Tanious v Georges River Council [2017] NSWLEC 1023

Land and Environment Court New South Wales

Medium Neutral Citation: Tanious v Georges River Council [2017] NSWLEC 1023 Hearing dates: 16 January 2017 Date of orders: 25 January 2017 Decision date: 25 January 2017 Jurisdiction: Class 2 Before: Morris C Decision: Appeal upheld Catchwords: ORDERS: restriction on the number of poultry to be kept on residential property Legislation Cited: Land and Environment Court Act 1979; Cases Cited: Tanious v Georges River Council [2016] NSWLEC 142; Tanious v Georges River Council [2016] NSWLEC 1330 Category: Principal judgment Parties: Mofeed Tanious (Applicant)

Georges River Council (Respondent) Representation: Solicitors: Mr M Cottom HWL Ebsworth Lawyers (Respondent)

Mr M Tanious, Litigant in Person, File Number(s): 155914/2016

Judgment 1. This matter has been remitted following a decision by Pepper J in relation to an appeal under s56A of the Land and Environment Court Act 1979 see Tanious v Georges River Council [2016] NSWLEC 142. 2. That appeal related to my decision of 11 August 2016, Tanious v Georges River Council [2016] NSWLEC 1330. That appeal was lodged seeking revocation or modification of an Order issued by the Council that limited the number of poultry that could be kept on the premises. 3. In accordance with the decision of Pepper J, the initial appeal must be redetermined.

The original appeal 1. The original appeal was filed pursuant to Section 180 of the Local Government Act 1993 (LGA) in relation to an Order issued by the council that was in the following terms: 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 had paving and kept at a distance of 15.2m away from a dwelling. 1. The reasons for the Order are stated as being: 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 – Keeping of Animals 2014. 1. A period of 28 days was provided for compliance with the Order. 2. Following the decision of Pepper J, the council no longer presses that part of the Order that requires the removal of the roosters however continues to press the reduction in the number of poultry that are kept on site. The modified Orders now sought by the Council are: 1. Remove all poultry from the above premises with the exception of ten (10) chickens and 5 other poultry (Excluding offspring to 3 months of age) and including Japanese quail. 1. The Orders sought are to limit the number of poultry kept at the property in accordance with the council's Local Orders Policy – Keeping of Animals 2014 (LOP) which it says limits the number of birds to 15 (10 domestic or guinea fowl and 5 poultry other, including ducks, geese, turkeys, peafowl and other pheasants. 2. Pepper J did not make findings as to whether Japanese quail were poultry and suggested that further evidence in this regard was required. Neither party provided expert evidence to address this issue in the hearing however the council's written submissions filed on 30 November 2016 in accordance with the Directions given by the Registrar of this Court on 16 November 2016 did address the definitional issue. Such action was in accordance with an agreement reached between the parties whereby no expert evidence would be called. 3. The council submits, based on information contained in Christopher Perrins Ed. The Encyclopaedia of Birds (Oxford University Press, 2003) that, for the purposes of its policy, Japanese quail are poultry as they are a species of Old World quail which are in the pheasant family. Mr Cottam, for the council submits: Whilst "poultry" is not defined in the LG Act or the Regulation, it is clear that the term includes not only fowls (that is, birds of the species Gallus gallus) but also other poultry (including ducks, geese, turkeys, peafowl and other pheasants). Japanese quail (Coturnix japonica) is a species of Old World quail. Old World quail are in the pheasant family Phasianidae. Phasianidae are a family that include Old World quails and pheasants (including birds of the species Gallus Gallus). 1. Therefore, he submits that because Japanese quail are part of the Phasiandie family, the council's reference to pheasants in its LOP would apply. 2. In addition, to this research, I had, in my earlier decision, made reference to the early maturing of Japanese quail and the fact that they are capable of breeding before they turn 3 months of age. That is factual matter obtained from the Department of Primary Industry's website and in particular, its Fact Sheet on Raising Japanese Quail, prepared by former Liverstock Officers (Poultry) of the Department. 3. The parties were provided a short adjournment to consider these documents and, as a result of their review, Mr Tanious conceded that Japanese quail were poultry. 4. For this reason, I am satisfied that the Poultry section of LOP applies to the birds kept by Mr Tanious. As identified by Pepper J in her decision, various sections of the LOP do not sit comfortably with each other and they are, moreover, internally ambiguous. Despite this fact, I am satisfied that the LOP limits the number of poultry that can be kept on site to a maximum of 15, 10 domestic and guinea fowl and 5 others. 5. Mr Tanious sought revocation of the Order or in the alternate, after accepting the quail are included in the count of poultry, to provide for a maximum of 50 poultry including 5 roosters and 100 Japanese quail, all of which would be older than 3 months of age. When asked how many Japanese quail under 3 months of age he would be likely to keep, he stated this would be around 80.