Tanious v Georges River Council

Land and Environment Court (NSW)|2017-01-16|Before: Pepper J

Mr M Tanious, Litigant in Person, File Number(s): 155914/2016

Judgment

This matter has been remitted following a decision by Pepper J in relation to an appeal under s56A of the Land and Environment Court Act 1979 see Tanious v Georges River Council [2016] NSWLEC 142.
That appeal related to my decision of 11 August 2016, Tanious v Georges River Council [2016] NSWLEC 1330. That appeal was lodged seeking revocation or modification of an Order issued by the Council that limited the number of poultry that could be kept on the premises.

The original appeal

The original appeal was filed pursuant to Section 180 of the Local Government Act 1993 (LGA) in relation to an Order issued by the council that was in the following terms: 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.
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.
A period of 28 days was provided for compliance with the Order.
Following the decision of Pepper J, the council no longer presses that part of the Order that requires the removal of the roosters however continues to press the reduction in the number of poultry that are kept on site. The modified Orders now sought by the Council are: 1. Remove all poultry from the above premises with the exception of ten (10) chickens and 5 other poultry (Excluding offspring to 3 months of age) and including Japanese quail.
The Orders sought are to limit the number of poultry kept at the property in accordance with the council's Local Orders Policy - Keeping of Animals 2014 (LOP) which it says limits the number of birds to 15 (10 domestic or guinea fowl and 5 poultry other, including ducks, geese, turkeys, peafowl and other pheasants.
Pepper J did not make findings as to whether Japanese quail were poultry and suggested that further evidence in this regard was required. Neither party provided expert evidence to address this issue in the hearing however the council's written submissions filed on 30 November 2016 in accordance with the Directions given by the Registrar of this Court on 16 November 2016 did address the definitional issue. Such action was in accordance with an agreement reached between the parties whereby no expert evidence would be called.
The council submits, based on information contained in Christopher Perrins Ed. The Encyclopaedia of Birds (Oxford University Press, 2003) that, for the purposes of its policy, Japanese quail are poultry as they are a species of Old World quail which are in the pheasant family. Mr Cottam, for the council submits: Whilst "poultry" is not defined in the LG Act or the Regulation, it is clear that the term includes not only fowls (that is, birds of the species Gallus gallus) but also other poultry (including ducks, geese, turkeys, peafowl and other pheasants). Japanese quail (Coturnix japonica) is a species of Old World quail. Old World quail are in the pheasant family Phasianidae. Phasianidae are a family that include Old World quails and pheasants (including birds of the species Gallus Gallus).
Therefore, he submits that because Japanese quail are part of the Phasiandie family, the council's reference to pheasants in its LOP would apply.
In addition, to this research, I had, in my earlier decision, made reference to the early maturing of Japanese quail and the fact that they are capable of breeding before they turn 3 months of age. That is factual matter obtained from the Department of Primary Industry's website and in particular, its Fact Sheet on Raising Japanese Quail, prepared by former Liverstock Officers (Poultry) of the Department.
The parties were provided a short adjournment to consider these documents and, as a result of their review, Mr Tanious conceded that Japanese quail were poultry.
For this reason, I am satisfied that the Poultry section of LOP applies to the birds kept by Mr Tanious. As identified by Pepper J in her decision, various sections of the LOP do not sit comfortably with each other and they are, moreover, internally ambiguous. Despite this fact, I am satisfied that the LOP limits the number of poultry that can be kept on site to a maximum of 15, 10 domestic and guinea fowl and 5 others.
Mr Tanious sought revocation of the Order or in the alternate, after accepting the quail are included in the count of poultry, to provide for a maximum of 50 poultry including 5 roosters and 100 Japanese quail, all of which would be older than 3 months of age. When asked how many Japanese quail under 3 months of age he would be likely to keep, he stated this would be around 80.

Submissions

Mr Tanious submits that Japanese quail have a body size that is much smaller than poultry and a nature that is totally different. There are no health impacts or any other offensive noise produced due to the presence of birds on the site.
He also submitted that his financial position was now compromised by a decision by Centrelink and he would be seeking funding to establish a business as a new enterprise and that enterprise would involve the breeding of poultry for financial gain so that he would be "self-employed".
Mr Tanious acknowledged that he may require approval from council for such a business and that he had not lodged any applications to date.
He submits that the council's LOP is biased in relation to the number of different animals that can be kept on site as different varieties of birds can be kept in greater numbers than poultry. This issue was canvassed in the original hearing and it is clear that the council had determined that, for reasons that I need not go behind, higher numbers of racing pigeons (up to 120), pigeons (up to 20) and other birds (up to 50) are allowed however it is also noted that a maximum of 4 sulphur crested cockatoos and long-billed corellas are allowed. In addition, more stringent criteria apply to the facilities which can house racing pigeons.
Mr Cottam submits that the hearing is not based on a review of the LOP but rather a merits review of the Order issued. He says Mr Tanious has not shown why there should be a variation to the policy and the findings originally made, other than prohibiting the keeping of roosters, should be upheld.

Conclusion and findings

The issue which I must determine relates to the Order issued by the council and whilst Mr Tanious has now introduced his financial situation, his proposal for the establishment of an enterprise on the site is not the matter before me to consider other than if I should exercise discretion in the application of the Order and the number of poultry that should be kept on site.
Whether he is successful in gaining the necessary approvals for his "enterprise" is a matter for another day. I have no evidence as to what would be required for such a venture to be undertaken from a property within a residential area, whether in fact the funding would be available for such an enterprise or the size of the business that would need to be undertaken in order to satisfy any criteria used in allocation of funding.
In accordance with the evidence before me, Mr Tanious has not made any application to commence his funding proposal, nor sought any approval of the council. In the event that he is successful in obtaining the necessary funding, then he should seek whatever consent is required from the council as, without the necessary approvals in place, there are no grounds to vary the provisions of the LOP as it applies to the keeping of poultry. Those are matter that the council would take into consideration in its assessment of any application it may receive from Mr Tanious to conduct the proposed enterprise from his property.
In view of the fact that there is no evidence before me that the LOP has not been validly been made, that there are no approvals in place that provide for the use of the site for any purpose other than a residential dwelling house and that there is no evidence that the council does not consistently apply its policy, it is appropriate to limit the number of poultry that can be kept on the property.
Whilst I sympathise with Mr Tanious' financial situation, I do not find there are sufficient grounds to justify variation of the LOP in the circumstances of the case. That is because, consistent with my earlier finding that, Japanese quail will be kept on site, their breeding ability will likely result in a higher number of these poultry species being kept on the site that are aged 3 months and younger. Applying Mr Tanious' evidence this could involve up to 80 Japanese quail that are 3 months of age or less being kept on the site in addition to the other 15 poultry species.
Similarly, my earlier findings that the separation distance sought to be imposed by the council need not apply due to the fact that the roosts are hard paved and my determination that a separation distance of 4.5m from any dwelling should apply remains appropriate.
For the reasons outlined above, it is appropriate to modify the orders to increase the number of poultry that can be kept on site to a maximum of 15 in total (excluding any poultry under the age of 3 months) and to vary the locational requirements so as to be consistent with the provisions of the LOP.
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) domestic poultry or guinea fowl and 5 other poultry (Excluding offspring to 3 months of age) and including Japanese quail. 2. 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.

Sue Morris 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: 25 January 2017

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