Land and Environment Court New South Wales Medium Neutral Citation: Ruggeri v City of Canada Bay [2013] NSWLEC 1059 Hearing dates: 3 April 2013 Decision date: 09 April 2013 Jurisdiction: Class 2 Before: Fakes C Decision: Appeal upheld in part; Order 21 modified Catchwords: Section 124 Order: Keeping of rabbits; numbers and maintenance Legislation Cited: Land and Environment Court Act 1979 Local Government Act 1993 Cases Cited: Sutherland Shire Council v Sawyer [2000] NSWLEC 162. Category: Principal judgment Parties: Giovanni Ruggeri (Applicant) City of Canada Bay (Respondent) Representation: Applicant: Ms M McMahon (Barrister) Respondent: Ms S Brew (Solicitor) Applicant: Jo-Anna F.S. Moy Solicitor Respondent: Matthews Folbigg Pty Ltd File Number(s): 21161 of 2012 Judgment 1COMMISSIONER: In October 2012, the City of Canada Bay served an order on the applicant, Mr Ruggeri, to cease the keeping of rabbits at his property in Drummoyne and to remove all associated cages, bedding and feed. 2The Order 21 was made in accordance with s 124 of the Local Government Act 1993 (the LG Act). Specifically, the terms of the Order are as follows: THE CITY OF CANADA BAY COUNCIL IN ACCORDANCE WITH THE POWERS UNDER THE ABOVENAMED ACT REQUIRES YOU TO: 1. Cease keeping or housing rabbits at the property. 2. Disassemble and remove all cages/pens located at the rear of the property and all associated straw/grass and feed. 3. Discard all bread scraps and vegetable leaves being used as feed for birds and rabbits. REASONS FOR THE ORDER (s 136 of the Act) 1. The keeping of rabbits is attracting pests (flies and rats) to the property and surrounding properties. Pests carry disease which can have a detrimental effect on a person's health. 2. The keeping of rabbits is causing an odour nuisance to neighbouring residents. Odour can make a person unwell when inhaled. PERIOD OF COMPLIANCE WITH THE ORDER (s 137 of the Act) 5pm, Friday 30 November 2012 3The general terms of an Order 21 under s 124 of the LG Act enable a council to order a person, in this regard an "owner or occupier of land or premises": To do or refrain from doing such things as are specified in the order to ensure that the land is, or premises are, placed or kept in a safe or healthy condition. 4The circumstances of an Order 21 are that: The land or premises are not in a safe or healthy condition. 5The appeal to the Court is brought under s 180 of the LG Act. The powers of the Court on appeal are given in s 180(4). 6The applicant is asking the Court to allow the appeal and to substitute the orders made by the council to allow that no more than 15 rabbits are to be kept or housed at the property. The site 7Mr Ruggeri owns two adjoining properties in St Georges Crescent Drummoyne - number 65 (Lot E in DP405930) and number 63 (Lot F in DP405930). 8The Order 21 was made in regards to the keeping of rabbits on Lot E, however, it transpires that the rabbits are in fact housed at the rear of Lot F which is directly accessible from Lot E. The relevant portion of Lot F is fenced off from the remainder of Lot F. The parties have no objection to modifying the Order to cover Lot E and that part of Lot F accessible from Lot E. 9The site is zoned R3, medium density residential. The land on which the rabbits are housed adjoins a residential dwelling to the south-east and a residential flat building to the south-west. 10There are no relevant council planning instruments, controls or policies. Relevant background 11On 3 September 2011, Ms Roxburgh, an owner of the neighbouring residential property to the south-east lodged an "Animal Nuisance Investigation Request" with the City of Canada Bay Council. The concerns were odour on warm days and a significant increase in the number of flies. In her affidavit (exhibit 3), Ms Roxburgh states that she counted at least 15 rabbits on the applicant's property shortly before making the complaint. 12On 7 September 2011, Mr Bradshaw, council's Environmental Health Co-ordinator inspected Mr Ruggeri's property and observed that the area used to house the animals was clean and free from odour and there did not appear to be an inappropriate number of rabbits. During the hearing, it was stated that Mr Bradshaw believed there to be about 11 rabbits at the time of his first inspection. Following this inspection, Mr Bradshaw wrote to Mr Ruggeri and advised him of the complaint that had been made. Amongst other things, the letter states: Whilst the keeping of animals is not prohibited in residential areas, the keeping of animals must not cause a nuisance to neighbouring residents. It is important that areas containing animals are clean and do not become a potential health nuisance to neighbouring residents. In this instance, Council wishes to advise you of the complaint and seeks your continued efforts in ensuring that any animals being kept on the premises do not cause a nuisance to your neighbours. 13On 24 September 2012, Ms Roxburgh again complained to council. The issues of odour, flies and rodents were raised. In her affidavit she states that the number of rabbits had increased to about 50 and additional enclosures had been constructed. 14Mr Bradshaw reinspected the property on 4 October 2012. On this occasion he found a large number of rabbits in open pens and cages, many flies, and food scraps and straw in and around the pens. He noted a 'foul odour'. Photographs taken at the time show an abundance of uncontained food scraps left as forage for the animals. 15Following this inspection, and under delegation, Mr Bradshaw issued a 'Notice of Intention to give an Order' (NOI) in the terms given in paragraph [2] of this judgment and in accordance with the requirements specified in s 132 of the LG Act. The NOI was issued on 5 October 2012. 16In accordance with s 132(3) of the LG Act, the council advised that representations could be made to council in regards to the Order on or before 19 October 2012. 17On 17 October 2012, Mr Ruggeri's solicitor, Ms Moy, made a written representation to council on his behalf. In her submission she states that the RSPCA inspected the property shortly before Mr Bradshaw's inspection and that on the advice of the RSPCA, Mr Ruggeri reduced the number of rabbits by ten. In addition, Ms Moy advised that Mr Ruggeri had taken steps to prevent and control pests by installing 'fly sticks' [sic] and spreading rat bait. 18Ms Moy's letter states that the rabbits are Mr Ruggeri's pets, hobby and interest in his retirement and that a requirement to kill all of his pets would be an extreme and inappropriate action on the part of the council. The letter seems to suggest that there were then 15 rabbits. Ms Moy advised the council that she and Mr Ruggeri were prepared to meet with council and discuss the issue. 19In acknowledging the receipt of Ms Moy's representation, Mr Bradshaw wrote to Ms Moy on 23 October 2012 and advised (in part): Council is prepared to negotiate on the terms of the Order, however Council must be satisfied that any proposal by your client would not compromise the health of neighbouring residents in future. Council will consider any proposals you may have before 5pm, Monday 29 October 2012, after which, Council will issue the Order. 20As no proposal was received by council, the Order 21 was issued on 30 October 2012 in the terms given in paragraph [2] of this judgment. 21The applicant appealed to the Court on 19 November 2012. The initial application sought the setting aside of the order. An amended Class 2 Application was filed on 9 January 2013 seeking to substitute the orders to enable no more than 15 rabbits to be kept or housed at the property. The hearing 22The matter commenced on site as a conciliation conference under s 34 of the Land and Environment Court Act 1979 on 29 January 2013. While some progress was made, no agreement was reached and the conciliation was eventually terminated. As the parties agreed to my disposing of the proceedings, another site inspection was deemed unnecessary and therefore what was viewed on the 29 January remains relevant. 23As stated above, the rabbits are housed at the rear of Lot F in a fenced-off section of that property that is directly accessible from the rear of Lot E. The rabbits are accommodated in a number of individual elevated hutches/cages along two fence lines. In addition, there is a large covered pen with an earth floor that adjoins a brick shed at the rear of Lot E. This pen contains a number of elevated and lockable cages as well as some smaller hutches on the ground. The open portion of the pen is partly enclosed with wire mesh. This mesh is said to extend below the floor of the pen in order to prevent rabbits digging their way out. The pen is divided into two sections separated by metal sheeting. 24On the 29 January 2013, it was estimated that there were at least 40 rabbits on the premises. The majority of the rabbits were in the largest part of the pen. The other part of the pen was unoccupied and rat bait had been spread on the floor. Other rabbits were in a number of the hutches/cages including the cages within the pen. 25At the site inspection the floor of the pen was observed to be relatively free of food scraps. I was advised that the food was now kept in sealed containers. Strips of fly-paper were attached to the pen. My recollection of the site inspection is that there was a distinct odour. 26After submissions in Court, the differences between the parties remain the maximum number of rabbits to be kept on the premises and whether or not the open pen should be removed, and if not, whether the floor of the pen should be modified to enable it to be hosed and cleaned. 27While affidavits from Ms Roxburgh, Mr Bradshaw, and Mr Peter Ruggeri were tendered and read, no witnesses were called to give evidence. The council issued Ms Roxburgh with a subpoena to attend to give evidence, however, as there was no intent to cross-examine her, her attendance was not required. The council's stated position 28Ms Brew, for the council, contends that since the matter was first raised with him, Mr Ruggeri has shown a lack of willingness to substantially reduce the number of rabbits he keeps. She submits that the reason for the Order 21 is valid, that given the affidavit from Ms Roxburgh and Mr Bradshaw's area of technical expertise, the keeping of too many rabbits poses a health risk; the general circumstances of an Order 21 being "the land or premises are not in a safe or healthy condition". 29Ms Brew cites Ms Roxburgh's affidavit in which she describes the circumstances leading to the complaints to council. Before the 2011 complaint, Ms Roxburgh noticed a strong, offensive smell emanating from Mr Ruggeri's property. From over the fence she observed the rabbits, food scraps and flies. She then observed a significant increase in the number of flies, including flies of different species, entering her dwelling. Ms Roxburgh also states that during this time, rabbits escaped into her property and she found several dead rabbits which she returned to the applicant's property. 30Leading up to the 2012 complaint to council, Ms Roxburgh states in her affidavit that the smell did not improve and in hot weather the smell was so bad that the family did not use the pool (located adjacent to Mr Ruggeri's property) and she had to keep the back doors closed. She also states that she began to see rats and mice in her garden and found several dead rats in her pool (a photograph of a dead rat in the pool is attached to her affidavit). Ms Roxburgh also collected five signatures on a petition supporting her concerns. The signatures included residents of the residential flat building to the south-west. 31Ms Brew also cites Mr Bradshaw's statement where he states that based on his experience and qualifications, the likely environmental harm resulting from the keeping of rabbits in an urban location includes: * the attraction of disease-carrying vermin to rabbit food and rabbit faeces - the risk being that vermin can transmit diseases through direct and indirect contact; * the emanating of a foul odour from the property which prevents neighbours from using their backyards; and * detrimental impacts on the visual amenity of the local area. 32Ms Brew does not press the issue of visual amenity, as the area in which the rabbits are housed cannot be seen from the street or from the neighbouring residential dwellings, although she considers there is a potential for the area to be overlooked by one or more windows of the adjoining residential flat building. 33While the council accepts that the terms of the order sought the removal of all rabbits, its revised and preferred position, based on Mr Bradshaw's affidavit, is that three rabbits would be a sufficient number. In addition, Ms Brew relies on Mr Bradshaw's opinion as to how the environmental harm could be minimised. These measures would be required as terms of compliance. The measures listed in his affidavit are (rephrased): * Ensure a minimal number of rabbits; no more than three; * Control the breeding of the rabbits to ensure the numbers do not increase; * Regularly maintain the cleanliness of the hutches/pen by removing rabbit droppings and uneaten food on a daily basis; * Store feed in properly sealed containers or in original packaging; * Refrain from leaving feed on the ground and use suitable containers kept above ground; * Ensure that any hutch is constructed to prevent burrowing and escape; * Ensure the layout of any hutch is such that it can be easily cleaned so as to reduce the risk of it harbouring vermin; and * Regularly clean any internal hutch walls with lime. The applicant's position 34Ms McMahon for the applicant contends that the council has not specified any particular risk but relies on a general assertion by Mr Bradshaw that there is "likely" environmental harm posed by the applicant's keeping of rabbits. 35In regards to the rats, Ms McMahon contends that there is no evidence that the number of rats has increased or that anyone has been infected by any disease that might be carried by rats. In her view, one photograph of a dead rat in a pool is not evidence of an increase in the problem. In any event, she maintains that Mr Ruggeri has implemented a program of rat baiting. She cites Mr Peter Ruggeri's affidavit in which he states that he has not observed any rats or mice on his father's property since the baiting commenced. In addition, feed is now kept in containers. 36With respect to the flies, Ms McMahon contends that the rear of Ms Roxburgh's dwelling is some 18m or so from the rabbits. She asserts that Mr Ruggeri has taken steps to control the flies by using fly-paper strips that are regularly replaced. 37In regards to the odour, Ms McMahon argues that there is only one affidavit from one neighbour whose dwelling is further away from the source of the odour than other, closer neighbours. 38Ms McMahon challenges Mr Bradshaw's opinion as to the extent or relevance of any impact on the visual amenity of neighbouring properties. She contends that there is no visual impact given the height of the fencing and the location of the rabbits at the rear of the property. 39In regards to the Order 21, Ms McMahon contends that any reference to 'birds' should be deleted as there is no evidence to support the assertion that the keeping of birds, or any other pets, impacts upon the keeping of rabbits. 40Ms McMahon notes Mr Peter Ruggeri's statement that the present number of rabbits is too high and needs to be reduced. The applicant's position is that the council order should be modified to allow for up to 15 rabbits. Ms McMahon stated that the applicant would be content with six adult rabbits but should a rabbit give birth, a total of 15 would allow for up to nine young rabbits to be kept until they were old enough, at 3 months, to go to a pet shop or similar. An opportunity for an agreement 41At the close of submissions, it became clear that both parties were agreed that some rabbits could be kept on the premises. After some discussion, with some possible suggestions/questions from the Court, the council agreed that a maximum number of six rabbits would be acceptable as long as the animals were housed above ground and the pen removed. In the event that the pen was to remain, the council argued that the floor should be concreted or treated in a way as to make it easier to clean and thus minimise the potential odour. 42The applicant maintained that the pen was necessary, as the rabbits need to be placed somewhere while the cages are being cleaned. It was also suggested that any young rabbits, once they were at least six weeks old, could be housed in separate hutches on Lot E, until they were old enough to be relocated off site. 43After further discussion of issues arising from the agreement that the applicant could keep at least six rabbits, the parties were invited to adjourn and discuss between themselves, any conditions that should be imposed. 44At the conclusion of the joint discussion, a number of possible conditions had been agreed including: the land to which the order should apply, a timeline for compliance with the order, and conditions relating to feeding and cleaning. However, the revised positions as described in [40] and [41] remained. Consideration 45It is disappointing that no evidence was given, either in written form or from an expert, as to how rabbits should be best kept as domestic pets in a residential area. The absence of this evidence makes it harder for the Court to balance the desires of the applicant, council's need to ensure minimal impact on neighbouring properties, and the welfare of the animals. 46Similarly, the caselaw offers little guidance. The only other case concerning the keeping of rabbits on record as having been heard in the Land and Environment Court is Sutherland Shire Council v Sawyer [2000] NSWLEC 162. In that Class 4 contempt matter, the relevant order was that the respondent "not keep rabbits on the premises other than two desexed rabbits in a cage". 47It transpired during the hearing that while the males and females are housed in separate hutches, they are sometimes together in the larger pen. Hence the inevitable happens and eleven rabbits become over forty rabbits in about 12 months with the associated increase in urine and faeces and therefore the odour. 48I am satisfied on the evidence before me and with the benefit of the site inspection that the reason for the issue of the order was valid in a general sense. It is common knowledge that rats and flies can directly and indirectly transmit diseases that affect human health and or the health of other animals. In my view, it was unnecessary for the council to wait until someone was infected before taking action. 49While the original Order 21 required the removal of all rabbits from the applicant's property, the council is now content for there to be a maximum of six rabbits, however, the issue of whether the rabbits should be desexed has not been pressed, nor was it raised by Mr Bradshaw in his affidavit other than to require that the breeding be controlled so as to limit the number of rabbits. 50I have considered the applicant's preference for six and up to 9 additional young rabbits to allow for some contingency and to house them on Lot E until they are 3 months old. In my view, this introduces uncertainty and unnecessary complexity. No details were forthcoming as to the style and location of any rabbit housing on Lot E. My recollection of that part of the site is that it is more constrained than the area in which the rabbits are currently located. I also agree with Ms Brew that it would be very difficult for any council compliance officer to determine the age of the rabbits and whether they were old enough to be relocated. 51Therefore, I propose to modify the Order to allow the applicant to keep up to 6 rabbits on Lot E and that portion of the rear of Lot F accessible from Lot E. It will be up to Mr Ruggeri as to how he manages the numbers whether by having the animals desexed or by housing them in separate hutches and segregating male and female rabbits in the more open pens. 52The other point of difference between the parties is whether or not the larger pens should be dismantled, and if they stay, whether or not the floor should be sealed in some way to facilitate cleaning. 53In my view it would not be in the best interests of the animals to spend their lives enclosed in an elevated and relatively small hutch. Therefore I propose to modify the order to enable the retention of the more open pens that adjoin the brick wall of the shed on Lot E. However, in acknowledging the council's concerns about the harbouring of pests, additional conditions will be imposed requiring the applicant to retain only as many lockable elevated hutches/cages as required by six animals. The pens are to be maintained to ensure that no rabbits can escape. In addition, the small wooden shelters on the floor of the pen must be moved and cleaned on a regular basis to minimise the harbouring of pests. 54In regards to the treatment of the floor, while pouring a concrete floor would make it easier to hose and clean, limiting the number of rabbits to six across the entire area provided by the two compartments within the pen should limit the build up of urine etc. Therefore, while it was suggested as a matter for consideration, no conditions will be imposed requiring the sealing of the floor, however conditions will be imposed requiring daily cleaning and maintenance. 55While the applicant appears to have addressed the matter of leaving food and straw on the ground for extended periods, it would also seem reasonable to me that the rabbits could be provided with some restricted area of straw or similar and that some food be provided for them when they occupy the pens. However, the food is to be placed in suitable containers that prevent contact with the soil and all remaining food scraps/ rabbit pellets be removed at the end of each day. Similarly, any straw or bedding material must be removed from the floor of the pens at the end of each day. The ground surface is to be raked and all rabbit droppings removed from the pens at the end of each day. 56Given the statements contained in the applicant's 2012 representation to council via Ms Moy, the implementation of this level of maintenance should be well within Mr Ruggeri's capacity. It should also substantially address the concerns of the council and minimise the impact on adjoining neighbours. Orders 57After considering the facts and circumstances of the matter, and in accordance with s 180(4) of the Local Government Act 1993, the Orders of the Court are: (1)Appeal 21161 of 2012 is upheld in part and the Order 21 is modified as follows: The Order pursuant to s 124 of the Local Government Act 1993, being an Order No. 21 issued on 30 October 2012 by the City of Canada Bay Council in respect of the keeping or housing of rabbits, and the presence of pens, straw, grass, feed, bread scraps and vegetables on Lot E, DP405930 - No 65 St Georges Crescent Drummoyne is hereby changed: (i) The property to which the order applies also includes that part of Lot F DP405930 - No 63 St Georges Crescent Drummoyne that is directly accessible from Lot E (ii)The Date of the Order is 3 April 2013. (iii)The terms of the Order are modified as follows: THE CITY OF CANADA BAY COUNCIL IN ACCORDANCE WITH THE POWERS UNDER THE ABOVEMENTIONED ACT REQUIRES YOU TO: 1. Reduce the number of rabbits kept or housed at the property to no more than six (6) rabbits within 3 months, that is, by no later than 3 July 2013. 2. From 3 July 2013, no more than six (6) rabbits are to be kept or housed at the property. 3. Disassemble and remove any cages/ hutches that are surplus to the requirements of keeping or housing six (6) rabbits by no later than 3 July 2013. 4. Any feed supplied to the rabbits when located within the open pen is to be placed in suitable containers and not on the floor of the pen. 5. Refrain from storing feed for rabbits at the property other than in properly sealed containers or within original packaging that is capable of being sealed. 6. On a daily basis, collect and discard from the elevated cages/hutches, all unconsumed food and all rabbit droppings. The collected material is to be placed in a garbage bin and then removed from the property. The internal surfaces of the hutches/ cages are to be washed clean on a regular basis. 7. On a daily basis, after the rabbits have been moved to their elevated hutches/ cages for the evening, all unconsumed food and any grass, straw or bedding material is to be completely removed from the floor of the pen and any containers, and placed in a garbage bin. In addition, at the end of the day, the floor of the pen is to be raked and all rabbit droppings are to be removed and placed in a garbage bin and then removed from the property. The moveable shelters within the pen are to be lifted and moved to facilitate cleaning. 8. All pests such as flies and rodents are to be controlled in a responsible manner that does not endanger the rabbits or any other animal or any person. (2)Exhibits 2, 3 and B are returned ________________________ Judy Fakes Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 April 2013