Findlay v Ashfield Council [2016] NSWLEC 1219

Findlay v Ashfield Council [2016] NSWLEC 1219

The Court dismissed the appeal because, on a fresh merits assessment, the keeping of the pony on the small residential property caused or was likely to cause unacceptable amenity and environmental health impacts, including odour from manure and urine, attraction of flies, inadequate and ad hoc stabling, and drainage arrangements that relied heavily on constant manual management and were not fail-safe. Although procedural concerns were raised about the original s 124 Order, in the Class 2 appeal the Court applied McCudden and used its merits review powers to supersede the original order with a new s 124 Order in Attachment B.

Jurisdiction
Australia
Judgment Date
03 June 2016
Procedural Posture
Class 2 Appeal Under Section 180 of the Local Government Act 1993 Against a Section 124 Order / Final Orders After Hearing and Further Submissions
Outcome
Appeal dismissed; original Section 124 Order superseded by a new Section 124 Order in Attachment B.
Legal Topics
['section 124 Orders' 'keeping of Animals on Residential Premises' 'odour, Flies and Drainage Impacts' 'merits Review Under S 180 of the Local Government Act 1993']
['local Government' 'land and Environment' 'administrative Law' 'environmental Health'] ['section 124 Orders' 'keeping of Animals on Residential Premises' 'odour, Flies and Drainage Impacts' 'merits Review Under S 180 of the Local Government Act 1993']

Case Brief

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Procedural Posture

Class 2 Appeal Under Section 180 of the Local Government Act 1993 Against a Section 124 Order / Final Orders After Hearing and Further Submissions

Legal Issues

  1. 1 ['Whether the Section 124 Order requiring the applicant to cease keeping or housing the pony at 35 Moonbie Street, Summer Hill should be upheld on the merits.' 'Whether the rear yard and stabling arrangements were appropriate for keeping a pony in an R2 low density residential zone.' 'Whether odour, flies, manure, urine and drainage arrangements caused unacceptable amenity or environmental impacts.' 'Whether procedural concerns about reliance on Order No 18, Order No 21 and cl 21 of the Local Government (General) Regulation 2005 prevented final orders in the Class 2 appeal.']

Ratio Decidendi

The Court dismissed the appeal because, on a fresh merits assessment, the keeping of the pony on the small residential property caused or was likely to cause unacceptable amenity and environmental health impacts, including odour from manure and urine, attraction of flies, inadequate and ad hoc stabling, and drainage arrangements that relied heavily on constant manual management and were not fail-safe. Although procedural concerns were raised about the original s 124 Order, in the Class 2 appeal the Court applied McCudden and used its merits review powers to supersede the original order with a new s 124 Order in Attachment B.

Court Disposition

Appeal dismissed; original Section 124 Order superseded by a new Section 124 Order in Attachment B.

Orders

  • ['The appeal is dismissed.' 'The Section 124 Order made on 20 November 2015 is superceded by the new S 124 Order in Attachment B.' 'The exhibits may be returned except for 1, 2, 3, 6, 7, A, D and E.']