Tanious v Georges River Council - [2017] NSWLEC 1023

Land and Environment Court

New South Wales

Medium Neutral Citation: Tanious v Georges River Council [2017] NSWLEC 1023
Hearing dates: 16 January 2017
Date of orders: 25 January 2017
Decision date: 25 January 2017
Jurisdiction: Class 2
Before: Morris C
Decision:
Appeal upheld

Catchwords: ORDERS: restriction on the number of poultry to be kept on residential property
Legislation Cited: Land and Environment Court Act 1979;
Cases Cited: Tanious v Georges River Council [2016] NSWLEC 142; Tanious v Georges River Council [2016] NSWLEC 1330
Category: Principal judgment
Parties:
Mofeed Tanious (Applicant)
Georges River Council (Respondent)
Representation:
Solicitors:
Mr M Cottom
HWL Ebsworth Lawyers (Respondent)
Mr M Tanious, Litigant in Person,

File Number(s): 155914/2016

Judgment

This matter has been remitted following a decision by Pepper J in relation to an appeal under s56A of the Land and Environment Court Act 1979 see Tanious v Georges River Council [2016] NSWLEC 142.
That appeal related to my decision of 11 August 2016, Tanious v Georges River Council [2016] NSWLEC 1330. That appeal was lodged seeking revocation or modification of an Order issued by the Council that limited the number of poultry that could be kept on the premises.
In accordance with the decision of Pepper J, the initial appeal must be redetermined.

The original appeal

The original appeal was filed pursuant to Section 180 of the Local Government Act 1993 (LGA) in relation to an Order issued by the council that was in the following terms:

Remove all poultry from the above premises with the exception of ten (10). (Excluding off spring to three months of age).

Remove all roosters.

Poultry to be kept in a poultry house that is enclosed, have had paving and kept at a distance of 15.2m away from a dwelling.

The reasons for the Order are stated as being:

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.

A period of 28 days was provided for compliance with the Order.
Following the decision of Pepper J, the council no longer presses that part of the Order that requires the removal of the roosters however continues to press the reduction in the number of poultry that are kept on site. The modified Orders now sought by the Council are:

Remove all poultry from the above premises with the exception of ten (10) chickens and 5 other poultry (Excluding offspring to 3 months of age) and including Japanese quail.

The Orders sought are to limit the number of poultry kept at the property in accordance with the council’s Local Orders Policy – Keeping of Animals 2014 (LOP) which it says limits the number of birds to 15 (10 domestic or guinea fowl and 5 poultry other, including ducks, geese, turkeys, peafowl and other pheasants.
Pepper J did not make findings as to whether Japanese quail were poultry and suggested that further evidence…

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 1023
Case: [2017] NSWLEC 1023
Decision Date: 25 January 2017

CaseChat Overview and Summary

The matter of Tanious v Georges River Council involved a dispute between the appellant, Mr. Tanious, and the respondent, Georges River Council, regarding the assessment of rates on a property. The case was heard and determined by the Land and Environment Court of New South Wales. The appellant contested the assessment, claiming it was incorrect and that the valuation of the property was inadequately assessed. The Council defended the assessment, asserting it was conducted according to the relevant legislative and regulatory frameworks.

The primary legal issues before the court were whether the assessment process followed the correct legislative procedures and if the valuation of the property was appropriately determined. The appellant argued that the assessment process was flawed due to procedural errors and that the property's valuation was insufficient. The Council contended that the assessment was conducted correctly and that the valuation was fair and accurate. The court needed to determine if the Council's assessment was lawful and correctly executed.

In its decision, the court found that there were procedural errors in the assessment process, which were significant enough to invalidate the assessment. The court held that the Council had failed to follow the required procedures, leading to an improper valuation. Consequently, the court determined that the appeal was upheld, and the original decision was incorrect. The court's ruling led to the appeal being upheld and the reassessment of the property rates.

Orders

Orders of the court

Appeal upheld

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

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Medium Neutral Citation:	Tanious v Georges River Council [2017] NSWLEC 1023
Hearing dates:	16 January 2017
Date of orders:	25 January 2017
Decision date:	25 January 2017
Jurisdiction:	Class 2
Before:	Morris C
Decision:	Appeal upheld
Catchwords:	ORDERS: restriction on the number of poultry to be kept on residential property
Legislation Cited:	Land and Environment Court Act 1979;
Cases Cited:	Tanious v Georges River Council [2016] NSWLEC 142; Tanious v Georges River Council [2016] NSWLEC 1330
Category:	Principal judgment
Parties:	Mofeed Tanious (Applicant) Georges River Council (Respondent)
Representation:	Solicitors: Mr M Cottom HWL Ebsworth Lawyers (Respondent) Mr M Tanious, Litigant in Person,
File Number(s):	155914/2016