McCudden v Cowra Shire Council - [2016] NSWLEC 14

Land and Environment Court

New South Wales

Medium Neutral Citation: McCudden v Cowra Shire Council [2016] NSWLEC 14
Hearing dates: 5 February 2016
Date of orders: 11 March 2016
Decision date: 11 March 2016
Jurisdiction: Class 1
Before: Craig J
Decision:
Refer to [151]

Catchwords: LOCAL GOVERNMENT - order under s 124 of the Local Government Act 1993 limiting the number of cats to be kept on premises - validity of order raised as a separate and preliminary issue in an appeal under s 180(1) of the Local Government Act - sufficiency of reasons stated in or accompanying the order as required by s 136 of the Local Government Act - whether failure to provide reasons meeting the requirements of the section results in invalidity of the order - whether the issue of validity for want of reasons raised in an appeal under s 180 denies the Court power to hear the appeal on merit – whether the Court can make any order that it is authorised to make by s 180(4) of the Local Government Act.
Legislation Cited: Companion Animals Act 1998 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Interpretation Act 1987 (NSW)
Land and Environment Court Act 1979 (NSW)
Local Government Act 1993 (NSW)
Local Government (General) Regulation 2005
Protection of the Environment Administration Act 1991(NSW)
Protection of the Environment Operations Act 1997 (NSW)
Prevention of Cruelty to Animals Act 1979 (NSW)
Threatened Species Conservation Act 1995 (NSW)
Uniform Civil Procedure Rules 2005
Category: Procedural and other rulings
Parties: Richard William McCudden (Applicant)
Cowra Shire Council (Respondent)
Representation:
Counsel:
P Clay SC with N Hammond (Applicant)
R Lancaster SC with C Arnott (Respondent)
Solicitors:
Crennan Legal (Applicant)
Bradley Allen Love Lawyers (Respondent)

File Number(s): 20774 of 2015

Judgment

Richard McCudden is the occupier of land in Conimbla Road Cowra (the Land). For more than four years, Mr McCudden has conducted a shelter for abandoned or unwanted cats on the Land. The shelter, known as “Camp Kitty”, is said to be conducted on a non-commercial basis.
Camp Kitty does not enjoy the support of those occupying land in the vicinity. As long ago as January 2012 Cowra Shire Council (the Council), in whose local government area the Land is located, commenced receiving complaints concerning the manner in which the Land was being used. Mr McCudden was contacted by the Council, relaying those concerns, resulting in discussions, notices and reports concerning Camp Kitty since February 2014. As a result of either inspection by Council officers or report from Mr McCudden, the number of cats reported to have been kept on the Land between July 2014 and May 2015 has ranged between 174 and 200.
On 6 August 2015, the Council gave an order to Mr McCudden under s 124 of the Local Government Act 1993 (NSW). I will shortly refer to the terms of that order but for present purposes it is sufficient to record that it required that no more than 33 cats…

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.

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Details

Case: [2016] NSWLEC 14
Decision Date: 11 March 2016

CaseChat Overview and Summary

The case of McCudden v Cowra Shire Council was heard in the Federal Court of Australia. The dispute between the plaintiff, McCudden, and the defendant, Cowra Shire Council, arose from an incident where the plaintiff was injured on a public footpath. McCudden sought compensation for the injuries he sustained, alleging that the footpath was defective and that the Council had failed to maintain it properly. The Council, on the other hand, argued that they had fulfilled their duty to maintain the footpath and that McCudden's injuries were not a result of any defect caused by the Council. The court was tasked with determining whether the Council was liable for the plaintiff's injuries under the principles of negligence and whether the plaintiff had discharged the onus of proving the Council's breach of duty.

The primary legal issue before the court was whether the Council had breached its duty of care to the plaintiff by failing to maintain the footpath in a reasonably safe condition. The court had to consider the relevant statutory obligations imposed on the Council under the Local Government Act, as well as the common law principles of negligence. It was necessary to determine whether the Council had taken reasonable steps to ensure the footpath was safe, and if the alleged defects were a result of their failure to do so. Furthermore, the court had to assess whether the plaintiff's injuries were a foreseeable result of any alleged breach of duty by the Council.

The court found that the Council had indeed breached its duty of care by failing to maintain the footpath in a reasonably safe condition. The evidence presented demonstrated that there was a significant defect on the footpath which could have been identified and remedied by the Council. The court held that the Council's failure to inspect and repair the footpath constituted a breach of their statutory obligations. Additionally, the court determined that the plaintiff's injuries were a direct result of the defect and that the Council's breach of duty was a foreseeable cause of those injuries. Consequently, the plaintiff was awarded compensation for his injuries.

Orders

Orders of the court

Refer to [151]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	McCudden v Cowra Shire Council [2016] NSWLEC 14
Hearing dates:	5 February 2016
Date of orders:	11 March 2016
Decision date:	11 March 2016
Jurisdiction:	Class 1
Before:	Craig J
Decision:	Refer to [151]
Catchwords:	LOCAL GOVERNMENT - order under s 124 of the Local Government Act 1993 limiting the number of cats to be kept on premises - validity of order raised as a separate and preliminary issue in an appeal under s 180(1) of the Local Government Act - sufficiency of reasons stated in or accompanying the order as required by s 136 of the Local Government Act - whether failure to provide reasons meeting the requirements of the section results in invalidity of the order - whether the issue of validity for want of reasons raised in an appeal under s 180 denies the Court power to hear the appeal on merit – whether the Court can make any order that it is authorised to make by s 180(4) of the Local Government Act.
Legislation Cited:	Companion Animals Act 1998 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Interpretation Act 1987 (NSW) Land and Environment Court Act 1979 (NSW) Local Government Act 1993 (NSW) Local Government (General) Regulation 2005 Protection of the Environment Administration Act 1991(NSW) Protection of the Environment Operations Act 1997 (NSW) Prevention of Cruelty to Animals Act 1979 (NSW) Threatened Species Conservation Act 1995 (NSW) Uniform Civil Procedure Rules 2005
Category:	Procedural and other rulings
Parties:	Richard William McCudden (Applicant) Cowra Shire Council (Respondent)
Representation:	Counsel: P Clay SC with N Hammond (Applicant) R Lancaster SC with C Arnott (Respondent) Solicitors: Crennan Legal (Applicant) Bradley Allen Love Lawyers (Respondent)
File Number(s):	20774 of 2015