Findlay v Ashfield Council [2016] NSWLEC 1219

Land and Environment Court New South Wales

Medium Neutral Citation: Findlay v Ashfield Council [2016] NSWLEC 1219 Hearing dates: 9 May and 6 July 2016 Date of orders: 19 July 2016 Decision date: 03 June 2016 Jurisdiction: Class 2 Before: Hussey AC Decision: 1 The appeal is dismissed. 2 The Section 124 Order made on 20 November 2015 is superceded by the new S 124 Order in Attachment B. 3 The exhibits may be returned except for 1, 2, 3, 6, 7, A, D and E. Catchwords: Section 124 Order: Removal of horse from premises considered inappropriate, odour, flies and drainage impacts. Legislation Cited: Land and Environment Court Act 1979 Local Government Act 1993 Local Government (General) Regulation 2005 Cases Cited: Holmes v Director-General of the Department of Infrastructure Planning and Natural Resources (2005) 139 LGERA 102,108

Kathy Anne Pope v Tumut Shire Council [2013] NSWLEC 1238

McCudden v Cowra Shire Council [2016] NSWLEC 14

Pittwater Council v Bolitho [2007] NSWLEC 355 Category: Principal judgment Parties: Eric Findlay (Applicant) Ashfield Council (Respondent) Representation: Counsel: Mr A Isaacs (Applicant)

Solicitors: Jaku Legal (Applicant) Mr S Patterson, Wilshire Webb Staunton Beattie Lawyers (Respondent) File Number(s): 2016/00159429 (Formerly 2015/21203)

Judgment

Background 1. This matter concerns an appeal under Section 180 of the Local Government Act 1993 against a Section 124 Order (see Attachment A) requiring the owner to cease keeping or housing a pony at the subject premises. The Order was served on Mr Eric Findlay who is an owner of the subject property located at 35 Moonbie Street, Summer Hill. It required compliance within 30 days from the date of issue i.e. 20 November 2015. The name of the pony is "Horse". 2. The council's bundle of documents filed for the appeal contains a comprehensive list of documents and correspondence dealing with Mr Findlay's keeping of a pony on the subject premises since April 2002. From that time until the issue of the Order, there have been a series of complaints about odours of manure and urine, noise impacts and a reduction in the amenity for the neighbouring property due to the presence and nuisance of flies. 3. Council has sought to address these concerns over this extended period by allowing the pony in 2003, to remain subject to detailed management conditions intended to result in a reasonable level of amenity in the neighbourhood. Despite significant management efforts by Mr Findlay, the odour/fly complaints have continued resulting in the issue of the Order. 4. The appeal process commenced by way of a s34 Conference on – site. This enabled an inspection of the neighbouring property at No 31 Moonie Street together with the subject property where Mr Findlay demonstrated his management regime for Horse whilst it is at the site. After discussing various options there was no agreement by the parties and the s34 Conference was terminated. Consequently, the matter was listed for a hearing on 9/10 May 2015 and there was no objection to me determining the matter and taking into account details discussed or viewed at the on – site s34 conference. 5. The contentions raised for the appeal included particulars of the relevant controls and details of the specific concerns and are summarised as follows: 1. The rear yard of the site is inappropriate for the keeping of a pony as the site is in the R2 low density, residential zone. Reference was also made to the Order being issued pursuant to Division 3 of Schedule 5 of the LG Reg. 2. The site has not been adequately maintained. The particulars refer to Council's conditional approval in 2003 and also the NSW Department of Primary Industry's Guidelines. 3. The site does not contain adequate drainage. 4. The keeping of the pony has an unacceptable impact on the amenity of the neighbouring property due to odour emanating from the site.