Land and Environment Court New South Wales Medium Neutral Citation: Tanious v Georges River Council [2016] NSWLEC 142 Hearing dates: 1 November 2016 Date of orders: 03 November 2016 Decision date: 03 November 2016 Jurisdiction: Class 2 Before: Pepper J Decision: See orders at [76]. Catchwords: APPEAL: appeal from a decision of a Commissioner – whether Commissioner made finding of fact on no evidence – appeal allowed – remitted to Commissioner for redetermination. Legislation Cited: Civil Procedure Act 2005, s 56 Land and Environment Court Act 1979, ss 38(2), 56A Land and Environment Court Rules 2007, r 3.7 Local Government Act 1993, s 124 Local Government (General) Regulation 2005, cl 20 of Sch 2, Div 2 Protection of the Environment Operations Act 1997 Uniform Civil Procedure Rules 2005, r 42.1 Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68 Bonim Stanmore Pty Ltd v Marrickville Council [2007] NSWLEC 286; (2007) 156 LGERA 12 Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 Brinara Pty Ltd v Gosford City Council [2010] NSWLEC 230; (2010) 177 LGERA 296 Brown Brothers Pty Ltd v Pittwater Council [2015] NSWCA 215; (2015) 90 NSWLR 717 Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1 Council of the City of Sydney v Base Backpackers Pty Ltd [2015] NSWLEC 63 Davis v Gosford City Council [2013] NSWLEC 49 Design Power Associates Pty Ltd v Willoughby City Council [2005] NSWLEC 470; (2005) 148 LGERA 233 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Hurstville City Council v Goreski [2011] NSWLEC 188 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Randwick City Council v Michael Holdings Pty Ltd [2016] NSWLEC 7 Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298 Tanious v Georges River Council [2016] NSWLEC 1330 Village McEvoy Pty Ltd v Council of the City of Sydney (No 2) [2010] NSWLEC 17; (2010) 176 LGERA 119 Warkworth Mining Pty Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; (2014) 200 LGERA 375 Texts Cited: Macquarie Dictionary (online ed) Oxford English Dictionary (online ed) Category: Procedural and other rulings Parties: Mr Mofeed Louis Tanious (Applicant) Georges River Council (Respondent) Representation: Counsel: Mr M L Tanious (Litigant in Person) (Applicant) Mr M A Cottom (Solicitor) (Respondent) Solicitors: Mr M L Tanious (Litigant in Person) (Applicant) HWL Ebsworth (Respondent) File Number(s): 2016/252079 Publication restriction: N/A Decision under appeal Court or tribunal: Land and Environment Court of New South Wales Jurisdiction: Class 2 Citation: [2016] NSWLEC 1330 Date of Decision: 11 August 2016 Before: Morris C File Number(s): 2016/155914 EX TEMPORE Judgment Mr Tanious Appeals a Decision of a Commissioner to Reduce His Poultry Population 1. The applicant, Mr Mofeed Tanious likes to keep birds, many birds, especially poultry. He raises and keeps chickens, roosters, turkeys and Japanese quails. The birds are kept in enclosures in the rear yard of his leased dwelling at 1 Arnold St, Peakhurst ("the property"). 2. The property is located in a residentially zoned area and is surrounded by low density housing with detached dwelling houses on all adjoining allotments. 3. On 18 January 2016 an order was issued by the then Hurstville City Council (now the Georges River Council) ("the council") under s 124 of the Local Government Act 1993 ("the LGA"), purporting to limit the number of birds he could keep on his property and to remove the roosters ("the s 124 order"). 4. The s 124 order was in the following terms: TERMS OF ORDER 1. Remove all poultry from the above premises with the exception of ten (10). (Excluding off spring to three months of age). 2. Remove all roosters. 3. Poultry to be kept in a poultry house that is enclosed, have hard paving and kept a distance of 15.2 metres away from dwelling. REASON FOR ORDER 1. The Poultry are being kept under conditions which have the potential to cause unhealthy conditions and prohibited to be kept under the provisions of Hurstville City Council's Local Orders Policy – Keepi9ng [sic] of Animals 2014. 1. Section 124 of the LGA empowers the council to order Mr Tanious to do or refrain from doing a thing specified in column 1 of the Table referred to in that provision. Relevantly, under "Orders requiring that premises be used or not used in specified ways", item 18 provides: Birds or animals kept on premises are: 18 Not to keep birds or animals on premises, other than of such kinds, in such numbers or in such manner as specified in the order (a) in the case of any premises (whether or not in a catchment district)—of an inappropriate kind or number or are kept inappropriately, or Occupier of premises (b) in the case of premises in a catchment district—birds or animals (being birds or animals that are suffering from a disease which is communicable to man or to other birds or animals) or pigs… 1. The terms "birds" is not defined in that provision, although there is no question that what was sought to be restricted under the s 124 order issued to Mr Tanious were the birds kept at his property. 2. Mr Tanious challenged the order in Class 2 of the Court's jurisdiction. The merits appeal came before a Commissioner of the Court who, in part, upheld the appeal by increasing the number of birds that could be kept on the property and reducing the distance each poultry house had to be kept from a dwelling. However, the prohibition against keeping roosters remained and Mr Tanious' bird population was greatly reduced (Tanious v Georges River Council [2016] NSWLEC 1330). 3. The orders of the Court were as follows (at [39]): 39. The Orders of the Court are: The appeal is upheld. Order Number 18 issued pursuant to the provisions of Section 124 of the Local Government Act 1993 relating to property 1A Arnold Street Peakhurst is modified to vary the Terms of the Order and the period for compliance. The Terms of the Order are: Remove all poultry from the above premises with the exception of ten (10) chickens and 5 other poultry (Excluding of spring to 3 months of age) and including Japanese quail. Remove all roosters. Poultry to be kept in a poultry house that is enclosed, has hard paving and kept a minimum distance of 4.5m from any dwelling house. A period of 90 days is allowed from the date of this decision for compliance with the Terms of the Order. The exhibits are returned. 1. Unhappy with the result, on 22 August 2016 Mr Tanious filed an appeal against the Commissioner's decision pursuant to s 56A of the Land and Environment Court Act 1979. Legal Principles Governing an Appeal from the Decision of a Commissioner 1. Prior to examining the Commissioner's decision, it is worth recalling the principles according to which this appeal falls to be determined: first, the appeal is only concerned with errors or questions of law and not questions of fact (Village McEvoy Pty Ltd v Council of the City of Sydney (No 2) [2010] NSWLEC 17; (2010) 176 LGERA 119 at [25]; Brinara Pty Ltd v Gosford City Council [2010] NSWLEC 230; (2010) 177 LGERA 296 at [28]–[30] and Hurstville City Council v Goreski [2011] NSWLEC 188 at [50]–[52]); second, an overly critical examination of the Commissioner's decision for relevant error should not be employed (Brimbella Pty Ltd v Mosman Municipal Council (1985) 79 LGERA 367 at 368; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291; Carstens v Pittwater Council [1999] NSWLEC 249; (1999) 111 LGERA 1 at [76]; Bonim Stanmore Pty Ltd v Marrickville Council [2007] NSWLEC 286; (2007) 156 LGERA 12 at [6]–[7]; Village McEvoy at [28]–[31] and Goreski at [53]). The Commissioner's reasons for the decision must therefore be read as a whole and considered reasonably. A "verbal slip or infelicity of expression does not necessarily warrant drawing and inference of an error of law" (Council of the City of Sydney v Base Backpackers Pty Ltd [2015] NSWLEC 63 at [57]); third, the Commissioner must give adequate reasons for her decision. This means that she must refer to evidence that is important or critical to the determination of the principal or central issues in the case (Segal v Waverley Council [2005] NSWCA 310; (2005) 64 NSWLR 177 at [44]–[45], [62], [92] and [99], and Village McEvoy at [26], and the authorities referred to thereat). This does not mean, however, that every argument advanced by a party in support of these issues must be considered by the Commissioner or reasons given for accepting or rejecting it (Segal at [93]); fourth, and as corollary to the principle above, if the decision of the Commissioner reveals an error on a question of law, the decision is only vitiated if the error is material to the decision made (Design Power Associates Pty Ltd v Willoughby City Council [2005] NSWLEC 470; (2005) 148 LGERA 233 at [34]; Goreski at [53]–[56], Sydney Water Corporation v Caruso [2009] NSWCA 391; (2009) 170 LGERA 298 at [133]–[136] and [91], and Warkworth Mining Pty Ltd v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105; (2014) 200 LGERA 375 at [194]); and fifth, an error will not be material to the decision if the matter complained of on appeal was a matter that was not the subject of submissions made to the Commissioner below in a way that called for a reasoned consideration of that matter (Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386 and Davis v Gosford City Council [2013] NSWLEC 49 at [75]). A party is bound by the way it conducted its case at the hearing (Bankstown City Council v Mohamad El Dana [2009] NSWLEC 68 at [47]–[55] and Davis at [75]–[77]). The Proceedings Before the Commissioner and the Reasons for Her Decision 1. Before the Commissioner, Mr Tanious sought the following relief (at [9]): 9 Mr Tanious seeks revocation of the Order or in the alternate to provide for a maximum of 50 poultry birds older than three months of which up to 35 would be chickens, 15 other types of poultry such as turkeys and including between 3 and 5 roosters older than 3 months. In addition, he seeks permission to keep a maximum of 150 Japanese quail older than three months. 1. The Commissioner inspected the property as part of the hearing before her. She recorded what she observed as follows (at [21]): 21 Mr Tanious firstly showed the Court the incubator within the kitchen of the dwelling which is used to hatch the eggs of his poultry. A view of the backyard of the premises was then undertaken and revealed the majority to the yard had been sealed with brick paving and a number of bird enclosures were located around the yard, in particular in the south western corner. Those were constructed of assorted materials and were of varying sizes and heights and contained a variety of poultry. A small, elevated vegetable garden was located adjacent to the eastern property boundary. 1. The council relied on two affidavits (also before the Court on the s 56A appeal): 1. the first affidavit was sworn by Ms Suzan Walker on 11 July 2016. Ms Walker is an employee of the Department of Family and Community Services – Housing Services ("the Department"). She deposed that the property is owned by NSW Land and Housing Corporation and is leased to Mr Tanious. Upon the Department becoming aware of the poultry, in particular the roosters, in October 2015, it asked the council to inspect the property. According to Ms Walker, the Department supports the removal of "unauthorised poultry" (although she did not indicate the basis upon which any poultry might be "unauthorised"); and 2. the second affidavit was sworn by Ms Fiona Stock on 1 July 2016. Ms Stock is the Manager of Environmental Services at the council. Ms Stock noted the request to investigate Mr Tanious' property by the Department (although in her affidavit she described this as a "complaint" by the Department, this is erroneous. It was a request to investigate, no more). Her inspection on 3 November 2015 revealed three roosters and approximately 60 birds, including quails. The s 124 order was subsequently issued, and on 15 April 2016, the property was inspected by her again, revealing the presence of 30 chickens, three turkeys and 100 quails. 1. Ms Walker was not cross-examined, but Ms Stock was. As the Commissioner noted, Ms Stock confirmed that the council had not received any complaints from the neighbours since 2011 (at [26]). This was consistent with Mr Tanious' submissions (at [27]). 2. Also before the Court was a council document (referred to in the affidavit of Ms Stock) promulgated on 1 July 2015, and entitled Local Orders Policy – Keeping of Animals ("the policy"). 3. The purpose and aims of the policy are relevantly stated to be: 1 Purpose This policy seeks to inform the Hurstville Community of Council's regulatory powers concerning the keeping of animals in the urban environment. It is not intended with this policy to completely regulate the manner in which animals should be kept. It is, however, necessary that this policy should inform the reasonable limits (both statutory and advisory) which apply concerning the maximum numbers of animals and the circumstances under which they may be kept on premises in an urban environment. This policy applies to animals kept for domestic reasons, as companion animals, pets or for hobby interests. … 2 General Aims The Policy aims: • To inform the community of the main statutory restrictions and acceptable limits which apply to the keeping of certain animals for domestic purposes. • To give guidance and advice to persons inquiring as to the keeping of animals for domestic purposes. • To minimise local nuisance and maximise residential amenity, and • To ensure the keeping of animals does not compromise minimum standards of public health, safety and convenience. • To establish local standards, acceptable to the Community, for the keeping of Animals. • To publicly notify the circumstances that the Council will consider in determining whether to serve an Order under Section 124 of the Local Government Act to prohibit, restrict or in some other way, require things to be done regarding the keeping of animals. 1. Under "all birds" the policy provides that: Kind of Animal Maximum Number (excluded off spring to 3 months of age) Minimum Distance from Certain buildings Applicable regulations and other advisory matters As appropriate to species, size of cage/aviary or bird room. Aviaries must be of an appropriate size and regularly cleaned. Allow a maximum of 30 budgerigars per cubic meter of aviary. All birds except for racing pigeons, sulphur-crested cockatoo, longbilled Corella, poultry and domestic and guinea fowl Keepers of more than 50 birds should be members of official Agricultural Societies Distance appropriate to noise of species and/or sound proofing measures taken. All birds should be kept in accordance with NSW Animal Welfare Code of Practice No 4 - Keeping and Trading of Birds. National Parks and Wildlife permit is required to keep many native birds. Exemptions include budgerigar, zebra finch, galah and sulphur-crested cockatoo. N.S.W. Agriculture permit is required for some exotic species. 1. Critical to this appeal, under "poultry" the policy indicates that: Kind of Animal Maximum Number (excluded off spring to 3 months of age) Minimum Distance from Certain buildings Applicable regulations and other advisory matters Local Government (General) Regulation 2005 applies. Council may, by resolution, insist on greater distances than specified in particular cases. Poultry Hard paving must be provided under roosts in poultry houses if within 15.2m of a dwelling, public hall or school. domestic and guinea fowl 10 4.5m Poultry yards must be enclosed to prevent escape of poultry. Poultry other Than fowls, Including ducks, geese, turkeys, peafowl and other pheasants 5 30 Yards must be kept free of rats and mice. Roosters should not be kept where crowing will cause offensive noise. NOTE: Check with Council officers as to whether Development Consent is required 1. As is immediately apparent, these two sections of the policy do not sit comfortably with each other. They are, moreover, internally ambiguous. 2. The contentions in the appeal before the Commissioner were summarised as follows (at [18]): 18 The contentions in the case are that the number of birds housed at the site is excessive and has the potential to cause unhealthy conditions. The council is seeking that the Order is upheld or, in the alternate is amended to better clarify the location where birds can be stored so that it better reflects the terms of the Policy. It also agreed that a period of 90 days would be a reasonable time for compliance with the Order. 1. During the hearing, however, any contention that the birds were kept in unhealthy conditions was abandoned. 2. Importantly, the noise made by the roosters, offensive or otherwise, was not referred to. During the hearing before the Commissioner, however, the council argued that all roosters should be removed from the property (at [29]): 29 It is the council's position that all roosters should be removed from the site because, having regard to the location, the crowing of any rooster would cause offensive noise consistent with the definition in the Protection of Environment Operations Act 1997 (POEO). 1. This was so notwithstanding that there were no complaints recorded concerning the noise generated by birds being kept on the property, including the roosters, and no evidence was put before the Commissioner that the roosters made noise, let alone "offensive" noise. Rather the Commissioner was asked to draw this inference premised exclusively on the fact that there were roosters present. The underlying assumption behind the submission appeared to be that all roosters make "offensive noise". 2. The Commissioner's reasons (at least those relevant to the determination of the issues raised for consideration in this appeal) for making her orders were as follows (at [31]–[36]): 31 It is apparent from the evidence that the Policy has been the subject of public consultation and recent review and that it seeks to regulate an appropriate number of animals that can be kept in a residential property. In the case of poultry, that number is up to a total of 15 birds and would not include roosters unless they can be kept in a manner where crowing would not cause offensive noise. There is no evidence that the council has not consistently applied the provisions of the Policy and it is not for the Court to go behind the Policy. 32 My observation of the site, its proximity to adjoining residential properties and the manner in which birds are housed is such that the crowing of a rooster is likely to result in offensive noise as defined in the POEO Act. For that reason, I support the council's position that it is not appropriate to house roosters on the site. 33 I do consider that the number of birds that can be kept on the site should be increased so that it is consistent with the Policy, which is a maximum of 15 poultry birds, including the Japanese quail, but excluding off spring to 3 months of age. 34 I accept the council's position that the quail are birds that fall within the category of Poultry and make reference to the definition of poultry, fowl and gallinaceous as defined in the Macquarie Dictionary as follows: Poultry noun domestic fowls collectively, as chickens, turkeys, guineafowls, ducks, and geese. Fowl noun (plural fowls or, especially collectively, fowl) 1. → chicken (def. 1). 2. any of various other gallinaceous or similar birds, as the turkey or duck. 3. (in market and household use) a full-grown domestic fowl for food purposes, as distinguished from a chicken, or young fowl. 4. the flesh or meat of a domestic fowl. 5. any bird (now chiefly in combination): waterfowl; wildfowl. –verb (i) 6. to hunt or take wildfowl. Gallinaceous adjective 1. relating to or resembling the domestic fowls. 2. belonging to the group or order Galliformes, which includes the domestic fowls, pheasants, grouse, partridges, etc. 35 I also note that the Japanese quail mature early and are likely to be capable of breeding before they turn 3 months of age however, that is a matter for the council as it should have considered this in its review of the Policy. It may result in considerably more than 15 birds in total kept at the site however the majority would be less than 3 months in age. 36 I do not consider that the small economic benefit suggested by Mr Tanious is a reason to further increase the number of birds that can be kept at the site and, having observed the limited extent of garden at the site, do not consider his argument on sustainability is one that would warrant variation of the Policy. Mr Tanious Identifies Several Legal Questions for Determination 1. At a directions hearing prior to the hearing of the appeal, grounds 2 and 3 of the summons were, by agreement, abandoned by Mr Tanious. Ground 1 remained in the following terms: 1 The madam commissioner has intentional neglected the facts of defendant did not provide any independent expert report according to UCPR 2005 rules 31.18, 31.27 in order to support their policy. In addition to at the beginning of hearing was date on 2 August 2016 plaintiff has verbally mentioned there was a chance for making a phone call to NSW RSPCA on 02 9770 7555 in order to talk to inspector Purcell who has visited plaintiff's home where he has been keeping his birds that visit was dated on 30 Jun 2016 at 11:10 AM. He has made a supportive opinion for plaintiff as well as there was a chance for making a call on 0244643229 in order to talk to Mr Graig Jeffery from the associated bird keepers who has sent an email to plaintiff on 21 Jun 2016 at 15:58. He has looked for speaking with plaintiff concerning this matter. The mentioned both persons were independent expert according to the mentioned rules in such a matter. There was no consideration for the title of environmental sustainability policy of 25 pages which was adopted by the Australian federal government on 2014 a year earlier than the defendant's policy. At the time plaintiff has followed this title in keeping his birds in order to make the urban community more sustainable. 1. Upon further discussion with the parties, and as was agreed by the council, this ground was reformulated to identify the following three questions of law: 1. first, that the Commissioner erred in not rejecting the affidavits relied upon by the council because they were infected with bias or lacked independence; 2. second, that the Commissioner erred in exercising her discretion by refusing to call two witnesses for Mr Tanious (an RSPCA officer and a bird keeper); and 3. third, the failure of the Commissioner to consider a mandatory relevant consideration, namely, a 2014 Commonwealth environmental sustainability policy, which Mr Tanious had been following in keeping and raising his birds. 1. Mr Tanious' written submissions, filed on 11 October 2016, also gave rise to further grounds of appeal on questions of law, which, in view of his unrepresented status, the Court permitted to be argued at the appeal. These were that the Commissioner had erred insofar as: 1. fourth, there was no evidence upon which the Commissioner could find that the birds were being kept in an unhealthy condition; 2. fifth, there was no evidence upon which the Commissioner could find that the birds emitted an odour, offensive or otherwise; 3. sixth, there was no evidence upon which the Commissioner could find that the keeping of the roosters would cause offensive noise as that term is defined in the Protection of the Environment Operations Act 1997 ("the POEOA"); 4. seventh, there was no evidence to support the Commissioner's finding that the "economic benefit suggested by Mr Tanious" was sufficiently "small" that he should not be permitted to keep additional birds on his property; and 5. eighth, that the Commissioner misconstrued the policy insofar as she found that Japanese quails were "poultry" for the purposes of that document, and therefore, her orders. 1. Mr Tanious raised, in his written submissions, another issue concerning an alleged grudge between a neighbour and himself which resulted in a complaint being made against him to the Department, but this did not give rise to a question of law. Furthermore, the allegation was neither raised before the Commissioner – and hence not addressed by her in her reasons – nor was it put to any of the witnesses. I therefore dismiss this ground. Evidence on Appeal 1. As stated above, before the Court on appeal were the affidavits of Ms Stock and Ms Walker, the policy, and an affidavit of Mr Tanious annexing the transcript of the proceedings before the Commissioner and the contact details of "Inspector Purcell" of the RSPCA. Receipt of the Evidence of the Council Witnesses 1. In my opinion, the Commissioner did not err in receiving into evidence the affidavits of Ms Walker and Ms Stock on the ground of bias or any lack of independence. 2. First, the complaint of bias does not appear to have been raised before the Commissioner and was not put to either witness. This is fatal to the claim, even allowing for the fact that Mr Tanious is self-represented (Brown Brothers v Pittwater Council [2015] NSWCA 215; (2015) 90 NSWLR 717 at [142]–[143]). Indeed, Ms Walker was not cross-examined on the contents of her affidavit. 3. Second, there is no evidence whatsoever that, in giving their written - and additionally, in the case of Ms Stock, oral - evidence, any apprehension of, or actual, bias exists. 4. Third, Ms Walker did not purport to give expert evidence. So much so is apparent from her affidavit. To the extent that Mr Tanious appeared to suggest that she could not give expert evidence because she lacked independence this was not established by Mr Tanious. 5. Fourth, although the Commissioner erroneously accepted the evidence of Ms Stock to be expert evidence when it was not (it was plainly not put forward as such. There was, for example, no statement by the witness to the effect that she agreed to be bound by the Expert Code of Conduct and she proffered no opinion, expert or otherwise, in her affidavit), the error of law was not material insofar as Ms Stock did not give any evidence relevant to the Commissioner's reasons for her orders. 6. Ms Stock's evidence comprised only of a chronology of the events giving rise to the issuing of the s 124 order, a reference to the policy, and details of her inspections of Mr Tanious' property. Again, there was nothing in her written or oral evidence that in any way suggested that she was biased (actual or apprehended) or that her evidence was tainted in some manner by reason of a lack of independence. The mere fact that Ms Stock is an employee of the council does not, without more, afford any substance to the allegations made against her. 7. I reject this ground of appeal. Refusal to Call Mr Tanious' Witnesses 1. At the hearing before the Commissioner Mr Tanious urged her to telephone two witnesses on his behalf: the first, an inspector from the RSPCA, and the second, Mr Greg Jeffrey, described by Mr Tanious as, "the secretary associate of bird-keeper Australia" (T2.40). The council objected to this proposed course of conduct. 2. In my view, the Commissioner properly exercised her discretion in refusing to accede to Mr Tanious' request. As she explained to Mr Tanious, orders had been made for him to file and serve all of his evidence upon which he intended to rely by 10 June 2016, and this had not been complied with. Given the likely unfairness resulting to the council if these witnesses were permitted to give oral evidence during the hearing, and the very real possibility of the proceedings having to be adjourned in order for the council to accommodate the evidence, to permit it to be adduced would not have been in conformity with the overriding purpose contained in s 56 of the Civil Procedure Act 2005. 3. In addition, the evidence did not appear to be relevant to the merit issues the Commissioner was required to determine. It was not in contention (a matter agreed to before the Commissioner) that the manner in which Mr Tanious was keeping the birds was problematic. Rather, it was the number of birds located at his property that was at issue. But the two witnesses upon whose evidence Mr Tanious sought to rely were put forward on the basis that they would give evidence that Mr Tanious was keeping the birds in a healthy condition. It was therefore not relevant evidence. 4. I therefore dismiss this ground of appeal. Failure to Consider the 2014 Environmental Sustainability Policy 1. The 2014 environmental sustainable policy, which was not before the Court on appeal, appeared to be a Commonwealth document that had, in my opinion, no relevance to the council's policy on the number of birds it was appropriate for Mr Tanious to keep at his property. 2. I do not consider that the 2014 environmental sustainable policy was a mandatory relevant consideration that the Commissioner was obliged to consider having regard to the proper construction of either s 124 of the LGA, item 18, or the policy (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39-40). I therefore dismiss this ground of review. No Evidence that the Birds Are Being Kept in an Unhealthy Condition 1. A finding of fact made without any evidence constitutes an error of law (Australian Broadcast Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356). 2. Because there was no finding by the Commissioner that the birds were being kept in an unhealthy condition, and there was no suggestion that this had any bearing on the Commissioner's reasons or orders, this ground must be dismissed. 3. To reiterate, it was the number of birds that were located on Mr Tanious' property, and not the manner of their keeping, that was the subject of the appeal before the Commissioner. No Evidence that the Birds Emitted an Offensive Odour 1. Likewise, the Commissioner did not make a finding that the birds emitted an offensive odour, or indeed any odour, and it was not material to her reasons or the orders she made. Consequently, and for the reasons given immediately above, this ground cannot succeed. No Evidence that the Birds Emitted an Offensive Noise 1. As has been discussed above, an order was made by the Commissioner that the roosters were required to be removed because their crowing would, given the proximity of Mr Tanious' property to adjoining residential properties, and the manner in which the birds were housed, was "likely to result in offensive noise as defined in the POEO Act" (at [32]). 2. The term "offensive noise" is defined in the Dictionary to the POEOA to mean: offensive noise means noise: (a) that, by reason of its level, nature, character or quality, or the time at which it is made, or any other circumstances: (i) is harmful to (or is likely to be harmful to) a person who is outside the premises from which it is emitted, or (ii) interferes unreasonably with (or is likely to interfere unreasonably with) the comfort or repose of a person who is outside the premises from which it is emitted, or (b) that is of a level, nature, character or quality prescribed by the regulations or that is made at a time, or in other circumstances, prescribed by the regulations. 1. There was, however, no evidence whatsoever before the Commissioner that the crowing of the roosters on Mr Tanious' property was harmful, or was even likely to be harmful to a person outside the property, or that the crowing interfered unreasonably with, or was even likely to interfere unreasonably with, the comfort or repose of a person outside the property. In fact there was no evidence whatsoever about the noise emitted by the roosters. 2. This was a matter about which the Commissioner was cognisant, as evidenced by an exchange between her and the council during the hearing (T36.12-37.17): WARE: And the council does maintain that all roosters should be removed and that order 2 should remain as it's currently written and order 3 as indicated previously should be slightly reworded to reflect the council's policy and also to make it clear that the poultry, some poultry is allowed to be kept at the premises. COMMISSIONER: Council hasn't given me any evidence of offensive noise and like the policy says roosters should not be kept where any crowing will cause offensive noise. WARE: No, we haven't. No, Commissioner, you're quite right. There's no evidence. COMMISSIONER: So it's not a prohibition. WARE: It's not a prohibition, that's right. So if the Court was minded to allow to change order 2 that I would submit that it should be clear that any roosters that are kept should be included first of all in that total 15 and also as reflected in the policy that they should not be kept where crowing will cause offensive noise, where, arguably, anywhere in a residential area crowing can cause offensive noise but I submit that I accept that council doesn't have any evidence that these animals have caused offensive noise. COMMISSIONER: So offensive noise, does the policy - we haven't gone there - adopt the offensive noise as per the Protection of Environment Operations Act which would be basically-- WARE: No I don't-- COMMISSIONER: --you could hear in the house next door or is there a dictionary or definitional clause? WARE: It's just, this is p 49 of exhibit 1, just provides that animals should - this is the fourth paragraph down. "Animals should be kept in a manner which does not see create offensive noise or odours". And I'd also read that with subclause (f) which says, "Create an unreasonable annoyance to neighbouring residents." The policy doesn't go so far as to bring sort of specific DBA measures or anything. COMMISSIONER: Does p 50, further controls under the Protection of the Environment Operations Act deal with that? WARE: It does make reference to the…yes. COMMISSIONER: Yes, okay. Thank you. WARE: And that's probably as far as it goes. It seems to be just directed at whether or not it's causing an annoyance to residents. And I would say that's probably just, as a submission, I would say that probably any rooster crowing if you're in a residential area-- COMMISIONER: Yes, would be offensive. WARE: --depending on the time of the day can be offensive but council is not putting forward any evidence to suggest that the roosters currently there are causing offensive noise… 1. As was conceded by the council, there have been no recorded noise complaints. In fact, the only complaints received were in 2011 (T22.25-23.36), and the basis of those complaints is not known. In addition, as was noted above, the Department did not make a complaint to the council in October of 2015, it merely requested that the council investigate the birds kept on Mr Tanious' property. The two are not, as the council and the Commissioner appear to have assumed, the same. And even if the request to investigate did amount to a complaint, the reason for it was not known. 2. Recourse to the policy does not assist. That document states that, "roosters should not be kept where crowing will cause offensive noise" (emphasis added). The test contained in that document is more stringent than the test set out in the POEOA insofar as it demands a greater level of certainty as to the emission of the offensive noise by the rooster than the formulation of "likely to be" contained in the POEOA. 3. The council submitted that sufficient evidence could be found in the observations made by the Commissioner during her visit to the property that justified her factual conclusion that the roosters kept by Mr Tanious were likely to result in offensive noise. 4. In this regard, s 38(2) of the LEC Act provides that: In proceedings in Class 1, 2 or 3 of the Court's jurisdiction, the Court is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate and as the proper consideration of the matters before the Court permits. 1. Observations made by the Commissioner during her site visit, therefore, constitute evidence upon which she is entitled to make findings. However, the Commissioner did not record that she heard the roosters crowing at all (let alone "offensively"). Given that it was the "offensive noise" likely to be emitted by the roosters that was the sole basis upon which she has ordered their removal, it was incumbent upon the Commissioner to have some evidence of the noise, offensive or otherwise, that the roosters were making, or were likely to make, as perceived by "persons who were outside the premises from which it was emitted". Mere speculation about the crowing, and its effect on persons outside Mr Tanious' property, was not, with respect, sufficient. 2. In short, there was no evidence that the roosters would or were likely to emit an "offensive noise" as that term is defined in the POEOA. 3. Because this finding was material, if not central, to the Commissioner's order that the roosters be removed from Mr Tanious' property, this ground of appeal must be upheld, and with it, the appeal. No Evidence to Support the Finding that the Economic Benefit to Mr Tanious of Keeping the Birds was Small 1. Having regard to the transcript of the hearing before her, the Commissioner summarised the evidence of Mr Tanious fairly when she stated that (at [22], emphasis added): 22 Mr Tanious, through evidence filed with the Court and presented during the conciliation conference and hearing, has provided details of how he uses to the site to house poultry. The following is a summary of that evidence: • He keeps poultry to minimise waste by letting the hens eat his kitchen scraps; • Poultry waste is composted on site, the compost bin is evacuated twice per year and used on his garden and ensures sustainability; • He currently has 3 roosters, 30 chickens, 1 turkey rooster, 1 female turkey and between 130 and 150 Japanese quail; • He does not consider the quail to be "poultry" for the purpose of the council's Policy; • He needs to keep the roosters as he receives benefits and cannot afford to breed his birds without his own roosters; • He disposes of roosters generally around the age of 12 months as they become too noisy at that age; • At the present time he keeps birds as a hobby and is breeding species to learn and improve the stock so that he may be a successful breeder, known in the industry; • He sells surplus stock at the auctions where his stock is becoming well known; • He keeps the birds in a safe and healthy manner; • His hobby is contributing to his experience and the economic benefit of others such as the auctioneers; • He was not aware of the exhibition of the draft Policy; • He considers the Policy to be unfair, not to take into account personal circumstances and discriminates against the keeping of poultry as up to 120 racing pigeons may be kept; he says there is no foundation as to why the numbers have been selected and the Policy should be mor flexible. 1. Given that the only evidence of the economic benefits flowing to Mr Tanious was the evidence that he gave orally to the Court (T33.26-35.11), in my opinion, there was ample material upon which the Commissioner could base her finding in this regard (at [36]). 2. This ground of appeal therefore cannot be upheld. Whether the Commissioner Erred in Finding that Japanese Quail Were Poultry 1. Mr Tanious submitted before the Commissioner, and before the Court on appeal, that Japanese quail are not "poultry", but are more analogous to pigeons. 2. This is important because depending on how Japanese quails are classified under the policy, Mr Tanious could potentially keep up to 50 birds, assuming the quails were not "poultry domestic and guinea fowl". And even if the quails were properly classified as "pigeons" under the policy, Mr Tanious could potentially keep up to 20 of these birds. 3. An asserted error in the construction of the policy gives rise to a question of law. 4. As noted above, it is very difficult to properly construe the term "poultry" in the policy when regard is had to the text, context and purpose of that document. 5. According to cl 20 of Sch 2, Div 2 of the Local Government (General) Regulation 2005 ("the Regulation"): 20 Poultry not to be kept near certain premises (1) Fowls (that is, birds of the species Gallus gallus) or guinea fowls must not be kept within 4.5 metres (or such greater distance as the council may determine in a particular case) of a dwelling, public hall, school or premises used for the manufacture, preparation, sale or storage of food. (2) Poultry (other than fowls referred to in subclause (1)) must not be kept within 30 metres of any building referred to in subclause (1). (3) The floors of poultry houses must be paved with concrete or mineral asphalt underneath the roosts or perches. However, this subclause does not apply to poultry houses: (a) that are not within 15.2 metres of a dwelling, public hall or school, or (b) that are situated on clean sand. (4) Poultry yards must be so enclosed as to prevent the escape of poultry. (5) The standards in this clause apply to a person only if the council has served an order under section 124 of the Act to that effect on the person. 1. Somewhat more consistent with the definition of "poultry" in the policy, the Regulation draws a distinction between "fowl", on the one hand, and "poultry other than fowls", on the other. This suggests that a "fowl" is a type of "poultry". 2. However, this does not, in my view, take the construction of "poultry" in the policy much further. Neither did, with great respect, the dictionary definitions quoted by the Commissioner (at [34]). 3. This is because the definition of "quail" in the Oxford English Dictionary (online ed) states that: Any of various small short-tailed game birds of the Old World subfamily Perdicinae (family Phasianidae), esp. of the genera Coturnix and Perdicula, which resemble tiny partridges and typically have brown camouflaged plumage; esp. the widespread and migratory C. coturnix, which has a distinctive liquid call. Domestic quail usually belong to the species C. japonica, the Japanese quail, but this is indistinguishable from C. coturnix except by call, and is sometimes regarded as a subspecies of it. 1. The definition of "quail" in the Macquarie Dictionary is slightly different (online ed): Noun (plural quails or, especially collectively, quail) 1. in Australia a. any of several small ground-dwelling birds of the family Phasianidae, heavy-bodied with small heads, short legs and rounded wings, as the stubble quail, Coturnix pectoralis. … 2. elsewhere a. a small migratory gallinaceous game bird, Coturnix coturnix. b. any of several other birds of the genus Coturnix and allied genera. 1. What is unknown, therefore, is whether or not birds of the Coturnix genus (quails) are gallinaceous birds in Australia (as opposed to "elsewhere"). 2. On balance, I am inclined to find that a Japanese quail is a form of gallinaceous game bird and therefore a "fowl". But this is not the end of the matter, however, because it is not known if a quail is a domestic or guinea fowl, and therefore, in conformity with the dictionary definitions and the policy, whether it constitutes "poultry" for the purpose of the policy. 3. The council was not able to provide the Court with any assistance in this regard. 4. Because it is strictly not necessary for me to determine this vexed question of construction given my finding above in relation to offensive noise, and because the matter must be remitted to the Commissioner for redetermination, I am not inclined to deal with the matter further. In my opinion, its resolution is one that would be greatly assisted by expert evidence. This would determine the matter quickly and to finality. 5. I should add, for the sake of completeness, that it is highly unlikely that Mr Tanious' Japanese quails are "pigeons" for the purpose of the policy; a proposition that even Mr Tanious resiled from during the hearing of his appeal. Costs 1. In s 56A appeals costs now follow the event (Randwick City Council v Michael Holdings Pty Ltd [2016] NSWLEC 7 at [56]; r 3.7 of the Land and Environment Court Rules 2007 and r 42.1 of the Uniform Civil Procedure Rules 2005). Mr Tanious is therefore entitled to his costs having enjoyed success in his appeal. However, Mr Tanious is only entitled to recover his legal costs and given that he represented himself at the appeal, it is difficult to envisage what legal costs he has incurred. Nevertheless, in case he had legal assistance in the preparation of his appeal, I will make the order he seeks. Orders 1. For the reasons given above, the orders of the Court are as follows: 1. appeal upheld; 2. the decision and the orders of the Commissioner made on 11 August 2016 are set aside; 3. the proceedings are remitted to be determined by the Commissioner in accordance with the decision of this Court; 4. the respondent is to the pay the appellant's costs of the appeal; and 5. the exhibits are to be returned upon the publication of this judgment on Caselaw. ********** 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: 04 November 2016