Tanious v Georges River Council [2016] NSWLEC 142

Tanious v Georges River Council [2016] NSWLEC 142

The Commissioner’s finding that roosters’ crowing would likely result in 'offensive noise' justifying their removal was unsupported by any evidence, constituting an error of law that was material to the orders made. The Commissioner’s decision was therefore set aside and the matter remitted for redetermination.

Source-derived case information.

Parties
Applicant: Mr Mofeed Louis Tanious; Respondent: Georges River Council
Jurisdiction
Australia
Judgment Date
03 November 2016
Procedural Posture
Appeal / Judgment on S 56 a Appeal From Commissioner’s Decision
Outcome
Appeal upheld; Commissioner’s decision set aside; proceedings remitted for redetermination; costs awarded to applicant.
Legal Topics
Appeal on Question of Law, Regulation of Keeping Poultry, Local Government Orders, Evidentiary Standards, Costs in Appeals
Administrative Law Local Government Law Environmental Law Civil Procedure Appeal on Question of Law Regulation of Keeping Poultry Local Government Orders Evidentiary Standards +1 more

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Parties

Mr Mofeed Louis Tanious

Applicant

Georges River Council

Respondent

Procedural Posture

Appeal / Judgment on S 56 a Appeal From Commissioner’s Decision

Legal Issues

  1. 1 Whether the Commissioner made findings of fact on no evidence
  2. 2 Whether the Commissioner erred in ordering the removal of roosters based on likelihood of 'offensive noise'
  3. 3 Whether the Commissioner erred in construing 'poultry' in the relevant policy

Ratio Decidendi

The Commissioner’s finding that roosters’ crowing would likely result in 'offensive noise' justifying their removal was unsupported by any evidence, constituting an error of law that was material to the orders made. The Commissioner’s decision was therefore set aside and the matter remitted for redetermination.

Court Disposition

Appeal upheld; Commissioner’s decision set aside; proceedings remitted for redetermination; costs awarded to applicant.

Orders

  • Appeal upheld
  • Decision and orders of the Commissioner made on 11 August 2016 are set aside