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Pittwater Council v Bolitho

Pittwater Council v Bolitho

Case [2007] NSWLEC 355 1 June 2007

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Land and Environment Court

of New South Wales

CITATION: Pittwater Council v Bolitho [2007] NSWLEC 355

PARTIES:
APPLICANT
Pittwater Council
RESPONDENT
Kim Bolitho

FILE NUMBER(S): 40310; 40311 of 2007

CORAM: Preston CJ

KEY ISSUES: Civil Enforcement :- statutory orders to remove horses - injunctions sought to enforce statutory orders - Court has discretion to grant or withhold relief - not proper exercise of discretion to enforce a statutory order that should not have been issued - keeping of horses in an inappropriate manner - relief should be proportionate response - appropriate order is to require measures to be taken to keep horses in appropriate manner not removal of horses - costs

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 (NSW) s76A, s121B, s121ZK, s122(a), b(v), s123(1), s124(1)
Land and Environment Court Act 1979 s69(2)
Local Government Act 1993 (NSW) s124, s180, s672(a), (b)(ii), s673(1), s676(1)
Local Government (General) Regulation, cl 92, cl 21(4), Part 5 of Schedule 2

CASES CITED: F Hannan v Electricity Commission of NSW [No 3] (1985) 66 LGRA 306;
Cachia v Hanes (1994) 179 CLR 403;
Liverpool City Council v Roads and Traffic Authority and Interlink Roads Pty Ltd (1991) 74 LGRA 265;
Liverpool City Council v Roads and Traffic Authority and Interlink Roads Pty Ltd (No.2) (1992) 75 LGRA 210;
Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGERA 173;
Royal Agricultural Society of NSW v City of Sydney Council (1987) 61 LGRA 305;
Shire of Perth v O'Keefe (1964) 110 CLR 529;
Warringah Shire Council v Raffles (1978) 38 LGRA 306;
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335

DATES OF HEARING: 25 May 2007
29 May 2007
30 May 2007

DATE OF JUDGMENT:
1 June 2007

LEGAL REPRESENTATIVES:
APPLICANT
R Lancaster (Barrister)
SOLICITORS
Mallesons Stephen Jaques
RESPONDENT
Kim Bolitho (in person)
SOLICITORS
N/A

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PRESTON CJ

1 JUNE 2007

40310 OF 2007
40311 OF 2007

PITTWATER COUNCIL V BOLITHO

JUDGMENT

1 HIS HONOUR: Pittwater Council seeks injunctive relief requiring Ms Bolitho to remove two horses from her residential property at Clareville and to take certain remedial steps to clean up the area used by the horses.

2 The Council moved the Court on 18 May 2007 for interlocutory injunctive relief for the removal of the horses. Talbot J declined to grant interlocutory injunctive relief but instead expedited the final hearing of the proceedings, listing them before the duty judge one week later on Friday, 25 May 2007.

3 The work commitments of both the duty judge and other judges of the Court on that day, together with the fact that a final hearing of the proceedings clearly would take in excess of one day, meant that it was not possible to complete any hearing of the proceedings on the day fixed for trial. Nevertheless, it was possible for the hearing of the proceedings to be commenced before me in the afternoon of 25…

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 Pittwater Council v Bolitho

Details

AGLC: Pittwater Council v Bolitho [2007] NSWLEC 355
Case: [2007] NSWLEC 355
Decision Date: 1 June 2007

CaseChat Overview and Summary

Pittwater Council sought relief from the Land and Environment Court in relation to the keeping of horses on property owned by Kim Bolitho. The Council sought declarations and injunctive relief requiring Ms Bolitho to remove horses from her property and to take certain remedial steps to clean up the area used by the horses. The Court was asked to grant relief for breaches of two statutory orders issued by the Council. The Court found that neither of the statutory orders could be properly issued and, accordingly, the relief sought by the Council was not appropriate. Instead, the Court found that the appropriate relief would be for the respondent to take steps to complete the fence around the horse area, install a double gate to allow vehicular access to the property, install an adequate drainage system for the horse area, and to formalise a regime for cleaning and maintaining the horse area. The Court ordered each party to bear their own costs.

Orders