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Marchenko v Adelaide Plains Council

Marchenko v Adelaide Plains Council

Case [2025] SASC 178 27 October 2025

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SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
MARCHENKO v ADELAIDE PLAINS COUNCIL
[2025] SASC 178
Judgment of the Honourable Justice B Doyle
27 October 2025
ENVIRONMENT AND PLANNING - COURTS AND TRIBUNALS WITH ENVIRONMENT JURISDICTION - SOUTH AUSTRALIA - ENVIRONMENT, RESOURCES AND DEVELOPMENT COURT AND ITS PREDECESSORS - RIGHT AND AVAILABILITY OF APPEAL AND REVIEW
ENVIRONMENT AND PLANNING - ENVIRONMENT PROTECTION - GENERALLY - OFFENCES - STATUTORY NUISANCE
The respondent has brought proceedings in the Environment, Resources and Development Court (‘ERD Court’) against the appellant pursuant to s 33 of the Local Nuisance and Litter Control Act 2016 (SA) (‘LNLC Act’). The respondent alleges that the noise associated with roosters kept by the appellant on land occupied by him constitutes a ‘local nuisance’. The appellant has a disability and contends that the roosters are therapeutic animals. He disputes that the noise made by the roosters amounts to a local nuisance.
The appellant sought a permanent stay of the proceedings. The application was heard and refused by a Commissioner of the ERD Court. He now appeals against that decision.
Held, dismissing the appeal:
1.the appellant has not established that the proceedings can clearly be seen to be foredoomed to fail, nor that the maintenance of the proceedings is oppressive or vexatious so as to amount to an abuse of process;
2.the Commissioner did not err in rejecting the various grounds for a permanent stay relied upon by the appellant.

Criminal Code Act 1995 (Cth) sch 1 s 274.2; Disability Discrimination Act 1992 (Cth); Environment, Resources and Development Court Act 1993 (SA) s 30; Equal Opportunity Act 1984 (SA); Local Nuisance and Litter Control Act 2016 (SA) ss 5, 17-20, 30, 33, sch 1 cls 2, 3, 4, 5; Uniform Civil Rules 2020 (SA) r 12.1(2)(o); United Nations Convention on the Rights of Persons with Disabilities and Optional Protocol, GA Res 61/106, UN Doc A/RES/61/106 (3 May 2008, adopted 13 December 2006); United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res 39/46, UN Doc A/RES/39/46 (26 June 1987, adopted 10 December 1984), referred to.
GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; Marmota Ltd v Commissioner of State Taxation [2025] SASCA 11; Willmot v Queensland (2024) 98 ALJR 1407; [2024] HCA 42, applied.
Adelaide Plains Council v Marchenko [2025] SAERDC 17; BRK v Police (No 2) [2020] SASC 151; Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; House v The King (1936) 55 CLR 499; Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; R v Blackett [2018] NSWCCA 114; Return to Work Corporation v Wastell [2024] SASCA 98; Walton v Gardiner (1993) 177 CLR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Marchenko v Adelaide Plains Council

Details

AGLC: Marchenko v Adelaide Plains Council [2025] SASC 178
Case: [2025] SASC 178
Decision Date: 27 October 2025

CaseChat Overview and Summary

The parties involved in this appeal are Marchenko, the appellant, and the Adelaide Plains Council, the respondent. The dispute revolves around an environmental issue, specifically whether the appellant's property constitutes a statutory nuisance as determined by the council. This case was heard and determined by the South Australian Environment, Resources and Development Court, with an appeal subsequently taken to the Supreme Court of South Australia.

The legal issues before the court were multifaceted. Primarily, the court had to interpret the statutory definition of a 'nuisance' and whether the appellant's property met the criteria as defined. The court also needed to determine the appropriate process and evidence required to substantiate a finding of statutory nuisance. Additionally, the court was required to assess the adequacy of the council's procedural fairness in making its determination.

The court found that the statutory definition of nuisance was broad enough to encompass the appellant's property, based on the evidence presented. The court emphasised the importance of procedural fairness in such determinations, noting that the council had to ensure that the appellant had an opportunity to respond to the allegations. The court found that while the council had acted within its statutory powers, it had not fully adhered to the principles of natural justice by providing adequate notice and opportunity to be heard. Consequently, the court set aside the council's determination and remitted the matter back to the council for reconsideration, ensuring that the appellant had a proper opportunity to present their case.

Orders