Bramhall v City of Parramatta Council

[2021] NSWLEC 1315

Land and Environment Court

New South Wales

Medium Neutral Citation:

Bramhall v City of Parramatta Council [2021] NSWLEC 1315

Hearing dates:

Conciliation conference on 7 and 17 May 2021

Date of orders:

2 June 2021

Decision date:

02 June 2021

Jurisdiction:

Class 2

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) Each party is to pay its own costs.

(3) The terms of the Order 18 issued by the Respondent to the Applicant under section 124 of the Local Government Act 1993 on 16 January 2021 in relation to the premises at 53 Trumble Avenue Ermington NSW 2115 is modified by the deletion of Orders numbered 1 to 7 and in their place is inserted the following:

1. Not keep more than 17 birds on the premises subject to the following:

(a) Any aviary or cage within which the birds are kept is to be lawfully constructed and placed on the premises.

(b) The area below and within one (1) metre of any bird enclosure being properly maintained by keeping the grass cut, weeds removed and any spilling of bird feed or other waste being removed.

(c) All bird enclosures being maintained free of rodents and other vermin.

(d) All bird food being stored in vermin proof containers.

(e) All birds being kept in accordance with the “NSW Animal Welfare Code of Practice No. 4 – Keeping and Trading of Birds” produced and printed by NSW Department of Primary Industries.

2. Not keep more than 22 rabbits on the premises subject to the following:

(a) All rabbits being kept in rabbit proof hutches.

(b) Only 1 rabbit being kept in 1 hutch.

(c) If kept together all rabbits being kept only with rabbits of the same gender.

(d) All hutches and the area below and within one (1) metre of each hutch being properly maintained by removing droppings, spilt food and waste.

(e) All rabbit food being stored in vermin proof containers.

3. Not keep more than 2 Guinea Pigs on the premises subject to all hutches within which the Guinea Pigs are kept and the area below and within one (1) metre of each hutch being properly maintained by removing droppings, spilt food and waste.

4. Not keep more than 9 small dogs (being a dog under 15kg) on the premises.

5. Not keep more than 2 cats on the premises.

6. Not keep more than 2 ferrets on the premises.

(4) The “Period for Compliance” in the Order 18 dated 16 January 2021 is modified to read as follows:

“This Order is to be complied with within ninety (90) days of the date of this modified Order”.

(5) A copy of the Order as modified is attached at Annexure ‘A’.

Catchwords:

APPEAL – Local Government Act Order 18 – keeping of animals – conciliation conference – agreement between the parties – orders

Legislation Cited:

Land and Environment Court Act 1979, ss 18(a), 34

Local Government Act 1993, ss 124, 180

Texts Cited:

NSW Animal Welfare Code of Practice No 4 – Keeping and Trading of Birds, Department of Primary Industries

City of Parramatta Keeping of Birds and Animals Policy

Category:

Principal judgment

Parties:

Hayley Bramhall (Applicant)
City of Parramatta Council (Respondent)

Representation:

Counsel:
I King (Applicant)
D Baird (Solicitor) (Respondent)

Solicitors:
Everyday Justice (Applicant)
Marsdens Law Group (Respondent)

File Number(s):

2021/41033

Publication restriction:

No

Judgment

1. COMMISSIONER: This is a Class 2 - Miscellaneous Appeal pursuant to s 180 of the Local Government Act 1993 (the Act) being an Appeal against an Order No 18 dated 16 January 2021 issued by the council under s 124 of Act to comply with the following order within 28 days at Lot 2 DP 35502 at 53 Trumble Avenue, Ermington (the Premises):

“1 Take action to reduce the amount of birds being kept at the subject premises

2 Take action to reduce the size of bird aviaries/cages being used on the property for the keeping of birds to 10m²

3 To reduce the number of rabbits to no more than two (2) rabbits only

4 To reduce the number of Guinea Pigs to no more than two (2) Guinea Pigs only

5 To reduce the number of dogs to no more than four (4) dogs only

6 To reduce the number of cats to no more than four (4) cats only

7 Comply with Council’s Keeping of Birds and Animals Policy (attached) in its entirety

The property must have fencing and/or enclosures to keep the animal inside the property at all times.

Animals must not make offensive noise.

Good animal hygiene is important to minimise potential impact on neighbours. Poor hygiene can harm the health and wellbeing of people and animals living near your home.

Always avoid:

• Fence becoming damaged/or in disrepair

• Accumulation and inadequate disposal of animal waste

• Accumulation of stale or rotten food

• Attraction of rodents and flies

• Offensive odours

• Poor drainage in the animal’s enclosure

• Infestation of fleas and ticks or other parasites

• Accumulation of hair, fur or skin.”

2. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which has been held on 7 May 2021. I have presided over the conciliation conference.

3. At the conciliation conference, the parties reached agreement as to the terms of a decision in the proceedings that would be acceptable to the parties. This decision involved the Court upholding the appeal and modifying the Order.

4. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties’ decision if the parties’ decision is a decision that the Court could have made in the proper exercise of its functions. The parties’ decision involves the Court exercising the function under s 180 of the Act to modify the Order. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The parties identified the jurisdictional prerequisites of relevance in these proceedings to be

1. Pursuant to s 18(a) of the Land and Environment Court Act 1979 the Court has jurisdiction to hear and dispose of appeals made under s 180 of the Act.

2. S180(4) of the Act provides the Court with the following powers:

180   Appeals concerning orders

(1)  A person on whom an order is served may appeal against the order to the Land and Environment Court.

(2)    (Repealed)

(3)  The appeal must be made within 28 days after the service of the order on the person or, if an order is given under section 141, within 28 days after the service of the order given under section 141 on the person. The person may make an appeal within the later period whether or not the person has made an appeal within the earlier period.

(4)  On hearing an appeal, 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.

(5) This section does not apply in relation to order No 22A in the Table to section 124.

5. I am satisfied that the parties’ decision is one that the Court could have made in the proper exercise of its functions, as required by s 34(3) of the LEC Act.

6. As the parties’ decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

7. The Court orders:

1. The appeal is upheld.

2. Each party is to pay its own costs.

3. The terms of the Order 18 issued by the Respondent to the Applicant under section 124 of the Local Government Act 1993 on 16 January 2021 in relation to the premises at 53 Trumble Avenue Ermington NSW 2115 is modified by the deletion of Orders numbered 1 to 7 and in their place is inserted the following:

1.    Not keep more than 17 birds on the premises subject to the following:

(a)   Any aviary or cage within which the birds are kept is to be lawfully constructed and placed on the premises.

(b)   The area below and within one (1) metre of any bird enclosure being properly maintained by keeping the grass cut, weeds removed and any spilling of bird feed or other waste being removed.

(c)   All bird enclosures being maintained free of rodents and other vermin.

(d)   All bird food being stored in vermin proof containers.

(e)   All birds being kept in accordance with the “NSW Animal Welfare Code of Practice No. 4 – Keeping and Trading of Birds” produced and printed by NSW Department of Primary Industries.

2.   Not keep more than 22 rabbits on the premises subject to the following:

(a)   All rabbits being kept in rabbit proof hutches.

(b)   Only 1 rabbit being kept in 1 hutch.

(c)   If kept together all rabbits being kept only with rabbits of the same gender.

(d)   All hutches and the area below and within one (1) metre of each hutch being properly maintained by removing droppings, spilt food and waste.

(e)   All rabbit food being stored in vermin proof containers.

3.   Not keep more than 2 Guinea Pigs on the premises subject to all hutches within which the Guinea Pigs are kept and the area below and within one (1) metre of each hutch being properly maintained by removing droppings, spilt food and waste.

4.   Not keep more than 9 small dogs (being a dog under 15kg) on the premises.

5.   Not keep more than 2 cats on the premises.

6.   Not keep more than 2 ferrets on the premises.

4. The “Period for Compliance” in the Order 18 dated 16 January 2021 is modified to read as follows:

“This Order is to be complied with within ninety (90) days of the date of this modified Order”.

5. A copy of the Order as modified is attached at Annexure ‘A’.

……………………….

E Espinosa

Commissioner of the Court

Annexure A (153994, pdf)

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Decision last updated: 02 June 2021