Queanbeyan-Palerang Regional Council v O'Sullivan

Land and Environment Court (NSW)|2016-07-05|Before: Pepper J

Solicitors: Bradley Allen Love Lawyers (Appellant) N/A (Respondent) File Number(s): 2016/00152051

The Prosecutor Appeals Against the Dismissal of a Charge of Unlawful Development

By way of summons filed on 8 March 2016, the prosecutor, then Palerang Council, now Queanbeyan-Palerang Regional Council by reason of an amalgamation in April 2016 ("the council"), appeals against a decision of Antrum LCM in the Local Court, dismissing a charge against Mr Richard O'Sullivan of having carried out specified development that was prohibited on land contrary to s 76B of the Environmental Planning and Assessment Act 1979 ("the EPAA"). The development was a piggery and chicken farm.

Mr O'Sullivan Keeps Pigs and Chickens On His Property

The agreed statement of facts that was tendered in the court below, and which formed part of the basal facts governing this appeal, stated as follows: 1. The Defendant is the owner of land comprising Lot 2 in DP 204040, known as 1303 Bungendore Road, Bywong NSW 2621 (Land). 2. The Land comprises of 4.05 hectares. … 4. There is a dwelling on the land, together with a number of sheds and out buildings. 5. On 22 April 2015, there was approximately 40 pigs, including sows and piglets on the land, and approximately 250 chickens on the Land. 6. Some of the animals were in sheds and out buildings which do not form part of the dwelling. 7. The Defendant has not obtained development consent for a piggery or a poultry farm on the Land.

What Development is Permitted on the Land

The third paragraph of the agreed statement of facts, which was not conceded by Mr O'Sullivan, concerned the zoning of the land.
In short, Mr O'Sullivan disputed that, as at the date of the commission of the offence on 22 April 2015, the land was zoned E4 Environmental Living under the Palerang Local Environment Plan 2014 ("the LEP").
However, a s 149(2) planning certificate issued under the EPAA on 17 November 2015, indicated that this was the correct zoning. Although issued after the commission of the offence, it was not in contention that the description of the zoning contained within the certificate was accurate and applicable to the land as at 22 April 2015.
The E4 Zone is described as follows in the LEP: Zone E4 Environmental Living 1 Objectives of zone (a) To provide for low-impact residential development in areas with special ecological, scientific or aesthetic values. (b) To ensure that residential development does not have an adverse effect on those values. (c) To encourage development that is visually compatible with the landscape. (d) To minimise the impact of any development on the natural environment. (e) To ensure that development does not unreasonably increase the demand for public services or facilities. (f) To minimise conflict between land uses within the zone and land uses within adjoining zones. 2 Permitted without consent Extensive agriculture; Home businesses; Home occupations 3 Permitted with consent Animal boarding or training establishments; Bed and breakfast accommodation; Building identification signs; Business identification signs; Cellar door premises; Community facilities; Dual occupancies; Dwelling houses; Emergency services facilities; Environmental protection works; Farm buildings; Flood mitigation works; Function centres; Home-based child care; Home industries; Information and education facilities; Intensive plant agriculture; Neighbourhood shops; Places of public worship; Plant nurseries; Recreation areas; Restaurants or cafes; Roads; Roadside stalls; Secondary dwellings; Waste or resource transfer stations; Water recycling facilities; Water storage facilities 4 Prohibited Industries; Service stations; Turf farming; Warehouse or distribution centres; Any other development not specified in item 2 or 3
"Extensive agriculture" is permitted without consent pursuant to item 2. That term is defined in the Dictionary to the LEP to mean: "extensive agriculture" means any of the following: (a) the production of crops or fodder (including irrigated pasture and fodder crops) for commercial purposes, (b) the grazing of livestock for commercial purposes, (c) bee keeping, (d) a dairy (pasture-based).
The "Note" to the definition states that "extensive agriculture is a type of agriculture - see the definition of that term in the Dictionary".
The term "agriculture" is therefore defined in the Dictionary as: "agriculture" means any of the following: (a) aquaculture, (b) extensive agriculture, (c) intensive livestock agriculture, (d) intensive plant agriculture.
Relevantly, the term "intensive livestock agriculture" means: "intensive livestock agriculture" means the keeping or breeding, for commercial purposes, of cattle, poultry, pigs, goats, horses or other livestock that are fed wholly or substantially on externally-sourced feed, and includes any of the following: (a) dairies (restricted), (b) feedlots, (c) piggeries, (d) poultry farms, but does not include extensive agriculture, aquaculture or the operation of facilities for drought or similar emergency relief.

Authority of the Council to Continue the Appeal

In his written submissions to the Court, Mr O'Sullivan raised, as a threshold issue, whether the council had the authority to continue the appeal given that Palerang Council had, after the appeal had been filed, been dissolved and amalgamated with another council to form the council. In other words, Mr O'Sullivan questioned the authority of the newly created local government authority entity to continue prosecuting the appeal.
The appeal is saved by cls 17, 32 and 33 of the Local Government (Council Amalgamations) Proclamation 2016 ("the Proclamation"), which state as follows: 17 Activities of former councils (1) Anything done or omitted to be done by a former council and having any force or effect immediately before the amalgamation day continues to have effect as if it had been done or omitted to be done by the new council. (2) Without limiting subclause (1): (a) any approval, order or notice given or made by a former council, and that had effect immediately before the amalgamation day, continues to have effect as if it had been given or made by the new council, and (b) anything commenced but not completed by a former council may be completed or discontinued by the new council. (3) This clause does not: (a) limit any other provision of this Proclamation, or (b) apply to the extent to which it is inconsistent with any other provision of this Proclamation. … 32 Transfer of assets, rights and liabilities The assets, rights and liabilities of the former councils are transferred to the new council. 33 Provisions relating to transfers of assets, rights and liabilities (1) When any assets, rights or liabilities are transferred pursuant to this Proclamation from a former council to a new council, the following provisions have effect: (a) the assets of the former council vest in the new council by virtue of this clause and without the need for any further conveyance, transfer, assignment or assurance, (b) the rights or liabilities of the former council become, by virtue of this clause, the rights or liabilities of the new council, (c) all proceedings relating to the assets, rights or liabilities commenced before the transfer by or against the former council or a predecessor of the former council and pending immediately before the transfer are taken to be proceedings pending by or against the new council, (d) any act, matter or thing done or omitted to be done in relation to the assets, rights or liabilities before the transfer by, to or in respect of the former council or a predecessor of the former council is (to the extent to which that act, matter or thing has any force or effect) taken to have been done or omitted by, to or in respect of the new council, (e) the new council has all the entitlements and obligations of the former council in relation to those assets, rights and liabilities that the former council would have had but for the transfer, whether or not those entitlements and obligations were actual or potential at the time of the transfer. Note. Clause 6 translates references in any instrument to former councils or areas and their predecessors. (2) The operation of this clause is not to be regarded: (a) as a breach of contract or confidence or otherwise as a civil wrong, or (b) as a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities, or (c) as giving rise to any remedy by a party to an instrument, or as causing or permitting the termination of any instrument, because of a change in the beneficial or legal ownership of any asset, right or liability, or (d) as an event of default under any contract or other instrument. (3) The Minister may, by notice in writing, confirm a transfer of particular assets, rights or liabilities. The notice is conclusive evidence of that transfer. (4) No attornment to the transferee by a lessee from the former council is required.
These provisions plainly, in my opinion, save any appeal commenced prior to amalgamation and vest authority in the new council (see Sch 14 of the Proclamation) to complete or continue any proceeding earlier filed.
I therefore find that the council has the necessary authority to appeal the decision of the court below.

The Hearing Before the Learned Magistrate

Given the lack of legal representation on behalf of Mr O'Sullivan, it is necessary to examine the hearing in the court below in order to properly identify and analyse what errors were committed by that court in dismissing the charge.

Existing Use Rights

In its opening, the council flagged Mr O'Sullivan's reliance on existing use rights under ss 107 and 109 of the EPAA. In summary, when Mr O'Sullivan had bought the land many decades ago, it had been used to raise pigs and chickens and he had continued that use ever since, with the full knowledge of the council.
At no point did Mr O'Sullivan resile from this claim. It was again relied upon by him on appeal, both in his written and oral submissions and in the correspondence attached to Mr Bradbury's affidavit.
In response, the council argued that because there had been an intensification of the existing use by Mr O'Sullivan contrary to s 109(2)(c) of the EPAA insofar as he had increased the number of pigs and chickens on the land, he could not avail himself of existing use rights and the use remained prohibited within the E4 Zone.
Troublingly, before any witnesses were called, before any evidence was tendered by Mr O'Sullivan (the council had tendered its brief of evidence but the Learned Magistrate had not been taken through its contents) and before Mr O'Sullivan had made any submissions, the Learned Magistrate stated (T10:12-30): HIS HONOUR: I can tell you absolutely the existing use argument is not going to work with me. ACCUSED: Yes. HIS HONOUR: All right, I've just given the prosecution a hard time. Now it's your turn, all right? ACCUSED: Thanks very much. HIS HONOUR: The existing use isn't going to work because first of all there has been an intensifying. On the evidence that I've got I can see there's more stock. You don't have to agree with any of this at the moment. ACCUSED: No.
It is strongly arguable that these statements gave rise to an apprehension of bias in the form of prejudgment. Although Mr O'Sullivan did not raise this issue before his Honour, given his legally unrepresented status this is hardly surprising. Similarly, while he did not squarely identify the issue on appeal, no blame can be attributed to him for failing to do so in all the circumstances.
An apprehension of bias, if found, amounts to an error of law (Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337 and The Hills Shire Council v Mouawad [2014] NSWLEC 59; (2014) 203 LGERA 233 at [24]-[30]). When raised by the Court, counsel for the council, Ms Natasha Hammond, frankly and properly conceded that the observations had been made prior to having heard from Mr O'Sullivan and in the absence of any evidence other than the unread brief of evidence.
While the issue of the intensification of Mr O'Sullivan's existing use right was revisited by the council and by his Honour during the council's closing submissions, his Honour appears to have determined the issue prior to hearing any closing submissions from Mr O'Sullivan (T32:40-48).
In my view, the remarks by the Learned Magistrate clearly amount to prejudgment.
Moreover, the issue of existing use rights was not referred to in his Honour's reasons delivered on 11 February 2016. The failure of the court below to discuss or refer whatsoever to this issue in its judgment dismissing the charge constitutes, in my opinion, a failure to give reasons. Again, this amounts to an error of law (Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [56]-[59] and SDHA Pty Ltd v Waverley Council [2015] NSWLEC 65; (2015) 209 LGERA 233 at [69]-[70]).
Furthermore, it is at least arguable that the Learned Magistrate's finding as to intensification of the existing use may be characterised as a finding of fact based on no evidence (also an error of law: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 355-356 and INL Group Limited v Director-General of the New South Wales Department of Planning [2011] NSWLEC 256 at [82]), inasmuch as the brief of evidence did not, as counsel for the council all but conceded, contain any cogent evidence of an intensification because it was not clear how many pigs (comprising both sows and piglets - as opposed to just breeding sows or adult pigs) were on the land at any point in time prior to the date of the commission of the offence.
If anything, the evidence was to the contrary. That is to say, that the use by Mr O'Sullivan of the land as at the date of the commission of the offence was similar to its use in 1966 or 1967 when the farm was owned by Mr Jack and Mrs Vera Maloney (see the oral evidence of Mr Robert Yerbury in this regard, especially at T25:35-26:34).
A letter tendered below and on appeal from Yarrowlumla Shire Council (a predecessor council) to Mr O'Sullivan dated 9 May 2000, was entirely equivocal and did not assist either party in this regard.
Although the Learned Magistrate made his findings based on what he described as "clear" evidence (T32:45), this evidence was neither identified by him nor counsel for the council, and, based on the evidence before this Court on appeal, cannot readily be found.
Of course these errors of law do not assist Mr O'Sullivan, who seeks to take the continuing benefit of the dismissal of the charge against him. Their significance lies, instead, in the discretion of the Court to order the relief sought by the council if its appeal is successful, in particular, to find Mr O'Sullivan guilty of the charge and to record a conviction against him.
Because of the errors identified above it would not be appropriate for the Court to follow this course. Rather, the appropriate remedy would be, assuming the success of the appeal, to set aside the decision of the court below and to remit the matter for proper determination according to law.
It is to the substance of the council's appeal that the Court therefore now turns.

The Court Below Misconstrues the LEP and Takes Into Account an Irrelevant Consideration

It was a matter of common ground that the use of the land to keep pigs and chickens did not fall within item 3 of the E4 Zone table. That is to say, it was not a use that was permitted with consent.
The issue, therefore, was whether the activity of keeping pigs and chickens as a "hobby farm" (as Mr O'Sullivan described it) was, pursuant to item 2 in the table, permitted without consent. If it was not, then applying the ordinary principles of statutory construction (Mosman Municipal Council v IPM Pty Ltd [2016] NSWLEC 26 at [117]) the use was prohibited in accordance with item 3 (Marscon v Holroyd City Council [2003] NSWLEC 22; (2003) 123 LGERA 323 at [24]-[26]).
The council argued below that absent sufficient evidence of 'commercial purpose' satisfying the definitions of "intensive livestock agriculture", and therefore, "extensive agriculture", which would have meant that the development was permitted without consent on the land, the land was, upon the proper construction of the E4 Zone table, prohibited development.
The Learned Magistrate found, as a matter of fact, that the activity of keeping of pigs and chickens by Mr O'Sullivan was neither "extensive agriculture" nor "intensive livestock agriculture" for the purpose of the E4 Zone in the LEP (at [6]-[10]): 6 The Palerang Local Environment Plan 2014 adopts the three stage classification process. At paragraph 7 of the LEP "extensive agriculture" is permitted without consent. The council argues, and I do not think that it can be sensibly argued otherwise, that the activity of Mr O'Sullivan cannot be described as extensive agriculture. I will address that aspect again shortly. Further, in the list of uses set out as being permitted with consent, nothing that would describe the keeping of pigs and chickens in the fashion that Mr O'Sullivan is, is described there. 7 The keeping of pigs and chickens by Mr O'Sullivan is not extensive agriculture as it is defined generally. If it were extensive agriculture, it would mean that the activity was not "intensive livestock agriculture", which is not permitted in the E4 zone. For abundant clarity if the activity were intensive, or some other use not being extensive agriculture, the use would be prohibited. 8 It is not extensive agriculture because the use of the land does not involve the production of crops or fodder, the grazing of livestock for commercial purposes or beekeeping or a dairy. While there is some argument around whether or not the chickens and pigs were "grazing" on the land, there is no evidence which conclusively demonstrates that the defendant was doing so for any ostensible commercial purpose. While there is some suggestion that he may have been earning the odd income from the sale of pig or chicken product, there is insufficient evidence to arrive at any conclusion that the grazing of livestock was for commercial purposes. It is noted that "agriculture" is defined in the LEP and I have referred to the definition of extensive agriculture. It cannot be extensive agriculture because of the absence of the commercial purpose. 9 Similarly, "intensive agriculture" is also defined and it has a requirement for a commercial purpose. Under the LEP "intensive livestock agriculture" means the keeping or breeding, for commercial purposes, of cattle, poultry, pigs, goats, horses or other livestock that are fed wholly or substantially on externally sourced feed and includes any of the following… "piggeries, poultry farms…". 10 In addition to the absence of any evidence of a material commercial purpose, I am not satisfied that there is sufficient evidence to indicate or to prove that the pigs and chickens located on Mr O'Sullivan's property were fed wholly or substantially on externally sourced feed. The observations of the officers simply do not go so far as to allow the court to arrive at such a conclusion. Therefore, the use cannot be described as either intensive or extensive agriculture.
Thus his Honour correctly opined that in order for the prosecution to succeed it had to prove that the use of the land was such that it could be characterised as being development that was not specified as permitted without consent or permitted with consent (at [11]).
But his Honour proceeded to incorrectly have regard to cls 2(1)(a) and 6(1) the State Environmental Planning Policy No 30 - Intensive Agriculture ("the SEPP") which stated that: 2 Aims, objectives etc (1) The aims of this Policy are: (a) to require development consent for cattle feedlots having a capacity to accommodate 50 or more head of cattle, and piggeries having a capacity to accommodate 200 or more pigs or 20 or more breeding sows, and … 6 Development for the purpose of cattle feedlots or piggeries (1) A person must not carry out development for the purpose of: (a) a cattle feedlot having a capacity to accommodate 50 or more head of cattle, or (b) a piggery having a capacity to accommodate 200 or more pigs or 20 or more breeding sows, except with the consent of the consent authority.
Applying this description of a piggery (which required development consent), his Honour reasoned that Mr O'Sullivan was not engaged in this activity because there were not 200 or more pigs, or 20 or more sows on the land. Therefore, no development consent was required for Mr O'Sullivan's use of the land under the SEPP, and hence Mr O'Sullivan's use of the land was not prohibited under the LEP. This was so even though his Honour accepted that the use of the land was not permitted within the E4 Zone (at [12]-[18]): 12 One of the difficulties is that if one has regard to the SEPP a piggery there is described as something where there are 200 or more pigs, or 20 or more sows. Under this definition, the defendant is not running a piggery. Further, as I understand the evidence, the chickens, at least in the number that they were observed at the relevant time, were a transitory flock of free range birds, and the defendant no longer has that number on his property. Again, there is little evidence to support any view that there was a commercial purpose. 13 Interestingly, Palerang Council and/or its predecessor, the Yarrowlumla Shire Council, used to have a more specific LEP. The defendant tendered correspondence dated 9 May 2000 from that council in which it was advised that the keeping of any more than three adult pigs over 18 months old on the premises would be a breach of the LEP. That degree of specificity is no longer reflected in the 2014 LEP and it is that confusion which leads the prosecution to potentially fall between two stools. 14 The LEP, while it refers to intensive and extensive agriculture, purports to prohibit any other use that is not otherwise required by consent or otherwise permitted. However, that catchall cannot purport to cover all manner of imagined sins. For example, does running three or four dogs in the yard for the purpose of exercising constitute a use of land? Does the keeping of an aviary for pet birds on such land constitute a use of land that would be prohibited? Clearly the LEP has some work to do to promote and preserve the amenity of an area but it cannot be so intrusive so as to interfere with the peaceable enjoyment of such land. 15 There was some evidence that the waste product of the pigs could constitute an environmental hazard, but this aspect was put lightly and in any event the defendant submitted that his neighbours did not consider it a nuisance or that there was indeed any undue waste. One neighbour was called on behalf of the defendant who gave evidence to that effect. 16 The keeping of something like 40 pigs is probably more than a hobby, probably more than a pet lover's interest in pigs, and probably does have the potential to infringe upon the worthy objectives of the E4 zone. The difficulty is that the prosecution has nothing to hang its hat on. It is unable to prosecute on the basis of the pigs being an intensive enterprise, and conversely, Mr O'Sullivan is unable to rest on the permission granted by the conduct of extensive agriculture. The LEP has become less explicit when it comes to pigs and chickens, and external but nevertheless relevant sources such as the SEPP would suggest that a piggery is something more than what Mr O'Sullivan is doing. 17 It is the case that "development' means the use of land, however not all uses of land could possibly be the subject of statutory scrutiny under the Act. The difficulty for the prosecution in this case is that there is a lack of specificity in its LEP, such that it is impossible to conclusively pigeonhole the keeping of pigs and chickens in the fashion in which Mr O'Sullivan does within a category in the 2014 LEP. If the intention is that pigs should not be kept in any manner then the policy should say so, if it is that a certain number of pigs infringes the objective of the zone then that threshold should be identified. 18 The defendant's use of the land would not be a "piggery" as defined under the SEPP, and the Palerang LEP is silent on that issue, although it does indicate that a piggery is one example of intensive livestock agriculture. I accept that that is not a use permitted within an E4 zone however, for the reasons I have already enunciated, Mr O'Sullivan's keeping of pigs and chickens does not fall within that definition.
But as Ms Hammond correctly submitted to the court below, the SEPP had no application if the use of the subject land was a prohibited use under the LEP.
Clause 6(3) of the SEPP, which the Learned Magistrate was taken to (T30:01-05 and 31:40), unequivocally states that: (3) Nothing in this Policy authorises the carrying out of development on land for the purpose of a cattle feedlot or piggery if that development is prohibited from being carried out on that land by another environmental planning instrument
Accordingly, the SEPP had no work to do if the land use was prohibited, which it must have been given the proper construction of the E4 Zone tables and given his Honour's factual findings that the land was not being used for "extensive agriculture".
Whether the error by the court below is characterised as a misconstruction of the E4 Zone table in the LEP or the taking into account of an irrelevant consideration (Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39-41 and INL Group Limited v Director-General of the New South Wales Department of Planning [2011] NSWLEC 256 at [41]), namely, the provisions relating to piggeries in the SEPP, or both, the result is the same: an error of law was made by the Learned Magistrate in dismissing the charge. The appeal must therefore be upheld.

Ancillary Use

Finally, and for the sake of completeness, it remains to note a potential argument adverted to by the council that Mr O'Sullivan's use of the land to keep pigs and chickens could be ancillary to the lawful uses of the land for a dwelling house or stables (the latter of which was the subject of a development consent granted by Yarrowlumla Shire Council on 2 November 1999).
Clearly this is a matter which, if proven, would assist Mr O'Sullivan in defeating the charge. The issue does not, however, appear to have been raised in the court below and it would not be appropriate for this Court to consider it on appeal. It may, however, be a matter that the parties choose to explore when the matter is reheard upon remitter.

Costs

The council, having been successful on appeal, sought its costs of the appeal. This was resisted by Mr O'Sullivan.
Ordinarily such an order would be appropriate. However, in the unusual circumstances of this case, where Mr O'Sullivan raised a complete answer to the charge that was rejected by the Learned Magistrate in an erroneous manner, the better course is, in my view, to make no order as to costs.

Remitter

For the reasons discussed above, the decision of the Local Court must be set aside and the matter remitted for determination. But, in light of the prejudgment by the Learned Magistrate of the issue of whether or not Mr O'Sullivan could avail himself of existing use rights to defeat the charge, the matter should not be remitted to the judicial officer who heard the charge at first instance.

Orders

The orders of the Court are as follows: 1. the appeal is allowed; 2. the order made by the Local Court dismissing the prosecution against the respondent is set aside; 3. the matter is remitted to the Local Court for determination according to law, other than to the Learned Magistrate who heard the matter at first instance; and 4. 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: 08 July 2016

(2003) 123 LGERA 323

(2015) 209 LGERA 233

(2014) 203 LGERA 233

At a glance

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Judgment (13 paragraphs)

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Cases Cited (16)