Georgette v Sutherland Shire Council

[2023] NSWLEC 1646

Land and Environment Court

New South Wales

Medium Neutral Citation:

Georgette v Sutherland Shire Council [2023] NSWLEC 1646

Hearing dates:

Conciliation Conference 27 October 2023

Date of orders:

01 November 2023

Decision date:

01 November 2023

Jurisdiction:

Class 2

Before:

Espinosa C

Decision:

The Court orders:

(1) The appeal is upheld.

(2) The Order issued by the Respondent, pursuant to s 124 of the Local Government Act 1993, (which is attached at Annexure A) be amended as follows:-

a) “TO DO WHAT” is amended as follows:-

6. Ensure that no more than four (4) ten (10) cats are being kept on the subject premises at any time and those cats are kept in the manner as detailed below:

a) No more than six (6) cats are to be kept in the existing cat enclosure located in the rear yard of the subject premises; and

b) No more than four (4) cats are to be kept in the existing cat enclosure located in the front yard of the subject premises and on the southern side of the balcony.

7. The existing cat enclosure located in the front yard of the subject premises and on the northern side of the balcony shall be removed and no cat enclosure shall be installed/placed on the northern side of that balcony.

8. The existing cat enclosure located in the rear yard of the subject premises shall be sealed against rain entering litter trays.

b) “PERIOD FOR COMPLIANCE” is amended as follows:

Item 6: Monday 2nd October 2023 by 5.00pm Within six (6) months from the date of this Court Order.

Items 7 and 8: Within three (3) months from the date of this Court Order.

Catchwords:

ORDER APPEAL – keeping premises in healthy condition – management and number of cats at residential site – odour nuisances associated with keeping cats - conciliation conference – agreement between the parties – orders

Legislation Cited:

Land and Environment Court Act 1979, s 34

Local Government Act 1993, ss 124, 129, 180

Category:

Principal judgment

Parties:

Danielle Gai Georgette (Applicant)
Sutherland Shire Council (Respondent)

Representation:

Counsel:
D Georgette (Litigant in person)(Applicant)
J Amy (Solicitor)(Respondent)

Solicitors:
Sutherland Shire Council (Respondent)

File Number(s):

2023/142754

Publication restriction:

No

Judgment

1. 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 being an Order No 21 issued by the Respondent pursuant to s 129 and 124 of the LGA on 29 March 2023 in relation to odour nuisances associated with keeping cats (the Order) at 113 North West Arm Road Gymea legally described as Lot 8 in DP 22269 (the Site).

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 27 October 2023. I 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 pursuant to s 180(4)(b) of the LGA.

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. In making the orders to give effect to the agreement between the parties, I was not required to, and have not, made any merit assessment of the issues that were originally in dispute between the parties.

5. The parties’ decision involves the Court exercising the function under s 180(4)(b) of the LGA to modify the Order.

6. 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 the terms of s 180 of the LGA in relation to an appeal of an order issued pursuant to the LGA. The parties explained how the jurisdictional prerequisites have been satisfied as follows:

1. The Appeal was filed with the Court on 1 May 2023 being within 28 days after the service of the Order on the Applicant (s 180(3), LGA);

2. The modified orders are within the discretionary powers of the Court pursuant to s 180(4) of the LGA specifically, subs (b) which includes the power to modify the Order.

7. 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.

8. 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.

Orders:

9. The Court orders:

1. The appeal is upheld.

2. The Order issued by the Respondent, pursuant to s 124 of the Local Government Act 1993, (which is attached at Annexure A) be amended as follows:-

a) “TO DO WHAT” is amended as follows:-

6. Ensure that no more than four (4) ten (10) cats are being kept on the subject premises at any time and those cats are kept in the manner as detailed below:

a) No more than six (6) cats are to be kept in the existing cat enclosure located in the rear yard of the subject premises; and

b) No more than four (4) cats are to be kept in the existing cat enclosure located in the front yard of the subject premises and on the southern side of the balcony.

7. The existing cat enclosure located in the front yard of the subject premises and on the northern side of the balcony shall be removed and no cat enclosure shall be installed/placed on the northern side of that balcony.

8. The existing cat enclosure located in the rear yard of the subject premises shall be sealed against rain entering litter trays.

b) “PERIOD FOR COMPLIANCE” is amended as follows:

Item 6: Monday 2^nd October 2023 by 5.00pm Within six (6) months from the date of this Court Order.

Items 7 and 8: Within three (3) months from the date of this Court Order.

E Espinosa

Commissioner of the Court

Annexure A

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Decision last updated: 01 November 2023