Warner v Parkes Shire Council [2021] NSWLEC 1191

Warner v Parkes Shire Council [2021] NSWLEC 1191

The Council's orders were warranted because the premises still contained substantial materials and the keeping of poultry required controls to prevent nuisance and health risks. However, the Applicant had made progress, particularly in clearing the Hutton Street frontage and removing items from surrounding public land, and evidence from Mr Smith tempered the Council's expert evidence. The Court therefore upheld the appeal by substituting the Council's order with Annexure A, preserving the substance of Orders 18, 21 and 27, extending the time for compliance with the remaining clean-up from 16 weeks to 24 weeks, and deleting Item 8 because items belonging to the Applicant had been removed...

Jurisdiction
Australia
Judgment Date
22 April 2021
Procedural Posture
Class 1 Appeal Against Council Orders Under Items 18, 21 and 27 of S 124 of the Local Government Act 1993 / Principal Judgment Following Hearing
Outcome
Appeal upheld; Council order dated 23 November 2018 substituted by the order in Annexure A.
Legal Topics
['council Orders' 'keeping of Birds' 'storage of Junk on Public and Private Land' 'safe and Healthy Condition of Premises' 'public Place Obstruction or Encroachment']
['local Government' 'land and Environment' 'administrative Law'] ['council Orders' 'keeping of Birds' 'storage of Junk on Public and Private Land' 'safe and Healthy Condition of Premises' 'public Place Obstruction or Encroachment']

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Procedural Posture

Class 1 Appeal Against Council Orders Under Items 18, 21 and 27 of S 124 of the Local Government Act 1993 / Principal Judgment Following Hearing

Legal Issues

  1. 1 ["Whether the Council's orders under items 18, 21 and 27 of s 124 of the Local Government Act 1993 should be revoked, modified, substituted or otherwise varied on appeal." 'Whether poultry kept on the premises remained inappropriate in number or manner and created nuisance or health risks.' 'Whether junk materials on the premises meant the land or premises were not in a safe or healthy condition.' 'Whether objects or matter on public land or adjoining land required removal under Order 27.']

Ratio Decidendi

The Council's orders were warranted because the premises still contained substantial materials and the keeping of poultry required controls to prevent nuisance and health risks. However, the Applicant had made progress, particularly in clearing the Hutton Street frontage and removing items from surrounding public land, and evidence from Mr Smith tempered the Council's expert evidence. The Court therefore upheld the appeal by substituting the Council's order with Annexure A, preserving the substance of Orders 18, 21 and 27, extending the time for compliance with the remaining clean-up from 16 weeks to 24 weeks, and deleting Item 8 because items belonging to the Applicant had been removed...

Court Disposition

Appeal upheld; Council order dated 23 November 2018 substituted by the order in Annexure A.

Orders

  • ['The appeal is upheld.' '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.' 'The Order at Annexure A is made in accordance with s 124 of the Local Government Act...