Kyogle Council v Manning [2001] NSWLEC 9

Land and Environment Court of New South Wales

CITATION : Kyogle Council v Manning [2001] NSWLEC 9 APPLICANT: Kyogle Council PARTIES : RESPONDENT: John Joseph Manning

FILE NUMBER(S) : 40102 of 1999 CORAM: Lloyd J KEY ISSUES: Contempt :- failure to comply with orders relating to the keeping of dogs - belated compliance - penalty LEGISLATION CITED: Local Government Act 1993 s 124 and s 180 CASES CITED: DATES OF HEARING: 08/12/2000 EX TEMPORE JUDGMENT DATE : 12/08/2000

APPLICANT: Mr P J McEwen SC SOLICITORS: Stone & Partners LEGAL REPRESENTATIVES: RESPONDENT: Mr J J Manning - in person SOLICITORS: N/A

JUDGMENT:

1 IN THE LAND AND Matter No: 40102 of 1999 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date: 8 December 2000

Kyogle Council Applicant v John Joseph Manning Respondent EXTEMPORE JUDGMENT

HIS HONOUR: 1. By an amended notice of motion the applicant claims that the respondent is in contempt of orders of the Court in that he has failed to comply with orders of the Court made on 10 July 1998 and has failed to comply with orders numbered 1 and 2 of the Court made on 14 July 1999, the former orders having been made pursuant to sections 124 and 180 of the Local Government Act 1993. 2. The matter has had a rather lengthy history. On 3 October 1997 the applicant (which I shall call "the Council") issued an order pursuant to section 124 of the Local Government Act and served it on the respondent. On 3 November 1997 the respondent, Mr J J Manning, lodged an appeal pursuant to section 180 of the Local Government Act against the Council's order. The Council's order related to the keeping of dogs at premises occupied by the respondent. The Council had received, and continues to receive complaints from the occupiers of neighbouring properties regarding a nuisance from the barking of dogs on the property occupied by the respondent. 3. On 26 June 1998 Commissioner Watts heard the appeal under section 180 of the Local Government Act, and on 10 July 1998 he delivered a reserved judgment. In the reserved judgment the Commissioner allowed the appeal under section 180 of the Local Government Act, revoked the order made by the Council under section 124 of the Local Government Act and made a new order under section 124 of the Local Government Act. 4. By the new order the respondent was required to re-locate the dogs and the enclosure in which they had been kept to another location and to adopt noise attenuation measures at the new location of the dog enclosure. The order also required that the dogs be kept in accordance with a site management plan; a chain wire fence 2.43 metres high was to be provided around the enclosure; the dog compound was to be cleaned daily; and the number of dogs was not to exceed 120. The Commissioner fixed a time limit of 6 months within which Mr Manning had to comply with the order. 5. The site management plan referred to in the orders contained detailed provisions relating to the kind of fencing required. It required that the kennels be constructed of, or have a roof and floor made of, timber and that they be waterproof. The management plan also referred to various other procedures to be adopted in the keeping of the dogs. 6. It seems that the Council continued to receive complaints regarding the keeping of dogs on the respondent's property, including barking nuisance and the straying of dogs. The Commissioner's order had to be complied with by 10 January 1999. Following that date the Council continued to receive complaints regarding the barking of dogs and the straying of dogs from the property. 7. On 7 May 1999 the Council's solicitors wrote to the respondent's then solicitor advising that if the respondent did not comply with the orders made by the Commissioner by 21 May 1999 the Council would commence proceedings in Class 4 of the Court's jurisdiction. 8. On 26 May 1999 the Council commenced proceedings in Class 4 of the Court's jurisdiction seeking an order that the respondent comply immediately with the order made by the Court pursuant to sections 124 and 180 of the Local Government Act.