SOLICITORS:
N/A (Applicant)
Georges River Council (Respondent)
File Number(s): 17/32320
Decision under appeal Court or tribunal: Land and Environment Court
Jurisdiction: Class 2
Citation: [2017] NSWLEC 1023
Date of Decision: 25 January 2017
Before: Morric C
File Number(s): 16/155914
[2]
EX TEMPORE Judgment
Mr Tanious has commenced this s 56A appeal in relation to a Commissioner's decision in Tanious v Georges River Council [2017] NSWLEC 1023. That decision concerned an appeal against an order issued by the Georges River Council (formerly Hurstville Council) (the Council) restricting the number of poultry able to be kept on Mr Tanious' residential premises in Peakhurst. Such an order is permitted by s 124 of the Local Government Act 1919 (LG Act). This appeal is enabled by s 180 of the LG Act. Mr Tanious represented himself in the s 56A appeal.
Item 18 within s 124 permits a local council to issue an order to an occupier of premises not to keep birds or animals "other than of such kinds, in such numbers or in such manner as specified in the order". The circumstances when an order can be issued by a council include where an inappropriate number of birds are kept on premises.
The reasons given for the order issued by the Council on 16 January 2016 were, first, that the poultry on Mr Tanious' premises were being kept under conditions which had the potential to cause unhealthy conditions and, second, that the poultry are prohibited to be kept under the provisions of the Local Orders Policy - Keeping of Animals 2014 (LOP). The Council adopted the LOP in which it defined the number of certain animals and birds that may be kept at premises within the Council's boundaries. The adoption of a local policy such as the LOP is provided for by s 161 of the LG Act.
As identified in the Commissioner's judgment at [8] the order issued by the Council pursuant to the LOP sought to limit the number of poultry kept at residential premises to 15 birds. The orders made by the Commissioner varying the original order sought were:
(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:
(a) 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.
(b) 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.
(4) A period of 90 days is allowed from the date of this decision for compliance with the Terms of the Order.
(5) The exhibits are returned.
This is the second s 56A appeal in this matter following an earlier judgment Tanious v Georges River Council [2016] NSWLEC 1330 and a successful s 56A appeal by Mr Tanious in Tanious v Georges River Council [2016] NSWLEC 142 (Pepper J). As identified by the Commissioner at [7] following the first s 56A appeal the orders sought by the Council were amended to omit reference to roosters. In the remitter the Council was not relying on keeping poultry in an unhealthy condition namely offensive noise from roosters as a basis for the orders sought. It relied on the terms of the LOP which limited poultry to 15.
Under s 56A an appeal may be made in relation to questions of law. The summons commencing this appeal states:
APPEAL GROUNDS
1 The Commissioner Morris C has intentional neglected the facts of defendant's policy keeping of animals which was adopted on 1st of July 2015 the matter of this proceedings has been supported by unreliable evidence according to the evidence Act 1995 section 165 (1) (a) hearsay evidence because defendant did not provide any factual evidence or independent expert report according to UCPR 2005 rules 31.18, 31.27 and schedule 7 in order to support the contradictory policy to allow keeping only 15 poultry birds in the residential area. At the time allowing 120 pigeon as on page7 and permission for keeping up to 50 birds other than poultry as on page 10 of the policy.
2 Plaintiff has been keeping different types and ages of poultry birds for many years ago in the residential area in a number far more than that was allowed by the defendant's policy without any health impact according to the factual evidence and the expert opinion in relation to this industry.
3 According to the Local Government (General) Regulation 2005 under the Local Government Act 1993 NSW Division 2 Keeping of poultry sections 19, 20 has clarified the distance of keeping poultry but there was no specific number of birds to be kept in the residential areas.
4. Other local councils in NSW such as Wollongong, Hawkesbury, and many others have not specified the number of poultry birds in the residential areas.
Mr Tanious provided written submissions to the Court in which he raised additional matters as grounds of appeal. He referred to the decision of Pepper J in the first s 56A appeal in which findings were made concerning roosters on Mr Tanious' property. This is irrelevant as the issue of offensive noise caused by roosters was not pressed by the Council in the remitter. Mr Tanious also contended in his submissions that he did not agree, as the Council claims, to proceed with the remitter hearing on the basis that no expert evidence would be called by either party. He confirmed accepting during the remitter that Japanese quail could be considered "poultry" for the purposes of the LOP but clarified that this did not mean that he accepted the restriction on the number of poultry that could be kept on his property under the LOP.
[3]
Extracts from judgment under appeal
The following are relevant extracts from the judgment under appeal:
[8] 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.
[9] 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.
[10] 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).
[11] Therefore, he submits that because Japanese quail are part of the Phasiandie family, the council's reference to pheasants in its LOP would apply.
[12] 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.
[13] 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.
[14] 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.
[15] 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.
…
[24] 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.
[25] 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.
[26] 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.
I note that Mr Tanious does not dispute the separation distances imposed in the order by the Commissioner.
[4]
Evidence
Mr Tanious tendered a copy of his written submissions filed on 21 December 2016 in the remitter hearing before the Commissioner which became Exhibit A in these proceedings. An appeal book was filed by the Council and was Exhibit 1. It contained the summons commencing this appeal, an affidavit of Mr Tanious dated 1 February 2017, Mr Tanious' written submissions, the judgment under appeal, the transcript of the hearing on the remitter and the exhibits before the Commissioner in that matter. Exhibit 1 also contained the LOP, the first judgment of the Commissioner in these proceedings, the transcript of that hearing and the judgment of Pepper J upholding the first s 56A appeal. An extract of a document of the Department of Primary Industries regarding Japanese quail was also included in Exhibit 1.
[5]
Principles to apply in s 56A appeals
Numerous judgments identify principles relevant to s 56A appeals for example Hoy v Coffs Harbour City Council [2015] NSWLEC 128 at [7]. Most importantly for this appeal I am unable to review the merits of the Commissioner's decision. I can determine questions of law. The parties are bound by the manner in which the matter was run before the Commissioner. In particular there was no challenge to the validity of the Council's LOP, as identified in [24] of the Commissioner's judgment.
[6]
Appellant's submissions in this appeal
Mr Tanious submitted that the opinion underpinning the LOP limit of 15 poultry was supported by unreliable evidence because that number was not confirmed by independent expert opinion. It is inconsistent given that the LOP allows for 120 pigeons and up to 50 birds other than poultry. Pepper J identified at [73] that expert opinion may assist.
There is no evidence that the number of birds up to 150 poultry has any health impact or produces offensive noise.
The information supplied by the Commissioner from the former livestock officer supported Mr Tanious keeping 150 poultry in that the information did not specify any number limit on poultry to be kept in residential areas. Other local council areas do not have limits on poultry numbers.
Mr Tanious can recommend experts who can give evidence about the number of poultry to be allowed in residential areas.
[7]
Respondent's submissions
The appeal should be dismissed with costs. The conclusions of the Commissioner in [24] and [26] are positive findings of fact which give rise to no decision on a question of law. The Commissioner held that the number of birds should be limited by reference to the LOP. The absence of regulation in other government areas is irrelevant.
[8]
Conclusion
Questions of the merit of the Commissioner's decision are not able to be considered in this appeal. Mr Tanious accepted that he agreed during the remitter hearing that Japanese quail were poultry, as is recorded at [13]. At issue essentially is that he did not agree with the Commissioner's decision to limit poultry numbers to 15 in accordance with the LOP. No expert evidence was relied on by the Council to support such a number. Nor was it needed given there was no challenge to the making of the LOP before the Commissioner, as she identified in [25]. To the extent that Mr Tanious appeared to be challenging the LOP this is not available in this appeal as he is bound by his conduct in the remitter hearing.
A number of Mr Tanious' appeal grounds identify merit issues which he endeavoured to characterise as identifying legally incorrect construction of the LOP by the Commissioner. That there are differences within the LOP between the numbers of poultry (15) and say pigeons (120) does not reflect on the legal validity of the Commissioner's decision.
Mr Tanious alleges that he was denied procedural fairness in relation to the calling of expert evidence. Mr Tanious did not call any expert evidence in the remitter hearing meaning as I understand it an independent person with expertise in how birds are or can be kept on residential premises. His submissions handed up at the hearing before the Commissioner marked exhibit A referred in the last paragraph to two people he considered the Court should be in contact with if expert evidence is relevant. The topic which he appeared to wish to adduce evidence about was the number of birds which could or should be kept on residential premises. As identified to Mr Tanious during the s 56A appeal hearing if he wished to place expert evidence before the Court it is his responsibility to do so. This was also made clear to Mr Tanious during the first hearing before the Commissioner when the transcript of 2 August 2016 at p. 2 ln 19-22 is viewed.
Mr Tanious submitted from the bar table that he never agreed that expert evidence was not necessary, contrary to the statement recorded by the Commissioner at [9]. He said that the Registrar prevented him from filing expert evidence. In the absence of a transcript of the call-over on 16 November 2016 I am none the wiser as to what occurred. The Council submitted from the bar table that agreement was reached that no expert evidence was needed. The orders made by the Registrar on that day confirm that was the case in that provision was made for the filing of written submissions by the parties. No provision for the filing of evidence was made. That is the observation of the Commissioner in her judgment and Mr Tanious did not refer me to any part of the transcript of the remitter hearing where he identified his concerns about this issue. As already identified, his submissions to the Commissioner simply stated that if expert evidence was to be relevant there were two people he suggested could be contacted. I do not consider that Mr Tanious has demonstrated a denial of procedural fairness in the events leading up to the hearing. Mr Tanious had the opportunity to bring forward expert evidence and was therefore not denied procedural fairness.
There can be no suggestion of denial of procedural fairness by the Commissioner as Mr Tanious does not appear to have made an application to rely on any evidence, expert or otherwise at the remitter hearing.
Mr Tanious relied on statements by Pepper J that expert evidence may be helpful. Her Honour did identify at [73] that expert evidence may be helpful on the question of whether Japanese quail should be classified as poultry. As the Commissioner recorded, that issue was able to be resolved ultimately by agreement based in part on material from the Department of Primary Industries supplied by the Commissioner to the parties, as referred to in [12]-[13] of the judgment.
As the Council submitted the number of poultry permitted in the LOP is a political judgment which is within the power of the Council under the LG Act to determine. At issue before the Commissioner was whether the number of birds as specified was appropriate. The Commissioner gave reasons in [25] for why she concluded as she did which appear to accord with the matters put to her by the parties. I accept the Council's submissions that the merits underpinning or supporting the policy were not in issue in the proceedings. The validity of the LOP does not depend on providing expert opinion to support it. There was no error of law in the Commissioner taking into account the LOP. It was entitled to weight in the Council's and the Court's assessment per Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472.
Informed by the nature of the issues that were raised in the remitter hearing the appeal grounds will now be considered. Mr Tanious complains that the Commissioner applied the LOP limiting poultry numbers without expert evidence before her. As already identified none was required. That there are different numbers of birds in different categories allowed under the LOP is arguably irrelevant to the Commissioner's consideration. The Commissioner alluded to these differences in the LOP in the judgment at [19] in any event.
That Mr Tanious has been keeping poultry for many years at larger numbers than 15 without any health impact was not established in evidence by him and was not therefore a matter before the Commissioner. That the Local Government (General) Regulation 2005 does not contain a limit on bird numbers is irrelevant. The Commissioner was considering the Council's LOP which does permit such controls to be implemented under the scheme in the LG Act. That other local councils may not limit the numbers of birds on residential properties is irrelevant.
To the extent Mr Tanious referred in his submissions to his desire to conduct an operation on his property in order to be self-employed, the Commissioner identified at [13] that no development application for such an endeavour had been made to the Council. The Commissioner took into account Mr Tanious' personal circumstances to the extent these could be relevant at [25]. The consideration of self-employment policies of Centrelink and the Australian Taxation Office have no bearing on the application of the LOP in the circumstances before the Commissioner, contrary to Mr Tanious' submission that they did.
Mr Tanious referred to other parts of the transcript of the remitter hearing and identified information about his circumstances which he submitted was not considered by the Commissioner. I was not able to understand how these references were relevant to the grounds of appeal as I understand them and I have not therefore considered every reference to the transcript made by Mr Tanious.
The appeal is dismissed. Costs generally follow the event in s 56A appeals. As Mr Tanious has been unsuccessful he should pay the Council's legal costs of this appeal.
[9]
Orders
The Court makes the following orders:
1. The appeal is dismissed.
2. The Applicant is to pay the costs of the Council.
3. The exhibits be returned.
[10]
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Decision last updated: 26 May 2017