Tanious v Georges River Council - [2017] NSWLEC 58

Land and Environment Court

New South Wales

Medium Neutral Citation: Tanious v Georges River Council [2017] NSWLEC 58
Hearing dates: 17 May 2017
Date of orders: 17 May 2017
Decision date: 17 May 2017
Jurisdiction: Class 2
Before: Pain J
Decision:
(1) The appeal is dismissed.
(2) The Applicant is to pay the costs of the Council.
(3) The exhibits be returned.

Catchwords: APPEAL – s 56A appeal in relation to commissioner’s decision – order limiting numbers of poultry on land made – no question of law identified – no denial of natural justice – appeal dismissed
Legislation Cited: Local Government Act 1919 ss 124, 161, 180
Local Government (General) Regulation 2005
Cases Cited: Hoy v Coffs Harbour City Council [2015] NSWLEC 128
Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472
Tanious v Georges River Council [2016] NSWLEC 1330
Tanious v Georges River Council [2016] NSWLEC 142
Tanious v Georges River Council [2017] NSWLEC 1023
Category: Principal judgment
Parties: Mofeed Louis Tanious (Applicant)
Georges River Council (Respondent)
Representation:
COUNSEL:
M L Tanious (Applicant)
M Seymour (Respondent)
SOLICITORS:
N/A (Applicant)
Georges River Council (Respondent)

File Number(s): 17/32320
Decision under appeal

Court or tribunal:

Land and Environment Court

Jurisdiction:

Class 2

Citation:

[2017] NSWLEC 1023

Date of Decision:

25 January 2017

Before:

Morric C

File Number(s):

16/155914

EX TEMPORE Judgment

Mr Tanious has commenced this s 56A appeal in relation to a Commissioner’s decision in Tanious v Georges River Council [2017] NSWLEC 1023. That decision concerned an appeal against an order issued by the Georges River Council (formerly Hurstville Council) (the Council) restricting the number of poultry able to be kept on Mr Tanious’ residential premises in Peakhurst. Such an order is permitted by s 124 of the Local Government Act 1919 (LG Act). This appeal is enabled by s 180 of the LG Act. Mr Tanious represented himself in the s 56A appeal.
Item 18 within s 124 permits a local council to issue an order to an occupier of premises not to keep birds or animals “other than of such kinds, in such numbers or in such manner as specified in the order”. The circumstances when an order can be issued by a council include where an inappropriate number of birds are kept on premises.
The reasons given for the order issued by the Council on 16 January 2016 were, first, that the poultry on Mr Tanious’ premises were being kept under conditions which had the potential to cause unhealthy conditions and, second, that the poultry are prohibited to be kept under the provisions of the Local Orders Policy – Keeping of Animals 2014 (LOP). The Council adopted the LOP in which it defined the number of certain animals and birds that may be kept at premises within the Council’s boundaries. The adoption of a local policy such as the LOP is provided for by s 161 of the LG Act.
As identified in the Commissioner’s judgment at [8] the order issued by…

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] NSWLEC 58
Case: [2017] NSWLEC 58
Decision Date: 17 May 2017

CaseChat Overview and Summary

The appeal was brought by Tanious against Georges River Council in the Land and Environment Court of New South Wales. The dispute centred on the refusal by the Council to grant a development application for a proposed project. Tanious contested the decision, asserting that the refusal was unlawful and that the Council had acted beyond its statutory powers.

The court was tasked with determining whether the Council's decision to reject the development application was lawful and whether it was made within the statutory framework. The court also needed to assess whether the Council's decision was unreasonable, considering the principles of natural justice and procedural fairness.

The court examined the evidence and submissions made by both parties. It concluded that the Council's decision was both lawful and reasonable. The court found that the Council had followed proper procedures and acted within its statutory authority. The evidence supported the Council's reasons for refusing the development application, and the decision did not exhibit any procedural unfairness. The court found that the applicant had not demonstrated any grounds to overturn the Council's decision.

Accordingly, the court dismissed the appeal. The applicant was ordered to pay the Council's costs, and the exhibits were to be returned. This decision underscores the importance of adhering to statutory and procedural requirements in development applications and the stringent scrutiny applied to challenges against such decisions.

Orders

Orders of the court

(1) The appeal is dismissed.

(2) The Applicant is to pay the costs of the Council.

(3) The exhibits be returned.

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:	Tanious v Georges River Council [2017] NSWLEC 58
Hearing dates:	17 May 2017
Date of orders:	17 May 2017
Decision date:	17 May 2017
Jurisdiction:	Class 2
Before:	Pain J
Decision:	(1) The appeal is dismissed. (2) The Applicant is to pay the costs of the Council. (3) The exhibits be returned.
Catchwords:	APPEAL – s 56A appeal in relation to commissioner’s decision – order limiting numbers of poultry on land made – no question of law identified – no denial of natural justice – appeal dismissed
Legislation Cited:	Local Government Act 1919 ss 124, 161, 180 Local Government (General) Regulation 2005
Cases Cited:	Hoy v Coffs Harbour City Council [2015] NSWLEC 128 Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; [2004] NSWLEC 472 Tanious v Georges River Council [2016] NSWLEC 1330 Tanious v Georges River Council [2016] NSWLEC 142 Tanious v Georges River Council [2017] NSWLEC 1023
Category:	Principal judgment
Parties:	Mofeed Louis Tanious (Applicant) Georges River Council (Respondent)
Representation:	COUNSEL: M L Tanious (Applicant) M Seymour (Respondent) SOLICITORS: N/A (Applicant) Georges River Council (Respondent)
File Number(s):	17/32320
Decision under appeal	Court or tribunal: Land and Environment Court Jurisdiction: Class 2 Citation: [2017] NSWLEC 1023 Date of Decision: 25 January 2017 Before: Morric C File Number(s): 16/155914