Inner West Council v Findlay

[2019] NSWLEC 96

Land and Environment Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Inner West Council v Findlay [2019] NSWLEC 96
Hearing dates:	12 and 13 June 2019
Date of orders:	23 August 2019
Decision date:	23 August 2019
Jurisdiction:	Class 4
Before:	Moore J
Decision:	See undertakings and orders at [84] and [85]
Catchwords:	ORDERS - enforcement - discretion - balancing of factors as to whether appropriate to require compliance - undertakings offered by Respondent - undertakings appropriate to circumstances - discretion exercised not to enforce orders - summons dismissed - presumption that costs follow the event - no basis to depart from that presumption - costs ordered in favour of Respondent
Legislation Cited:	Environmental Planning & Assessment Act 1979 Evidence Act 1995, ss 91 and 93 Land and Environment Court Act 1979, s 56A Local Government Act 1993, ss 124, 180, 673, 676 and 735A Local Government (Council Amalgamations) Proclamation 2016 Uniform Civil Procedure Rules 2005, r 42.1
Cases Cited:	Findlay v Ashfield Council [2016] NSWLEC 1219 House v The King (1936) 55 CLR 499 P E Bakers v Yehuda Pty Ltd (1988) 15 NSWLR 437 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Category:	Principal judgment
Parties:	Inner West Council (Applicant) Eric Findlay (Respondent)
Representation:	Counsel: Mr S Nash, barrister (Applicant) Ms S Duggan SC/Ms J Reid, barrister (Respondent)   Solicitors: Wilshire Webb Staunton Beattie (Applicant)
File Number(s):	343097 of 2018
Publication restriction:	No

TABLE OF CONTENTS

Background

The present proceedings

These Class 4 proceedings

The status of the 2016 decision

Introduction

Applicant’s submissions on judgment in rem

Respondent’s submissions on judgment in rem

Applicant Submissions in Reply

Conclusion on the status of the 2016 decision

The relevant legislative provisions

The sole matter requiring determination in these proceedings

The evidence

Mr Elia’s evidence

The complaints concerning the pony

Introductory comments

Evidence concerning other neighbours’ attitudes to the pony

The question of the wind direction

The present nature of the pony’s enclosure

The evolution of the pony’s diet

Urine management

Mr Findlay’s proposals

Consideration of the exercise of discretion

Costs

Orders

JUDGMENT

Background

1. In July 2002, Mr Findlay’s first Shetland pony, one named “Jack”, came to live with him at his residence in Summer Hill. At some subsequent time, shortly thereafter, Jack was succeeded by a replacement Shetland pony (originally named “Harley” but subsequently renamed “Horse”). As a consequence, Horse (the pony) has resided continuously at Mr Findlay’s home for some 17 years.

2. For considerable portion (but by no means all) of that period, there has been an interaction between Mr Findlay and the relevant local government authority within whose area his residence is located. For the vast bulk of that period, that local government authority was Ashfield Council. Since the amalgamation of a number of local government authorities, by virtue of the Local Government (Council Amalgamations) Proclamation 2016 which took effect from May 2016, Ashfield Council became part of the Inner West Council. For the purposes of this decision, it is unnecessary to distinguish between the earlier and…