Tanious v Georges River Council - [2017] NSWCA 204

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Tanious v Georges River Council [2017] NSWCA 204
Hearing dates: On the papers
Decision date: 16 August 2017
Before: Leeming JA; White JA
Decision:
Summons seeking leave to appeal filed on 6 June 2017 is dismissed, with costs.

Catchwords: LEAVE – Leave sought to appeal against a decision of the Land and Environment Court on a question of law – Council orders regulating the keeping of poultry on residential premises by council – Concession that Japanese quail is “poultry” – No question of law – No question warranting grant of leave – Leave refused
Legislation Cited: Land and Environment Court Act 1979 (NSW), ss 4, 18, 56A, 57
Local Government Act 1919 (NSW)
Local Government Act 1993 (NSW), ss 124, 159, 160, 180
Protection of the Environment Operations Act 1997 (NSW)
Cases Cited: Tanious v Georges River Council [2016] NSWLEC 1330
Tanious v Georges River Council [2016] NSWLEC 142
Category: Principal judgment
Parties: Mofeed Louis Tanious (Applicant)
Georges River Council (Respondent)
Representation:
Counsel:
Applicant in person
M Seymour (Respondent)
Solicitors:
Georges River Council (Respondent)

File Number(s): 2017/323220
Decision under appeal

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 2

Citation:

[2017] NSWLEC 58

Date of Decision:

17 May 2017

Before:

Pain J

File Number(s):

17/32320

Judgment

THE COURT: This application for leave to appeal has a long procedural history which needs to be summarised in order to expose the issues.
The starting point was an order made by Hurstville City Council dated 18 January 2016 in the following terms:

“TERMS OF ORDER
1. Remove all poultry from the above premises with the exception of ten (10). (Excluding offspring to three months of age).
2. Remove all roosters.
3. Poultry to be kept in a poultry house that is enclosed, have hard paving and kept a distance of 15.2 metres away from dwelling.
REASON FOR ORDER
1. The Poultry are being kept under conditions which have the potential to cause unhealthy conditions and prohibited to be kept under the provisions of Hurstville City Council’s Local Orders Policy – Keeping of Animals 2014.”

That order was made pursuant to s 124 of the Local Government Act 1993 (NSW). Section 124 provides that:

“124 Orders
A council may order a person to do or to refrain from doing a thing specified in Column 1 of the following Table if the circumstances specified opposite it in Column 2 of the Table exist and the person comes within the description opposite it in Column 3 of the Table.
Orders requiring that premises be used or not used in specified ways

Column 1

To do what?

…

18

Not to keep birds or animals on premises, other than of such kinds, in such numbers or in such manner as specified in the order

Column 2

In what circumstances?

…

Birds or animals kept on premises are:

(a) in the case of any premises (whether or not in a catchment district)—of an inappropriate kind or…

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 Tanious v Georges River Council

Details

AGLC: Tanious v Georges River Council [2017] NSWCA 204
Case: [2017] NSWCA 204
Decision Date: 16 August 2017

CaseChat Overview and Summary

The applicant, Mr Tanious, sought leave to appeal to the Court of Appeal against a decision of the Land and Environment Court concerning council orders regulating the keeping of poultry on residential premises. The respondent was Georges River Council.

The primary legal issue before the Court of Appeal was whether the Land and Environment Court had erred in law in its determination. Specifically, the court considered whether there was a question of law arising from the Land and Environment Court's decision that warranted the grant of leave to appeal.

The Court of Appeal noted that it was conceded that Japanese quail are considered "poultry" for the purposes of the relevant council orders. Given this concession, the court found that there was no question of law to be determined. Consequently, the court concluded that no question arose that warranted the grant of leave to appeal.

Accordingly, the summons seeking leave to appeal was dismissed, and the applicant was ordered to pay the costs of the respondent.

Orders

Orders of the court

Summons seeking leave to appeal filed on 6 June 2017 is dismissed, with costs.

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

Full text does not contain this section.

Medium Neutral Citation:	Tanious v Georges River Council [2017] NSWCA 204
Hearing dates:	On the papers
Decision date:	16 August 2017
Before:	Leeming JA; White JA
Decision:	Summons seeking leave to appeal filed on 6 June 2017 is dismissed, with costs.
Catchwords:	LEAVE – Leave sought to appeal against a decision of the Land and Environment Court on a question of law – Council orders regulating the keeping of poultry on residential premises by council – Concession that Japanese quail is “poultry” – No question of law – No question warranting grant of leave – Leave refused
Legislation Cited:	Land and Environment Court Act 1979 (NSW), ss 4, 18, 56A, 57 Local Government Act 1919 (NSW) Local Government Act 1993 (NSW), ss 124, 159, 160, 180 Protection of the Environment Operations Act 1997 (NSW)
Cases Cited:	Tanious v Georges River Council [2016] NSWLEC 1330 Tanious v Georges River Council [2016] NSWLEC 142
Category:	Principal judgment
Parties:	Mofeed Louis Tanious (Applicant) Georges River Council (Respondent)
Representation:	Counsel: Applicant in person M Seymour (Respondent) Solicitors: Georges River Council (Respondent)
File Number(s):	2017/323220
Decision under appeal	Court or tribunal: Land and Environment Court Jurisdiction: Class 2 Citation: [2017] NSWLEC 58 Date of Decision: 17 May 2017 Before: Pain J File Number(s): 17/32320