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:
- Happy Paws Haven is an animal welfare charity that is run not-for-profit.
- The operation Happy Paws Haven runs is a private dog and cat shelter providing temporary foster care for dogs and cats that are surrendered, abandoned or rescued until they can be rehomed if this is possible.
- The operation runs at a loss and depends on donations and volunteers.
- Happy Paws Haven has a website on which there are webpages for "Dogs and Puppies for Adoption" and "Cats and Kittens for Adoption", under which there are individual profiles of the dogs and cats available. On individual profiles, Happy Paws Haven states that the dog or cat is available for adoption for a "donation" and the amount is stated to be "donation on application".
- Ms Rogers' evidence is that the making of a donation is voluntary:
"[w]hen suitable people are interested in a dog or cat, I tell the person(s) what the veterinary costs were for [the] dog or cat and then I ask for a donation. I always leave the amount of the donation to the person or people themselves. I do not even mention all the other costs such as for food. I never talk [or] mention the word 'price'."
- Happy Paws Haven is listed on the website maintained by an unrelated not-for-profit organisation, Pet Rescue, which finds new homes for lost and abandoned pets, as a shelter in the Shelter Directory. Under the entry for Happy Paws Haven, dogs and cats available for adoption are listed using the standard profile at Pet Rescue. One line item in the standard profile is "Adoption fee". For two dogs listed by Happy Paws Haven the information on "Adoption fee" was stated to be "$ POA". Ms Rogers' evidence is that:
"The words 'price on application' were put on the website not for the purpose of actually charging a price but rather for the purpose of the future welfare of our cats and dogs by ensuring people who are interested in taking a dog or cat care enough to pay for them and to discourage others who may just be looking to get something for free.
We have never actually set a price on any dog or cat. The use of the word 'price' though convenient in the way I have described, has never been essential. I have attended to amend all websites which mention a price to delete the words 'price o[n] application' and to insert instead 'donation upon application' or 'donate' to reflect our actual practice."
- The scale and intensity of Happy Paws Haven's use is small and differs from commercial dog kennels.
47The Council accepts that Happy Paws Haven's operation is not carried out for the purpose of profit making but submits that the ordinary meaning of the adjective "commercial" is broader than activities pursued solely for gain, though it embraces such activities, and can include activities done on a not-for-profit basis.
48The Council further submits that reference to the context of the Nymboida LEP generally, and the development control provisions for the rural zones in particular, as well as the zone objectives, supports the construction that the adjective "commercial" is apt to describe or refer to the scale of the enterprise or activity, rather than simply the motive for pursuit of those activities.
49The Council contends that the scale of the activity carried out by Happy Paws Haven is of such a degree and intensity as would be expected in a commercial dog breeding and kennelling facility. The Council draws attention to the following matters: