King v Maitland City Council

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

Tanious v Georges River Council [2017] NSWLEC 1023

Funnell v Blayney Shire Council [2020] NSWLEC 170

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:
M Fozzard (Applicant)
T Pickup (Solicitor) (Respondent)

Solicitors:
Bilias & Associates (Applicant)
Local Government Legal (Respondent)

File Number(s):

2020/209415

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 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.”

2. 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…