Land and Environment Court
New South Wales
Medium Neutral Citation: King v Maitland City Council [2021] NSWLEC 1343 Hearing dates: 26 February 2021 Date of orders: 10 June 2021 Decision date: 10 June 2021 Jurisdiction: Class 2 Before: Espinosa C Decision: See orders at [80]
Catchwords: APPEAL – local government order 18 – keeping of cats on residential land – keeping of cats for domestic purpose – relevance of previous order pursuant to s 9.34 of the Environmental Planning and Assessment Act 1979 – role of policy adopted by Council pursuant to s 159 of the Local Government Act 1993 – offensive odour and offensive noise – annoyance to neighbours – orders
Legislation Cited: Environmental Planning and Assessment Act 1979, ss 8.18, 9.34, 9.37, Division 9.5, Division 9.6, Schedule 5
Land and Environment Court Act 1979
Local Government Act 1993, ss 124, 131,132, 136, 159, 180, 628, Chapter 16
Protection of the Environment Operations Act 1997, Dictionary
Cases Cited: King v Maitland City Council [2020] NSWLEC 1005
Texts Cited: Maitland City Council Policy for the Keeping of Animals, 8 July 2008
Category: Principal judgment Parties: Clare Louise King (Applicant)
Maitland City Council (Respondent)Representation: Counsel:
Solicitors:
M Fozzard (Applicant)
T Pickup (Solicitor) (Respondent)
Bilias & Associates (Applicant)
Local Government Legal (Respondent)
File Number(s): 2020/209415 Publication restriction: No
Judgment
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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 namely Order No. 18 dated 4 June 2020 issued by the Respondent pursuant to s 124 of the LGA to the Applicant requiring the following to be done (the Order) in relation to the premises at Lot 4 DP222302 being located at the address of 16 Richardson Street East Maitland (the Premises):
“Not to keep any more than two (2) cats at any one time at the Premises (this excludes offspring to 3 months of age), in accordance with Maitland City Council’s Policy – Keeping of Animals.”
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The hearing commenced with an onsite inspection of the Premises and the adjoining neighbouring property at 18 Richardson Street, East Maitland. The Court was provided access to the backyard of the Premises via the house in which Ms King resides. A number of fragrant candles were observed alit inside the house and one cat was observed indoors. Upon stepping into the backyard there was an orange/citrus like smell noticeable. Ms King showed the Court the row of cage enclosures along the boundary fence with 14 Richardson Street East Maitland. Only four (4) of these enclosures along the boundary fence were occupied by a cat in each. One cat climbed up the front cage wall as we approached. One or more cats meowed a couple of times during the inspection. The height of the ground relative to the neighbouring property at 18 Richardson Street, East Maitland…
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- Case
- [2021] NSWLEC 1343
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the council's decision was legally sound and whether it had properly considered the environmental implications as required by law. Specifically, the court needed to determine if the council had complied with the Environmental Planning and Assessment Act 1979 and the relevant local environmental plan. The plaintiff contended that the council had not adequately addressed the potential impacts on the local environment and had therefore acted beyond its statutory authority.
The court examined the council's decision-making process and the documentation provided. It found that the council had indeed failed to sufficiently address the environmental concerns raised by the plaintiff and had not complied with the necessary statutory requirements. The court held that the council's decision was therefore invalid. As a result, the court quashed the council's approval of the development application and remitted the matter back to the council for reconsideration in light of the court's findings.
Orders
Orders of the court
See orders at [80]
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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