Warner v Parkes Shire Council

[2021] NSWLEC 1191

Land and Environment Court

New South Wales

Medium Neutral Citation:

Warner v Parkes Shire Council [2021] NSWLEC 1191

Hearing dates:

27 October 2020, 24 November 2020, 19 February 2021, and 22 March 2021

Date of orders:

22 April 2021

Decision date:

22 April 2021

Jurisdiction:

Class 1

Before:

Peatman AC

Decision:

See orders at [27] below

Catchwords:

COUNCIL ORDERS – keeping of birds – relevant standards – storing junk on public land and private land – storing various materials on premises – preservation of healthy conditions

Legislation Cited:

Land and Environment Court Act 1979

Local Government Act 1993

Local Government (General) Regulation 2005

Category:

Principal judgment

Parties:

Michael Warner (Applicant)
Parkes Shire Council (Respondent)

Representation:

Counsel:

No appearance on 27 October 2020, 24 November 2020 and 19 February 2021; Dr R Sarafian appeared as agent for most of the hearing on 22 March 2021 (Applicant)

A Menyhart (Solicitor) (Respondent)

Solicitors:

M Warner (Self-represented) (Applicant)
Bradbury Allen Love Lawyers (Respondent)

File Number(s):

2019/210934

Publication restriction:

No

Judgment

1. COMMISSIONER: The Applicant is appealing against orders given to him by the Respondent Council (Council) under items 18, 21 and 27 of s 124 of the Local Government Act 1993 (LG Act) dated 23 November 2018 (the Orders).

2. The Orders require the Applicant to restore the property known as 6 Hutton Street, Bogan Gate (being Lot 1 Section 7 in Deposited Plan 758125, and Lots 1 and 2 in Deposited Plan 1086877) (the premises), the vacant allotment adjacent to the premises (being Lot 1 in Deposited Plan 329018) and the public land in the vicinity of the premises (collectively, the property), to a safe and healthy condition, to remove objects that encroach onto public land, to reduce the number of birds being kept on the premises and to make changes to the manner in which those birds are being kept. Relevantly the premises have 3 street frontages being Edols, Lachlan and Hutton Streets, Bogan Gate. Bogan Gate is a small town of approximately 250 people situated 30 kilometres west of Parkes in the central western local government area of Parkes Shire Council.

Image identifying the location of the property, the vacant land and the public land

Appearances

3. Ms A Menyhart appeared for the Council. At the hearing on 27 October 2020, there was no appearance from the Applicant. The Council requested the Court issue at notice to the Applicant pursuant to the Uniform Civil Procedure Rules 2005 (UCPR) r 13.6 which would mean if there was no appearance by the Applicant on the next occasion, being 24 November 2020, the proceedings would be dismissed. The Court issued the Notice pursuant to r 13.6 of the UCPR. On 24 November 2020 there was no appearance by the Applicant but the Court received an email from Dr Richard Sarafian, a child ophthalmologist, and Dr M Nguyen, the Applicant’s General Practitioner. Both emails raised potential mental health issues on behalf of the Applicant and requested an adjournment to allow the Applicant to access assistance from NDIS and Anglicare. The Court further adjourned the matter to 19 February 2020 to allow the Applicant to seek assistance. On 19 February 2020 there was no appearance by the Applicant. The Council pressed its case for the proceedings to be dismissed. However, both Dr Sarafian and Dr Nguyen sent emails and a letter to the Court respectively. After consideration of the emails and letter received, the Court made the following Orders on 19 February 2021:

“1. The Court is in a difficult and unenviable position.

2. The Court fully understands the Council is also in a difficult position through no fault of its own.

3. I accept having read the material that Council has so far as I can discern been trying to finalise this matter for approximately 3 years.

4. I have looked briefly at the expert evidence of Mr Howard Orr and the 2 videos he prepared.

5. Conversely I have not heard from Mr Warner who has handwritten his Application to the Court, and I earlier received notification that Mr Doyle of counsel, acting pro bono for Mr Warner, has not received any instructions and is not appearing for Mr Warner today.

6. The Court has been notified that Mr Warner has been contacted by a number of solicitors and barristers (at least 3) and each has been unable to get instructions. In these circumstances Council would be entitled, as Ms Menyhart asks, for the proceedings to be dismissed. However at 9.38 this morning the Court received an email from Richard Sarafian addressed to Ms Menyhart advising, inter alia that: “Michael is currently mentally incapable of providing any    meaningful instruction or being able to represent himself”. I understand that Dr Sarafian is an Ophthalmologist with his practice in Sydney. At 9:15am Dr Sarafian also sent an email to the Court, and attached a letter from Dr Mai Nguyen from Springfield Central Queensland requesting the hearing be postponed to enable Mr Warner to receive NDIS support. Dr Sarafian also advised in that earlier email today that Michael Warner is suicidal because he believes he may lose his home.

7. Noting the Court’s Covid 19 Policy we have had the hearing by telephone and by MS Teams today.

8. The matter is of some concern when Dr Sarafian comments in his letter that some of the material the subject of the notice has been removed. I am informed by Ms Menyhard [Menyhart] that there is evidence to demonstrates [demonstrate] that that has not occurred to a sufficient extent, and Mr Orr’s evidence today that there are still materials, chickens and roosters outside Mr Warner’s property.

9. In the circumstances I will stand the matter over for 4 weeks and direct Ms Menyhart, (the Court will send a letter enclosing a copy of this Order to Mr Warner) to send a copy of this Order to Dr Sarafian via his email address. On the next occasion I will make the orders requested by Council if there is no appearance by Mr Warner.

10. This matter is adjourned to 10am on Monday 22 March 2021 by telephone (for Mr Warner) and by MS Teams.”

4. Ms Menyhart served the documents on Dr Sarafian, as set out in her Affidavit filed 18 March 2021 (ex 12). On 22 March 2021 Dr Richard Sarafian appeared as agent for the Applicant for the first 2 hours of the hearing and then he excused himself. The Council objected to Dr Sarafian’s appearance on the basis that he had not complied with s 63 of the Land and Environment Court Act 1979 (LEC Act). After considering correspondence from the Applicant to the Court dated 12 December 2019 where the Applicant stated that all his post has been diverted to Dr Sarafian for more than a decade, I exercised my discretion under s 63 of the LEC Act to permit Dr Sarafian to represent the Applicant because it was in the best of interests of the Applicant for Dr Sarafian to do so.

Background

5. Materials have accumulated and animals have been kept on the land since approximately 2008. Since that time the Council has received numerous complaints from residents of Bogan Gate regarding the condition of the premises. The premises are proximate to the Bogan Gate Community Hall, being Lot 1 Section 8 in Deposited Plan 758125 and known as Hutton Street, Bogan Gate. The premises can be viewed from the Bogan Gate Community Hall, and the streets adjacent to the premises (Lachlan, Hutton and Edols Streets). [1]

   1. Ex 1, Council’s Statement of Facts and Contentions (20 February 2020), paragraphs 3.1-3.4.

6. On or about 27 June 2018 an officer employed by the Council inspected the premises and the land and observed the following on the land:

1. steel, timber, unindentable paper and plastic waste, wooden crates, steel crates, roofing iron or tin, galvanised garbage bins, old hot water systems, wire, power tools, air conditioner units, motor vehicles, white goods, timber logs, polythene pipes, satellite dishes, wheels, tyres, scrap metal;

2. animal shelters constructed of scrap materials and wire, including a poultry coop;

3. two dogs in cages

4. an estimate of more than 50 chickens, chicks and other poultry or fowl species (the birds);

5. substantial waste from the birds; and

6. a strong odour from animal waste. [2]

   2. Ex 1, Council’s Statement of Facts and Contentions (20 February 2020), paragraph 3.5.

7. Between 27 June 2018 and 23 November 2018 the Council had dealings with the Applicant and his representatives in an effort to resolve the issues on the premises. On 15 December 2018 Council issued the Orders, the subject of these proceedings, and arranged for the Orders to be served personally on the Applicant by the NSW Police. [3]

   3. Ex 1, Council’s Statement of Facts and Contentions (20 February 2020), paragraph 5.

Land and Environment Court proceedings

Date   

Commencement/directions/orders/hearing

02.01.2019

• Class 4 proceedings commenced by Summons.

• Applicant self-represented.

• Appeal against Order by Parkes Shire Council under s 124 of the LG Act – being identified as Order 18, Order 21 and Order 27. The relief sought was: Annulment of Orders.

01.03.2019

• Registrar of the Court wrote to Applicant advising, inter alia, “There is also provision for your carer to seek leave of the Court to act as agent on your behalf.”

11.04.2019

• Alan Bradbury of BAL Lawyers filed Notice of Appearance for Council.

12.04.2019

• First return date before the Court vacated as Council not served, stood over to 10.05.19.

09.05.2019

• Court received a communication from Shellene Castleman, Ability Links NSW – Linker, Child & Family Services advising, inter alia, “…I have been working with Michael to obtain legal counsel through ‘the legal Society’…”

10.05.2019

• No appearance by the Applicant.

• Ms McKelvey of counsel appeared for the Council.

• Justice Pain made the following Orders:

"1. The Registrar of the Land and Environment Court is to assist Mr Warner, the Applicant, in obtaining a referral for pro bono legal assistance as provided by rule 7.36 of the Uniform Civil Procedure Rules 2005.

2. Matter stood over to 7 June 2019 for mention and will appear before the List Judge so that directions about the future conduct of the matter can be made.”

28.05.2019

• Ms L Nurpuri, barrister of Martin Place Chambers in Sydney agreed to act for the Applicant pro bono.

07.06.2019

28.06.2019

09.08.2019

15.10.2019

• Justice Moore of the Land and Environment Court stood the matter over to 28 June 2019.

• Justice Moore reassigned the proceedings from Class 4 to Class 2, and stood the matter over to 9 August 2019 before the Registrar.

• Matter in Registrar’s List, and stood over to 15 October 2019.

• Ms Nurpuri (pro bono counsel for the Applicant) informed the Court that she has been unable to obtain instructions. Court wrote to Applicant to advise him that Ms Nurpuri would be seeking leave under rule 7.39 of the UCPR to cease representing him on the basis that she was unable to obtain instructions.

The Registrar sent a letter to Applicant advising him the matter was stood over to 01.11.2019.

31.10.2019

• The Applicant wrote to the Registrar at the Court, advising, inter alia, “…I do want representation for this matter and legal advice and the chance to ask questions…”

• Online Court: Listing of 1 November 2019 vacated, further listing scheduled for 8 November 2020.

09.11.2019

• Registrar stood matter over to 16 December 2019. Letter of notification of next return date sent from Registrar to Applicant.

11.11.2019

• Registrar wrote to the Applicant, advising, inter alia: “In order for Ms Nurpuri to continue to assist you, it is important you provide Ms Nurpuri with instructions as soon as possible so she is able to act on your behalf. Her contact details are as follows:…”

16.12.2019

• The Court made the following Orders:

“1. Applicant to file and serve Statement of Facts and Contentions by 21 January 2020.

2. Respondent to file and serve Statement of Facts and Contentions in Reply by 6 February 2020.

3. Court to notify Ms Nurpuri and Applicant. (Notification was done by letters from the Registrar)

Matter stood over to 11 March 2020.”

19.02.2020

• Notice of Appointment of Solicitor filed by Paul Laurence Crennan of Crennan Legal, Bathurst NSW, for the Applicant.

(The Court assisted the Applicant by arranging for Mr Paul Crennan solicitor from Bathurst who agreed to act pro bono for the Applicant.)

20.02.2020

• Ms Nurpuri granted leave to cease providing pro bono assistance to the Applicant (grounds: could not get any instructions)

11.03.2020

• Court: telephone directions listed for the parties to commence a conciliation conference on site on 17 March 2020 pursuant to s 34(1A) of the LEC Act. (Mr Crennan appeared for the Applicant and Ms Menyhart for the Council).

16.03.2020

• Senior Commissioner of the Land and Environment Court: matter stood over for online communication by 4pm on 17 March 2020 to confirm s 34 proceeding.

17.03.2020

• Mr Crennan advised the Court that he is no longer retained by the Applicant.

• Conciliation conference for 19 March 2020 cancelled. Matter returned to the List on 23 March 2020.

23.03.2020

• Registrar set the matter down for hearing by telephone commencing at 9.30am on 27 October 2020.

• Matter Listed before Registrar on 1 April 2020.

01.04.2020

• Court Orders made in accordance with Short Minutes of Order submitted to set out the Court timetable for the filing of evidence before the hearing on 27 October 2020.

27.10.2020

• Hearing by telephone: No appearance by Applicant. Ms Menyhart appeared for the Council.

• The Court made the following Directions:

“1. In accordance with UCPR rule 13.6 the hearing is adjourned to 9.30am on 24 November 2020, to be heard by telephone.

2. The Council is to serve notice on the Applicant by a Police Officer from Parkes Police Station, and the Registrar of the Land and Environment Court is also to serve notice in accordance with UCPR rule 13.6. The notice from Council is also to be sent by post to Dr Richard Sarafian (if his address can be identified).

3. In accordance with UCPR r 13.6 if there is no appearance by the Applicant on 24 November 2020 the proceedings will be dismissed.

4. The week prior to 24 November 2020 the Council’s expert, Mr Howard Orr, is to inspect the Applicant’s property, and the surrounding land owned privately and by Council, to make a photographic record and detail as far as possible what remains to be removed or cleaned to comply with Council’s Orders, the subject of this appeal.”

06.11.2020

• Notice of Change of Solicitor filed by Council appointing Mark Love.

24.11.2020

• The hearing recommenced at 9.30am by telephone.

• The Court received an email from Dr R Sarafian (who has Power of Attorney from the Applicant – Power of Attorney not sighted by the Court) enclosing a letter from Dr M Nguyen, GP from Central Queensland, advising the Applicant has mental health issues and the steps to be taken with Anglicare and NDIS to assist the Applicant in these proceedings. At the request of the Court Mr Justin Doyle of counsel agreed to represent the Applicant on a pro bono basis.

• The Court gave the following Directions:

“1. The Respondent can serve the Applicant via Dr Sarafian’s email address.

2. The Applicant [is] to report to the Respondent and copy the Court on the success of the discussions with Anglicare and NDIS by 11 December 2020.

3. The Applicant to report to the Respondent progress on complying with the Respondent’s orders by 15/01/21.

4. The matter adjourned to 9.30am on 19 February 2021 by telephone.

5. The Court defers making orders in accordance with the notice to the Applicant under UCPR r 3.16 until the further hearing on 19 February 2021.”

25.11.2020

• Notice of Change of Solicitor filed by Council appointing Alice Menyhart.

19.02.2021

• The hearing recommenced at 9.30am by telephone. Mr Doyle advised the Court he was unable to get instructions from the Applicant and therefore cannot represent him.

• No appearance from the Applicant. Ms Menyhart appeared for the Council. The Court heard the Council’s evidence in the matter.During the hearing the Court received 2 emails from Dr Sarafian and 1 letter from Dr Nguyen – both doctors expressed concern for the Applicant’s mental health but neither appeared nor gave any evidence of the Applicant’s mental health to the Court.The hearing was adjourned to 10am on 22 March 2021 by telephone and by MS Teams with the Registrar to notify the Applicant by post, and also Dr Sarafian by email, that on the next occasion if there is no appearance by the Applicant the Court shall make the orders sought by the Council.The Court gave directions that prior to 22 March 2021 Council’s expert, Mr Howard Orr, is to attend the premises again, and give a supplementary statement of evidence to the Court as to whether the Applicant has taken any action to comply with the Orders, the subject of this appeal.

22.02.2020

• The hearing recommenced at 10am by telephone and MS Teams.

Legislation

Local Government Act 1993

Part 2 Orders

Division 1 Giving of Orders

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.

Order 18 falls within Orders requiring that premises be used or not used in specified ways.

Order 21 falls within Orders requiring the preservation of healthy conditions.

Order 28 falls within Orders requiring the protection or repair of public places

Column 1	Column 2	Column 3
To do what?	In what circumstances?	To whom
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	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 number or are kept inappropriately, or (b) in the case of premises in a catchment district—birds or animals (being birds or animals that are suffering from a disease which is communicable to man or to other birds or animals) or pigs	Occupier of premises
21	To do or refrain from doing such things as are specified in the order to ensure that land is, or premises are, placed or kept in a safe or healthy condition	The land or premises are not in a safe or healthy condition	Owner or occupier of land or premises
27	To remove an object or matter from a public place or prevent any object or matter being deposited there	The object or matter— (a) is causing or is likely to cause an obstruction or encroachment of or on the public place and the obstruction or encroachment is not authorised by or under any Act, or (b) is causing or is likely to cause danger, annoyance or inconvenience to the public	Person causing obstruction or encroachment or owner or occupier of land from which the object or matter emanates or is likely to emanate

180   Appeals concerning orders

(1)  A person on whom an order is served may appeal against the order to the Land and Environment Court.

(2)  (Repealed)

(3)  The appeal must be made within 28 days after the service of the order on the person or, if an order is given under section 141, within 28 days after the service of the order given under section 141 on the person. The person may make an appeal within the later period whether or not the person has made an appeal within the earlier period.

(4)  On hearing an appeal, the Court may—

(a)  revoke the order, or

(b)  modify the order, or

(c)  substitute for the order any other order that the council could have made, or

(d)  find that the order is sufficiently complied with, or

(e)  make such order with respect to compliance with the order as the Court thinks fit, or

(f)  make any other order with respect to the order as the Court thinks fit.

(5) This section does not apply in relation to order No 22A in the Table to section 124.

Local Government (General) Regulation 2005

Division 2 Orders requiring that premises be used or not used in specified ways

91   Keeping of birds or animals

Without limiting Order No 18, failure to comply with relevant standards or requirements set or made by or under the Act constitutes a circumstance that is taken to be included in the circumstances specified in Column 2 of the Table to section 124 of the Act as circumstances in which Order No 18 may be made.

92   Relevant standards for keeping of birds or animals

For the purposes of Order No 18, the standards for the keeping of birds or animals set out in Part 5 of Schedule 2 are relevant standards referred to in Column 2 of the Table to section 124 of the Act.

Note—

An Order can be made requiring compliance with these standards if they are not being complied with.

Schedule 2 – Standards enforceable by orders

Part 5 Standards for keeping birds or animals

Division 2 Keeping of poultry

19   Poultry not to be nuisance or health risk

Poultry yards must at all times be kept clean and free from offensive odours.

Poultry must not be kept under such conditions as to create a nuisance or to be dangerous or injurious to health.

20   Poultry not to be kept near certain premises

(1)  Fowls (that is, birds of the species Gallus gallus) or guinea fowls must not be kept within 4.5 metres (or such greater distance as the council may determine in a particular case) of a dwelling, public hall, school or premises

used for the manufacture, preparation, sale or storage of food.

(2)  Poultry (other than fowls referred to in subclause (1)) must not be kept within 30 metres of any building referred to in subclause (1).

(3)  The floors of poultry houses must be paved with concrete or mineral asphalt underneath the roosts or perches. However, this subclause does not apply to poultry houses—

(a)  that are not within 15.2 metres of a dwelling, public hall or school, or

(b)  that are situated on clean sand.

(4)  Poultry yards must be so enclosed as to prevent the escape of poultry.

(5) The standards in this clause apply to a person only if the council has served an order under section 124 of the Act to that effect on the person.

Land and Environment Court Act 1979

Section 39   Powers of Court on appeals

(1)  In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.

(2)  In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(3)  An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

(4)  In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.

(5)  The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly.

…

Section 39 of that Act applies to a development consent granted as a result of the appeal.

(7)  The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court.

…

Section 63 Right of appearance

(1)  A person entitled to appear before the Court may appear in person, or by an Australian legal practitioner, or (except in proceedings in Class 5, 6 or 7 of the Court’s jurisdiction) by an agent authorised by the person in writing.

(2)  Despite subsection (1), a person may not appear before the Court by an agent except with the leave of the Court.

(3)  In determining whether to grant leave for a person to appear by an agent the Court is to consider—

(a)  whether the agent has provided the person with the information required by the rules, and

(b)  whether granting leave is in the best interests of the person.

(4)  Leave granted under this section may—

(a)  be granted subject to conditions, and

(b)  be revoked at any time for any reason.

7. The Court received the following Exhibits (Ex):

Applicant:

• Ex A   Statement by Dr Mai-Phuong Nguyen dated 21 March 2021 filed in Court.

• Ex B   Statement by Mr Chuck Smith dated 21 March 2021 filed in Court.

Respondent:

• Ex 1   Statement of Facts and Contentions filed for the Council on 20 February 2020.

• Ex 2   Expert Witness Report by Mr Howard Orr, filed on 24 September 2020 for the Council.

• Ex 3   Council’s Bundle of Documents.

• Ex 4 Supplementary Expert Statement by Mr Howard Orr, filed on 21 October 2020 for the Council.

• Ex 5   Supplementary Expert Statement by Mr Howard Orr filed on 15 February 2021 for the Council.

• Ex 6   Affidavit of Alice Radley Menyhart dated 21 October 2020, filed for the Council.

• Ex 7   Affidavit of Service affirmed on 17 November 2020 by Senior Constable Dane Budd, filed for the Council.

• Ex 8   Affidavit of Alice Radley Menyhart dated 20 November 2020.

• Ex 9   Video footage prepared by Mr Howard Orr in November 2020.

• Ex 10   Supplementary Expert Statement by Mr Howard Orr filed on 18 February 2021, filed for the Council.

• Ex 11   Video footage prepared by Mr Howard Orr on 16 February 2021.

• Ex 12 Affidavit of Alice Radley Menyhart filed 18 March 2021.

• Ex 13 Supplementary Expert Witness Statement by Mr Howard Orr, filed on 1 March 2021.

• Ex 14 Video footage dated 18 March 2021.

• Ex 15 Council’s Order dated 23 November 2018 plus Attachment 1.

The Expert Evidence

8. Mr Howard Orr gave oral evidence on 22 February and 22 March 2021. Mr Orr had prepared an Expert Witness Statement (Ex 2) and 4 Supplementary Witness Statements (Exs 4, 5, 10 and 13). Mr Orr also prepared 3 videos which were shown in Court, Ex’s 9 and 11 shown on 22 February 2021, and Ex 14 shown on 22 March 2021.

9. Mr Orr in his first statement (Ex 2) stated, inter alia, in paragraphs 2-6 on page 9 (neither the pages nor the paragraphs in Mr Orr’s affidavit were numbered):

“The property contains a large amount of junk materials including Steels frames, steel drums, a motor vehicle gearbox, plastic furniture, timber crates, wheels, tires (sic), pieces of cool room panel, satellite dishes, dismantled A/C units, rolls of used wire, hot water system, car seats, a motor vehicle differential, an oven, plastic pots, numerous washing machines and refrigerators or freezers, steel sheeting, used polythene pipe, used light fittings, car seat, gas cylinders, batteries, foam, pvc piping pallets, a sink, metal ducting, kitchen pot, frying pan, dismantled bee box, wire cabling bricks. There are items catching and ponding stagnant water.

There is also a large amount of material located on the site that is specifically unidentifiable and items that were obscured by other items. Most of the material on the site could be described as waste material.

This waste material poses a risk to safety of the occupant and the public. The poultry in the site are living among the junk material contaminating it with faecal matter and feather that are not able to be effectively cleaned up.

The conditions on the site pose of a potential health risk via the harbourage/vector for disease in the faeces and the decomposition of the faeces and organic matter such as feathers on the property and the soil of the property. It also creates the potential for windborne items to create a danger.

The removal of the junk material will be necessary to ensure the removal of wind-borne danger as well as to enable the property and effective removal of the faecal matter, feather and waste animal food which is scattered throughout the junk materials. Most of the junk/waste materials are contaminated with chicken or fowl waste.”

10. After perusing Mr Orr Statement of Evidence, and Supplementary Statements of Evidence, together with his 3 videos [4] I find the above observations by Mr Orr to be a good summary of his evidence as to the state of the premises. Reference is made to the birds on the site which his evidence disclosed were uncontained, and their coop in the front yard on Hatton Street was unkept and it, and the premises, emitted an odour which impacted detrimentally on the surrounding residents as well as the Bogan Gate Community Hall on the opposite site of Hatton Street to the subject premises.

    4. Exs 2, 4, 5, 9, 10, 13 and 14

11. Mr Orr inspected the site on 12 November 2018 (Ex 2 & 9), 19 October 2020 (Ex 4),16 November 2020 (Ex 5), 16 February 2021 (Ex 9 & 10), and 18 March 2021 (Ex 13 & 14). In his fifth statement (Ex 13) Mr Orr observed the following regarding the state of the premises:

“5.4 I observed the property still contained a large number of items and materials I would describe as waste material.

5.5 During the inspection I observed that a small number of items had been removed from the front immediately in front of and leaning against the house from my previous inspection, however little else had changed in terms of the conditions and material on the property since my last inspections on 16 November 2020 and 16 February 20201.

5.10   I was able to confirm that a small number of items had been removed from immediately in front of the house that I refer to in 5.5 above. From the comparison of the photographs this appeared which appear to be a bed frame, some timber, steel framing, aluminium racking or ramps and a small amount of other unidentifiable material…”

12. Mr Charles Andrew Smith, known as Chuck Smith, gave evidence for the Applicant, both in his Statement (Ex B) and orally on 22 March 2021. Mr Smith gave the following evidence:

“1. He assists the Applicant on a voluntary basis. At times he is able to secure the assistance of a young man to also help in the tidying up/cleaning up of the premises.

2. Mr. Smith lives in Trundle, is a carpenter and runs a construction business.

3. There are 3 chicken coops on the premises – the property is approximately 2700m2 in area. The chicken coop at the front of the property on Hatton Street is no longer used. The chickens have been reduced in number and the 2 chicken coops down the side of the property now house the chickens. Mr Smith was unaware of the number of chickens on the premises, but he was aware they had been reduced in number. The coop on Hatton Street can be removed.”

13. In response to questions by Council on the Applicant’s use of the vacant allotment next to the Applicant’s premises, Mr Smith said:

• He has had several conversations with a woman from Sydney whose name is “Nev” who attends Council’s auctions of land for unpaid rates. Mr Smith initially met Nev when she bought the allotment next to the Applicant – Mr Smith was also bidding for that block of land. Mr Smith subsequently saw Nev at a Council auction of land for unpaid rates in Forbes, and he enquired of her if Michael (meaning the Applicant) could use her land. Nev agreed that Michael could use her land.

• The arrangement for the Applicant to use the land is an oral agreement. No rent is paid.

• Mr Smith’s interpretation of a question by the Council as to the use of Nev’s land by the Applicant was that the use would be for a non-specific use.

• “Nev has not expressed to me, or to Michael (Applicant) that the permission to use the allotment next door has been revoked.”

14. In response to questions from the Council on how the Applicant disposed of the material on his land, Mr Smith said:

• At times people stop and ask to purchase what is on the land;

• At times through advertising in the local paper and Gumtree;

• He loads the scrap metal in his ute and takes it to Sydney to sell to a scrap metal dealer – it pays for the petrol for him to visit his mother in Sydney.

15. In response to a question from the Council as to whether the Applicant had brought new material on his land since the Order was served, Mr Smith said he had not seen any new material but he had seen material moved around the property.

16. In response to a question from the Council as to whether he had contacted the Council last December, Mr Smith replied that he picked up a key for Council’s tip which was in an envelope addressed to Mr Warner but the letter inside was addressed to a Ms Tina Jenssen in Parkes, and therefore Michael was not prepared to use the key because the requirements were set out in a letter to someone else and not him.

17. In response to a question from Council regarding the clean-up of the premises, Mr Smith responded that of the 2700m² they would have cleaned up 400m², the street frontage (Hutton Street) was completely cleared, no combustible material left, cleaned up around Lachlan Street, and working around west side of property. The Applicant has put a shipping container on the site, and has been filling it with material he wants to keep.

18. In response to a question by the Court, Mr Smith said that the Applicant would need 3 to 6 months to completely clean up his property.

19. Mr Smith in his statement (Ex B) stated, inter alia,

“2. I have helped Michael over many weeks to help clean his property…

3. During that time that complaints were being made about Michael’s chickens, I personally helped repair two chicken cages that were owned by other residents to prevent the chickens from roaming the street. Another two owners also had chickens that were roaming freely in the street. Nonetheless, the chickens are now contained and any chickens outside of Michael’s property do not belong to him.

4. All the items that were on public land has been removed. There are a number of items that have been placed there by others. For example, the Unregistered boat on unregistered trailer blocking the laneway does not belong to Michael.

6. The comment that only a small number of items had been removed and very little has been done is untrue. Large areas have been cleared and converted into food gardening areas or raised garden beds. There is very little grass on the property.

….

10. The comments by Howard (meaning Mr Orr) that all items on the land are waste is incorrect. Each remaining item has value and is being kept for a reason. Some will be sold, some will be used and others retained for their purpose. A number of items no longer exist…”

20. Whilst Mr Orr considered that the Applicant had not done sufficient cleaning up of, and removal of items from the site, to satisfy Council; and Mr Smith considered that the Applicant had done considerable work to clean up the site, and remove items, both witnesses agreed that the following is a representative list of the items remaining on site:

“numerous satellite dishes of various sizes, sheets of roofing iron/steel, tyres, steel frames, steel drums, shelving, pvc pipe, insulated cool room panel, fluorescent light boxes, rolls of second hand wire, second hand timber, various white goods (washing machines, and refrigerators or freezes), air conditioner units, three stainless steel sinks, bricks, high lift jack, hose, wires, numerous steel drums, a car differential, pots, numerous wheels with tyres, plastic bottles, polyethylene pipe, old garbage bins, an enamel coated sink, what appeared to be a doona in a bag, steel pipe, bed frames, 1000 litre shuttle, rubber conveyor belt, a white van, two silver dual cab utilities, a motor vehicle differential, an oven, plastic pots, steel sheeting, used polythene pipe, used light fittings, gas cylinders, batteries, foam, metal ducting, kitchen pot, frying pan, dismantled bee box, wire cabling and bricks.”

21. Mr Orr considered the following items to be junk or waste, but Mr Smith considered that the Applicant had a use for these items, as set out in Ex B, paragraph 10:

“- pallets used for firewood

- shelving as Council demands everything stacked neatly

- pvc pipe…to divert water

- old lawnmower catcher used for chickens

- rolls of second hand wire used for chicken cages

- second hand timber for building and/or firewood

- covers of air conditioner units, converted into chicken coops

- 3 stainless steel sinks to be set up for outdoor work

- high lift jack, for lifting/jacking the 4wd that is RMS registered

- hose to move water

- pots used for gardening

- plastic crates to be used for storage

- old garbage bins, used for transporting items

- chairs, use for sitting on

- a shipping container, solution to Council’s orders

- a white dual cab utility with canopy, RMS registered used for everyday driving.

- gas cylinders, use for BBQ and oxy&act welding

- batteries, still functioning

- kitchen pot, frying pan, is used and spares for chicken water containers.”

Submissions

22. Dr Richard Sarafian, as agent for the Applicant, made the following submissions:

“1. The significant improvements to the Applicant’s property include, but are not limited to: the removal of a significant amount of belongings and poultry within the property, the removal of all items that belong to the Applicant from adjacent public land, including the laneway and any footpaths, and the erecting of a fence around the majority of the property.   

2. The majority of complaints lodged with Council are regarding poultry. All poultry is now contained within the property. Any chickens roaming outside the Applicant’s property do not belong to him.

3. There has been a sufficient amount of items removed, than can now allow for the    remaining belongings to be neatly stored on the property, without any concern for vermin, fire safety or issues of egress. The property is now fenced and a    considerable amount neater, with all public areas now clear of any items. The two fireplaces within the dwelling will likely consume the majority of the wood within the property during the winter months.

4. Noting the above, and the considerable implications this matter has had on Michael’s mental health and in the best interests of all involved, I ask that the order be appropriately amended.”

23. Ms Menyhart for the Council made the following submissions:

“1. Order 18 requires the Applicant to reduce the number of birds kept on site to no more than 10 domestic fowls (of the species Gallus or Guinea Fowls), or 5 poultry of species other than Gallus or Guinea fowl, or if a combination of domestic fowl and other poultry are kept, 7 birds. Whilst the Council understands that the number of birds on the premises has been reduced, the Council is unaware of the exact number of birds on site. The terms of Order 18 should remain to ensure that the number of poultry are limited to manageable    numbers for the circumstances so that the poultry do not give rise to unsanitary or unhealthy conditions, create conditions that attract and provide harbourage to vermin, create unreasonable annoyance and odour impacts to neighbouring residents, particularly users of the Bogan Gate Community Hall. The limit on bird numbers also contribute to animal welfare by ensuring numbers are manageable and do not give rise to conditions that impact on animal health or welfare. The conditions on the premises pose a potential health risk via the harbourage/vector for disease in the faeces and decomposition of the faeces and organic matter such as feathers on the property and the soil on the property. The waste, in particular, the faeces, poses a potential environmental risk by contamination of stormwater from runoff from the property, and airborne feathers.

2 Orders 21and 27: these Orders require the Applicant to ensure that the premises are kept in a safe or healthy condition; and to remove an object or matter from a public place or prevent them being placed there. Whilst some steps have been taken to remove junk and waste from the surrounding Streets, and the vacant block next door to the premises, there is still more to be done. The Orders should remain in their present form.”

Findings

24. Council issued Orders 18, 21 and 27 in accordance with s 124 of the LG Act (Orders).

25. The Applicant filed his appeal against the Orders and within the time permitted (s 180 (1) & (3) of the LG Act).

26. In relation to the evidence, although Mr Orr’s evidence is strong, I find it tempered by the evidence given by Mr Smith. In relation to the works required under the Orders I find:

1. The number of birds has been reduced but it is unclear how many are still on the premises. The chicken coop at the front of the premises no longer holds birds, and it now should be removed. The Council’s Order in relation to the keeping of birds should be upheld – it is for the benefit of the Applicant, and the community, that the number of birds kept on the premises is limited, that their cages are regularly cleaned, and steps are taken to reduce odour transmission and the accumulation of faecal matter. In accordance with cl 19 of the Local Government (General) Regulation 2005 it is important that the Applicant ensure that the poultry are not a nuisance or health risk, and in particular:

“Cl 19 (2) Poultry yards must at all times be kept clean and free from    offensive odours.

Cl 19 (1) Poultry must not be kept under such conditions as to create a nuisance or to be dangerous or injurious to health.”

Therefore Order 18 stands as does the time provisions given by Council in Attachment 1 to the Orders, Column 1, Item reference 1, 2 and 3.

2. Order 21: “To do or refrain from doing such things as are specified in the order to ensure that land is, or premises are, placed or kept in a safe or healthy condition”. The Applicant, with the assistance of Mr Smith, has made progress in cleaning up the premises. It was evident from Mr Orr’s video (Ex 14) taken on 18 March 2021 that considerable work had been carried out to remove “all of the    junk materials from that part of the property which fronts Hutton Street” (Ex 15 Attachment 1 Column 1 Item 5). There appears to be a small amount of work still to be done on the property fronting Hutton Street, and I will confirm the time provision as made by the Council Order in this regard for it to be done “within 12 weeks of the date of this Order”.

However, in relation to cleaning up the remainder of the property, although works    has been done by the Applicant and Mr Smith, there remains a considerable    amount of cleaning up to do to comply with the Orders, Attachment 1, Column 1, Item 6:

“Except for materials kept for your own personal use and which are stored safely within the approved buildings located on the property in a way which doe not restrict egress or access, you must remove all of the remaining junk materials from the property and dispose of them in a safe and lawful manner.”

The time for compliance in Attachment 1, Column 5, was given as 16 weeks. There is still considerable work to do, but as Mr Smith assists the Applicant on a voluntary basis I shall allow extra time for compliance with the Order. In regard to the time for compliance, and in accordance with the evidence of Mr Smith, I exercise my discretion under s. 180 (4) (b) of the LG Act and s 39 of the LEC Act and extend the time for compliance from 16 weeks to 24 weeks.

3. Order 27: “To remove an object or matter from a public place or prevent any object or matter being deposited there”. Most of the junk or waste matter has    been removed from the surrounding streets and from the vacant allotment adjoining the premises. Mr Smith’s evidence revealed that the few items left   outside the Applicant’s land do not belong to the Applicant. The provisions of the Order as particularised in Attachment 1, Column 1 Items 7 I note the time provision in Column 5 Item 7 as an “Ongoing obligation commencing on the date that this order is given to you”.

4. Order 27: I accept the evidence of Mr Smith that all items on the surrounding    public land belonging to the Applicant have been removed. Therefore, I shall delete Item 8 from Attachment 1 to the Orders.

5. The Orders are ongoing, and it is necessary for the Applicant to comply with    them long term. The Orders are for the benefit of the community as a whole and also for the Applicant, as an individual living within the community.

Orders / Directions

27. The Court orders:

1. The appeal is upheld.

2. That pursuant to s 180(4)(c) and (f) of the Local Government Act 1993, the Order issued by the Respondent to the Applicant dated 23 November 2018 is to be substituted by the Order as set out in Annexure A.

3. The Order at Annexure A is made in accordance with s 124 of the Local Government Act 1993 (Order Number 18, 21 and 27).

4. That Parkes Shire Council serve a copy of the Orders on the Applicant, and also forward a copy of the Orders to the Applicant’s agent, Dr Richard Sarafian, via his email address.

5. The Registrar of this Court forward a copy of the judgment to Dr Richard Sarafian via his email address.

6. The exhibits are returned, except for Exhibits 6, 7 and 8.

…………………………

M Peatman

Acting Commissioner of the Court

Annexure A (235243, pdf)

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Endnotes

Decision last updated: 22 April 2021