Georgette v Sutherland Shire Council

[2021] NSWLEC 1218

Land and Environment Court

New South Wales

Medium Neutral Citation:

Georgette v Sutherland Shire Council [2021] NSWLEC 1218

Hearing dates:

Conciliation conference on 26 March and 7 April 2021

Date of orders:

29 April 2021

Decision date:

29 April 2021

Jurisdiction:

Class 2

Before:

Espinosa C

Decision:

Refer to orders at [9] below

Catchwords:

ORDER APPEAL – keeping premises in healthy condition – management and number of cats – conciliation conference – agreement between the parties – orders

Legislation Cited:

Local Government Act 1993

Land and Environment Court Act 1979

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):

2020/339339

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 26 October 2020 to the Applicant in relation to the care and management of cats, including the number of cats (the Order), kept at Lot 8 DP 22269 at 113 North West Arm Road, Gymea (the Premises).

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 26 March 2021 and 7 April 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 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. The parties’ decision involves the Court exercising the function under s 180(4) of the LGA to modify the Order.

5. 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 matters set out in s 180 of the LGA including the limitation period for making the appeal and the discretionary powers of the Court available under s 180(4) of the LGA.

6. The parties explained how the jurisdictional prerequisites have been satisfied:

1. The Appeal was lodged with the Court on 25 November 2020 being within 28 days after the service of the Order on the Applicant.

2. The modified orders are within the discretionary powers of s 180(4) specifically, subsection (b) – the Court may 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.

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:

TO DO WHAT: is amended by the following:-

Modify Order Point 2 -

2. The kitty litter is to be changed daily and disposed of in sealed garbage bags.

to read

2. Soiled kitty litter is to be removed daily and disposed of in sealed garbage bags.

Modify Order Point 3 –

3. Thoroughly clean all cat enclosures at least once a day.

to read

3. Clean the cat enclosures at least once a day.

Modify Order Point 5 –

5. The flooring of each cat enclosure is to be constructed of a smooth and impervious material.

to read

5. A smooth and impervious material shall be used in the cat enclosures as flooring underneath kitty litter trays and is to be of sufficient size to enable the capture of any overflow from the kitty litter trays.

Modify Order Point 6 –

6. Ensure that no more than fourteen (14) cats are being kept on the premises at any time.

to read

6. Ensure that no more than sixteen (16) cats are being kept on the premises at any time.

PERIOD FOR COMPLIANCE:

Modify Item 6 from

‘Item 6: Monday 8th February 2020’

to read

Date for Compliance: Point 6:

• The number of cats being kept on the premises is to be reduced to 20 within 2 months of the date of the Court Order.

• The number of cats being kept on the premises is to be reduced to 18 within 4 months of the date of the Court Order.

• The number of cats being kept on the premises is to be reduced to 16 within 10 months of the date of the Court Order.

…………………...

E Espinosa

Commissioner of the Court

Annexure A (442542, pdf)

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Decision last updated: 03 May 2021