Land and Environment Court New South Wales Medium Neutral Citation: Muswellbrook Shire Council v Pemberton [2013] NSWLEC 190 Hearing dates: 7 November 2013 Decision date: 07 November 2013 Jurisdiction: Class 4 Before: Sheahan J Decision: Orders made as per [25] Catchwords: CIVIL ENFORCEMENT: disobedience of orders issued by the Council regarding the keeping of poultry and the stockpiling of rubbish - some improvement observed as the hearing date approached - exercise of discretion. Legislation Cited: Local Government Act 1993 Local Government (General) Regulation 2005 Category: Principal judgment Parties: Muswellbrook Shire Council (Applicant) Warren Pemberton (Respondent) Representation: Mr M Ball, solicitor (Applicant) No appearance by Respondent Local Government Legal (Applicant) File Number(s): 40607 of 2013 ex-tempore Judgment 1Council brought these class 4 proceedings against Mr Pemberton on 9 August 2013, regarding his use of residential premises at 12 Ruth White Avenue, Muswellbrook, since 2010. 2The subject property is registered in the names of Daryl, Rhonda and Anthony Wright, and the evidence suggests that it is occupied by one Amanda Wright and the respondent. 3Mr Pemberton has not been in contact at all with the court and has filed no appearance, Points of Defence, or affidavit evidence. I am satisfied that he was personally served with the summons, three Council affidavits, a letter from Council's solicitor, and a bundle of Council's documents, on 16 August 2013 (affidavit of Aulich). He was aware of the directions hearings on 30 August and 4 October 2013, and failed to appear, or to then respond to the directions made. 4Today's hearing was appointed on 4 October 2013, in his absence, and the Registrar wrote to him on that date advising him of the hearing date. Council's solicitor has since written to him three times reminding him of the listing, including a letter sent by express post on 4 November 2013, shown to have been delivered on 5 November 2013, enclosing a further affidavit, submissions etc (affidavit of Cox). 5Accordingly, I granted leave to Council to proceed today in the absence of the respondent. 6The Council relied particularly on affidavits sworn or affirmed by its Manager Administration and Regulatory Services, Trina Holmes, and three immediate neighbours - Marea Wilkins (No 10), Michelle Radcliffe (No 14) and Dennis Bamback (immediately rear of No 12) - and the facts may be shortly summarized. 7Mr Pemberton has resided at the subject property since at least August 2010. He has kept dogs, poultry, geese, rabbits, and ducks at the property at various times, and accumulated on the land a large amount of what appeared clearly in many photographs to be rubbish. 8Council has received numerous complaints from neighbours, commencing in August 2010. Their complaints concerned untimely crowing of roosters, and barking of dogs, the sightings of numerous mice, and frequent offensive odours from poultry and garbage. 9Pemberton and Ms Wright failed to respond adequately to many letters , infringement notices, and formal Council orders under the Local Government Act 1993, regarding apparent breaches of the relevant regulatory regimes. 10Apart from, and subsequent to, Council inspections made from neighbouring areas, it proved necessary for Council to execute a search warrant, on 16 May 2013, to gain better access to the causes of the neighbour complaints. A later inspection on 9 October 2013, after the respondent was notified of today's hearing, was conducted by consent. 11On each inspection, graphic photographs were taken, depicting the appearance/presentation of the subject property (Exhibit C2). 12The poultry were clearly not kept in accordance with the standards prescribed by the relevant Local Government Regulation and by the requirements of the various notices Council issued. 13Pemberton's disobedience had serious amenity impacts on his neighbours, over a long period, and Council ultimately decided to bring these proceedings. 14Improved compliance, behaviour and presentation were noted on 9 October (second affidavit of Holmes), i.e. since the listing of these proceedings for hearing, but Council remains unconvinced that that situation will continue in the absence of some formal intervention by this court. 15Because of the evident improvement in the situation, Council today seeks only: (1)declarations that the respondent failed to comply with two s 124 orders, dated 27 September 2012 (dealing with the keeping of poultry), and 24 April 2013 (dealing with both the keeping of poultry, and the stockpiling of waste); (2)an order that the respondent be restrained, from today, from using the subject premises for the keeping of poultry, otherwise than in accordance with the second or later s 124 order, and the relevant provisions (Div 2 of Part 5 of Sch 2) of the Local Government (General) Regulation 2005; (3)an order for its costs on the normal, not an indemnity, basis. 16The respondent failed to appeal against either s 124 order, but, to his credit, has been paying by instalments the large fines imposed in the Infringement Notices, which failed to modify his behaviour. 17He had the benefit of a period of 18 months from the first complaint to Council's first inspection, and of a period of a further 18 months from that inspection until commencement of these proceedings. 18He ignored the opportunity which today's hearing provided for him to place before the court any arguments in explanation or mitigation of his proven breaches. 19He also missed that opportunity to respond to Ms Holmes's allegations that she was personally abused by Ms Wright on two occasions. 20In the end, the matter must be adjudicated on the basis that the only event which would appear to have influenced him was the actual listing of these proceedings for their final hearing. 21The environmental harm he caused to his neighbourhood was serious, and has not yet been totally eliminated. 22Also, the general public must realise that the court will respond strongly to the continuation or threat of such conduct, and, insofar as there may be arguments available on discretion, I am firmly of the view that the balance falls in favour of the Council in this case. 23I am, therefore, satisfied that the declarations and orders set out in the Short Minutes of Order filed in court today can and should be made, and I will do so. 24Council is directed to serve upon the respondent, not only the orders of the court, but a copy of these reasons, which will shortly be published. The respondent must be made aware that further infractions of this type may expose him to a charge of contempt of court. 25The formal orders of the court will be: The Court declares that: (1)The Respondent has failed to comply with an order under s 124 of the Local Government Act 1993 dated 27 September 2012 in respect of Lot 73 DP 22932, being the premises at 12 Ruth White Avenue, Muswellbrook ("the first LG Act Order"). (2)The Respondent has failed to comply with an order under s 124 of the Local Government Act 1993 dated 24 April 2013 in respect of Lot 73 DP 22932, being the premises at 12 Ruth White Avenue, Muswellbrook ("the second LG Act Order"). And the Court orders that: (3)On and from the date of these orders, the respondent, by himself, his servants and agents, is restrained from using the premises at 12 Ruth White Avenue, Muswellbrook, for the keeping of poultry, otherwise than in accordance with: (a)the Second LG Act Order, a copy of which is Annexure A to these orders; and (b)Division 2 of Part 5 of Schedule 2 of the Local Government (General) Regulation 2005, a copy of which is Annexure B to these orders. (4)The Respondent is to pay the Applicant's costs of these proceedings, on a party-party basis, as agreed or as assessed. (5)Exhibit C2 may be returned. ********** Annexure 'A' Annexure 'B' Amendments 21 November 2013 - Link to Annexure 'A' and 'B' added Amended paragraphs: Annexures 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: 21 November 2013