Kempsey Shire Council v Tebran Pty Limited

Calleja v Botany Bay City Council (2005) 142 LGERA 104; Commissioner for Railways v Agalianos (1955) 92 CLR 390; Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; CASES CITED: Egan v Hawkesbury City Council (1993) 79 LGERA 321; Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628; Hawkesbury City Council v Sammut (2002) 119 LGERA 171; Noble v Thompson (2006) 149 LGERA 268; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

APPLICANT Mr G Underwood SOLICITORS Cooney Harvey Doney LEGAL REPRESENTATIVES: RESPONDENT Mr I J Hemmings SOLICITORS Thorntons

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

JUDGMENT Jagot J: A. Introduction 1 Kempsey Shire Council (the Council) sought declarations and orders in these proceedings against Tebran Pty Limited (Tebran). The Council claimed that: - (i) Tebran is using land known as 57 Sutherlands Lane, Bellimbopinni and Back Creek Road, Kinchela to carry out activities constituting "intensive animal husbandry" and "feedlot", (ii) each of those activities required development consent by operation of s 76A(1) of the EPA Act and the Kempsey Local Environmental Plan 1987 (the LEP), and (iii) development consent had not been obtained authorising the carrying out of those activities on the land.

2 Tebran admitted that: - (i) it owned the land, (ii) it was carrying out activities on the land, and (iii) it had not obtained development consent for those activities. Tebran claimed, however, that the activities it was carrying out on both parcels of land were permissible without development consent under the LEP in accordance with s 76(1) of the EPA Act.

4 57 Sutherlands Lane, Bellimbopinni contains multiple lots, being lots 119, 122, 123, 129, 132, 230, 231 and 232 in DP 752412, lot 851 in DP 618401, lot 37 in DP 752437, lot 109 in DP 752437 and lot 853 in DP 104594 (the Sutherlands Lane land). The Sutherlands Lane land has an area of 710 acres or approximately 287 ha. It is zoned 1(a3) Rural A3 Agricultural Protection Zone under the LEP.

5 Back Creek Road, Kinchela contains four lots, being lots 1, 2 and 3 in DP 1009463 and lot 170 in DP 754396 (the Back Creek Road land). The Back Creek Road land has an area of 190 acres or approximately 77 ha. It is zoned 1(a1) Rural A1 Zone under the LEP.

7 The maximum number of cattle on the Sutherlands Lane land is 510. Of that number, no more than 340 are wholly pasture fed. Approximately 130 to 170 head of cattle are both pasture and supplementary fed. For the purpose of such pasture and supplementary feeding, these cattle are kept within an area of five acres of the Sutherlands Lane land. Before mid May 2007 there were four feed bins operating on the Sutherlands Lane land (I infer within the area of five acres). On and from mid May 2007 there is one operative feed bin on that land (I infer within the area of five acres), with four empty feed bins located in the lane on the northern side of the land.

8 The maximum number of cattle held on the Back Creek Road land is 300. Of this number, 150 are wholly pasture fed. The Back Creek Road land also contains an area of five acres used for supplementary feeding. There are normally 130 to 150 cattle that are both pasture and supplementary fed kept within this supplementary feeding area. As at mid May 2007 there were five operative feed bins on the land (I infer within the area of five acres). On and from mid May 2007 there is one operative feed bin and five empty feed bins on that land (I infer within the area of five acres).

9 Both the Sutherlands Lane land and the Back Creek Road land are subject to pasture improvement and stock rotation throughout the paddocks on each of the properties.

10 The Council employs Mr Ward as a health and building manager. He was raised in the Lower Macleay and grew up on his family's farm which he managed until 2000. This farm was approximately 250 ha used for grazing beef cattle. The average head held was 350 with a maximum of approximately 450 head. In Mr Ward's experience the maximum carrying capacity for beef cattle grazing on the Lower Macleay is two per hectare in a good season with high rainfall. Mr Ward was not involved in the assessment of development applications under the Council's LEP.

11 The aims of the LEP in clause 3 include: (a) to protect the major agricultural activities of the area and to promote the agricultural potential of the Shire of Kempsey.

12 Clause 5 of the LEP sets out definitions including: "aquaculture" means the cultivation of marine and freshwater organisms such as fish, prawns and other crustaceans;

"feedlot" means a building or place, other than a piggery or stock home, in which or on which cattle, sheep or other livestock are held for the purpose of nurturing either wholly or partly by a feeding method other than grazing;

"intensive animal husbandry" means a building or place used for the purposes of:

(a) pig breeding; (b) lot feeding cattle; (c) commercial poultry farming (whether for the production of chicken meat or eggs); or (d) any similar activity that is likely to involve the erection of large buildings or the creation of large quantities of waste products;

13 Clause 6 of the LEP adopts the Environmental Planning and Assessment Model Provisions 1980 (the Model Provisions) for the purposes of the LEP (excluding certain definitions and clauses which are not material).

14 "Agriculture" is defined in the Model Provisions (cl 4) as having the meaning ascribed to it in s 514A of the Local Government Act 1919. Section 514A defined "agriculture" as follows: "agriculture" and "cultivation" include horticulture and the use of land for any purpose of husbandry, including the keeping or breeding of livestock, poultry, or bees, and the growing of fruit, vegetables, and the like, and "agricultural" and "cultivated" have a corresponding meaning.

15 Clause 8 of the LEP establishes the various zones including the 1(a1) zone and the 1(a3) zone. Clause 9 takes the traditional form as follows: 9. (1) The objectives of a zone are set out in the Table to this clause under the heading "Objectives of zone" appearing in the matter relating to the zone. (2) Except as otherwise provided by this plan, in relation to land within a zone specified in the Table to this clause, the purposes (if any) for which (a) development may be carried out without development consent; (b) development may be carried out only with development consent; and (c) development is prohibited; are specified under the headings "Without development consent", "Only with development consent" and "Prohibited", respectively, appearing in the matter relating to the zone.

(3) Except as otherwise provided by this plan, the Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out. 16 The development control table for the 1(a1) zone is in the following form:

(a) predominantly to provide for agricultural uses; (b) to preserve the visual amenity of the land; and (c) to provide for compatible tourist and industrial uses.

Agricultural (other than intensive animal husbandry and aquaculture); forestry.

Any purpose other than a purpose included in Item 2 or 4.

Aged persons unit; boarding-houses; bus stations, car repair stations; cluster housing; commercial premises; educational establishments; exhibition homes; general store, hospitals; industries (other than extractive industries, offensive and hazardous industries or rural industries); liquid fuel depots; medical centres; motor showrooms; multiple dwellings; professional consulting rooms; recreational facilities; residential flats; road transport terminals; shops; taverns; transport terminals; warehouses.

17 The development control table for the 1(a3) zone is in the following form: 1. Objectives of zone

(a) to conserve land particularly suitable for agricultural uses; (b) to provide for compatible tourist uses; and (c) to protect arterial road frontages from developments which are visually intrusive or which generate excessive traffic.

Agriculture (other than intensive animal husbandry); forestry.

Any purpose other than a purpose included in Item 2 or 4.

Aged persons units; boarding-houses; bus depots; bus stations; car repair stations; clubs; cluster housing; commercial premises; education establishments; exhibition homes; general stores; generating works; hospitals; industries (other than extractive industries, offensive and hazardous industries or rural industries); institutions; junk yards; liquid fuel depots; medical centres; motor showrooms; multiple dwellings; places of assembly; places of public worship; professional consulting rooms; public buildings; recreation facilities; residential flats; road transport terminals; service stations; shops; taverns; transport terminals; warehouses.

18 Certain other provisions of the LEP are also relevant.

19 In the 1(c) (Rural (Small Holdings) "C" Zone) "agriculture (other than intensive animal husbandry and aquaculture)" is permissible with development consent, whereas "intensive animal husbandry" is prohibited.

20 In the 1(d) (Rural (Investigation) "D" Zone) "agriculture (other than intensive animal husbandry and aquaculture)" is permissible without development consent whereas "feedlots" and "intensive animal husbandry" are prohibited.

21 In the 1(e) (Rural (Floodway) "E" Zone) "agriculture (other than cattle feedlots, pig keeping and poultry farming)" is permissible with development consent.

22 In each of the residential and business zones "agriculture" and "intensive animal husbandry" are prohibited, whereas "feedlot" is not identified in the list of prohibited development.

23 Under clause 64(4) of the LEP (which applies to certain land as identified only) the list of prohibited development includes "feedlots" and "intensive animal husbandry".

24 The Council submitted that "intensive animal husbandry" must be given a meaning different from "agriculture". Although "lot feeding cattle" as referred to in sub para (b) of the definition of "intensive animal husbandry" was not defined in the LEP, it should be given a meaning consistent with the definition of "feedlot". "Lot feeding cattle", therefore, involves using a system or method for feeding cattle other than by open grazing in whole or part.

25 The only possible indication to the contrary was the reference to both "feedlots" and "intensive animal husbandry" in the 1(d) zone. However, that might be an anomaly as "feedlots", insofar as they amounted to "lot feeding cattle", constituted "intensive animal husbandry". The other separate reference to both "feedlots" and "intensive animal husbandry" as prohibited development in cl 64 of the LEP applied to one area of land only.

26 Accordingly, "agriculture" was a purpose of development separate from both "feedlot" and "intensive animal husbandry". Agriculture concerned using land for purposes that could be described as "natural". It followed that in each of the 1(a1) and 1(a3) zones development for the purpose of "feedlot" was development for an innominate purpose as specified in item 3 of the development control table (being development permissible only with development consent). In any event, development for the purpose of "intensive animal husbandry" was specifically referred to in item 2 of the development control table for those zones and thus was necessarily development for an innominate purpose within item 3 of the development control table (being development permissible only with development consent). Contrary to Tebran's submission, each of sub paras (a) to (d) of the definition of "intensive animal husbandry" operate in the alternative. Accordingly, the reference to large buildings and large quantities of waste products in sub para (d) is immaterial.

27 The evidence in this case established that Tebran operated a system of supplementing cattle feed from feed bins located within the five acre area on each of the Sutherlands Lane and the Back Creek Road land. This system of supplementary feeding constituted the activity of "intensive animal husbandry". Mr Ward's evidence was that without supplementary feeding land in this area would support about two head of cattle per hectare. The evidence disclosed that the density of cattle maintained by Tebran (presumably within the five acre area) was far greater than this number, being another indicator that Tebran was carrying out "intensive animal husbandry". This activity required development consent, which had not been obtained.

28 Tebran submitted that the interpretation and application of definitions in the LEP required care. The meaning of a definition turns on the context in which it appears. In this case, a major object of the LEP is to promote agricultural activities within the area. The provisions of the 1(a1) and 1(a3) zones support this object. The Council's approach to construction of the LEP would undermine this object.

29 The text and structure of the LEP discloses that "feedlot" and "intensive animal husbandry" are types of "agriculture". Both definitions identified activities forming part of "husbandry". The zoning tables separated the definition of "intensive animal husbandry" from "agriculture" by the use of the words "(other than…)". This would be unnecessary if "intensive animal husbandry" were not a type of "agriculture".

30 Insofar as the Council's claims depended on the activity being a "feedlot", that activity is encompassed by "agriculture". "Agriculture" is specifically identified as permissible without development consent, the only relevant exclusions being "intensive animal husbandry" and "aquaculture". Consistent with the approach to the construction of instruments in Egan v Hawkesbury City Council (1993) 79 LGERA 321 a "feedlot", being "agriculture" of a particular kind, is permissible without development consent in zones 1(a1) and 1(a3).

31 In the alternative, the meaning of "feedlot" is to be determined by reference to the "policy and purpose" of the LEP (Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379 at [37] - [46]). In the context of the LEP as a whole, the mere keeping of cattle in paddocks does not amount to cattle being "held" within the meaning of the definition of "feedlot". If it were otherwise, all cattle managed on a farm would be "held" for the purposes of the LEP. The mere provision of supplementary feed is not enough to constitute an activity as a "feedlot". Again, if it were otherwise, each and every time a farmer provided supplementary feed to cattle, the purpose of the use would change from "agriculture" to "feedlot" and require consent to be obtained. This would lead to a result inconsistent with the policy and purpose of the LEP as a whole.

32 Properly construed, the LEP creates a hierarchy of types of animal husbandry. Within that hierarchy "lot feeding cattle" in sub para (b) of the definition of "intensive animal husbandry" does not have the same meaning as "feedlot". Rather, "intensive animal husbandry" involves activities of greater potential environmental impact than a mere "feedlot". This is evidenced by: - (i) the separate definitions of "feedlot" and "intensive animal husbandry", (ii) "intensive animal husbandry" being nominated as permissible only with consent in zones 1(a1), 1(a3) and 1(c), but "feedlot" not being mentioned in any of those zones, (iii) both "feedlots" and "intensive animal husbandry" being nominated as prohibited in zone 1(d), (iv) the separate prohibition on "feedlots" and "intensive animal husbandry" in cl 64(4)(a) of the LEP, (v) the selection of the word "intensive" to describe "intensive animal husbandry", and (vi) the description in sub para (d) of the definition of "intensive animal husbandry" which discloses that activities similar to each of those in sub paras (a) to (c) are likely to involve the erection of large buildings or the creation of large quantities of waste products.

33 The Council had not established on the evidence that this land was being used for either a "feedlot" or "intensive animal husbandry". None of the evidence disclosed any form of intensive activity of the relevant character, nature or extent.

34 The following principles are particularly relevant to the resolution of the present dispute.

35 Environmental planning instruments "are a species of delegated legislation, a statutory instrument … and should be interpreted in accordance with the general principles of statutory interpretation". Hence, a "construction should be preferred that is consistent with the language and purpose of all of the provisions of such instruments" (Cranbrook School at [36], citing Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] and [78]).

36 All definitions within the LEP must bear a meaning that is "intelligible, and … consistent, in all the contexts in which it appears" (Cranbrook School at [5]). Hence, "agriculture" cannot take one meaning for certain zones and another meaning when used elsewhere in the LEP.

37 Definitions are merely an aid to construction "and do not operate in any other way", so that the effect of the LEP and its operation in relation to the purposes of development must be found in the substantive provisions of the instrument (Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628 at 635).

38 Although an attempt "to always find planning logic in planning instruments is generally a barren exercise" (Calleja v Botany Bay City Council (2005) 142 LGERA 104 at [25], meaning must be given to all of the provisions of the LEP having regard to "its policy and purpose" (Cranbrook School at [46]). Ultimately, "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed" (Cranbrook School at [63] citing Commissioner for Railways v Agalianos (1955) 92 CLR 390 at 397).

39 It is common for environmental planning instruments to include definitions "so drawn that some activities may fall within not merely one but two or more of them" (Egan at 328). In Egan, the Court of Appeal rejected an argument that development for the purpose of an "extractive industry" was permissible with development consent in a zone where "industries" and "light industries" but not "extractive industries", being a separately defined term in the LEP, were expressly prohibited. The Court held that the proscription of the genus "industries" also proscribed each species of "industry".

40 The approach to construction evident in Egan is not confined to its own facts. In Hawkesbury City Council v Sammut (2002) 119 LGERA 171 at [19] - [24] Mason P explained that the outcome in Egan involved rejection of the maxim expressio unius est exclusio alterius.

41 The reasoning in Egan was also applied in Noble v Thompson (2006) 149 LGERA 268 in the context of "agriculture" and "feedlots", (albeit involving a different instrument with different provisions from the LEP in the present case).

42 The Council's first submission that Tebran's activities on the land constituted the carrying out of development for the purpose of a "feedlot", being development permissible only with consent in the relevant zones, is inconsistent with the approach to construction in Egan and the policy and purpose of the LEP construed as a whole.

43 "Agriculture", as defined in the LEP through the incorporation of the Model Provisions in cl 6, includes all classes of husbandry without restriction by reference to criteria such as "naturalness" or intensity. In other words, it is clear that "agriculture" is the relevant genus (just as "industry" was the relevant genus in Egan). "Feedlot", "intensive animal husbandry" and "aquaculture" are merely types of "agriculture". In accordance with the principles identified above, the LEP regulates those particular types of agricultural activity by its substantive provisions and not by the fact of separate definition.

44 Hence, in zones 1(a1) and 1(a3) "agriculture" is permissible without development consent except insofar as the table otherwise provides. In the 1(a1) zone two types of "agriculture" are identified as not being permissible without development consent, namely, "intensive animal husbandry" and "aquaculture". In the 1(a3) zone, one type of "agriculture" is so identified, namely, "intensive animal husbandry". It follows that any activity that may be described as a "feedlot", which is not also "intensive animal husbandry", is permissible without development consent in both zones.

45 This conclusion, consistent with the approach of the Court of Appeal in Egan and Sammut, is supported by number of factors. In particular, a "feedlot" is not limited to "cattle" but might involve sheep or other livestock. To that extent, at least, the meanings of "intensive animal husbandry" and "feedlot" are not the same. Further, the fact that the development control tables use the formula "agriculture (other than…)", as Tebran submitted, shows that the LEP treats all types of husbandry as a part of "agriculture". Finally, because the definitions must be given a consistent meaning throughout all provisions of the LEP the Council's argument, if correct, would mean that "agriculture" and "intensive animal husbandry" are prohibited but "feedlot" is permissible with development consent within all residential and business zones. This result is avoided by applying to the task of construction the principles established by the Court of Appeal in Egan, Sammut and Cranbrook School. In other words, "feedlot" is permissible without development consent in zones 1(a1) and 1(a3), but "intensive animal husbandry" requires consent in each zone.

46 The Council's second submission related to the meaning of "lot feeding cattle" in sub para (b) of the definition of "intensive animal husbandry". The reference to "lot feeding cattle" in sub para (b) and the separate definition of "feedlot" create the potential for ambiguity in the LEP. If, as the Council submitted, "lot feeding cattle" is to be given a meaning similar to "feedlot" then the distinction drawn by the zoning tables would be undermined. For example, zones 1(a1) and 1(a3) specifically exclude "intensive animal husbandry" from the activity of "agriculture" permissible without development consent but do not specifically exclude "feedlot". The separate definition of "feedlot" and the reference to that activity in zone 1(d) and cl 64(4)(a) are inconsistent with any construction which assumes this involved a mere oversight. These matters provide some support to Tebran's submission that the LEP, properly construed, establishes a hierarchy of husbandry activities in which "intensive animal husbandry", insofar as it involves "lot feeding cattle", takes a meaning different from "feedlot".

47 However, it is neither necessary nor possible to articulate any distinction capable of general application between "lot feeding cattle" as it appears in sub para (b) of the definition of "intensive animal husbandry" and "feedlot" as defined. The present case falls for resolution on its own facts in a context where the Council, as applicant, carried the onus of proving that the character, nature and extent of the activities carried out by Tebran are such as to constitute "intensive animal husbandry" rather than "agriculture".

48 I do not accept the Council's submission that each and every activity involving a systematic feeding of cattle other than wholly by open grazing necessarily involves "intensive animal husbandry" by reason of the reference to "lot feeding cattle" in sub para (b) of the definition. Issues of fact and degree must be involved in the task of characterisation. For example, if cattle were held in paddocks a routine activity of providing supplementary fodder by any method (such as throwing the fodder off the back of a truck), on the Council's case, would convert the agricultural activity (permissible without development consent) into "intensive animal husbandry" (permissible only with development consent). The definition and the ordinary meaning of "feedlot" (and the ordinary meaning of "lot feeding cattle") do not support that conclusion. Each meaning involves "holding" cattle for the purpose of a particular type of feeding.

49 The Macquarie Dictionary (revised 3rd edition) defines feedlot as: 1 .an area of land on which cattle are stocked in large numbers and hand-fed in order to fatten them just prior to selling them - verb (t) ( feed lotted , feedlotting ) 2 . to fatten up (cattle) in a feedlot - ( feedlotter , feedlotting ) n .

50 The definition of "feedlot" in the LEP emphasises that the cattle must be "held for the purpose of nurturing either wholly or partly by a feeding method other than grazing".

51 In this context, if "lot feeding cattle" takes a meaning consistent with "feedlot" as the Council submitted, then "holding" cattle cannot include the mere keeping of cattle within paddocks as on any farm. Nor can using a feeding system other than grazing constitute each and every such system, irrespective of its nature, character and extent, as a "feedlot" or "lot feeding cattle". The purpose and object of the LEP, considered as a whole, indicates that something more is required for each aspect of the activity to convert an agricultural use into a "feedlot" or "intensive animal husbandry". This is so irrespective of Tebran's argument to the effect that the LEP incorporates a hierarchy indicating that "feedlot" and "lot feeding cattle" take a different meaning. Further generalisation, however, is not possible because the character, nature and extent of the activities carried out in each case will determine the outcome.

52 On the facts of this case there are two large parcels of 287 and 77 hectares respectively. They are managed together by the one owner. On the Sutherlands Lane land some 66% of the maximum number of cattle are wholly pasture fed. On the Back Creek Road land some 50% of the cattle are wholly pasture fed. None of the cattle on either parcel of land are wholly fed from the supplementary feeding bins. Tebran rotates stock throughout the paddocks on both parcels. Insofar as Mr Ward's evidence could be relevant, the overall stocking rate for both parcels is a maximum of about 2.2 cattle per hectare (that is, a total of 810 cattle on 364 hectares). In these circumstances the presence (at its height) of four and five feed bins, respectively, within a paddock of five acres on each of the Sutherlands Lane land and the Back Creek Road land for supplementary feeding of a proportion of the cattle therein does not constitute use for the purpose of "intensive animal husbandry" (by reason of the reference to "lot feeding cattle" as referred to in sub para (b) of the definition) or a "feedlot" as defined.

53 Critical factors supporting this conclusion in the particular case are: - (i) the relatively large size of the parcels overall, (ii) the substantial proportion of cattle on the parcels that are wholly pasture fed, (iii) the fact that none of the cattle on the parcels are wholly fed other than by grazing pasture, (iv) the relatively small number of feed bins, (v) the relatively large size of the paddocks within which the feed bins are located, and (vi) the relatively small size of the feed bins as disclosed in certain photographs. These facts show an activity, the character, nature and extent of which is consistent with the activity of "agriculture" and inconsistent with the activities of "intensive animal husbandry" or "feedlot" when the definition of those terms is considered in the context of the LEP as a whole.

54 Accordingly, the Council has not established that Tebran has carried out activities in breach of the LEP and, thereby, s 76A(1) of the EPA Act. The Class 4 application therefore must be dismissed. Consistent with the submissions with respect to costs, I make the following orders: (1) The Class 4 application is dismissed. (2) The applicant is to pay the respondent's costs as agreed or assessed. (3) Order 2 is stayed for a period of 28 days during which the applicant may notify the Court if it wishes to be heard about costs, in which event Order 2 is set aside and the proceedings are to be listed before the Registrar within 7 days of such notice to obtain a hearing date and directions for argument on costs. (4) The exhibits are returned.

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