Noble, M J & Anor v Thompson, C R & Anor; Cowra Shire Council v Thompson, C R & Anor

RESPONDENTS Colin Robert Thompson Erina Marion Thompson

FILE NUMBER(S) : 41532 of 2005; 40692 of 2006

KEY ISSUES: Planning Instruments :- characterisation of development - whether feed lot establishment or intensive agriculture - categorisation of defined but innominate use - categorisation of undefined nominated use.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Local Government Act 1919

Berowra RSL Community and Bowling Club v Hornsby Shire Council (2001) 114 LGERA 345; Egan v Hawkesbury Shire Councl (1993) 79 LGERA 321; Friends of Pryor Park Inc v Ryde Council & Anor (unreported, 25 September 1995, Bignold J, 40100 of 1995); CASES CITED: Hawkesbury City Council v Sammut (2002) 119 LGERA 171; Noble v Cowra Shire Council (2001) 114 LGERA 440; Noble v Cowra Shire Council (2003) 129 LGERA 120; Pilley v Maitland City Council (unreported, 21 October 1996, Pearlman J, 20058 of 1996, 20088 of 1996)

APPLICANTS Mr P Clay (barrister) SOLICITORS McIntosh, McPhillamy & Co

RESPONDENTS Mr C McEwen SC SOLICITORS Abbott Tout LEGAL REPRESENTATIVES: No. 40692 of 2006

APPLICANT Ms H Irish (barrister) SOLICITORS Minter Ellison

RESPONDENTS Mr C McEwen SC SOLICITORS Abbott Tout

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

41532 of 2005 Michael John Noble and Patricia Lynne Noble v Colin Robert Thompson and Erina Marion Thompson

40692 of 2006 Cowra Shire Council v Colin Robert Thompson and Erina Marion Thompson

JUDGMENT 1 Talbot J: The respondents in each of these proceedings, the Thompsons, commenced operations on the subject land at Cowra in June 2001. The subject land is known as "Wirong Dairy". The Thompsons are the registered proprietors and occupiers. It consists of Lots 82 and 85 DP 752946 and Lot 1002 DP 8522283, known collectively as "Wirong West", and Lots 1 and 9 DP 19352, known collectively as "Wirong South". The applicants in proceedings No. 41532 of 2005 ("the first proceedings"), the Nobles, live on a neighbouring farm. The applicant in proceedings No. 40692 of 2006 ("the second proceedings"), Cowra Shire Council, is the local consent authority. 2 The Nobles seek to restrain the activities presently carried out at Wirong Dairy on the basis that development consent is required for the use which they say is either (or both of) "intensive agriculture" or a "feedlot establishment" within the meaning of Cowra Local Environmental Plan 1990 ("the LEP"). They seek relief by, inter alia, the following declaration that: … the use by the Respondents of the [subject land] for a Dairy, Feedpad, Machinery Shed and Hay Shed without Development Consent having first been obtained is a breach of the Environmental Planning & Assessment Act. 3 Cowra Shire Council commenced class 4 proceedings on 7 August 2006 (after the first proceedings were set down for hearing) seeking relief including a declaration that: … the Respondents are carrying out development, of a type which requires development consent, without development consent in breach of s76A of the Environmental Planning & Assessment Act 1979 (NSW). 4 In its Amended Points of Claim the council particularises its claim that the development carried out by the respondents on the subject land is a feedpad dairy and on proper characterisation is development which is a "feed lot establishment" or development which is not "agriculture", but "intensive agriculture" as separately defined in the LEP. 5 The Thompsons deny that development consent is necessary because the use of the land is agriculture, which is permissible in the zone without development consent. 6 The two proceedings were heard together. 7 The subject land is within Zone No 1(a) - Rural Zone for the purposes of the LEP. The zone objectives and development control table for the Rural 1(a) zone is as follows:

The objectives of this zone are: (a) to promote sustainable agriculture, and (b) to preserve agricultural land, and (c) to provide greater security for all forms of agriculture and to facilitate opportunities for diversification and farm expansion, and (d) to ensure settlement is ancillary to agriculture and does not result in inefficiencies due to reduction in holding size, land use conflict or fragmentation of agricultural land, and (e) to ensure non-agricultural development is sited to avoid or mitigate impacts on agriculture, avoid land use conflict and to conserve agricultural land as a resource, and (f) to take into consideration the potential economic recovery of known mineral and extractive resources in the siting of development, and (g) to provide for other types of development appropriate in rural zones, particularly tourist oriented and employment generating development within the capability of the land to support the development, and (h) to facilitate sustainable natural resource management by managing development of agricultural land, and (i) to ensure development in the rural area does not result in demand for the provision of infrastructure or services above those required to service the existing rural community. 2 Without consent

Agriculture (other than pig keeping establishments, poultry farming establishments or feed lot establishments); forestry; any purpose ordinarily incidental or subsidiary to agriculture or forestry. 3 Subject to conditions

Any purpose other than a purpose included in item 2 or 5. 5 Prohibited

Motor showrooms; residential flat buildings. 8 Clause 6 of the LEP adopts specified definitions in the Model Provisions, including: "agriculture" has the meaning ascribed to it in Sections 514A of the Local Government Act 1919. 9 Section 514A of the Local Government Act 1919 provides: "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. 10 Clause 5 of the LEP defines "intensive agriculture" as follows: intensive agriculture means an agricultural enterprise of an intensive nature on land where horticulture, irrigated agriculture or intensive livestock keeping is the primary use of the land. 11 Neither "feedlot" nor "feed lot establishment" are defined in the LEP or in the Model Provisions. 12 The Thompsons do not have development consent for the present activities carried out on the land. Two earlier development consents granted by the council were set aside by this Court (Noble v Cowra Shire Council (2001) 114 LGERA 440 and Noble v Cowra Shire Council (2003) 129 LGERA 120). The most recent development application was refused by the council. Depending upon the outcome in this case, the respondents indicate that they may appeal to this Court in its class 1 jurisdiction against the refusal. Activity on the Subject Land

13 The subject land consists of the two properties above, namely, Wirong South and Wirong West. Wirong South is used to produce hay and silage solely used for the dairy and supports up to 100 grazing heifers during summer months. At Wirong West there is a dairy building and other associated buildings including a silage storage area, an effluent system and loafing paddocks, supporting 300 milking cows, 50 dry cows and 200 young stock.

14 A concrete feedpad is in a shed where the milking cows are fed. It has two cow alleys and a central feed alley. Three loads of feed are prepared on site each morning and placed on the feedpad. The feed is mechanically "pushed up" along the feed alley at various times during the course of the day.

15 Cows are milked three times a day. Half the herd of 300 milking cows are milked at one time while the other half wait in the feedpad. Each milking takes approximately 3 hours. In the morning all cows are headlocked for approximately 1.5 hours while herd management including veterinary checks, artificial insemination and sorting is carried out. On average the cows are confined to the dairy building for 4 hours each day. They remain within the feedpad shed for a further 6.5 hours each day (1.5 of those hours in headlock). 16 At all other times the cows are unrestrained. During the periods when the cows are unrestrained feed is continually available in the feedpad and an adjoining loafing paddock is accessible. Mrs Patricia Noble has observed that most cows remain in the feedpad even after they are released. The effluent system for the feedpad/dairy is designed on the basis that the cows will, on average, spend 14 hours per day in the feedpad/dairy.

17 Milk produced in the dairy is piped into a holding tank, where it is chilled, and collected by tanker once daily. Apart from the respondents, the dairy employs one full-time and three casual employees, each working about 40 hours per week.

Characterisation 18 It is common ground between the parties in the first proceedings that the activities undertaken on the subject land can be characterised as agriculture. The dispute between them arises in relation to whether the use is properly described as either or both of "feed lot establishment" or "intensive agriculture". In addition the council submits that the use is not agriculture.

19 Mr Richard Ivey, agricultural consultant engaged by the Nobles, says that the term feedlot is applied to dairies that derive the majority of their feed requirements from off-farm sources. He says that the key elements indicating intensive agriculture include relying wholly or substantially on externally sourced feed, confining a large number of animals within a relatively small area and exceeding a threshold of animals per unit area. The threshold in not specified numerically. He points out that the likely levels of pasture production from Wirong West will provide around 11% of the total feed requirements of the herd. The balance therefore will be imported to the property. In Mr Ivey's opinion for an operation to be categorised as a dairy rather than a feedlot it is necessary for cows to be confined only during milking. He assumes that the cows are confined for up to 18 hours a day with an area of only 4.07 square meters for each cow. He says this type of confinement is symptomatic of a feedlot situation. Mr Ivey therefore concludes that the operation conducted on the subject land is intensive agriculture, and more specifically that it is a feedlot.

20 The council's town planner, Mr Michael Carter, characterises the activities carried out on the subject land as both intensive agriculture and a feed lot establishment. The reasons he identifies for the development to be characterised thus are: enclosure on the feedpad for long periods of time; intensive feeding as opposed to the usual limited feeding during milking; concrete flooring and sophisticated effluent management system.

21 Professor Ian Lean, veterinary scientist and agricultural consultant, gives evidence for the respondents. He says that the term "feedlot" is only applied to dairy cattle rarely, and only in circumstances where cattle are under total confinement and fully fed mechanically with no feed derived from pasture.

22 Professor Lean predicts that approximately 15-30% of the cows' dry matter intake would be derived from the property, representing 30-60% of the forage intake for the cows. While this is slightly lower than average for many dairy farms in Australia, it is within the range of performance of typical dairies throughout a year. He identifies the stocking rate at the dairy as 4.88 cow equivalents per ha, as compared with the national average of approximately 3 cow equivalents per ha. An alternative approach to stocking rate, taking into account the entire holding (including Wirong South) gives a rate of 1.5 cow equivalents per ha, as compared to the national average of approximately 1 to 1.5 for the national average, depending on production system.

23 Professor Lean observes that while most dairies feed cows during milking, the Wirong cows are not fed during milking. This is said to reduce milking time, albeit the cows spend a greater time than average on the feedpad. He says the milking time in a typical dairy is about 6 to 8 hours a day, whereas the Wirong cows are confined for 10.5 hours a day for milking, feeding and herd management. He concludes that the activity carried on by the respondents is not intensive agriculture, nor can the dairy be described as a feed lot establishment. 24 Irrespective of the divergent conclusions in regard to the description of the activity by the experts it is irrefutable that the pursuits undertaken by the respondents are a form of agriculture being husbandry and the keeping and breeding of livestock. These are all elements included in the definition of "agriculture" tipped into the LEP. There are elements of the operation that are intensive. They are not continuous. 25 The definition of "feedlot" in the Australian Oxford Dictionary is as follows: an area in which cattle etc. are massed in order to fatten them by hand-feeding, esp. for the grain-fed beef market. 26 Standard Instrument (Local Environmental Plans) Order 2006 incorporates a definition of feedlot as follows: Feedlot means a confined or restricted area used to rear and fatten cattle, sheep or other animals, for the purpose of meat production, fed (wholly or substantially) on prepared and manufactured feed, but does not include a poultry farm, dairy or piggery. 27 The experts nevertheless acknowledge that there is recognition of a feedlot dairy in the industry. The present argument centres on the expression "feed lot establishments". 28 The most common understanding of a feedlot is a place used for the fattening of beef livestock preparatory to slaughter. The concept of a dairy feedlot according to Professor Lean would necessarily exhibit the same characteristics of intense permanent penning of cattle within a confined area without resort to open areas within the property. The cows in such a case are wholly mechanically fed with prepared or manufactured feed. 29 It is the council's submission that the Court should adopt an interpretation of "feed lot establishments" which promotes the environmental protection objectives of the LEP and the legislation under which it is made. In each of the rural zones a distinction is said to be drawn in the Land Use Table between "Agriculture" in general and those types of agriculture having the potential for adverse environmental impacts such as "pig keeping establishments", "poultry farming establishments" and "feed lot establishments". In this way, so the argument goes, "feed lot establishment" must mean something other than a "feedlot", the end product of which is cattle for market. The council therefore submits that "feed lot establishments" consistently with the purpose and context of the LEP must mean an establishment in which: a. a large number of animals are held in a confined space (with a hard surface) for most of the day; b. the confinement in that space requires a sophisticated form of effluent management which would not be required in a traditional agricultural operation; and c. the animals receive their food requirements either substantially or wholly from mechanical or hand-fed sources. 30 Mr Clay, who appears for the Nobles, identifies the following relevant applicable indicia for intensive livestock keeping that, he says, equally apply to characterise the use as a dairy feedlot: a. reliance wholly or substantially on externally sourced food; b. the cows being hand or mechanically fed; c. confinement of a large number of animals within a relatively small area as part of the production process; d. exceeding the threshold of the number of animals per unit area; e. the significant nature of the impacts of the constrained and contained feeding regime - in particular the effects of the waste produced. 31 It is a stated objective for the LEP, and the Rural 1(a) Zone in particular, to encourage, preserve and provide greater security for all forms of agriculture and to preserve agricultural land for that purpose. 32 At Wirong the cattle are never confined to a single pen although there are significant periods when they are within the feedpad or the dairy. Although feed from elsewhere is fed to the cows significant feed is produced on the property and grazing is permitted according to the availability of pasture depending on the season. Taken in total context the effluent disposal system, dust suppression measure and artificial shading facilities common to cattle feedlots do not detract from the fundamental concept of the operation as a dairy. Accordingly the use in my opinion does not meet the description of a feedlot and is effectively and properly characterised as a dairy. The common elements with a feedlot facility do not change the fundamental character of the dairy operation conducted at Wirong. 33 Moreover even if some part of the operation could be correctly equated with a feedlot use that element is subsumed by the overall use for the purpose of a dairy. If the word "establishment" has any role to play the business conducted by the Thompsons is more accurately described comprehensively as a dairy establishment rather than a feed lot establishment. I agree with Mr McEwen that the term establishment is intended to refer to a dominant or primary use of the land rather than as in the present case a use, which facilitates the dairy operation and takes place on a minor part of the land. 34 I am unable to see any reason to change that view as a consequence of an alleged constraint or principle arising out of the objectives of the LEP of the zone. The applicant's argument that the objectives broaden the application of the expressed words in the Table is rejected. Intensive Agriculture 35 It is my opinion that the separate definition of "intensive agriculture" was not intended to have the effect that it could be carried on only with consent. Notwithstanding argument put to the contrary by the respective applicants the conclusions reached by the Court of Appeal in Egan v Hawkesbury City Council (1993) 79 LGERA 321 are apposite. 36 In Egan the proposed development was a quarry with a crushing plant. The relevant Local Environmental Plan adopted the definitions of "industry" and "extractive industry". "Industry" was prohibited in the zone. Development permissible without consent was any purpose other than one included in items 2 or 4 of the land use table. The Court of Appeal held by majority that the development came within the meaning of "industry" and was therefore prohibited. Mahoney JA at 328 found that although a proscribed activity might fall within another definition, the intention was not that it could be carried on, or carried on with consent. 37 The decision of the Court of Appeal in Egan was applied by Bignold J in Friends of Pryor Park Inc v Ryde Council & Anor (unreported, 25 September 1995, Bignold J, 40100 of 1995). In that case a proposed development fell within the permissible purpose of "community facilities". The fact that the development also fell within another "purpose" namely "child care centre" was held to be legally irrelevant to the permissibility of the development. Bignold J held that "child care centre" is a species of the genus "community facilities" and construed the relevant provision of the LEP to give full effect to the stipulation that "community facilities" was a permissible purpose. He found such a construction consistent with the construction adopted by Mahoney JA in Egan. 38 Pearlman J followed the same line of reasoning in Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council (2001) 114 LGERA 345. In that case Her Honour held that there was no intention that a "registered club" could be carried on with development consent simply because that use of the site fell within the definition of "recreation centre". 39 Mr Clay argues that there is a distinction to be made between a nominated use that is prohibited and a use that is either permissible with or without consent. Ms Irish on behalf of the council makes a complementary submission. Mr Clay refers to the judgment of the Court of Appeal in Hawkesbury City Council v Sammut (2002) 119 LGERA 171 at 177: In Elf Farm Supplies Pty Ltd v Hawkesbury City Council [1999] NSWLEC 261, Cowdroy J considered whether a mushroom substrate production plant was a prohibited use in land which (as in Egan ) was zoned 1(b) -- rural B. The applicant contended that the proposed use was properly categorised as a "rural industry" as defined in the Model Provisions. Cowdroy J followed Egan and held that it was sufficient that the use could be categorised as an "industry". It mattered not that it could also be categorised as a "rural industry": it was still prohibited. In my view Cowdroy J was correct to view Egan as not confined to its particular facts of an extractive industry in zone 1(b). The case stands for more than that. It establishes a more general interpretative template for construing "industries" where shown as prohibited uses in the various land use tables of the instrument; and it rejects the application of expressio unius [est exclusion alterius] reasoning in this context. 40 While Mr Clay correctly quotes the extract of the judgment of the President in Sammut, it must be read in its own context where the distinction being drawn was between a suggested finding based on the facts in Egan and an actual construction based in the provisions of the LEP. The passage does not set the outer limits of the decision of Egan, but negates an unduly narrow construction of it. 41 Egan cannot be distinguished on the basis that it was dealing with prohibited uses. The construction works both ways so that if the genus is prohibited so is the species and if the genus is permitted without consent so also is the species unless otherwise provided by means of an express nomination. There is no justification that I can perceive for drawing a distinction solely because of the permissibility of the development. 42 Moreover, I see no reason to distinguish or change the view expressed by Pearlman J in Pilley v Maitland City Council (unreported, 21 October 1996, Pearlman J, 20058 of 1996, 20088 of 1996) because of the decision of the Court of Appeal in Sammut. In Pilley Her Honour addressed the same issue as the issue that arises in this case in regard to intensive agriculture where the alternative description was "animal establishment". Her Honour made the following finding: Here, Ms Duggan said, the development constituted by the proposed activities is categorised as 'agriculture', and that development is included in item 3. Therefore, the proposed development does not require council consent, and is permissible without consent. The fact that the proposed development also falls within a defined term in the LEP but which does not appear in item 3 or 5, namely, 'animal establishment', makes no difference to this conclusion because the proposed development falls within item 3 and hence is not development "other than development included in item 3 or 5". I think Ms Duggan is correct. The interpretation of the zoning table which she urges upon the Court is consistent with the decisions in Egan and Friends of Pryor Park. 43 In my opinion the view expressed by Pearlman J is not inconsistent with Sammut. 44 I agree with Mr C McEwen SC that the definition of "agriculture" does not exclude any form of agriculture. Accordingly the definition of "intensive agriculture" takes the matter no further where it is not expressly specified in the table in circumstances where the development is within the definition of "agriculture", a use permitted without consent.

Conclusion 45 The respondents have successfully argued that their use of the property is not a "feed lot establishment". Furthermore the contention that "intensive agriculture" must be regarded as an innominate use permissible only with consent within item 4 of the table in the LEP having regard to its separate definition is not sustained. In the circumstances the applications will be dismissed with an order that the applicants pay the respondent's costs in each case. The exhibits will be returned. 46 It was contended for the respondents that the council had attracted an elevated burden in respect of the costs of the proceedings as a result of its belated commencement of the second proceedings and recent inconsistent attitude to the merits of the development. That bears no direct relevance to individual responsibility for the respondent's costs. Accordingly the order will be that the applicant's respectively pay the costs of the respondents in each case. Orders 47 The Court makes the following orders:

1. Application in proceedings No. 41532 of 2005 is dismissed.
2. The Applicants in proceedings No. 41532 of 2005 pay the Respondent's costs.
3. Application in proceedings No. 40692 of 2006 is dismissed.
4. The Applicant in proceedings No. 40692 of 2006 pay the Respondent's costs.
5. The exhibits may be returned.

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