McCudden v Cowra Shire Council [2016] NSWLEC 14

McCudden v Cowra Shire Council [2016] NSWLEC 14

The order served on Mr McCudden gave more than one reason relating to inappropriate numbers and conditions and welfare of the cats. These reasons, read as a whole, satisfied the requirements of s 136 for providing reasons for the order. Consideration of animal welfare was a relevant and lawful basis for exercising the discretion to issue such an order. Even if reasons were insufficient, the legislation did not indicate that invalidity would necessarily follow; the absence of reasons did not preclude the Land and Environment Court from hearing the appeal or exercising powers under s 180(4).

Parties
Applicant: Richard William McCudden; Respondent: Cowra Shire Council
Jurisdiction
Australia
Judgment Date
11 March 2016
Procedural Posture
Class 1 Statutory Appeal / Preliminary Determination of Questions Prior to Full Merit Hearing
Outcome
Preliminary questions answered: Council's order was not invalid for want or inadequacy of reasons; animal welfare may lawfully be considered; the insufficiency of reasons does not deprive the Court of jurisdiction to review or modify the order; proceedings stood over for further directions.
Legal Topics
Orders Under Local Government Act, Sufficiency of Reasons for Administrative Decisions, Validity of Local Government Orders, Animal Welfare Considerations, Statutory Construction
Local Government Administrative Law Orders Under Local Government Act Sufficiency of Reasons for Administrative Decisions Validity of Local Government Orders Animal Welfare Considerations Statutory Construction

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Parties

Richard William McCudden

Applicant

Cowra Shire Council

Respondent

Procedural Posture

Class 1 Statutory Appeal / Preliminary Determination of Questions Prior to Full Merit Hearing

Legal Issues

  1. 1 Whether the order under s 124 of the Local Government Act 1993 (NSW) limiting the number of cats and regulating their keeping was validly made;
  2. 2 Whether the reasons stated in or accompanying the order satisfied s 136 of the Act;
  3. 3 Whether failure to provide reasons, or adequate reasons, resulted in invalidity of the order;

Ratio Decidendi

The order served on Mr McCudden gave more than one reason relating to inappropriate numbers and conditions and welfare of the cats. These reasons, read as a whole, satisfied the requirements of s 136 for providing reasons for the order. Consideration of animal welfare was a relevant and lawful basis for exercising the discretion to issue such an order. Even if reasons were insufficient, the legislation did not indicate that invalidity would necessarily follow; the absence of reasons did not preclude the Land and Environment Court from hearing the appeal or exercising powers under s 180(4).

Court Disposition

Preliminary questions answered: Council's order was not invalid for want or inadequacy of reasons; animal welfare may lawfully be considered; the insufficiency of reasons does not deprive the Court of jurisdiction to review or modify the order; proceedings stood over for further directions.

Orders

  • Question 1 answered: No (order gave more than a single reason)
  • Question 2(a): Yes (welfare reasons are relevant); 2(b): Yes (power to make order existed)