarding the keeping of animals."
The other observation I make is that the Keeping of Animals Policy expressly uses the word "may" under the heading "Council's Powers to control and regulate the keeping of animals" and provides "The Council may, in the appropriate circumstances, issue an Order […]." Further, I accept the Respondent's submission in written submissions at par 5 that in the introduction of the Keeping of Animals Policy, it indicates that "It is not intended within this Policy to completely regulate the manner in which animals should be kept. It is, however, necessary that this Policy should inform the reasonable limits (both statutory and advisory) which apply concerning the maximum number of animals and the circumstances under which they may be kept on premises."
Finally, the combination of three facts is evidence that the Respondent exercised its discretion in issuing the Order. Firstly, the Keeping of Animals Policy has been in force since its adoption by the Respondent in July 2008. Secondly, as deposed by Mr Thompson in his affidavit at par 4, there has been a long history relating to the number of cats kept at the Premises. I do note that the evidence of Mr and Mrs Lauder refer to issues or concerns regarding the keeping of cats on the Premises arising from some time in February 2018 or shortly thereafter and their acknowledgement that from the time they moved in to their house in 2014 they were aware that Ms King kept cats on the Premises. The third fact is that Ms King's evidence is that she has kept up to 9 cats at the Premises for the entire time she has lived at the Premises (since on or about 2000) (affidavit of Ms King at pars 3, 4 and 9). For these reasons and those reasons detailed above, I find that the Keeping of Animals Policy does not, and did not, fetter the discretion of the Respondent Council in the issue of an order 18 pursuant to s 124 of the LGA.

Offensive Noise & Offensive odour - contention 2

The next aspect of the appeal is to address contention 2 of the SOFAC which contends that "The use of the Site for more than two (2) cats at a time (excluding offspring to 3 months of age) is causing offensive noise and odour." I am unable to conclude from the evidence before the Court firstly that there is offensive noise and odour and secondly, that the use of the Site for more than two (2) cats at a time is the cause. I give my reasons in the following paragraphs.
The Applicant submits as follows: "I accept that the Court still has to determine the principle contested issues in these proceedings for two reasons. Firstly, the Courts discretion under s 180 LGA is broad and unfettered and secondly, in my respectful submission, the principle contested issues are offensive noise, offensive odour and appropriate numbers and while these are clearly extracted from the Policy, I accept that they are pleaded squarely in contention 2, and may be determined outside of the Policy and should be done so." (Applicant's written submissions filed 3 March 2021, at par 27)
The relevant statutory circumstances enabling the issue of an order 18 specified in column 2 of the table in s 124 of the LGA are that the cats are an inappropriate type of animal or that they are kept inappropriately. Upon these circumstances being satisfied the order may specify the number and/or manner in which the cats are to be kept as permitted in column 1 of the table in s 124 of the LGA. There is no dispute that the Applicant is the occupier of the Premises and that she is the appropriate person to be issued the order as stipulated in column 3 of the table in s 124 of the LGA.
The Respondent contends that keeping more than two (2) cats on the Premises is inappropriate because they cause offensive noise and odour. The number of cats the Respondent specifies is directly derived from the Keeping of Animals Policy as the maximum number of cats which I note relevantly, is expressly stated to be appropriate in many situations. One of the criteria relied on by the Respondent to issue the Order is the causing of offensive noise and odour and the Respondent relies on the evidence of Mr Thompson and Mr and Mrs Lauder. There is no expert or other independent evidence or measure of noise or odour before the court.
The Applicant relies on Pepper J in her decision Funnell v Blayney Shire Council [2020] NSWLEC 170 at [8] where Her Honour states the following in relation to the phrase "offensive noise": "As defined in the POEOA, the term "offensive noise" is determined in qualitative, and not strictly quantitative, terms (Meriden School v Pedavoli [2009] NSWLEC 183 at [17] per Pain J). Excessive noise will not necessarily constitute offensive noise for the purposes of the Act (Meriden School v Pedavoli [2009] NSWLEC 118 at [7] per Sheahan J). Furthermore, the test for any harm resulting from noise is objective and not subjective, that is, whether the noise from the impugned activity is harmful in an objective sense to the reasonable person (Pedavoli at [53] per Pain J)."
The Respondent submits that the Applicant has inappropriately referred to the definitions of "offensive noise" and "offensive odour" in the Protection of the Environment and Operations Act 1997 (the POEO Act) and the Respondent relies on the reference to the fact that noise and odour that was arising from the keeping of the cats was offensive to the complainants and that position was supported by the inspection by the Council Officers (Written submissions at par 24(e)).
I am assisted to some extent by the submission from the Applicant for the reason that the words "offensive noise" and "offensive odour" are not defined in the Keeping of Animals Policy nor are they defined in the LGA. The decision of Pepper J provides some guidance as to the two limbs of the definitions as provided in the POEO Act which include the requirement of the noise to be harmful or that the noise, to be offensive must interfere unreasonably with the comfort or repose of a person who is outside the premises from which the noise is emitted (Dictionary, POEO Act). The Keeping of Animals Policy includes criteria that the noise and odour created not be offensive as well as a separate criteria that the keeping of animals not cause "an unreasonable annoyance to neighbouring residents". This is sufficiently consistent with the definition in the POEO Act as considered by Pepper J and I find that there is a requirement for some element of an objective measure or test applied for either the noise or odour to be sufficiently bad to be offensive and/or that any annoyance to neighbouring residents be unreasonable.
There is no expert evidence before me. I am therefore limited to determine whether the evidence before me is sufficient to establish whether the noise and odour are in fact offensive or in the alternate that the noise and odour create an unreasonable annoyance. I summarise the noise and odour evidence below.
Christopher Phillip Thompson affirmed an Affidavit on 15 December 2020 and gave oral evidence. Mr Thompson is employed by the Respondent as Team Leader Building Assessment since 7 December 2004.
Mr Thompson forms an opinion of nuisance odour based on what he personally smelled on the occasions he attended the Premises and the neighbouring property, that is to say that he was careful to clarify in oral evidence that he did not rely on what he was told by Mr and Mrs Lauder.
Mr Thompson, in his Affidavit, describes the noise and odour as follows: 1. At par 10, on 30 July 2019 at approximately 10 am: "I could smell what appeared to be cat odour and I could hear cats meowing. […] During my inspection I could smell a strong odour coming from the cats at the Property and following the inspection, I formed the view that there was an odour nuisance that could be affecting the neighbours." 1. At pars 14 and 18, on 20 March 2020 and 1 June 2020 Mr Thompson attends the Premises and there was no observation made about odour or noise. 2. At par 23, on 23 September 2020 at approximately 6.30 pm at the neighbouring property "I could detect a smell from the cats coming from the Property." No observation was made about noise. 3. At par 24, on 26 November 2020 visiting the neighbouring property "I could smell intermittent cat odour coming from the Property." No observation was made about noise.
Vicki Maree Lauder's affidavit filed 16 December 2020 with Exhibit VL-1 contains Mrs Lauder's evidence together with her answers in cross examination. Mrs Lauder states that from the time she and her husband moved into the neighbouring property at 18 Richardson Street East Maitland in September 2014 she noticed that cats lived at the Property, but they were inside and did not pose a problem (par 3). Mrs Lauder states that early 2018 is when she noticed cages placed along the boundary fence and at par 8 "The smell of the cats is always there but the smell is particularly bad when it is humid and when it has been raining." Mrs Lauder also gives the following evidence in her affidavit: 1. At par 6, "Ms King washes the cages out regularly and water runs under my fence along with cat faeces and straw and any other waste which is on the floor of the cages." However, in oral evidence, Mrs Lauder agrees that since the cages have been lined with core flute she has not observed the water as much. 2. At par 9, "The noise from the cats differs but is particularly bad when it is breeding season. The male cat is particularly loud, he is at the end cage and you can hear the cats next to him and the cats that are in the granny flat in the back yard. The noise is also loud when Ms King comes home or there is someone in the backyard. I have heard the cats making noises throughout the night and early hours of the morning.'" 3. At par 10 - 12, Mrs Lauder describes how she has modified her behaviour such as closing her bedroom window, preventing her grandchildren from riding bikes in the carport area "because of the smell from the cats and the faeces that is washed onto my property", and entertaining visitors indoors "to get away from the smell and noise from the cats."
Mark Robert Lauder filed his affidavit on 16 December 2020 together with Exhibit ML-1. Similar to the evidence from Mrs Lauder, Mr Lauder also advises of his awareness of Ms King having cats and that his concerns also arise from a time in approximately February 2018. Mr Lauder's evidence is that after cages were erected along the boundary fence, he replaced the boundary fence in approximately April 2019 and at par 7 states that "It was at this time that I saw eight cats in the cages which are placed along the boundary of the Property." Mr Lauder also gives the following relevant evidence in his affidavit: 1. At par 8, "There are some days that the smell from the cats at the Property is that bad that I cannot work in my garage or garden in that area." 2. At par 9, "I have had to keep our bedroom window closed at night because of the smell and the noise that comes from the cats." 3. At par 11, "The smell of the cats is worse on days after it has rained, when the weather is very humid and after Ms King has washed out the cages." 4. At par 12, "The noise of the cats is at its worse through breeding season, especially the Tom Cat who will make noises all day and night. Most days you can hear noises from kittens coming from inside the shed in the backyard of the Property."
In oral evidence Mr Lauder agreed that the core flute lining to the cages installed by Ms King has reduced the water but has not improved the noise or smell and he noted that the top of the cage is not lined. Mr Lauder also accepts that the cages are lower than his property but states that the garden is at the same height.
The Applicant relies on her affidavit evidence (King Affidavit) which includes the following regarding odour and noise: 1. At par 14, Ms King denies that there is any water, faeces or straw going onto Mr Lauder's property and states "His property is higher than my property." And again at par 19 states as follows: "There is a garden between the properties with a hedge of Tiger Grass growing in the garden. The garden is higher than the concrete slab the cat enclosure sits on. The garden has sugarcane mulch (not straw) and fertiliser (Shirleys No17 and Dynamic Lifter) on it to encourage growth and to try and create a barrier between properties. Watered regularly to have healthy vigorous plants as tiger grass needs the same care as a grass lawn. The neighbour's property of 18 Richardson Road, East Maitland is higher than my property of 16 Richardson Road, East Maitland..." 1. At par 14, Ms King refers to the new fence erected by Mr Lauder prior to the conciliation in December 2019 which 'acts as a barrier' and at pars 20 and 24 the Applicant refers to the modification she has made by the lining of the cages with core flute to provide noise insulation and a solid barrier between enclosure and fence. 2. At par 25, "The cats use litter trays and I have moved the litter tray from the furthest point of the enclosure from Mr Mark Lauder's property to my boundary fence. I clean the cages daily." 3. At pars 20 and 26, the core flute lining installed by the Applicant reduces visual stimuli "keeping the cats calm". 4. At par 21, "The male cats are also locked up at night. They are only left out overnight if I go away overnight or for short stints." 5. In relation to the back room at par 22, the "back room is fully insulated, and had double glass doors for soundproofing." and at par 21, "kittens and queens in season that are housed in the back room are not noisy at all."
I have reviewed the photographs annexed to the Affidavit of Mr Lauder and after having inspected the Premises and seen the materials used by the Applicant and the evidence from the Applicant regarding the garden, I accept that what can be seen in those photographs is not cat (faeces) waste but rather is more likely to be dynamic lifter (which it is commonly known to have a strong pungent smell) and straw or mulch. The material used by the Applicant as 'kitty litter' is recycled paper pellets placed in kitty litter trays and otherwise stored in a small wheelie bin with a lid. I accept that the Applicant does not use straw or similar material in relation to the keeping of her cats.
I find that there is noise and some odour coming from the property, however there is insufficient evidence to find that the noise is offensive noise and there is insufficient evidence that the odour is offensive odour. Mr Thompson only made one observation regarding noise and a focus of Mr and Mrs Lauder seems to be the impacts of the washing of the cage enclosures by Ms King, which has been significantly modified and ameliorated as at the date of the hearing.
In response to the contention as framed by the Respondent I query whether the noise and odour is caused by the fact that there are more than two (2) cats or rather as a result of the manner in which the cats are, or have been, kept on the Premises by the Applicant.
It is agreed that the improvements and modifications made by Ms King have ameliorated or improved the level or degree of annoyance to the neighbours. These include lining the cages with core flute, placing the kitty litter trays furthest away from the boundary and the method of cleaning the cages all reducing the water under the fence. I also note that Ms King implemented other changes such as the distribution or location of where the 9 cats are kept on the Premises detailed at [73]. I take all of these circumstances into account when I make the orders below.

Impact on wellbeing - Contention 3

The third and final contention raised by the Respondent is that the keeping of the cats on the Site in a matter which is contrary to the Policy is having an impact on the wellbeing of the occupants of adjoining property.
The evidence before me regarding wellbeing is limited and can be attributed only certain weight.
Mr Lauder gave oral evidence in addition to the evidence in his affidavit however there is no expert medical or other evidence before the court.
Mrs Lauder in her affidavit gives evidence as to how the keeping of cats by Ms King impacts her grandchildren and her social life.
Considering this evidence at its highest, I am satisfied that the manner in which the cats were kept by the Applicant at the times described by Mr and Mrs Lauder caused them varying degrees of annoyance being a criteria for consideration (refer above at [35(3)(d)].

Is the Order unreasonable in the circumstances? If so, what is the appropriate order?

The Applicant on Appeal and in submissions presses for the setting aside of the Order. The Applicant submits at par 18 that: "the Policy does not call for any consideration of the circumstances of each case or more significantly the management practice implemented in the keeping of animals. With great respect, the care and management of the keeping of animals, is, in my submission, the decisive factor."
The Respondent submits in Written Submissions that "whilst it is accepted that the Court has a discretion to vary the terms of the Order, and in doing so may have regard to the evidence that was heard in the proceedings, the Applicant has not made any application or submission as to what the appropriate limit might be on the number of cats being kept on the Property or what conditions should be imposed by the Court in allowing the keeping of the cats in excess of the numbers set out in the Policy." (Written Submissions at par 24(d)). Again at par 41 "Whilst it is accepted that the Court has a discretion to vary the terms of the Order, if it was minded to do so, it is relevant to that discretion that the Applicant has not made a request to keep a specified number of cats…the Court would not be in a position to adhere to any request to vary the Policy without coming to its own determination of the appropriate number."
I do not agree with the Applicant that the Policy does not call for any consideration of the circumstances of each case or the management practice implemented in the keeping of animals. I have quoted the relevant sections of the Keeping of Animals Policy in this judgment and in particular note in the Table of Requirements under the heading "Applicable regulations and other advisory matters" in relation to the keeping of cats it states "More than 2 cats will not be appropriate in many situations." In this appeal I am required to consider the situation of the Applicant and to determine whether two (2) cats is the appropriate maximum number of cats and if not two (2) cats then what number of cats is appropriate.
Firstly, I am satisfied that it is an appropriate exercise of discretion to issue an order 18 pursuant to s 124 of the LGA on the basis of my findings in these proceedings having considered the evidence as to the circumstances of the number of cast kept on the Premises and the manner in which they are kept and the impact on the neighbouring residents.
Secondly, I find that when considering the language used in s 124 of the LGA, the care and management of the keeping of animals is a relevant factor, namely whether the animals are kept inappropriately. In some circumstances the manner the animals are kept might be the decisive factor as to the appropriate number of animals kept provided that the Keeping of Animals Policy's aims are achieved especially the following objective: "1(a) Minimise the incidence of nuisance because caused to persons"
I have considered the language of s 124 of the LGA, the objectives of the Keeping of Animals Policy and the prescriptive requirements set out in part 3 of the Policy, including the items listed at page 3 of the Policy as follows: "Animals should be kept in a manner which does not: - Create unclean or unhealthy conditions for people or for the animals - Attract or provide a harbourage for vermin - Create offensive noise or odours - Cause a drainage nuisance or dust nuisance - Create waste disposal problems or pollution problems - Create an unreasonable annoyance to neighbouring residents or fear for safety - Create nuisance due to proliferation of flies, lice, fleas or other insects."
I have then considered the evidence of the Applicant as to her management of the cats and whether that management is appropriate. In addition to the matters already referred to above, I have considered the following: 1. The Applicant is a veterinary nurse (oral evidence) and an experienced cat breeder. Ms King is a member of a number of cat clubs or associations including 1. Cats NSW (King Affidavit, par 10) 2. NSW Cat Fanciers (King Affidavit, par 16) 1. Ms King, in cross examination, gave a detailed account of how she manages and cares for her cats including any litters such as ensuring kittens are de-sexed, microchipped and vaccinated. She does the vaccinations and microchipping herself and the vet does the de-sexing. 2. Applicant's evidence "I spent a lot of time caring after my cats. I ensure that they are healthy and clean at all times. The cats get checked by the vet regularly." (King Affdiavit, par 13) 3. In her affidavit she gives evidence that she breeds cats for showing as well as for keeping as pets. She initially had Burmese but now all her cats other than one are Bengals (at par 4). She has kept cats at the Premises since she moved there in or about the year 2000 and states in her affidavit as follows: "I have been showing and breeding Burmese and Bengal cats for over 17 years whilst at this address" (Affidavit, par 18) and "I won numerous awards for bet cat in the section. I have also won one champion breed. But frequently I would get various challenge points for having cats with good attributes for this breed." (Affidavit, par 12) 1. Some of the Show awards were pointed out in the back room during the onsite inspection. 2. "The enclosures are of adequate size, with fresh water […] I clean the cages daily." (King Affidavit, par 25)
I have considered the distribution and location of where the nine (9) cats are kept as at the date of the hearing and I note that may be different to past distribution and locations. As at the hearing the distribution and location of the cats is as follows: 1. Two (2) cats indoors within the residence, (being one Bengal and one Burmese); 2. Four (4) cats housed in individual caged enclosures along boundary fence under the carport; 3. One (1) cat in the back room and I note relevantly that this back room is where pregnant cats, kittens, cats in season at night or cats that are unwell are kept from time to time. 4. Two (2) cats in individual caged enclosures located in the rear corner of the rear yard.
Finally, Ms Kings states that: "I am currently in the process of moving the cages with a cost of approximately $17,000 along the fence into the garage. It is an expensive step however I am prepared to do so to avoid any further difficulties with the neighbour. I was not in a financial situation to have those cages moved before but I am now." (King Affidavit, par 15)
There is some criticism from the Respondent that when asked, the Applicant did not give a definitive number of cats which she believed to be an appropriate number of cats on her Premises. (Written submissions at par 40). The Respondent in Written Submissions at par 39 confirms that the table in the Keeping of Animals Policy "does make provision for the Council to consider whether the keeping of more than two cats would be appropriate and sets out the factors which will be relevant in determining whether or not more than two cats may be kept" and suggests that "the Applicant should be making a submission … to justify why more than two cats should be allowed to be kept on the Property in the circumstances."
I will accept the evidence of the Applicant given during the hearing and in her affidavit as being those submissions for her particular circumstances including her experience and qualifications and the facilities she has installed to manage and care for 9 cats on the Premises. I consider the following evidence from the Applicant as evidence as to the number of cats she has kept for a period of time as follows: 1. "At times I would have up to nine cats in various cages and enclosures in the back yard." (King Affidavit, par 5) 2. "I do not sell any cats nor do I use the premises for boarding of other peoples cats. Further I only have up to nine cats at a time. The reason that I breed the cats is because I love cats, it's my hobby and I do not profit from my cats." (King Affidavit, par 9)
The Keeping of Animals Policy states "in many situations" the appropriate number of cats is 2, accordingly, I have considered the evidence regarding the particular situation of the Applicant including her evidence of her management routine and the changes and improvements she has implemented in the course of the preceding year or so including the method of cleaning the enclosures, regular cleaning of the kitty litter and improvements to the enclosures themselves.
The Applicant, in response to the question as to what number of cats she thought was appropriate said in evidence that there should be consideration of whether the cat owner was a member of any relevant groups or clubs, whether they were properly trained or had any relevant qualifications and what conditions the cats were kept in. She said that when considering these factors it was her opinion that she has the appropriate facilities and can have as many as she wants within reason limited by size and boundaries. I do not accept that the Applicant may have as many cats as she wants because of the potential unreasonable annoyance impact on adjoining neighbours some of which are detailed in this judgment.
I have based my decision on the above reasons to exercise my discretion pursuant to s 180(4)(c) of the LGA to substitute the Order to allow the Applicant to keep the current number of nine (9) cats as a maximum on certain conditions relating to keeping the cats in an appropriate manner.

Orders

The Court orders that 1. The appeal is upheld to the extent that there is a substitution of the order 18 dated 4 June 2020. 2. The order 18 dated 4 June 2020 is substituted pursuant to s 180(4)(c) of the Environmental Planning and Assessment Act 1979 to read as follows: 1. Ensure that no more than nine (9) cats are being kept on the premises at any time (this excludes offspring to 3 months of age) provided that the cats are kept in the manner as detailed below. 2. Of the maximum nine (9) cats: 1. no more than four (4) cats may be kept in individual caged enclosures along boundary fence under the carport; and 2. no more than two (2) cats may be kept in individual caged enclosures located in the rear corner of the rear yard. 1. Kittens, pregnant cats or cats that are unwell are to be kept within the enclosed area known as the back room. 2. Cats that are in season, including any Tom cats are to be kept in the enclosed area known as the back room during the night in order to reduce noise. 3. On a daily basis the following management is to be attended to: 1. Cat faeces is to be cleaned and removed from all cat enclosures; 2. Soiled kitty litter is to be removed and disposed of in sealed garbage bags; 3. Cat enclosures to be cleaned and the method of cleaning employed is to ensure that no water or other waste material runs or percolates under the boundary fence with the adjoining neighbour. 1. Maintain in good condition, and replace as required, the core flute lining to the inside of the outdoor cage enclosures located along the boundary fence with 18 Richardson Street East Maitland. 2. Maintain in good condition, and replace or repair as required, the insulation and sound proofing of the back room. ………………………. E Espinosa Commissioner of the Court

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: 10 June 2021

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Judgment (9 paragraphs)

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Cases Cited (5)