Posted on April 5, 2016 by Carlo Zoppo

Court considers appeal over an order issued to Camp Kitty

The recent decision of the Land and Environment Court in McCudden v Cowra Shire Council [2016] NSWLEC 14 examines the granting of orders under s124 of the Local Government Act 1993 (LG Act), how to construe an order and the reasons given as well as the Court’s ability to cure a deficient order whilst conducting merit review.

On 6 August 2015 the Council issued order 18 under s124 of the LG Act (the Order) against Mr McCudden who was the operator of Camp Kitty, a shelter for abandoned or unwanted cats.

The order identified the keeping of cats in ‘inappropriate’ numbers and ‘inappropriate’ conditions, required a limitation of the number of cats kept at the facility at any one time  to no more than 33 and outlined other requirements as to how the cats were to be kept.  The requirements were clearly directed at ensuring the welfare of the animals. It was reported that between 174 and 200 cats were kept at the shelter at any one time.

Mr McCudden lodged an appeal against the Order under s180 of the LG Act. While this appeal is in the nature of merit review, the Court granted leave to consider a number of separate questions before the substantive appeal was considered. The questions related to the validity of the reasons given in the order, the validity of the notice and the power of the Court in considering an appeal to cure defects in such an order.

During his consideration of the questions Justice Craig considered a number of interesting issues pertaining to a s124 orders (and statutory orders generally) including:

  1. the proper construction of an order;
  2. whether matters that enliven the exercise of the power to issue an order can be recited as reasons for the grant of such an order;
  3. can a s124 order be issued to promote the welfare of animals;
  4. can the Court considering a merit appeal cure defects in an order given by the Council.

Proper construction of an order

During the hearing Justice Craig considered how the order the subject of the proceedings should be construed and confirmed the following principles of construction applicable to statutory notices or orders:

  1. the fact that orders are generally less carefully drafted than primary legislation means that a proper construction necessitates greater regard to practical considerations;
  2. it is not appropriate to interpret an Order by subjecting its language and structure to the rules or approaches applied to interpreting an Act of Parliament;
  3. where an order is open to more than one construction, one of which would be to bring the order within power and another that would render the order invalid, the first construction is to be preferred;
  4. the proper construction of an Order involves the consideration of the Order as a whole;
  5. in order to determine whether a reason is sufficient, the reason must be considered in light of the whole of the order including the ‘things’ that the order requires to be done. In this case such things inform or give reason to the requirement that the number of cats was not to exceed 33 on the land at any one time.  Any number of cats exceeding 33 at any one time would be “inappropriate” to meet the requirements of the things required to be done. Accordingly the reference to ‘inappropriate numbers’ was in context sufficient reason for the purpose of s136 of the LG Act.

Whether matters that enliven the exercise of the power to issue an Order can be recited as reasons for the grant of such an order

It was submitted by the Applicant that the Council’s recitation of the matters that enliven the exercise of the power to issue an order were not reasons of the nature required by s 136 LG Act for a valid order.

The Applicant relied on the earlier decisions of the Land and Environment Court of:

  • Van Haasteren v South Sydney Council [2000] NSWLEC 168  where the Court held that the reasons required by s121L of the EPA Act could never be fulfilled or satisfied simply by stating the circumstances that must exist to enliven the discretionary power; and
  • Stutchbury v Pittwater Council [1999] NSWLEC 177 where Sheahan J held that the mere restatement of the conditions that must be satisfied before the exercise of the discretionary power to make orders, is not the provision of reasons for the order.

In this case Craig J rejected the submission of the Applicant and the reasoning in the earlier decisions of the Court in finding that the circumstances that enliven the exercise of the power can be cited as a reason for exercising the power to issue the order.

Justice Craig applied the reasoning of the Court of Appeal decision of J and J O’Brien Pty Limited v South Sydney City Council [2002] NSWCA 259.

In O’Brien  the Court of Appeal rejected the submission that the recitation in an order of a failure to comply with the conditions of a development consent, that being a circumstance enlivening the power to issue a order, was not a reason required by s121L of the EPA Act for the giving of an order. The Court of Appeal found that such an submission defies the reality of the order and the necessity that the order be read as a whole for the purpose of discerning the reasons for the exercise of the Council’s power.

The order when read as a whole must make plain to the recipient the basis and reason for the decision to issue the order. The reasons should reflect the rationale for the giving of the order.

Can an order under the LG Act be issued to promote the welfare of animals

It was argued by Mr McCudden that having regard to the scope, purpose and object of the power that was being exercised by the Council, that the welfare of cats cannot be a relevant consideration.  It was submitted  that an order of this kind can only be given if the reasons for doing so is one directed to some external impact consequent on the keeping of birds or animals on the premises. Accordingly it was argued that the giving of the order in question was beyond power.

Justice Craig accepted that the purpose of the LG Act does not specifically include the welfare of cats or the welfare of animals generally and there was little in the LG Act that specifically empowers Councils to consider animal welfare.

Justice Craig  found however that there was nothing on the face of s124 of the LG Act that forbids consideration of animal welfare. In fact an indication that welfare may be a reason to give order 18 is to be found in paragraph (a) of column 2 of s124 which deals with animals suffering from a disease which is communicable to man or to other birds or animals.  While this text may be directed at controlling birds or other animals that have the potential to be vectors for disease, there is nothing in the text that impliedly prohibits the Council from considering animal welfare when determining to give Order 18.

Can the Court considering a merit appeal cure defects in an order given by the Council.

 Another interesting aspect of the decision was Justice Craig’s consideration of the power of the Court, considering an appeal under s 180 of the LG Act, to cure defects in the giving of an order when conducting a merits review hearing.

It was argued by Mr McCudden that as there was no power to issue an order, the order that was issued was invalid or a nullity and accordingly the Court had no order in respect of which the Court could exercise its broad powers.

Justice Craig considered that the jurisdiction of the Court under s 39 of the Land and Environment Court Act combined with the broad powers afforded to the Court conducting merit review under s180(4) of the LG Act allows the Court to address or cure a defect present in the order given by the Council (Twist v Randwick Municipal Council [1976] HCA 58 per Barwick CJ at 110 -111 and Mason J at 116).  This could extend to curing a failure to provide adequate reasons if such a failure existed.

The Court considering a merit review considers the decision to give an order afresh and the terms of any such order. The Court, under s 180, determines whether an order of the kind the Council seeks should be given and if so in what terms for itself based upon material before the Court.

Justice Craig answered all of the questions in favour of the Council and returned the matter to the Registrar’s list for a hearing date to be set for the substantive proceedings.