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[2011] NSWLEC 134
Land and Environment Court (NSW)
2011-07-20
Preston CJ, Ms P
Original judgment source is linked above.
Development consent is sought and granted 1Ms Sally Rogers is the president and manager of an incorporated association, Happy Paws Haven Inc, which operates a private dog and cat shelter on Ms Rogers' property at 140 Tindal Road, Eatonsville. The shelter cares for dogs and cats which are surrendered, abandoned or rescued until an appropriate new owner and home can be found for the dogs and cats. 2On 10 November 2008, Happy Paws Haven lodged with Clarence Valley Council a development application seeking development consent for a proposed use described as "residential rural and temporary foster care of domestic dogs and cats until rehomed". The application also proposed the erection of various sheds, shelters, enclosures and fences for the dogs and cats. The proposed use was further described in the accompanying Statement of Environmental Effects as being: " · To provide short term foster care to healthy, unwanted or abandoned cats and dogs who are without owners · To rehabilitate orphaned, sick or injured cats and dogs and to rehome rescued and abandoned healthy cats and dogs that are vet checked, immunised, micro-chipped and de-sexed." 3The "Planned Site Plan" showed the various areas, sheds and shelters for dogs, small dogs and puppies and for cats and kittens. 4The Council sought further information and in response Happy Paws Haven provided on 1 April 2009 a wastewater management report, a noise assessment report and a management plan for the cats and dogs. 5On 16 June 2009, the Council purported to determine Happy Paws Haven's application by granting development consent to the development with conditions ("the development consent"). The development purported to be approved was for the purpose of "Animal Establishment". Conditions 1 and 2 of the development consent provided: "1. The development being completed in conformity with the Environmental Planning & Assessment Act, 1979, the Regulations thereunder, the Building Code of Australia and being generally in accordance with the Statement of Environmental Effects, additional information provided [in] letter dated 1 April 2009 and 'Planned Site Plan for 140 Tindal Road' lodged with the application, as amended in red, or where modified by any conditions of this consent. 2. This animal establishment under the animal welfare charity known as Happy Paws [Haven] Inc. on Lot 9 DP832434 is restricted to the temporary foster care for domestic cats and up to 6 domestic dogs at any one time only. Approval is to comply with all conditions of consent."
An order is issued to enforce the development consent 6Happy Paws Haven carried out the development including erecting the sheds, shelters, enclosures and fences and using these areas for the temporary foster care of dogs and cats. 7The Council became concerned, however, that the number of dogs being cared for exceeded the 6 domestic dogs fixed by Condition 2 of the development consent. 8On 15 February 2011, the Council issued an order under s 121B of the Environmental Planning and Assessment Act 1979 "[t]o cease using premises (Lot 9 DP 832434) in contravention of the conditions of development consent DA 2008/0982" ("the s 121B order"). The reasons given for issuing the order were: "The premises are being used in contravention of the conditions of a development consent. · The current use is inconsistent with the information provided with the application (Condition 1). · The animal establishment under the animal welfare charity known as Happy Paws [Haven] Inc is restricted to the temporary foster care of up to 6 domestic dogs (Condition 2). This restriction is being exceeded." 9On 14 March 2011, Happy Paws Haven lodged an appeal against the s 121B order (proceedings no 10216 of 2011).
The operator challenges the validity of the development consent and order 10On 1 June 2011, Happy Paws Haven commenced these proceedings (proceedings no 40461 of 2011) by summons in Class 4 of the Court's jurisdiction seeking, among other orders, declarations that the development consent and the s 121B order are invalid. The summons was amended most recently at the hearing to become the Further Amended Summons. 11Happy Paws Haven claims in its points of claim that the development it is carrying out is in fact for a purpose that is permissible without development consent in the relevant Zone No 1(b) (General Rural) under the applicable Nymboida Local Environment Plan 1986 ("the Nymboida LEP"), namely "agriculture", and is not for a purpose that may be carried out only with development consent in that zone, namely "commercial dog breeding and kennelling". Happy Paws Haven claims, therefore, that there was no requirement to apply for and no power to grant development consent to carry out the development which was permissible without development consent. Hence, the development consent was outside power and is invalid. Happy Paws Haven further claims that the s 121B order, which seeks to enforce the development consent, necessarily also must be outside power and invalid. 12At the hearing, a different reason for the invalidity of the development consent was raised. The Council purported to grant development consent to carry out development for the purpose of "animal establishment". The purpose of "animal establishment" is not a purpose specified under the heading "Only with development consent" in Item 3 of the Table to cl 9 of the Nymboida LEP for Zone No 1(b) (General Rural). Accordingly, it is not a purpose for which development may be carried out with development consent. The Council did not grant development consent to carry out development for the purpose of "commercial dog breeding and kennelling", that purpose being specified in Item 3 of the Table for Zone No 1(b) (General Rural) as being permissible only with development consent. 13Happy Paws Haven claims, therefore, that the grant of development consent for development for the purpose of "animal establishment", not being a specified purpose for which development may be carried out with consent in the zone, was outside power and the consent is invalid for this reason as well.
The council defends the validity of the development consent and order 14The Council sought to uphold the validity of the development consent. In relation to Happy Paws Haven's first claim of invalidity, the Council contends that the development proposed in the development application and actually being carried out by Happy Paws Haven is properly to be characterised as being for the purpose of commercial dog breeding and kennelling. If the development is for that purpose, then development consent was required, regardless of whether the development might also be able to be characterised as being for the purpose of agriculture. 15In relation to the second claim of invalidity, the Council offered an explanation for the development consent being granted for the purpose of "animal establishment", rather than "commercial dog breeding and kennelling." In the Clarence Valley Council local government area, a number of local environmental plans apply. This is a consequence of the amalgamation of the former Copmanhurst Shire, Grafton City, Maclean Shire and Pristine Waters Shire into Clarence Valley Council. Each of these former councils had their own local environmental plans which were different in many respects. The purpose of development of "animal establishment" was a specified purpose permissible with the development consent in other local environmental plans now administered by Clarence Valley Council. 16I note, for example, Grafton Local Environmental Plan 1988 specifies "animal establishment" as a purpose permissible with consent in rural zones. It defines "animal establishment" broadly in cl 5 to mean "a building or place used for any one or more of the purposes of intensive animal husbandry or the boarding, training or keeping of animals, birds, fish, crustaceans, insects or the like, generally requiring the importation of feed from sources outside the land on which the development is conducted". 17The Council submits that the council officers dealing with Happy Paws Haven's development application may have mistakenly applied the purpose of "animal establishment" which is used in other local environmental plans in the Clarence Valley Council local government area, but not in the relevant Nymboida LEP, to the proposed development. 18Whilst this may be the explanation for the Council's error, it does not provide an answer to the claim that the grant of development consent to development for the purposes of "animal establishment" was outside power.
The development consent and order are invalid 19In my view, the development consent was outside power and should be declared invalid. The reason is that the Council purported to grant development consent to carry out development for the purpose of "animal establishment". The purpose of "animal establishment" is not, however, a purpose specified under the heading "Only with development consent" in Item 3 of the Table in cl 9 of the Nymboida LEP for the relevant Zone No 1(b) (General Rural) as a purpose for which development may be carried out only with development consent. The Council only had power to grant development consent to carry out development for a purpose so specified. A consent authority cannot grant development consent to carry out development which is permissible without development consent or which is prohibited. 20The purported grant of development consent to carry out development for the purpose of animal establishment cannot be explained as a mere error in nomenclature, namely that the Council intended to grant consent for the purpose of commercial dog breeding and kennelling but mistakenly described the purpose by the name of animal establishment. The development consent and the conditions of consent clearly purport to approve and regulate an "animal establishment" for "the temporary foster care for domestic cats and ... dogs". The conditions deal not only with dogs, as would be necessary if the development were to be for the purpose of commercial dog breeding and kennelling, but also regulate the care and boarding of cats (Conditions 1 and 2) including the construction of the building and operation of the boarding cattery (Condition 6), which uses and activities are outside the purpose of commercial dog breeding and kennelling. 21The development consent and conditions clearly establish that the Council did not purport to grant development consent to carry out development for the purpose of commercial dog breeding and kennelling, but rather for the different and broader purpose of animal establishment which includes the keeping and care of cats as well as dogs. 22The development consent was therefore granted outside power and should be declared invalid. 23This conclusion also resolves Happy Paws Haven's first claim of invalidity. That claim was founded on the assumption that the development for which development consent had been granted was for the purpose of commercial dog breeding and kennelling. Happy Paws Haven's argument was that the development proposed in its development application and supporting documents and that it is actually carrying out is not for the purpose of commercial dog breeding and kennelling but rather is for the purpose of agriculture. Development for the purpose of agriculture is permissible without development consent. Hence, development consent was not required and the development consent that was granted was outside power. 24However, the assumption is incorrect: the development consent approved the carrying out of development for the purpose of animal establishment, not commercial dog breeding and kennelling. Hence, in determining the validity or invalidity of the development consent, it matters not whether the development proposed or actually carried out by Happy Paws Haven could be characterised as being for the purpose of commercial dog breeding and kennelling, or for the purpose of agriculture; the development consent was not granted for either of those purposes. It only matters that the development consent was granted for a purpose, which was not specified as being permissible with development consent. 25If the development consent is outside power and invalid, then the s 121B order which seeks to enforce compliance with conditions of that development consent must necessarily be outside power. The s 121B order should therefore be declared invalid.
Development is for agriculture and not commercial dog breeding and kennelling 26Happy Paws Haven also sought in its Further Amended Summons declarations that it did not require consent to use the lands as "a non- commercial dog and cat shelter", "a non-commercial dog shelter" or "a non-commercial cat shelter". These descriptions of the development find no place in the Nymboida LEP. They are not specified purposes for which development may be carried out without development consent in the relevant Zone No 1(b) (General Rural). Hence, there is no legal utility in characterising Happy Paws Haven's development in any of these terms. 27In the Points of Claim and its submissions at the hearing, Happy Paws Haven contends that no development consent was required because its development was and is for the purpose of agriculture. However, Happy Paws Haven did not seek in the Further Amended Summons a declaration to this effect. 28Notwithstanding these defects in the terms of the declaratory relief sought in the Further Amended Summons and Points of Claim, Happy Paws Haven clearly seeks for the Court to declare that development consent is not required for the development being carried out by it. In order for this result to occur, the development must be able to be characterised as being for the purpose of "agriculture", being the only relevant purpose specified in item 2 of the Table for the relevant Zone No 1(b) (General Rural) as being able to be carried out without development consent, as well as not being able to be characterised as being for "commercial dog breeding and kennelling", being the only relevant purpose specified in item 3 of the Table for the Zone No 1(b) as being able to be carried out only with development consent. By being for a purpose specified in item 2, and not item 3, the development will not be for a purpose prohibited under item 4 of the Table. 29"Agriculture" is not defined in the Nymboida LEP but cl 6 adopts the definitions in the Environmental Planning and Assessment Model Provisions 1980. "Agriculture" is defined in cl 3 of the Model Provisions as having "the meaning ascribed to it in section 514A of the Local Government Act 1919". The definition in s 514A of the Local Government Act 1919 is stated to include "the use of land for any purpose of husbandry, including the keeping or breeding of live stock". 30Happy Paws Haven submits that "live stock" includes dogs and cats: see Halliday v Hornsby Shire Council [1979] 1 NSWLR 391 at 394, 395 (the keeping and breeding of dogs and puppies is agriculture) and Wellington Council v Aitchison [1995] NSWLEC 232 (the keeping and breeding of ostriches is agriculture). 31Happy Paws Haven in its Points of Claim submits that although the development does not involve breeding of dogs or cats, it does involve keeping them. This is husbandry. The development is therefore for the purpose of agriculture. 32The Council in its Points of Defence does not dispute that dogs are included in the term "live stock" and use of the land for the keeping of live stock includes the keeping of dogs as Happy Paws Haven claims. Although not referred to, the same concession would be applicable to the cats kept by Happy Paws Haven. 33Hence, the development of husbandry, including keeping dogs and cats, carried out by Happy Paws Haven on the land can be characterised as being for the purpose of "agriculture". 34The next step is to determine whether the development carried out by Happy Paws Haven may also be characterised as being for "commercial dog breeding and kennelling". If it can be, the Council submits, development for that purpose may only be carried out with development consent, notwithstanding the development may also be characterised as being for the purpose of agriculture. 35The Council submits this follows because the inclusion of specific kinds of agriculture, including relevantly in this case commercial dog breeding and kennelling, in item 3 of the Table as requiring development consent impliedly removes these specific kinds of agriculture from the generic class of agriculture able to be carried out without development consent. 36On the other hand, there are indicators that support a different construction. The draftsman of the Nymboida LEP has been careful in each of the zones to exclude from the generic class of activities that comprise the purpose of agriculture which is permissible without development consent, those specific kinds of agriculture which require development consent. Thus, in the relevant Zone No 1(b) (General Rural), the class of activities that comprise the purpose of agriculture which is specified in item 2 of the Table as being permissible without consent is "agriculture (other than commercial poultry keeping, goat keeping, lot feeding of livestock and pig keeping)". Each of the four, excluded, specific kinds of agriculture are then specified as being permissible only with development consent in item 3 of the Table. In this way, overlap between the two items (item 2, Without development consent and item 3, Only with development consent) is avoided. 37In contrast, in two other rural zones, Zone No 1(c) (Small Holdings) and Zone No 1(d) (Small Holdings), the class of activities that comprise the purpose of agriculture that is specified in item 2 of the Table as being permissible without development consent is "agriculture (other than commercial dog breeding or kennelling, commercial horse stables, commercial poultry keeping, goat keeping, lot feeding of livestock and pig keeping)". Some of these six, excluded, specific kinds of agriculture are specified in item 3 of the Table for the different zones as purposes permissible only with development consent but others are not specified in item 3 and thereby become prohibited under item 4 of the Table. It is notable that one of the excluded specific kinds of agriculture is "commercial dog breeding or kennelling." This agricultural activity is prohibited in Zone No 1(c) but is permissible with development consent in Zone No 1(d). In further contrast, in Zone No 1(f) (Forests), "agriculture" is specified as being permissible without development consent without any exclusions at all. 38This general drafting technique in the Nymboida LEP of specifically excluding some but not all specific kinds of agriculture from the generic purpose of agriculture as well as the specific drafting technique of excluding "commercial dog breeding or kennelling" from "agriculture" in some zones, but not excluding "commercial dog breeding and kennelling" from "agriculture" in Zone No 1(b) (General Rural), are indicators in support of a construction that commercial dog breeding and kennelling may fall within the purpose of agriculture which is permissible without development consent, notwithstanding the inclusion of "commercial dog breeding and kennelling" in item 3 as requiring development consent. 39However, it is not necessary to finally decide this point of construction as I am of the view that the development being carried out by Happy Paws Haven is not properly to be characterised as being for the purpose of "commercial dog breeding and kennelling". Hence, even if the Council's construction were to be preferred, Happy Paws Haven would not be required to obtain development consent to carry out its development for the purpose of "commercial dog breeding and kennelling". There are four reasons for this conclusion. 40First, in so far as Happy Paws Haven keeps and cares for cats, that part of the development cannot be characterised as being for the purpose of "commercial dog breeding and kennelling". Both "dog breeding" and "kennelling" only involve dogs, not cats or other animals. 41Secondly, in relation to the part of the development involving keeping and caring for dogs, it does not fall within the purpose of "commercial dog breeding and kennelling" (emphasis added). "Commercial dog breeding and kennelling" is not defined in the Nymboida LEP or in the adopted Model Provisions. It is, however, distinctive. The purpose of "commercial dog breeding and kennelling" is only specified for Zone No 1(b) (General Rural). It stands in contrast to the purpose specified in other zones (such as Zone Nos 1(c), 1(d) and 1(e)) of "commercial dog breeding or kennelling" (emphasis added). The use of the conjunctive "and" for the purpose specified in Zone No 1(b) but the use of the disjunctive "or" for the purpose specified in the other zones must be given meaning. 42The evidence does not establish that the development carried out by Happy Paws Haven involves dog breeding. Any puppies present at the facility have been surrendered, abandoned or rescued and are not the product of breeding at the facility. Hence, the development cannot be characterised as being for the purpose of "commercial dog breeding and kennelling." 43Thirdly, even if it were to be possible to construe the phrase disjunctively, so that it is sufficient for there to be "commercial dog kennelling" only, the development carried out by Happy Paws Haven is not readily described as involving commercial dog kennelling . The Council submits that the operation conducted by Happy Paws Haven is commercial, as the scale of activity carried on is of such a degree and intensity as would be expected in a commercial dog breeding and kennelling facility. Happy Paws Haven advertises dogs available for adoption and it charges a price to the person who adopts a dog. I will deal with this submission nextly. But for the moment the point is that it is not sufficient for Happy Paws Haven's operation simply to be "commercial", it must be "commercial dog kennelling". Kennelling is defined as "an establishment where dogs are bred or boarded" (Macquarie Dictionary). The Nymboida LEP uses the composite phrases of "commercial dog breeding and kennelling" or "commercial dog breeding or kennelling", either way distinguishing between dog breeding and kennelling. Hence, "kennelling" in the composite phrase must refer to the boarding of dogs. To board dogs is to provide a service. Commercial kennelling involves providing this service of boarding dogs in trade or commerce. 44On the evidence, Happy Paws Haven does not offer or provide the service of boarding dogs in trade or commerce. The advertising of dogs for adoption by new owners and the charging of a price to the person who adopts the dog is not evidence of commercial dog kennelling, in this sense of providing the service of boarding dogs in trade or commerce. At most, it could be evidence of trade or commerce in the dogs as goods. The dogs are being advertised as property to be acquired; the new owner adopts a dog and takes ownership of it. The donation made by the new owner is the consideration for the passing of the property in the dog. It is not a fee for service of kennelling the dog. The advertisements do not offer to board dogs. 45Fourthly, the development described by Happy Paws Haven in its development application as "temporary foster care of domestic dogs and cats until rehomed" and described by the Council in the development consent as "temporary foster care for domestic cats and ... dogs" is not readily described as " commercial dog breeding and kennelling" (emphasis added). 46Happy Paws Haven submits that, even if its operation could be said to be dog breeding and kennelling, it is not "commercial" dog breeding and kennelling. Happy Paws Haven submits that:
COSTS AND ORDERS 59Happy Paws Haven has been successful in its application for orders declaring the development consent and s 121B order invalid and that its development may be carried out without development consent as being for the purpose of agriculture and not for the purpose of commercial dog breeding and kennelling. These proceedings are in Class 4 of the Court's jurisdiction where the usual order is that costs follow the event. There are no circumstances or conduct which would disentitle Happy Paws Haven from the usual costs order. The Council should therefore pay Happy Paws Haven's costs of the proceedings. 60The Court:
Rogers
Clarence Valley Council
[1995] NSWLEC 232