Tanious v Georges River Council

Background and the proposal

1. The Council, following issue of a Notice of Intention, served Order Number 18 under the provisions of Section 124 of the Local Government Act 1993 (LGA) on 18 January 2016.
2. The terms of the Order are: 1. Remove all poultry from the above premises with the exception of ten (10). (Excluding off spring to three months of age). 2. Remove all roosters. 3. Poultry to be kept in a poultry house that is enclosed, have had paving and kept at a distance of 15.2m away from a dwelling.
3. The reasons for the Order are stated as being: 1. The poultry are being kept under conditions which have the potential to cause unhealthy conditions and prohibited to be kept under the provisions of Hurstville City Council's Local Orders Policy - Keeping of Animals 2014.
4. A period of 28 days was provided for compliance with the Order.
5. There is no issue in the proceedings that the Order has not been properly made or served.
6. Mr Tanious seeks revocation of the Order or in the alternate to provide for a maximum of 50 poultry birds older than three months of which up to 35 would be chickens, 15 other types of poultry such as turkeys and including between 3 and 5 roosters older than 3 months. In addition, he seeks permission to keep a maximum of 150 Japanese quail older than three months.
7. He also seeks costs in relation to these proceedings however this is not within the power of the Court and this fact was explained to Mr Tanious during the hearing.

The relevant legislation

1. Chapter 6, Part 2, Division 1 of the LGA provides for Giving of Orders. In the table to Clause 124, Order No 18 makes provision for the issue of an Order that requires the occupier of premises not to keep birds or animals on premises, other than of such kinds, in such numbers or in such manner as specified in the order. The circumstances under which the Order may be issued are that either 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.
2. It is the council's case that the number of birds kept on the site is inappropriate.

The council's Local Approvals Policy.

1. In assessing the appropriate number of birds to be kept, the council relies on its Local Orders Policy - Keeping of Animals (Policy). That policy was adopted by the Council on 1 July 2015 and is made pursuant to the provisions of 11 Chapter 6, Part 3 of the LGA. The validity of the policy was not challenged in the proceedings.
2. Clause 1 of the Policy sets out its Purpose as follows: This policy seeks to inform the Hurstville Community of Council's regulatory powers concerning the keeping of animals in the urban environment. It is not intended with 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 in an urban environment. This policy applies to animals kept for domestic reasons, as companion animals, pets or for hobby interests. More stringent conditions will be applied to the keeping of animals for commercial purposes, including boarding, breeding, grooming, caring, treatment, training, racing, exhibiting, trading or selling. 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 Establishments may not be allowed where the Council considers that the proposal would be harmful to the amenity of the locality.
3. The General Aims of the Policy are detailed in Clause 2 as: •To inform the community of the main statutory restrictions and acceptable limits which apply to the keeping of certain animals for domestic purposes. •To give guidance and advice to persons inquiring as to the keeping of animals for domestic purposes. •To minimise local nuisance and maximise residential amenity, and •To ensure the keeping of animals does not compromise minimum standards of public health, safety and convenience. •To establish local standards, acceptable to the Community, for the keeping of Animals. •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 to prohibit, restrict or in some other way, require things to be done regarding the keeping of animals.
4. The policy applies to a range of animals and includes a Table of Requirements. That table indicates the essential requirements and relevant considerations regarding the keeping of animals and stipulates a maximum number (excluded off spring to 3 months), in some cases establishes minimum distances from certain buildings and includes reference to applicable regulations and other advisory matters.
5. In relation to Poultry the table includes two provisions and in the case of domestic poultry and guinea fowl establishes a maximum number of 10 with the poultry houses to be 4.5m from buildings. In the case of other Poultry (including ducks, geese, turkeys, peafowl and other pheasants), the maximum is 5 and the minimum separation distance is 30m. The notes state that greater distances may be required in particular cases; hard paving must be provided under roosts if within 15.2m of a dwelling, public hall or school, the yards must be enclosed to prevent escape of poultry, with yards kept free of rats and mice and roosters should not be kept where crowing will cause offensive noise.

The issues

1. The contentions in the case are that the number of birds housed at the site is excessive and has the potential to cause unhealthy conditions. The council is seeking that the Order is upheld or, in the alternate is amended to better clarify the location where birds can be stored so that it better reflects the terms of the Policy. It also agreed that a period of 90 days would be a reasonable time for compliance with the Order.

The existing condition

1. The matter commenced as a conciliation conference under the provisions of s34 of the Land and Environment Court Act 1979. That conference was held on site and included a view of the manner in which poultry are accommodated on the site. No agreement was reached and the conference was terminated.
2. The parties agree that the evidence and observations of the conference should be evidence in these proceedings.
3. Mr Tanious firstly showed the Court the incubator within the kitchen of the dwelling which is used to hatch the eggs of his poultry. A view of the backyard of the premises was then undertaken and revealed the majority to the yard had been sealed with brick paving and a number of bird enclosures were located around the yard, in particular in the south western corner. Those were constructed of assorted materials and were of varying sizes and heights and contained a variety of poultry. A small, elevated vegetable garden was located adjacent to the eastern property boundary.
4. Mr Tanious, through evidence filed with the Court and presented during the conciliation conference and hearing, has provided details of how he uses to the site to house poultry. The following is a summary of that evidence:

• He keeps poultry to minimise waste by letting the hens eat his kitchen scraps;
• Poultry waste is composted on site, the compost bin is evacuated twice per year and used on his garden and ensures sustainability;
• He currently has 3 roosters, 30 chickens, 1 turkey rooster, 1 female turkey and between 130 and 150 Japanese quail;
• He does not consider the quail to be "poultry" for the purpose of the council's Policy;
• He needs to keep the roosters as he receives benefits and cannot afford to breed his birds without his own roosters;
• He disposes of roosters generally around the age of 12 months as they become too noisy at that age;
• At the present time he keeps birds as a hobby and is breeding species to learn and improve the stock so that he may be a successful breeder, known in the industry;
• He sells surplus stock at the auctions where his stock is becoming well known;
• He keeps the birds in a safe and healthy manner;
• His hobby is contributing to his experience and the economic benefit of others such as the auctioneers;
• He was not aware of the exhibition of the draft Policy;
• He considers the Policy to be unfair, not to take into account personal circumstances and discriminates against the keeping of poultry as up to 120 racing pigeons may be kept; he says there is no foundation as to why the numbers have been selected and the Policy should be mor flexible.

Council's evidence

1. Ms S Walker, a Senior Client Service Officer of the NSW Land and Housing Corporation (NSW LAHC) swore an affidavit in the proceedings (Exhibit 2). That confirmed the NSW LAHC is the owner of the site and there is a residential tenancy agreement between it and Mr Tanious. According the affidavit, NSW LAHC supports the removal of the unauthorised poultry.
2. Ms Walker was not required for cross examination.
3. Ms F Stock provided expert evidence for the council (Exhibit 1). Mr Tanious challenged the evidence in relation to bias however, I am satisfied that the evidence is expert evidence for the purposes of 31.18 and 31.27 of the Uniform Civil Procedure Rules 2005 and I allowed that evidence.
4. Ms Stock had attended the conciliation conference, provided background into the council's investigations of the site leading up to the issue of the Order, the making of the Policy and history of complaints made in relation to the site in 2011. She confirmed the council had not received any recent complaints from neighbours, the most recent complaint had been from NSW LAHC.

Submissions

1. Mr Tanious submits that he should be allowed to keep up to 50 poultry birds including 30-35 chickens, 10 - 15 other poultry and 3 - 5 roosters as well as up to 150 Japanese quail including all offspring under 3 months of age. He says there is no evidence of recent complaints, the birds are kept in an appropriate manner and the keeping of birds is consistent with sustainability principles and provides economic benefits to the community. He says 10 birds is not enough for his enjoyment or keeping the property sustainable.
2. Ms Ware submits the Policy is valid and should be upheld. The Order was validly issued. She conceded that the Policy did provide for the keeping of up to 10 chickens and/or guinea fowl and a further 5 other types of birds including ducks, geese, turkeys peafowl or other pheasants resulting in a total of 15 birds and that the 15.2m separation distance from a dwelling was only applicable if the roosts did not have hard paved floors.
3. It is the council's position that all roosters should be removed from the site because, having regard to the location, the crowing of any rooster would cause offensive noise consistent with the definition in the Protection of Environment Operations Act 1997 (POEO).

Conclusion and findings

1. Having regard to the evidence, I am satisfied that the Order as made should be varied however, I do not accept Mr Tanious' evidence that the number of birds should be increased to the numbers he seeks.
2. It is apparent from the evidence that the Policy has been the subject of public consultation and recent review and that it seeks to regulate an appropriate number of animals that can be kept in a residential property. In the case of poultry, that number is up to a total of 15 birds and would not include roosters unless they can be kept in a manner where crowing would not cause offensive noise. There is no evidence that the council has not consistently applied the provisions of the Policy and it is not for the Court to go behind the Policy.
3. My observation of the site, its proximity to adjoining residential properties and the manner in which birds are housed is such that the crowing of a rooster is likely to result in offensive noise as defined in the POEO Act. For that reason, I support the council's position that it is not appropriate to house roosters on the site.
4. I do consider that the number of birds that can be kept on the site should be increased so that it is consistent with the Policy, which is a maximum of 15 poultry birds, including the Japanese quail, but excluding off spring to 3 months of age.
5. I accept the council's position that the quail are birds that fall within the category of Poultry and make reference to the definition of poultry, fowl and gallinaceous as defined in the Macquarie Dictionary as follows: Poultry noun domestic fowls collectively, as chickens, turkeys, guineafowls, ducks, and geese. Fowl noun (plural fowls or, especially collectively, fowl) 1. → chicken (def. 1). 2. any of various other gallinaceous or similar birds, as the turkey or duck. 3. (in market and household use) a full-grown domestic fowl for food purposes, as distinguished from a chicken, or young fowl. 4. the flesh or meat of a domestic fowl. 5. any bird (now chiefly in combination): waterfowl; wildfowl. -verb (i) 6. to hunt or take wildfowl. Gallinaceous adjective 1. relating to or resembling the domestic fowls. 2. belonging to the group or order Galliformes, which includes the domestic fowls, pheasants, grouse, partridges, etc.
6. I also note that the Japanese quail mature early and are likely to be capable of breeding before they turn 3 months of age however, that is a matter for the council as it should have considered this in its review of the Policy. It may result in considerably more than 15 birds in total kept at the site however the majority would be less than 3 months in age.
7. I do not consider that the small economic benefit suggested by Mr Tanious is a reason to further increase the number of birds that can be kept at the site and, having observed the limited extent of garden at the site, do not consider his argument on sustainability is one that would warrant variation of the Policy.
8. In addition, Order 3 should be modified to reflect the locational requirements of the policy because the roosts are hard paved.

Orders

1. As detailed above, it is appropriate, pursuant to the provisions of 180(4)(b) of the LGA, to modify the Order to increase the number of birds that can be kept on site to a maximum total of 15 and to vary the locational requirements to be consistent with the Policy.
2. The Orders of the Court are: 1. The appeal is upheld. 2. Order Number 18 issued pursuant to the provisions of Section 124 of the Local Government Act 1993 relating to property 1A Arnold Street Peakhurst is modified to vary the Terms of the Order and the period for compliance. 3. The Terms of the Order are: 1. Remove all poultry from the above premises with the exception of ten (10) chickens and 5 other poultry (Excluding of spring to 3 months of age) and including Japanese quail. 2. Remove all roosters. 3. Poultry to be kept in a poultry house that is enclosed, has hard paving and kept a minimum distance of 4.5m from any dwelling house. 1. A period of 90 days is allowed from the date of this decision for compliance with the Terms of the Order. 2. The exhibits are returned.

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Sue Morris Commissioner of the Court

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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: 11 August 2016