Land and Environment Court of New South Wales CITATION: Tamworth City Council v Vorhauer [1999] NSWLEC 92 PARTIES APPLICANT Tamworth City Council RESPONDENT Florence Amelia VORHAUER NUMBER: 40017 of 1999 CORAM: Sheahan J KEY ISSUES: :- Compliance with order made under Local Government Act 1993 LEGISLATION CITED: Compliance with order made under Local Government Act 1993 DATES OF HEARING: 03/22/1999 EX TEMPORE JUDGMENT DATE: 03/22/1999 APPLICANT Ms M Hawley Solicitor of Phillips Fox INTERVENOR Mr J McDonnell Solicitor LEGAL REPRESENTATIVES: New South Wales Attorney General RESPONDENT Mrs Vorhauer - In person JUDGMENT: IN THE LAND AND Matter No: 40017 of 1999 ENVIRONMENT COURT Coram: Sheahan J OF NEW SOUTH WALES 22 March 1999 TAMWORTH CITY COUNCIL Applicant v VORHAUER Respondent EXTEMPORE JUDGMENT [Sheahan J heard submissions made by the respondent in person, and those by the Crown Solicitor on behalf of the Attorney General of New South Wales, appearing in response to a notice given pursuant to s 78B of the Judiciary Act 1903. Sheahan J dismissed the Respondent's Notices of Motion of 4 February 199 and 22 March 1999, with no order as to costs, and determined that the hearing could and should proceed on the day, and that the matter should also not be removed to the District Criminal Court at Tamworth. At the conclusion of the evidence and submissions, Sheahan J delivered the following judgment.] 1. These are class four proceedings brought by the council to enforce an order issued and served upon Mrs Vorhauer on or about 22 September 1998, pursuant to a notice given to her on or about 19 August 1998, seeking to have her bring down to fifteen the number of poultry birds she keeps on her property at 19 Wilburtree Street, Tamworth. 2. Mrs Vorhauer admits that she owns and occupies the subject property, residing in a modest dwelling on it with her two invalid children for whom she is apparently the primary carer. She informed the Court of her extensive post-secondary school qualifications in a wide range of disciplines. She displays a keen interest, and some expertise, in the breeding and farming of poultry, and in permaculture gardening, which, on her sworn evidence, works best when it is associated with somewhat intensive breeding and grazing of poultry. 3. For the purposes of establishing and maintaining a good environment for her seriously ill children, she has been hopeful of developing on her site a permaculture garden of exhibition quality. 4. She says that the RSPCA could find no negative health symptoms in her poultry flock. She advocates to the Court the need for approximately 200 birds, with a minimum of 100 for the purpose of retaining breeding viability. She asserts a lack of environmental harm or public health risk caused by the maintenance of a flock of that size on the property, which she says is 60 feet by 167 feet, which the Court calculates to be an area of approximately 10,000 square feet. 5. Mrs Vorhauer has mounted a formidable challenge in these proceedings, despite her lack of legal training or representation. I have already ruled on her constitutional challenges and on her application that I should remit the proceedings to the District Court at Tamworth for a jury trial of alleged criminal offences committed by the council in its prosecution of this matter. 6. I have now heard all the evidence and submissions in the substantive proceedings. 7. The council's class 4 application seeks the following relief: 1. A declaration that the respondent has failed to comply with the order issued by the applicant to the respondent on 22 September 1998 ("the Order"). 2. An order that the respondent herself or by her servants and agents comply with the terms of the order within fourteen days or such other period as the Court considers reasonable. 3. An order, that if the order in paragraph two is not complied with the applicant and its servants and agents may enter the respondent's property and do all such things as are necessary or convenient to give effect to the terms of the order. 4. An order that the respondent pay the costs of the applicant. 8. The council received some complaints over a substantial period of time and resolved to take some action. Council's senior environmental health officer, Mr Kenneth Reid, has been involved in health inspection activities professionally in local government in Sutherland and Tamworth for many years, and testified that he has been with the Tamworth Council for more than ten years. 9. Mr Reid deposes to inspections of the respondent's property on 17 August 1998, 7 September 1998 and 5 November 1998. He submitted himself to a searching cross-examination by Mrs Vorhauer. The last of those three inspections flowed directly from a search warrant issued by the local magistrate and dated 4 November 1998, and included the counting of birds and the taking of some photographs, which are among the evidence, by a council officer. 10. Council relies on the estimate of between 226 and 275 birds on the property as at 5 November 1998. 11. Mr Reid gave evidence that he arrived at the number fifteen in the Order from consultation with the relevant officer or officers of the council and reference back to the provisions of the Local Government Act and local government ordinances over the years. 12. I am satisfied that Mr Reid has substantial relevant expertise and experience in relation to his duties regarding the poultry industry, but he freely acknowledged his lack of expertise in the field of permaculture gardening. 13. He identified the odour that he detected during his inspections as that of poultry manure, and he was not shaken in that evidence by the cross-examination. He testified that he observed a quantity of manure on the subject property, even though he conceded he was unable to circle any evidence of it depicted in the photographs which are before the Court. 14. The issues in these proceedings are of a narrower compass than Mrs Vorhauer would prefer, and the Court has extended to her substantial latitude in the way in which she conducted her defence of the proceedings. 15. Unfortunately for her, in these proceedings the Court must deal with the council's Order as it stands . Had it been challenged when it was issued, the Court may have seen fit to vary the number of birds Mrs Vorhauer could keep on the property. However, the Order is not able to be seriously challenged today. Indeed, Mrs Vorhauer gave evidence of seeking to negotiate with Council, only to be met with little success, if not, as she contends, some verbal abuse and very antipathetic motivation to hurt her. 16. The position now is that the Order was validly issued and it is admitted to have been properly served. The time for compliance with that Order has long since passed and Mrs Vorhauer is, therefore, in breach of the Local Government Act . 17. The Council has, therefore, established its prima facie entitlement to relief, and the Court must proceed to determine, in the exercise of its discretion, what relief, if any, should be given. 18. Clearly the Council is entitled to the declaration sought in paragraph one, that the respondent has failed to comply with the Order issued by the applicant to the respondent on 22 September 1998. So much has been clearly admitted by Mrs Vorhauer during the hearing. 19. I am satisfied by the evidence that it was reasonable and appropriate for Council to conclude that there are too many birds on this property, and that the numbers in evidence were and are detrimental to the environmental amenity of at least the immediately surrounding district, despite the absence of any real evidence of harmful effects on the health of Mrs Vorhauer and her family. 20. I, therefore, believe that it is appropriate that an order be made requiring Mrs Vorhauer to reduce the numbers. In the absence of her having brought a timely challenge to the Order which the Council issued, the nominated number must be fifteen , as specified in that order. This will constitute a large disappointment, and no small hardship, for Mrs Vorhauer, but the Court cannot intervene to moderate the nominated number in these proceedings, which are brought under part 1 of chapter 17 of the Local Government Act , section 672 and following, as distinct from any challenge which she could have brought to the Order under part 5 of chapter 7 of the Act, especially section 180. 21. The respondent, however, should be afforded an adequate opportunity to rectify the position by reducing the numbers herself. The class four application seeks an order that she should do so within fourteen days. She asks the Court for a minimum of three months. Ms Hawley rightly says that Mrs Vorhauer has already had six months. Nevertheless, she was entitled to have her day in Court, and, in the circumstances, I am prepared to give her the three months she seeks. 22. I will, accordingly, make the order in paragraph two, but I will specify 30 June 1999 as the last date for compliance with it. 23. I warn Mrs Vorhauer that she is exposed to contempt proceedings if she does not comply, but, in any event, paragraph three of the class four application seeks an order that, if that order is not complied with, the applicant and its servants and agents may enter the respondent's property and do "all such things as are necessary or convenient to give effect to the terms of the order". 24. The Council already has a power to enter and rectify under the Local Government Act but seeks, as it were, the Court's imprimatur to the exercise of such a power in this case. 25. One of Mrs Vorhauer's major concerns is the damage that could flow from order three as sought in the application especially to the trees on her property. 26. Mr Reid was unable to give an undertaking on behalf of the Council, but he testified that it would be Council's "general policy", and indeed his personal recommendation to the Council, that her trees should not be cut down to achieve Council's objective if that third order were to be invoked. 27. Given that when the time in order two expires, Mrs Vorhauer would have had nine months to comply with Council's wishes, the community would hardly expect the Council could and should hold itself back in its enforcement action. However, Mrs Vorhauer asked the Court to exercise its discretion in her favour, because of the need for her domestic environment to encourage some sense of self-esteem in her seriously incapacitated children. I would urge Mrs Vorhauer to dispose of the surplus birds herself, but I will, on compassionate grounds, exclude from the broad brush of order three the cutting down of any mature and healthy trees on the property at the time of entry. 28. In paragraph four the Council seeks its costs. I can find in the evidence absolutely no special circumstances which would justify a departure from the normal rule as to costs following the event in successful class four proceedings. Mrs Vorhauer is of very modest means indeed, but she could have avoided these proceedings altogether or settled them in some way without the need of a full scale hearing, involving, indeed, the Attorney General of New South Wales. 29. Accordingly, I will make the order for costs against her, but I will give her twelve months to meet those costs. I have already declined to make any order as to the costs of the interlocutory proceedings and the notice under section 78B of the Judiciary Act and I now confirm that decision. 30. The formal orders of the Court will, therefore, be as follows: 1. I declare that the respondent has failed to comply with the order issued by the applicant to the respondent on 22 September 1998. 2. I order that the respondent herself or by her servants and agents comply with the terms of that order by no later than 30 June 1999. 3. I order that, if the order in paragraph two is not complied with, the applicant and its servants and agents may enter the respondent's property and do all such things as are necessary or convenient to give effect to the terms of the order, save that Council is to cut down no mature and healthy trees without a further order of the Court. 4. I order that the respondent pay the just and reasonable costs incurred by the applicant in respect of the substantive proceedings, with such costs to be agreed or assessed according to law, and to be payable in full not later than twelve months from the date of such agreement or assessment. 5. All the exhibits may be returned except for exhibit R2 which was a document that Mrs Vorhauer had in fact filed in Court. 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