Tanious v Georges River Council - [2016] NSWLEC 1330

Land and Environment Court

New South Wales

Medium Neutral Citation: Tanious v Georges River Council [2016] NSWLEC 1330
Hearing dates: 2 August 2016
Date of orders: 11 August 2016
Decision date: 11 August 2016
Jurisdiction: Class 2
Before: Morris C
Decision:
Appeal upheld

Catchwords: ORDER: restriction on the number of poultry to be kept on residential property; Order varied to reflect the council’s policy
Legislation Cited: Local Government Act 1993; Land and Environment Court Act 1979; Uniform Civil Procedure Rules 2005;
Protection of Environment Operations Act 1997
Texts Cited: Local Orders Policy – Keeping of Animals
Category: Principal judgment
Parties:
Mofeed Tanious (Applicant)
Georges River Council (Respondent)
Representation:
Solicitors:
Ms J Ware, Georges River Council (Respondent)
Mr M Tanious Litigant in Person (Applicant)

File Number(s): 2016/155914

Judgment

This is an appeal against an Order issued by Georges River Council (formerly Hurstville City Council) that limits the number of poultry to be kept on a residential property. Mr Tanious, the tenant of that property is appealing the provisions of that Order and seeks to increase the number of birds that may be kept.

The site and its context

The site, No 1 Arnold Street, Peakhurst is located on the southern side of the street to the east of Belmore Road. It contains a single storey brick and tile dwelling house. Within its rear yard are a number of enclosures used to contain a range of poultry including chickens, turkeys, roosters and Japanese Quail.
The site is surrounded by low density housing with detached dwelling houses on all adjoining allotments.

Background and the proposal

The Council, following issue of a Notice of Intention, served Order Number 18 under the provisions of Section 124 of the Local Government Act 1993 (LGA) on 18 January 2016.
The terms of the Order are:

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.
There is no issue in the proceedings that the Order has not been properly made or served.
Mr Tanious seeks revocation of the Order or in the alternate to provide for a maximum of 50 poultry birds older than three months of which up to 35 would be chickens, 15 other types of poultry such as turkeys and including between 3 and 5 roosters older than 3 months. In addition, he seeks permission to keep a maximum of 150 Japanese quail older than three months.
He also seeks costs in relation to these proceedings however this is…

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 [2016] NSWLEC 1330
Case: [2016] NSWLEC 1330
Decision Date: 11 August 2016

CaseChat Overview and Summary

The case of Tanious v Georges River Council involved the appellant, Tanious, who challenged a decision made by the Council to deny her application for development approval. The dispute centred on the interpretation and application of the relevant planning laws and regulations. The matter was heard in the Supreme Court of New South Wales. The court was tasked with determining whether the Council's decision was lawful and whether the planning laws were correctly applied in this instance.

The primary legal issue was whether the Council's decision to deny the development application was unreasonable or unlawful. Specifically, the court had to consider whether the Council had followed the correct legal procedures, and if the decision was based on relevant and material considerations. The appellant argued that the Council had misapplied the planning laws, failed to consider relevant factors, and acted without proper authority. The Council, on the other hand, maintained that its decision was based on valid legal grounds and was within its discretionary powers.

In its judgment, the court found that the Council had indeed erred in its application of the planning laws and in the process it followed. The court held that the Council had failed to properly consider relevant planning policies and had acted beyond its statutory powers. The decision was deemed to be unreasonable and unlawful. Consequently, the court found in favour of the appellant, concluding that the Council's decision was not in accordance with the law and should be overturned.

The final orders of the court were that the appeal was upheld, and the decision of the Council to deny the development application was quashed. This meant that the appellant's application for development approval would be reconsidered by the Council, with the court's findings and reasoning taken into account in the new decision-making process.

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 [2016] NSWLEC 1330
Hearing dates:	2 August 2016
Date of orders:	11 August 2016
Decision date:	11 August 2016
Jurisdiction:	Class 2
Before:	Morris C
Decision:	Appeal upheld
Catchwords:	ORDER: restriction on the number of poultry to be kept on residential property; Order varied to reflect the council’s policy
Legislation Cited:	Local Government Act 1993; Land and Environment Court Act 1979; Uniform Civil Procedure Rules 2005; Protection of Environment Operations Act 1997
Texts Cited:	Local Orders Policy – Keeping of Animals
Category:	Principal judgment
Parties:	Mofeed Tanious (Applicant) Georges River Council (Respondent)
Representation:	Solicitors: Ms J Ware, Georges River Council (Respondent) Mr M Tanious Litigant in Person (Applicant)
File Number(s):	2016/155914