Tweed Shire Council v Cooke

Civil enforcement

1. Tweed Shire Council (the Council) the Applicant has commenced two civil enforcement proceedings in relation to alleged breaches of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) concerning the use of land Lot 34 DP 755714 (Lot 34) and separately Lot 3 DP 1264574 (Lot 3) (the Development Site) in Kunghur northern NSW for growing hemp plants and related activities.
2. In proceeding 2021/364584 regarding use of Lot 34 the First Respondent Mr Cooke and the Second Respondent Mr Kovac are co-owners of Lot 34 together with the Third Respondent Mr Van Lieshout who filed a submitting appearance save as to costs. In proceeding 2021/364656 regarding use of Lot 3 Mr Cooke is the First Respondent and Kempcove Pty Ltd the Second Respondent is the sole owner of Lot 3. Kempcove Pty Ltd has filed a submitting appearance save as to costs. Mr Cooke and Mr Kovac are the active respondents in relation to the Lot 34 proceeding and Mr Cooke is the active respondent in relation to the Lot 3 proceeding (the Respondents).
3. It is not disputed that the Development Site was used for the growing of hemp plants and the use of hemp leaves to infuse olive oil which is bottled and packaged for sale on-line and in leased shop premises in Murwillumbah called Australian Cannabis University Store. As discussed below in [5]-[15], due to recent events the use is currently not occurring.
4. On 8 April 2022 an order was made that the matters should be heard together and that evidence in one case be evidence in the other. The proceedings were stood over on 30 March 2023 part heard to enable evidence on bushfire safety to be prepared. Further days of hearing were held on 20 June 2023 and 27 June 2023. Significant events occurred in the intervening period from the Respondents' point of view as attested to in the affidavit of Mr Jeong solicitor dated 16 June 2023 which leave was given to rely on in court on 20 June 2023. These events are recorded below in [5]-[15]. Changes in the summonses also resulted from these events.

Low-THC hemp licence refused

1. Mr Jeong solicitor affirmed an affidavit dated 16 June 2023 which attested that Mr Cooke's application for a low-THC hemp licence as required by the Hemp Industry Act 2008 (NSW) was refused. Mr Jeong is instructed that all farming and ancillary activities including the occupation of buildings for residential use have ceased. Two Class 1 appeals are also now on foot.

Low-THC hemp licence issued 8 January 2013, 9 January 2018

1. Mr Cooke was the licensee for low-THC hemp licence HIA 38 issued on 8 January 2013 in force until 8 January 2018.The licence was subject to general conditions that apply under the Hemp Industry Act. Mr Cooke was then issued low-THC hemp licence 50157 dated 9 January 2018 expiring 8 January 2023. The licence authorised the following activities on Lot 34: 1. Cultivate low-THC hemp for commercial production; 2. Supply low-THC hemp for commercial production; 3. Cultivate low-THC hemp for use in manufacturing process; and 4. Supply low-THC hemp for use in manufacturing process.

Rural industry development application refusal Class 1 appeal

1. A Class 1 appeal (2023/00192915) in relation to the refusal by the Council of development application DA/0601 seeking approval for the use of buildings on the Development Site as farm buildings (Rural Industry DA) was filed in the Court on 16 June 2023. Consent for use as farm buildings is sought in relation to Buildings I-P (shipping containers), 3 (kitchen and office), 6-7 (greenhouse, two storey shed and retaining walls), X (timber hut, security), Z (lab building), A (general manager's facilities), Q-V (agricultural greenhouses), W (water tank), 5 (two shipping containers with associated roof covering), 4 (toilet structure), 8 (greenhouse tool containers), B (toilet), C (small greenhouse), E (toilet), Y (composting toilet) and AA (unless earlier removed by the Respondents).
2. Consent for demolition is sought in relation to buildings G (shed), 1 (goat shed), 2 (Darko's cabin), and 5 (two shipping containers and roof).

Building information certificate refusal Class 1 appeal

1. A Class 1 appeal (2023/00193058) in relation to the refusal of building information certificate (BIC) BC22/0058 was lodged on 16 June 2023. The BIC is sought in relation to Buildings I-P (downtown), 3 (Kitchen & office), Z (lab building), X (security), and 6a (retaining walls).
2. Mr Jeong affirmed an affidavit dated 26 June 2023 which attests that a BIC application was lodged on 25 June 2023 for Buildings A, B and C. These buildings are the subject of the Class 1 Appeal (2023/00192915) seeking approval for the Rural Industry DA. The Respondents prepared a summary document listing structures subject to the BIC appeal and structures subject of the further BIC application (marked MFI 4)
3. I note for completeness that no Class 1 appeal was lodged for the refusal of the development application DA22/0742 seeking approval for an expanded dwelling house (Dwelling House DA). Buildings A and 2 were the subject of that DA.

Undertakings

1. An undertaking by the Respondents was provided to the Court in proceeding 2021/364584 concerning Lot 34 on 20 June 2023 (Ex 4) as follows: The First and Second Respondents undertake: (a) not to undertake any hemp farming, or ancillary activities including hemp processing activities (subject to (b) below), on either Lot 34 or Lot 3 unless and until a renewed or new hemp licence is issued by the Department of Primary Industries in respect of the lot; (b) not to make any residential use of Building A and Building 2 on Lot 34 that is the subject of these proceedings and under the care and control of the First or Second Respondents (unless and until development consent is granted for such residential use); (c) to demolish: the two sheds marked 'G' (noting 'H' has been demolished); Building 1 (Goat shed); Building 2 (Wooden Cabin); Building 5 (two shipping containers and associated roof covering and awnings), subject to obtaining development consent for such demolition; and (d) to remove: shipping container beside Building 1 and caravan near Building F.
2. An undertaking in very similar terms was provided to the Court by Mr Cooke in proceeding 2021/364656 concerning Lot 3 on 20 June 2023 (Ex 4) as follows: The First Respondent undertakes: (a) not to undertake any hemp farming, or ancillary activities including hemp processing activities (subject to (b) below), on either Lot 34 or Lot 3 unless and until a renewed or new hemp licence is issued by the Department of Primary Industries in respect of the lot; (b) not to make any residential use of Building A and Building 2 on Lot 34 that is the subject of these proceedings and under the care and control of the First or Second Respondents (unless and until development consent is granted for such residential use); (c) to demolish: the two sheds marked 'G' (noting 'H' has been demolished); Building 1 (Goat shed); Building 2 (Wooden Cabin); Building 5 (two shipping containers and associated roof covering and awnings), subject to obtaining development consent for such demolition; and (d) to remove: shipping container beside Building 1 and caravan near Building F.
3. The use of various compost toilets remained in dispute pending approval under s 68 of the Local Government Act 1993 (NSW) (LG Act) which the Respondents accepted they needed. By affidavit affirmed 26 June 2023, Mr Jeong stated that a LG Act application for the toilet structures being Buildings B, E, 4 and Y and a toilet structure near Buildings Q to V was lodged on 25 June 2023. A further undertaking was given to the Court on 27 June 2023 in proceeding 2021/364584 (Ex 8) as follows: 1. The First and Second Respondents undertake not to make any use of the toilet structures on Lot 34 or Lot 3 that are the subject of these proceedings and under the care and control of the First or Second Respondents, being Buildings B, E, 4 and Y and a toilet structure near Buildings Q to V, unless and until approval is granted for their use under section 68 of the Local Government Act 1993.
4. A further undertaking in very similar terms was given to the Court on 27 June 2023 in proceeding 2021/364656 (Ex 8) as follows: 1. The First Respondent undertakes not to make any use of the toilet structures on Lot 34 or Lot 3 that are the subject of these proceedings and under the care and control of the First or Second Respondents, being Buildings B, E, 4 and Y and a toilet structure near Buildings Q to V, unless and until approval is granted for their use under section 68 of the Local Government Act 1993.
5. These changed circumstances reduced the need to consider most issues heard in the first tranche of the hearing, and changed the nature of the relief sought by the Council as reflected in the recently further amended summonses set out below in [17] and [19].

Third further amended summons filed in court 27 June 2023 (2021/364584) Lot 34

1. The Council seeks the following relief in proceeding 2021/364584 concerning Lot 34 in the Third Further Amended Summons filed in court 27 June 2023 (marked MFI 5): The Court notes and accepts the undertaking of the First and Second Respondents in the affidavit of Mr Jeong dated 16 June 2023 , as amended on 20 June 2023, and further undertakings dated 26 June 2023 and orders the following relief: 1 A declaration that the First Respondent has breached section 4.2(1)(a) of the Environmental Planning and Assessment Act 1979 (EPA Act) by using land identified as Lot 34 in DP 755714 located at 2956 Kyogle Road, Kunghur, New South Wales (Lot 34) and structures thereon for the purposes of an agricultural produce industry, being a type of rural industry (by the handling, treating, processing and storage of produce from agriculture for commercial purposes) being development permissible with consent pursuant to the Tweed Local Environmental Plan 2014 (LEP), but which consent has not been obtained. 2 A declaration that the First Respondent has breached section 4.2(1)(a) of the EPA Act by carrying out building works for the purposes of an agricultural produce industry (being a type of rural industry) on Lot 34 for which development consent is required but which none has been obtained, comprising: a) alterations and additions to a building comprising a site office, kitchen facilities, laboratory area and attached timber deck, located in the area marked "3" on the site map annexed hereto and marked Annexure A (Site Map); b) the erection of a rectangular greenhouse measuring approximately 16 metres in length and 8metres in height, located in the area marked "6" on the Site Map; c) the erection of a two-storey shed located in the area marked "7" on the Site Map; d) the installation of two shipping containers, with an associated roof covering and awnings, in the location marked "8" on the Site Map; e) the construction of six greenhouses approximately 100m2 in area in the areas marked "Q", "R", "S", "T", "U" and "V" on the Site Map; f) the erection of 8 shipping containers in the locations marked "I", "J", "K", "L","M", "N", "O" and "P" on the Site Map; g) the installation of two water tanks, located in the areas marked "3" and "W" on the Site Map; and h) a plastic igloo/greenhouse structure, earthworks, retaining walls, and placement of concrete blocks in the locations marked, "C", "6" and "7" on the Site Map. 3 A declaration that the First Respondent has breached section 4.2(1)(a) of the EPA Act by carrying out building works on Lot 34 comprising a structure (located in the area marked "A") for which development consent is required but which none has been obtained. 4 An order that the First Respondent by himself, his employees, servants and agents be restrained from using or permitting to be used or recommencing the use of Lot 34 for the purposes of an agricultural produce industry (being a type of rural industry) and any buildings thereon as farm buildings, without first obtaining development consent. 5 Subject to orders 8 and 9, an order that the First Respondent, by himself, his employees, servants and agents within 28 days remove and demolish all buildings and structures referred to in paragraph 2 above and dispose of any residual building material following demolition of the buildings and structures at an authorised waste facility. 6 Subject to orders 8 and 9, an order that the First Respondent, by himself, his employees, servants and agents within 28 days remove and demolish the building located in the area marked "A" and dispose of any residual building material following demolition of the buildings and structures at an authorised waste facility. 7 An order that the First Respondent, by himself, his employees, servants and agents within 7 days remove any caravans remaining on Lot 34. 8 The time for compliance with orders 5 and 6 does not commence until the appeals in proceedings 2023/00192915 and 2023/00193058 are finally determined. 9 In the event that upon the final determination of proceedings 2023/00192915 and 2023/00193058 the appeals are upheld, and the Court grants a development consent and a building information certificate, the First and Second Respondent may within 28 days approach the Court for a variation of orders 5 and 6. 10 An order that the Respondents pay the Applicant's costs of these proceedings. 11 Such other or further orders as the Court sees fit. 12 Liberty to restore on 3 days notice.
2. The Site Map attached to the summonses was updated during the hearing and is extracted below in [20].

Second further amended summons filed in court 27 June 2023 (2021/364656) Lot 3

1. The Council seeks the following relief in proceeding 2021/364656 concerning Lot 3 in the Second Further Amended Summons filed in court 27 June 2023 (marked MFI 5): The Court notes and accepts the undertaking of the First Respondent in the affidavit of Mr Jeong dated 16 June 2023, as amended on 20 June 2023 and further undertakings dated 26 June 2023, and orders the following relief: 1 A declaration that the First Respondent has breached section 4.2(1)(a) of the Environmental Planning and Assessment Act 1979 (EPA Act) by using land identified as Lot 3 in DP 1264574 located at 2924 Kyogle Road, Kunghur, New South Wales (Lot 3) for the purposes of an agricultural produce industry, being a type of rural industry (by the handling, treating, processing, storage and packing of produce from agriculture for commercial purposes) being development permissible with consent pursuant to the Tweed Local Environmental Plan 2014 (LEP), but which consent has not been obtained. 2 A declaration that the First Respondent has breached of section 4.2(1)(a) of the EPA Act by carrying out development on Lot 3 for which development consent is required but which none has been obtained, comprising: (a) the construction of a building which is located in the area marked "X" on the Site Map; and (b) the construction of a two-storey shed and adjacent water tank which is located in the area marked "Z" on the Site Map. 3 An order that the First Respondent by himself, his employees, servants and agents be restrained from using or permitting to be used or recommencing the use of Lot 3 for the purposes of an agricultural produce industry (being a type of rural industry) and any buildings thereon as farm buildings, without first obtaining development consent. 4 Subject to orders 5 and 6, an order that the First Respondent, by himself, his employees, servants and agents within 28 days remove and demolish all buildings and structures referred to in paragraph 2 above and dispose of any residual building material following demolition of the buildings and structures at an authorised waste facility. 5 The time for compliance with order 4 does not commence until the appeals in proceedings 2023/00192915 and 2023/00193058 are finally determined. 6 In the event that upon the final determination of proceedings 2023/00192915 and 2023/00193058 the appeals are upheld, and the Court grants a development consent and a building information certificate, the First Respondent may within 28 days approach the Court for a variation of order 4. 7 An order that the Respondents pay the Applicant's costs of these proceedings. 8 Such other or further order as the Court deems fit.
2. The Site Map attached to the summonses was updated during the hearing and is extracted below (marked MFI 3).

Environmental Planning and Assessment Act 1979 (NSW) (EPA Act)

1. Section 4.2 of the EPA Act states: Part 4 Development assessment and consent Division 4.1 Carrying out of development - with consent, without consent and prohibited … 4.2 Development that needs consent (1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless - (a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument. Maximum penalty - Tier 1 monetary penalty. (2) For the purposes of subsection (1), development consent may be obtained - (a) by the making of a determination by a consent authority to grant development consent, or …

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) (Codes SEPP)

1. Clause 2.32 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) (Codes SEPP) [historical version for 1 January 2019 to 7 January 2019 agreed to apply] states: Part 2 Exempt Development Codes Division 1 General Exempt Development Code … Subdivision 16 Farm buildings (other than stock holding yards, grain silos and grain bunkers) … 2.32 Development standards (1) The following standards are specified for that development: … (c) if the development: ((i) is on a landholding that has an area of more than 4ha, and (ii) is on a landholding in relation to which the natural ground at any point within 100m of the ridgeline of any hill is at least 20m lower than the ridgeline, and (iii) is located within 100m of that ridgeline, it must be sited on the landholding so that the highest point of the development is at least 5m below that ridgeline, … (g) a farm building must be located at least 6m from any other farm building (including any farm building that is a stock holding yard, grain silo or grain bunker) on the landholding or on an adjoining landholding, …

Tweed Local Environmental Plan 2014 (NSW) (TLEP)

1. The relevant clauses of the Tweed Local Environmental Plan 2014 (NSW) (TLEP) state: … Part 2 Permitted or prohibited development … 2.3 Zone objectives and Land Use Table (1) The Land Use Table at the end of this Part specifies for each zone - (a) the objectives for development, and (b) development that may be carried out without development consent, and (c) development that may be carried out only with development consent, and (d) development that is prohibited. (2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone. (3) In the Land Use Table at the end of this Part - (a) a reference to a type of building or other thing is a reference to development for the purposes of that type of building or other thing, and (b) a reference to a type of building or other thing does not include (despite any definition in this Plan) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone. (4) This clause is subject to the other provisions of this Plan. … Land Use Table Zone RU2 Rural Landscape 1 Objectives of zone • To encourage sustainable primary industry production by maintaining and enhancing the natural resource base. • To maintain the rural landscape character of the land. • To provide for a range of compatible land uses, including extensive agriculture. • To provide for a range of tourist and visitor accommodation-based land uses, including agri-tourism, eco-tourism and any other like tourism that is linked to an environmental, agricultural or rural industry use of the land. 2 Permitted without consent Environmental facilities; Environmental protection works; Extensive agriculture; Home occupations; Intensive plant agriculture 3 Permitted with consent Airstrips; Animal boarding or training establishments; Aquaculture; Bed and breakfast accommodation; Boat launching ramps; Boat sheds; Camping grounds; Caravan parks; Cellar door premises; Cemeteries; Community facilities; Crematoria; Depots; Dual occupancies (attached); Dwelling houses; Eco-tourist facilities; Educational establishments; Extractive industries; Farm buildings; Farm stay accommodation; Flood mitigation works; Forestry; Funeral homes; Garden centres; Group homes; Helipads; Home-based child care; Home businesses; Home industries; Hostels; Industrial retail outlets; Industrial training facilities; Information and education facilities; Intensive livestock agriculture; Jetties; Kiosks; Landscaping material supplies; Markets; Open cut mining; Places of public worship; Plant nurseries; Recreation areas; Recreation facilities (major); Recreation facilities (outdoor); Restaurants or cafes; Roads; Roadside stalls; Rural industries; Rural supplies; Rural workers' dwellings; Signage; Timber yards; Transport depots; Truck depots; Turf farming; Veterinary hospitals; Water recreation structures; Water supply systems; Wharf or boating facilities 4 Prohibited Any development not specified in item 2 or 3 … Dictionary … agricultural produce industry means a building or place used for the handling, treating, processing or packing, for commercial purposes, of produce from agriculture (including dairy products, seeds, fruit, vegetables or other plant material), and includes wineries, flour mills, cotton seed oil plants, cotton gins, feed mills, cheese and butter factories, and juicing or canning plants, but does not include a livestock processing industry. agriculture means any of the following - (aaa) agritourism, (a) aquaculture, (b) extensive agriculture, (c) intensive livestock agriculture, (d) intensive plant agriculture. … 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 (other than pigs and poultry) for commercial purposes on living grasses and other plants on the land as their primary source of dietary requirements, and any supplementary or emergency feeding, or temporary agistment or housing for weaning, dipping, tagging or similar husbandry purposes, of the livestock, (c) bee keeping, (d) a dairy (pasture-based) where the animals generally feed by grazing on living grasses and other plants on the land as their primary source of dietary requirements, and any supplementary or emergency feeding, or temporary agistment or housing for weaning, dipping, tagging or similar husbandry purposes, of the animals. … farm building means a structure the use of which is ancillary to an agricultural use of the landholding on which it is situated and includes a hay shed, stock holding yard, machinery shed, shearing shed, silo, storage tank, outbuilding or the like, but does not include a dwelling. … horticulture means the cultivation of fruits, vegetables, mushrooms, nuts, cut flowers and foliage and nursery products for commercial purposes, but does not include a plant nursery, turf farming or viticulture. … intensive plant agriculture means any of the following - (a) the cultivation of irrigated crops for commercial purposes (other than irrigated pasture or fodder crops), (b) horticulture, (c) turf farming, (d) viticulture. … rural industry means the handling, treating, production, processing, storage or packing of animal or plant agricultural products for commercial purposes, and includes any of the following - (a) agricultural produce industries, (b) livestock processing industries, (c) composting facilities and works (including the production of mushroom substrate), (d) sawmill or log processing works, (e) stock and sale yards, (f) the regular servicing or repairing of plant or equipment used for the purposes of a rural enterprise. …

Issues

1. In the course of the hearing the following issues were identified as requiring resolution in both proceedings, not all of which remain to be determined in light of evidence adduced and events which have occurred since the first hearing as indicated below: Defined terms • Alleged exempt works and structures means building 6, building 7, buildings Q - V, water tank W. • Codes SEPP is the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 • Farm building means building 3, 5, 6, 7, 8, C (igloo), Q - V, I-P, G, W, X, Z and 1 (including shipping container) • SEPP 4 means State Environmental Planning Policy No 4 - Development Without Consent and Miscellaneous Exempt and Complying Development 1981 • Development Site is Lot 34 and Lot 3 • LEP is the Tweed Local Environmental Plan 2014 • Lot 34 is Lot 34 in DP 755714 • Lot 34 Proceedings is 2021/00364584 • Lot 3 is Lot 3 in DP 1264574 • Lot 3 Proceedings is 2021/00364656 ISSUES FOR DETERMINATION 1. Characterisation of the land use - intensive plant agriculture, extensive agriculture or agricultural produce industry (rural industry) a. Is the making, bottling and packaging of products from the hemp (chiefly olive oil infused with hemp) ancillary to an intensive plant agriculture purpose or extensive agriculture? OR b. Is the making, bottling and packaging of products from the hemp (chiefly olive oil infused with hemp) incidental to an intensive plant agricultural use or extensive agriculture, even if not ancillary to it ? 2. If the land use is an agricultural produce industry, who bears the onus of proving that the exempt development provisions under the Codes SEPP can be relied upon in respect of the Alleged exempt works and structures? 3. In relation to the Alleged exempt works and structures, has it been proved that any removal a tree [sic] or other vegetation required a permit, approval or development consent for the purposes of clause 1.16(3)(b)? [not pressed] 4. Do the Alleged exempt works and structures comply with the development standards in clause 2.32(1) of the Codes SEPP, in particular: a. Subclause (c) relating to ridgelines [building 6 and 7 only]; b. Subclause (f) relating to boundary setbacks (building W only) [no longer arises]; c. Subclause (g) relating to building separation [building 6 and 7 only]; d. Subclause (i) relating to the design and specifications of a professional engineer [not pressed]; 5. If the development is characterised as intensive plant agriculture or extensive agriculture at question 1, is the construction and use of the Farm Buildings development that required development consent? [depends on answer to issue 1] 6. Can building G rely on the provisions of clause 10 of SEPP 4? [no longer arises] 7. Is the use of the timber cabin being building 2 the carrying out of development for the purposes of multi dwelling housing, being a prohibited use? In the alternative, is it development for the purposes of a dwelling, requiring consent? [no longer arises] 8. Did the building of a timber cabin in the area marked A require development consent? [depends on answer to issue 1] 9. Was an approval under the Local Government Act required for the installation of moveable dwellings and human waste storage facilities (buildings B, E, Q-V, Y) on the Development Site? [no longer arises] 10. In relation to any residual contravention of planning law arising from the above issues, the scope of any relief and whether it should it be limited to the making and sale of hemp products, and its timing, or suspension, in the exercise of the Court's discretion.
2. In relation to issue 4 addressing whether some buildings are exempt development, Buildings Q-V, W and G no longer arise. Issues 6, 7 and 9 no longer arise.
3. The remaining issues are 1, 2, 4, 5 and 8. The outcome of issues 5 and 8 depends on my finding in relation to issue 1. Issues 2 and 4 are linked. The Court will need to determine issue 4 in respect of Buildings 6 and 7. Issue 10 concerning what relief may be appropriate in the exercise of the Court's discretion depends on the determination of the other issues.
4. It is agreed that no development consent is held for any activity or building on Lot 34 or Lot 3.

Agreed chronology

1. The parties helpfully agreed on the following chronology dated 6 April 2023: Date Event 28 March 1979-31 July 1987 Building 3 works first undertaken and Building (iv) commences construction. 31 July 1987 - 28 July 1991 Buildings (i) and (ii) constructed. 28 July 1991 - 16 August 1987 Buildings (vi) constructed; modification of Buildings 3 and (iv). 16 August 1987-25 June 2004 Building (ii) extended. 25 June 2004 - October 2009 Building 2 constructed. October 2009 - 6 May 2012 Building 1 constructed; Building (iv) modified. 6 May 2012-20 April 2015 Building (v) constructed. 19 October 2012 Application for Hemp Licence made by First Respondent for Lot 2 DP 611556 "Nightcap Forest" property. Hemp Licence No. HIA 38 issued to First Respondent permitting: 8 January 2013 1. cultivation of low-THC hemp for commercial production, and 2. supply of low-THC hemp for commercial production. 7 May 2018 Renewal of Hemp Licence determined and approved. Application to vary Hemp Licence signed by First Respondent to include: 11 August 2018 * cultivation for manufacturing and scientific purposes, and * supply for manufacturing and scientific purposes. 1 September 2018 Application to vary Hemp Licence lodged by First Respondent. Requested variation described as: "Cultivation of low THC hemp for use in manufacturing so I can create hemp bricks and hemp oil and add new farm". 29 November 2018 The First and Lot 34 Second Respondent acquire an interest in Lot 34. 22 January 2019 Further information submitted in support of application to vary Hemp Licence (including consent of Lot 34 Third Respondent). In 2019 Toilet Y is constructed. 19 February 2019 to 11 July 2019 Extension works to the south of Building 3 are carried out. 11 July 2019 to 20 August 2019 Toilet 4 and Building 5 are constructed. 20 August 2019 to 6 August 2020 Buildings A, I-P (four shipping containers), R, S, 6, 9, X and Z as well as Tank W are constructed and Building 1 and 5 modified. Building (vii) also constructed. 20 March 2020 Council receives a complaint about development on Lot 34. 6 August 2020 to 17 August 2020 Timber deck constructed at Building 3; formation of earth pads for Buildings Q-V; modification to Building 2. 17 August 2020 - 23 August 2020 Continuation of deck construction at Building 3. 23 August 2020 to 27 March 2021 Buildings I-P (additional shipping containers installed), Q-V (four greenhouses), 7,8 and Earthworks 7 are constructed; Building A and 3 modified (including installation of Tank 3) Building (viii) also constructed. Application to vary Hemp Licence signed by First Respondent to include: 10 September 2020 * cultivation for manufacturing and scientific purposes, and * supply for manufacturing and scientific purposes. Application form describes manufacturing process low THC hemp to be subjected to as involving "fibre extraction, hemp seed soil extraction, biochar, building materials etc" with up to 1 tonne of low THC hemp estimated to be supplied for commercial production annually. 11 September 2020 Application to vary Hemp Licence emailed by First Respondent to Department of Primary Industries 16 September 2020 Amelia Pitt of Council sends and receives email to Lot 34 Third Respondent after attempts to contact First Respondent. 17 September 2020 Amelia Pitt of Council receives two emails from First Respondent. 3 November 2020 First Respondent sends email to Amelia Pitt of Council in reply to Ms Pitt's emails dated 30/9/20 and 30/10/20. 11 November 2020 Application to vary Hemp Licence determined and approved for cultivation and supply of low THC hemp for manufacturing 15-16 November 2020 Council receives emails about development on Lot 34. 9 February 2021 Council receives complaint about development on Lot 34. 11 February 2021 Council receives email about development on Lot 34. 18 January 2021 Email from First Respondent to Department of Primary Industries requesting that reference to "Nightcap Forest" be removed from Hemp Licence. 12 February 2021 Telephone discussion between Amelia Pitt of Council and First Respondent. 25 February 2021 Letter from Council to First Respondent about site inspection request. 22 March 2021 Letter from Council to First Respondent in about entering land on 7 April 2021. 27 March 2021 to 7 June 2021 Earthworks 6 are constructed; Building 8 is modified; shipping container near Building A installed. 6 April 2021 Telephone discussion between Amelia Pitt of Council and First Respondent. 14 April 2021 Videos entitled "ACU - Farm Cinematics", "Farm Transformation 2020" and "We are Australian Cannabis University" are uploaded on YouTube. 6, 9 and 27 April 2021 Email correspondence between Amelia Pitt of Council and Ellis & Baxter Lawyers. 12 May 2021 Amelia Pitt receives complaint from resident about concrete trucks utilising Mandalay Road. 18 May 2021 Council receives complaint from resident about development on Lot 34. 26 May 2021 Amelia Pitt sends email to First Respondent advising of Council inspection on 28 May 2021. 28 May 2021 Inspection of Lot 34 and Lot 3 undertaken by Amelia Pitt and Lindsay McGavin of Council. The following are installed: • plastic igloo/greenhouse structure at the location marked "C" on the Summons, After 28 May 2021 • the Q-V Caravan, • The Q-V Toilet, and • An additional shipping container near Building 1. [Note: These buildings are not shown on Annexure A] 11 June 2021 Melanie Williams of Council visits Leased Premises. 18 June 2021 Council sends letter to First Respondent in outlining Council's position on development on Lot 34 and Lot 3 and requesting response within 14 days. 29 July 2021 Videos are uploaded on YouTube. Council receives a copy of the Hemp Licence which (as at 8 October 2021) had an issue date of 8 January 2018 and an expiry date of 8 January 2023, and authorised the following on Lot 34 (which is described in the Hemp Licence as "The Uni, 2956 Kyogle Road, (10 hectares) 34, KUNGHUR, NSW 2484"): • Cultivate low-THC Hemp for commercial production, 8 October 2021 • Supply low-THC Hemp for commercial production, • Cultivate low-THC Hemp for use in manufacturing process, and • Supply low-THC Hemp for use in manufacturing process. 5 November 2021 The First Respondent's two leases of Leased Premises commence. 5 November 2021 Letter sent by Sparke Helmore Lawyers to Respondents. 16 November 2021 Letter to Sparke Helmore from lawyer Lot 34 Third Respondent and Lot 3 Second Respondent. 25 November 2021 Letter from Ellis & Baxter Lawyers to Sparke Helmore. 1 December 2021 Letter from Sparke Helmore in reply to letter dated 25 November 2021. 17 December 2021 Letter from Ellis & Baxter Lawyers to Sparke Helmore. 20 December 2021 Letter to Sparke Helmore from lawyer Lot 34 Third Respondent and Lot 3 Second Respondent. 23 December 2021 Proceedings are commenced. 10 May 2022 Melanie Williams of Council accesses the ACU website. 8 September 2022 Building DA lodged with Council. 13 September 2022 BIC Application lodged with Council. 12 October 2022 Inspection of Lot 34 and Lot 3 undertaken by Amelia Pitt and Lindsay McGavin of Council, together with Council's planning expert Peter Chrystal. 8 November 2022 Dwelling DA lodged with Council. 16 November 2022 Council undertakes inspection of Lot 34 in association with assessment of Building DA. 29 November 2022 Council undertakes an inspection of southern portion of Lot 34 in association with assessment of Dwelling DA. 20 December 2022 First Respondent makes application to renew Hemp Licence. 7 March 2023 Dwelling DA and Building DA are refused by Council. 8 March 2023 BIC Application is refused by Council.

1. The recent events after the first hearing detailed above in [5]-[15] are not included in the agreed chronology.

Statement of agreed facts

1. The parties helpfully agreed on the following statement of agreed facts (SOAF) dated 6 April 2023: The Land 1 Lot 34 in DP 755714 is located at 2956 Kyogle Road, Kunghur, New South Wales (Lot 34) 2 Lot 3 in DP 1264574 (Lot 3) is a part physical road and part paper road. It is partly bushland. 3 Lot 34 is split in the south-east by Lot 3. 4 Lot 34 and Lot 3 (the Land) are located in the Tweed Local Government Area, approximately 30km south-west of Murwillumbah on the north coast of NSW. 5 The closest town to the Land is the village of [Kunghur], located approximately 2.3km away to the south-east. 6 The Land is accessible by local, privately owned roads (which are accessible off Kyogle Road) including Mandalay Road. 7 The Land is mapped as bushfire prone land and comprises areas classified as "Vegetation Category 1" and "Vegetation Buffer". Zoning of Land 8 Lot 34 and Lot 3 are zoned RU2 Rural Landscape under the Tweed Local Environmental Plan 2014 (TLEP) 9 Within the RU2 zone: (a) "dwelling houses", "farm buildings" and "rural industry" are permissible only with development consent, (b) "multi-dwelling housing" and "secondary dwellings" are prohibited, and (c) "intensive plant agriculture" is permissible without development consent. The Proceedings 10 Proceedings 2021/00364584 relate to Lot 34 (Lot 34 Proceedings). 11 Proceedings 2021/00364656 relate to Lot 3 (Lot 3 Proceedings). The Respondents Lot 34 Proceedings 12 Mr Dolph Cooke (First Respondent) is the First Respondent in both the Lot 34 Proceedings and the Lot 3 Proceedings. 13 The First Respondent is an individual and a part owner of Lot 34, being a joint tenant holding a one-half share with Darko Kovac (Lot 34 Second Respondent). 14 The First Respondent and Lot 34 Second Respondent are tenants in common with Peter Van Lieshout (Third Respondent). 15 The Third Respondent is an individual and owns a half share of Lot 34 as tenant in common with the First and Second Respondent. 16 The Third Respondent has filed a submitting appearance in the Lot 34 Proceedings. Lot 3 Proceedings 17 Kempcove Pty Ltd is an Australian proprietary company limited by shares with ACN 071 654 638 (Lot 3 Second Respondent). 18 The Lot 3 Second Respondent is the owner of Lot 3. 19 The Lot 3 Second Respondent has filed a submitting appearance in the Lot 3 Proceedings. Australian Cannabis University 20 The First Respondent is a registered lessee of premises located at 6-10 Wharf Street, Murwillumbah, being part of Lot 1 DP 104284 (Leased Premises). 21 A business known as the "Australian Cannabis University Store" (the Store) operates from the Leased Premises. 22 Registered lease AR771096 for the Leased Premises describes the permitted use as comprising: Sale of books, medicinal oils, beauty products, health products, alternative fabric clothing, housewares, DVDs, hemp food and products, lifestyle products, educational materials, conducting of educational and tuition classes, organic gardening products, cultivation products and farm accessories. 23 The First Respondent operates an organisation known as the "Australian Cannabis University" (ACU). 24 The ACU has a website. The Hemp Licence 25 The Department of Primary Industries issued to the First Respondent Licence [50157] under the Hemp Industry Act with an issue date of 8 January 2018 and an expiry date of 8 January 2023. Licence [50157] authorised the following on Lot 34 (which is described in the Hemp Licence as "The Uni, 2956 Kyogle Road, (10 hectares) 34, KUNGHUR, NSW 2484"): Cultivate low-THC Hemp for commercial production Supply low-THC Hemp for commercial production Cultivate low-THC Hemp for use in manufacturing process Supply low-THC Hemp for use in manufacturing process 26 The Hemp Licence does not apply to Lot 3. 27 An application to renew the Hemp Licence was made by the First Respondent on 20 December 2022. 28 The use of the land for hemp farming and the production of products from the hemp has temporarily ceased pending renewal of the Hemp licence. Hemp growing, harvesting and processing 29 The following activities take place (or have taken place) on the Land and are carried out by or on behalf of the First Respondent: (a) Hemp and cannabis plants (which is a crop) is grown (Hemp), (b) Harvested hemp plants are harvested and dried, (c) Harvested and dried hemp plants are crushed, (d) Cold olive oil is infused with crushed and dried harvested hemp leaves, with those leaves then filtered leaving an oil residue, (e) The oil residue is then bottled, (f) The temporary storage of products derived from the Hemp, and (g) The historical (between 2018 and 2022) extraction of oil tinctures from Hemp. 30 Dried Hemp is processed on the Land to produce an infused oil and that oil is then bottled into smaller units. 31 The cultivation of Hemp on the Land is for commercial purposes. 32 Some or all of the ingredients of CBD-A oil and CBD1G oil are produced on Lot 34. 33 Some or all of the ingredients of CBD oil double strength are produced on Lot 34. 34 Products derived from Hemp are processed, stored, bottled and packaged on Lot 3. 35 About 450 bottles of cannabis infused olive oil have been bottled on Lot 3monthly. 36 The products available on the ACU website for purchase include: (a) T Balm, (b) 1 THCA Organic Olive Oil, (c) 1C CBDA in Organic Olive Oil, and (d) 1G, CBDA-DS Double Strength, The buildings on Lot 34 Building A 37 A timber hut structure with a roof and deck has been constructed on Lot 34 in the area marked "A" of the Summons Site Map. It comprises two rooms which, as at 12 October 2022, contained: (a) A double bed mattress in one of the rooms, and (b) A double bed and other furnishings in the other room. 38 Building A has toilet and bath facilities. 39 Building A was first constructed between 20 August 2019 to 6 August 2020. 40 Building A was modified between 31 August 2020 and 27 March 2021. 41 Building A has a residential character. 42 Building A has been constructed by or on behalf of the First Respondent. 43 No development consent has been granted for the construction of Building A. 44 No development consent has been granted for a dwelling house on Lot 34 and Lot 3. 45 The First Respondent and Lot 34 Second Respondent have lodged DA22/0742 which seeks consent for the use of Building A as an "expanded dwelling house" (in conjunction with Building 2) (Dwelling DA). 46 No application for a Building Information Certificate (BIC) has been lodged with Council for Building A. 47 The Dwelling DA was refused by Council on 7 March 2023. Building 2 48 A timber cabin building is located on Lot 34 in the area marked "2" of the Summons Site Map (Building 2). 49 Building 2 has three bedrooms, a living area, kitchen and dining facilities but no laundry. 50 Building 2 was constructed between 29 June 2004 to October 2009. 51 Building 2 is occupied from time to time by the Lot 34 Second Respondent. 52 The First Respondent and Lot 34 Second Respondent have used Building 2 for residential purposes. 53 The Lot 34 Second Respondent is not employed by the First Respondent. 54 Building 2 has been used for the growing of cannabis plants. 55 No development consent has been granted for the erection or use of Building 2 for the purposes of a dwelling house. 56 No development consent has been granted for a dwelling house on Lot 34 and Lot 3. 57 The First Respondent and Lot 34 Second Respondent have lodged the Dwelling DA which seeks consent for the use of Building 2 as an "expanded dwelling house" (in conjunction with Building A). 58 No application for a BIC has been lodged with Council for Building 2. 59 The Dwelling DA was refused by Council on 7 March 2023. Building 3 60 The First Respondent has carried out, or caused to be carried out, alterations and additions to a building located at Site 3 on the Summons Site Map (Building 3) comprising a site office, kitchen facilities, laboratory area and attached timber deck. 61 The alterations and additions to Building 3 were carried out between 19 February 2019 to 27 March 2021. 62 No development consent has been obtained for the construction or use of Building 3. 63 The First Respondent and Lot 34 Second Respondent have lodged DA22/0601 (Building DA) which seeks consent for the use of Building 3 for the purposes of "farm workers lunch facilities, deck, rec area and managers office". 64 An application for a Building Information Certificate (BC22/0058) (BIC Application) has been made for Building 3. 65 The Building DA was refused by Council on 7 March 2023. 66 The BIC Application was refused by Council on 8 March 2023. Building 5 67 The First Respondent has carried out, or caused to be carried out, the placement of two shipping containers and associated roof coverings and awnings at Site 5 on the Summons Site Map (Building 5). 68 Building 5 was constructed between 11 July 2019 to 20 August 2019. Roofing to Building 5 was installed between 20 August 2019 and 6 August 2020. 69 Building 5 is used for the purposes of storage, as well as the growing and cloning of infant plants. 70 Building 5 was constructed for the purposes of an agricultural produce industry and is used for that purpose. 71 No development consent has been obtained for the construction or use of Building 5. 72 The First Respondent and Lot 34 Respondent have lodged the Building DA which seeks consent for the use of Building 5 for the purposes of "infant growing nursery and propagation #2 + dry store containers". 73 The BIC Application has been made for Building 5. 74 The Building DA was refused by Council on 7 March 2023. 75 The BIC Application was refused by Council on 8 March 2023. Building 6 76 The First Respondent has carried out, or caused to be carried out, the erection of a rectangular greenhouse measuring approximately 16 metres in length and 8 metres in height at Site 6 on the Summons Site Map (Building 6). 77 Building 6 was constructed between 20 August 2019 and 6 August 2020. 78 Building 6 is used for the growing of infant cannabis plants, cloning of female plants, planting seedlings and managing the selection of seeds for those plants. 79 No development consent has been obtained for the construction or use of Building 6. 80 No application for development consent or a BIC has been made for Building 6. Building 7 81 The First Respondent has carried out, or caused to be carried out, the erection of Building 7 which is a two-storey shed. 82 Building 7 was constructed between 31 August 2020 and 27 March 2021. 83 Building 7 is known as "Pandora's Box" and is used for the drying and growing of cannabis plants, cloning of female plants, managing the selection of seeds for those plants, planting seedlings, as well as the storage of electrical cables, lights, plant growing trays, fertilisers and chemicals/minerals. 84 No development consent has been obtained for the construction or use of Building 7. 85 No application for development consent or a BIC has been made for Building 7. Building 8 86 The First Respondent has carried out, or caused to be carried out, the installation of two shipping containers with an associated roof covering and awning at Site 8 on the Summons Site Map (Building 8). 87 Building 8 was constructed between 31 August 2020 and 27 March 2021. 88 Building 8 was modified between 27 March 2021 and 7 June 2021. 89 Building 8 is used to store potting mix, irrigation pipes, connectors and various gardening tools. 90 No development consent has been obtained for the construction or use of Building 8. 91 No application for development consent or a BIC has been made for Building 8. Buildings Q-V 92 The First Respondent has carried out, or caused to be carried out, the construction of six greenhouses approximately 100m2 in area in the areas marked "Q", "R", "S", "T", "U" and "V" on the Summons Site Map (Buildings Q-V). 93 Buildings R-S were constructed between 20 August 2019 to 6 August 2020. Buildings Q-V were constructed between 6 August 2020 and 27 March 2021. 94 Buildings Q-V are used for the growing of cannabis plants. 95 Buildings Q-V were constructed for the purposes of an agricultural produce industry and is used for that purpose. 96 No development consent has been obtained for the construction or use of Buildings Q-V. 97 No application for development consent or a BIC has been made for Buildings Q-V. Buildings I-P 98 The First Respondent has carried out, or caused to be carried out, the installation of 8 shipping containers in the locations marked "I", "J", "K", "L", "M", "N", "O" and "P" on the Summons Site Map (Buildings I-P). 99 Buildings I-P are used for the storage of various items, including as a dry store, storage of potting mix and materials, storage of farm machinery and building supplies. 100 Four shipping containers within Buildings I-P were installed between 20 August 2019 to 6 August 2020. Additional shipping containers were installed between 31 August 2020 and 27 March 2021. 101 No development consent has been obtained for the construction or use of Buildings I-P. 102 Buildings I-P are not exempt development. 103 The First Respondent and Lot 34 Second Respondent have lodged the Building DA which seeks consent for the use of Buildings I-P for the purposes of "farm implementation storage and general main dry store". 104 The BIC Application has been made for Buildings I-P. 105 The Building DA was refused by Council on 7 March 2023. 106 The BIC Application was refused by Council on 8 March 2023. Buildings "G" and "H" 107 The First Respondent has carried out, or caused to be carried out, the installation of 2 sheds at the locations marked "G" and "H" on the Summons Site Map (Buildings G and H). 108 No development consent has been obtained for the construction or use of Buildings G and H. 109 Building H was present on Lot 34 when the Lot 34 Proceedings were commenced. 110 At some time between the commencement of the Lot 34 Proceedings and 12 October 2022, Building H was demolished. 111 No application for development consent or a BIC has been made for Buildings G and H. Water tanks "3" and "W" 112 The First Respondent has carried out, or caused to be carried out, the installation of 2 water tanks at the locations marked "3" and "W" on the Summons Site Map (Tank 3 and W). 113 Tank W was installed between 20 August 2019 and 6 August 2020. 114 Tank 3 was installed between 31 August 2020 and 27 March 2021. 115 No development consent has been obtained for the installation or use of Tank 3 and W. 116 No application for development consent or a BIC has been made for Tank 3 and W. Site C Greenhouse 117 The First Respondent has carried out, or caused to be carried out, the installation of a plastic igloo/greenhouse structure at the location marked "C" on the Summons Site Map (Site 3 Greenhouse). 118 The Site C Greenhouse was constructed after 26 May 2021. 119 No development consent has been obtained for the installation or use of the Site C Greenhouse. 120 No application for development consent or a BIC has been made for the Site C Greenhouse. Earthworks "C", "6" and "7" 121 The first Respondent has carried out or caused the carrying of out earthworks, retaining walls and placement of concrete blocks at the locations marked "C", "6" and "7" on the Summons Site Map (Earthworks C, 6 and 7). 122 Earthworks 6 were carried out between 27 March 2021 to 7 June 2021. 123 Earthworks 7 were carried out between 31 August 2020 to 27 March 2021. 124 No development consent has been obtained for Earthworks C, 6 and 7. 125 Earthworks C, 6 and 7 are not exempt development. 126 The First Respondent and Lot 34 Second Respondent have lodged the Building DA which seeks consent for Earthworks C, 6 and 7 for "soil retention and erosion control". The BIC Application has also been lodged for these works. 127 The Building DA and BIC Application were refused by Council on 7 and 8 March 2023 respectively. Other buildings on Lot 34 that are not the subject of the Proceedings 128 There are two dwellings and a building capable of being used for the purposes of residential accommodation located in the south-west portion of Lot 34. The buildings on Lot 3 Building 1 129 The First Respondent has constructed or caused to be constructed a building comprising a timber shed at the location marked "1" on the Summons Site Map (Building 1). 130 Building 1 is not exempt development, and no development consent for its construction or use has been obtained. 131 The First Respondent and Lot 34 Second Respondent have lodged the Building DA which seeks consent for the demolition of Building 1. 132 The Building DA was refused by Council on 7 March 2023. Additional shipping container 133 The First Respondent has installed or caused to be installed a shipping container near Building 1 (Lot 3 Container). 134 No development consent has been obtained for the installation or use of the Lot 3 Shipping Container. 135 No application for development consent or a BIC has been made for the Lot 3 shipping container. Building X 136 The First Respondent has constructed or caused to be constructed a building at the location marked "X" on the Summons Site Map (Building X). 137 Building X was constructed after November 2018, and between 20 August 2019 to 6 August 2020. 138 No development consent has been obtained for the installation or use of Building X. 139 The First Respondent and Lot 34 Second Respondent have lodged the Building DA which seeks consent for the use of Building X for the purposes of "visitor and staff check in". 140 The BIC Application has also been made for Building X. 141 The Building DA and BIC Application were refused by Council on 7 and 8 March 2023 respectively. Building Z 142 The First Respondent has constructed or caused to be constructed a two-storey shed and adjacent water tank at the location marked "Z" on the Summons Site Map (Building Z). 143 The First Respondent did not obtain the consent of the Lot 3 Second Respondent, the owner of Lot 3, prior to erecting Building Z). 144 Building Z is used for the purposes of a laboratory, production and bottling of cannabis products, as well as the drying and growing of cannabis plants. 145 Building Z was constructed between 20 August 2019 to 6 August 2020. 146 No development consent has been obtained for the installation or use of Building Z. 147 The First Respondent and Lot 34 Second Respondent have lodged the Building DA which seeks consent for the use of Building Z for the purposes of "product (plant) testing and receiving/dispatch". 148 The BIC Application has also been made for Building Z. 149 The Building DA and BIC Application were refused by Council on 7 and 8 March 2023 respectively. Moveable Dwellings on Lot 34 150 There are two caravans on Lot 34: (a) The caravan located in the area marked "F" of the Site Map, and (b) The caravan located near the buildings marked "Q" to "V" of the Site Map (Q-V Caravan). 151 The two caravans have been installed by or on behalf of the First Respondent. 152 There has been no approval issued for the installation of moveable dwellings on Lot 34 under section 68 of the Local Government Act 1993 (LG Act). 153 The First Respondent and Lot 34 Second Respondent propose to make applications under section 68 of the LG Act at a future date. Human Waste Storage Facilities on Lot 34 and Lot 3 154 On Lot 34 the following free-standing compost toilet structures have been erected: (a) Two structures in the areas marked "B" and "E" of the Site Map (Toilet B and E), and (b) Another structure near the greenhouses marked "Q" to "V" (Toilet Q-V). 155 A compost toilet structure has been erected on Lot 3 in the area marked "Y" on the Site Map (Toilet Y). 156 A toilet amenities facility (comprising 2 facilities) and underground septic tank has been installed on lot 34 in the area marked "4" of the Site Map (Toilet 4). 157 Toilet 4 was constructed between 11 July 2019 to 20 August 2019. 158 Toilet Y was constructed in 2019. 159 Toilet Q-V was constructed after 28 May 2021. 160 Toilets B, E, 4, Y and Q-V are operational. 161 There has been no approval issued for the installation and operation of human waste facilities on Lot 34 under section 68 of the LG Act. 162 The First Respondent and the Lot 34 Second Respondent propose to make applications under section 68 of the LG Act for wastewater treatment facilities when the BIC has been granted. 163 The First Respondent and Lot 34 Second Respondent have lodged the Building DA which seeks consent for the use of Toilet Y. 164 The BIC Application has also been made for Toilet Y. 165 The Building DA and BIC Application were refused by Council on 7 and 8 March 2023 respectively. 166 No application for development consent or a BIC has been made for Toilets B, E, 4 or Q-V.
2. As a number of issues now no longer arise for determination the level of detail encompassed in the SOAF need not be considered in full. Recent events also supersede some of the agreed matters.

Documents in Evidence Book

1. The following applications were related to or the subject of lay and expert evidence relied on by the parties. The details of the applications have been superseded by the recent events set out above in [5]-[15].

Dwelling house development application

1. Dwelling House DA DA22/0742 was lodged by Mr Connelly of Planners North on a without admissions basis with the Council on 8 November 2022. Buildings 2 and A were the subject of the Dwelling House DA. The pre-lodgement application form for the Dwelling House DA identified the proposed type of development as 'dwelling'. The application sought land use approval for an expanded dwelling house. The application was supported by a statement of environmental effects, building plans, a bushfire assessment report and a BASIX certificate. [Note: Dwelling House DA not subject to Class 1 appeal].

Farm buildings and rural industry development application

1. Rural industry DA DA22/0601 was lodged by Mr Connelly on a without admissions basis with the Council on 8 September 2022. The pre-lodgement application form for the farm buildings and rural industry identified the proposed type of development as 'farm buildings'. The application sought land use approval for seven buildings and demolition for one building. In addition, consent was sought for on-site bottling of cannabis infused olive oil. The application was supported by a statement of environment effects, building plans, site contamination assessment, structural engineering advice, wastewater assessment report, cultural heritage site inspection and building cost estimates prepared by the proponent. The refusal of this DA is the subject of the Class 1 Appeal 2023/00192915 above in [7].

Building Information Certificate application for farm buildings

1. BIC application BC22/0058 was lodged with the Council on 13 September 2022. The BIC application was prepared by Mr Connelly on behalf of Mr Cooke for Buildings 3, 12, 14, 15 and 18. The application was supported by an engineering report dated 2 August 2022. The refusal of the BIC application is the subject of the Class 1 appeal 2023/00193058 above in [9].

Council's Evidence

1. The Council read the following lay affidavits: 1. Mr McKelvey solicitor dated 7 November 2022; 2. Ms Pitt technical officer at the Council dated 9 November 2022; 3. Ms Williams compliance officer at the Council dated 10 November 2022; and 4. Mr Weaver town planner at the Council dated 9 December 2022 and 21 February 2023.
2. The Council tendered the following exhibits: 1. Court book (Ex A); 2. Evidence book volume 1 (Ex B); 3. Evidence book volume 2 (Ex C); 4. Evidence book volume 3 (Ex D); 5. Evidence book volume 4 tab 49 containing town planning joint expert report (JER) dated 8 March 2023 (Ex E); 6. Supplementary evidence book (Ex F); 7. Town planning JER dated 24 March 2023 (Ex G); 8. Contour plan (Ex H); 9. Supplementary aerial imagery interpretation report of Mr Watts dated 27 March 2023 (Ex J); 10. Agreed summary of sales evidence produced by the Respondents in response to notice to produce dated 13 March 2023 (Ex K); and 11. Site visit photographs by Mr Weaver dated 14 March 2023. Mr Connelly and Mr Swain attended the site inspection with Mr Weaver (Ex L).
3. The Council also compiled a document of photos of buildings in evidence on Lot 34 (marked MFI 1) and a document of photos of buildings in evidence on Lot 3 (marked MFI 2).

Ms Pitt's affidavit

1. Ms Pitt technical officer of the Council was a compliance officer from October 2019 to 4 March 2022 responsible for investigating complaints about alleged breaches of the LG Act and the EPA Act.
2. On or about 20 March 2020, the Council received a complaint via a request form on the Council's website about development being undertaken on Lot 34. The complaint alleged clearing and erection of buildings with no development consent. The complainant expressed concern about the amount of builders' vehicle using the access road. An investigation commenced. Ms Pitt sent an email to the complainant to explain the investigation could take longer than usual due to COVID-19 and the large volume of complaints. Site visits were limited or restricted in the short term. Further complaints about the development were made to the Council in November 2020 and in January, February and May 2021.
3. Ms Pitt deposed to her attempts to contact and her communications with the Respondents from May 2020 to June 2021 via phone and correspondence. An email sent by Mr Cooke to Ms Pitt on 17 September 2020 stated all buildings erected complied with the state government requirements to be less than 200m2 and were farm sheds not required to be subject to development applications.
4. Following a phone conversation on 12 February 2021, Ms Pitt caused a letter dated 25 February 2021 to be sent to Mr Cooke regarding an allegation of potential unauthorised works on Lot 34 DP 755714. In the letter the Council noted that Mr Cooke has been undertaking works on Lot 34 he believed exempt from requiring development consent. The letter explained that the limited information Mr Cooke had provided so far had not demonstrated that the provisions of the Codes SEPP had been met. The Council indicated it was possible some works may be exempt from development consent and other works would require development consent. The Council requested Mr Cooke provide a detailed explanation of all development demonstrating how it met the development standards for exempt development or that a site visit be undertaken to determine whether development applications may be required.
5. Ms Pitt attended a site inspection of a nearby lot in Kunghur on 2 March 2021 with Mr Van Lieshout (Third Respondent in Lot 34 proceedings). He stated 'there might be 20 cars coming past some days, all heading to the [Australian Cannabis] University. Workers, construction vehicles, cement trucks.'
6. On 22 March 2021 the Council sent a notice of intention to enter and inspect Lot 34 under s 9.16 of the EPA Act. The letter advised an inspection would be carried out on 7 April 2021 for the purposes of investigating works that were believed to require development consent.
7. Ms Pitt described Mr Cooke as being irate and abusive on a phone call on 6 April 2021 to confirm arrangements for the site inspection on 7 April 2021.
8. Ms Pitt attended a site inspection on 28 May 2021 accompanied by the Council's manager of development assessment and compliance, an employee of the Australian Cannabis University and two police officers. Ms Pitt recorded observations about and took photographs of various structures on the Development Site. In relation to Building 7 the Australian Cannabis University employee stated the plan was to use the shed for 'processing the plants and drying and that kind of thing.'
9. Ms Pitt completed other investigation activities related to Lot 34 and Lot 3. A search of the Council's development consent and approvals register found no record or any development consent or building approval granted for Lot 34 or Lot 3. Ms Pitt completed aerial image and social media and internet searches extracting and annotating relevant screenshots. One screenshot was of a Google Earth Pro image from August 2020 that depicted recent works and clearing. Another series of screenshots were taken from a YouTube video called the Australian Cannabis University Healing testimonies dated 29 July 2021, one of the screenshots is extracted below.
10. Ms Pitt undertook an inspection of Lot 34 and Lot 3 accompanied by the Council's manager of development assessment and compliance, the Council's town planning expert Mr Chrystal and Mr Cooke on 12 October 2022. Ms Pitt identified changes to works and structure from her first inspection. Ms Pitt took photographs of the buildings. Building A had further improvements since her previous inspection on 28 May 2021 including decking and balustrades. She heard Mr Cooke state the plan for Building A was for cancer patients to be able to stay and get some respite or rest in a peaceful place.
11. Building 7 contained approximately 12 black canvas-type rooms containing lights, fans and trays for growing plants. Two or three of the rooms were in use. On the second storey there was a black tent and a cool room in separate corners. A set of scales, scissors and some equipment or machines were observed along with drying lines and wires rigged up. Mr Cooke and another man who was accompanying him stated the area was used for drying.

Ms Williams' affidavit

1. Ms Williams compliance officer of the Council since 4 January 2021 was responsible for investigating complaints about alleged breaches of the LG Act and the EPA Act. Ms Pitt requested Ms Williams visit the Australian Cannabis University store located in Murwillumbah. On 11 June 2021 she attended the store and had the following conversation with a woman who worked there: Melanie: Hi - I am looking for cannabis oil to assist my mother who has Parkinson's disease. What type of products do you sell that might help my mother with tremors? Female: We sell a number of products. Firstly we have CBD oil 1G which contains THC and is the strongest. Someone might get a high from this and should be careful driving. This product is $65 for a small jar. We also sell CBD - double strength which $65 and about 0.035% strength and is within the guidelines. We sell cannabis oil for $35 which is for about 50ml. It is recommended to take 1 drop each day and then 2 drops and then 3 drops, increasing as the desired effect is felt. In a worst case scenario in terms of pain/condition, and someone can't sleep, they should take the 1G product. We also have a jar of cream with cannabis oil that is $45. This gives tingles on the skin and can help when rubbed in. All the cannabis is grown locally and made locally. We have our [own] site which allows us to sell the cannabis oil cheaper than other places and there is no mark up from big pharmaceutical companies. Our products are the same thing as what you can get through a doctor but are much cheaper.
2. On or about 10 May 2022 Ms Williams accessed the Australian Cannabis University online store. Ms Williams and Ms Pitt viewed the products available for sale. Ms Williams observed that many of the oils advertised for sale on the website appeared to be in the same brown glass bottle shown to her when she visited the store in Murwillumbah.

Mr Weaver's affidavits

1. Mr Weaver town planner at the Council affirmed an affidavit dated 9 December 2022. He was the assessing officer for development application DA22/0742 (Dwelling House DA) and DA22/0601 (Rural Industry DA) made by Planners North on behalf of Mr Cooke and Mr Kovac. The Dwelling House DA sought development consent for the use of Buildings 2 and A as dwelling houses on the northern section of Lot 34.
2. Mr Weaver inspected Lot 34 on 16 November 2022 along with Mr Cooke as part of his assessment of the Rural Industry DA. He also reviewed aerial images of Lot 34. During the inspection Mr Cooke stated words to the following effect about one of the structures in the southern portion of Lot 34: "That's [V]an Lieshout's. I don't have anything to do with it. Someone lives there. I don't know them."
3. Aware that there were additional structures in the southern portion of Lot 34 and at least one was being used as a place of residence, Mr Weaver inspected Lot 34 on 29 November 2022 to understand the extent of other residential uses being carried out to determine the permissibility of the proposed dwelling house. [I note the evidence about residential character no longer arises.]
4. Mr Weaver deposed another affidavit dated 21 February 2023 that identified which buildings were the subject of the Dwelling House DA, Rural Industry DA and Building Information Certificate application. The details of this affidavit are reflected in the SOAF above in [30].

Respondents' Evidence

1. The Respondents read the following lay affidavits: 1. Mr Kershaw builder dated 22 March 2023; and 2. Mr Jeong solicitor dated 16 June 2023 and 26 June 2023 discussed above in [5]-[15].
2. The Respondents tendered the following exhibits: 1. Evidence book volume 4 tabs 45-48 (Ex 1); 2. The Respondents' supplementary evidence book (Ex 2); 3. Design and specification documents produced pursuant to the Notice to Produce dated 27 March 2023 that called for any document depicting design and specifications for Buildings 3, 6, 7, 10, G and Q to V (Ex 3); 4. Undertakings in proceeding 2021/364584 concerning Lot 34 (see above in [12]) and in proceeding 2021/364656 concerning Lot 3 (see above in [13]) provided to the Court on 20 June 2023 (Ex 4); 5. Exhibit to the affidavit of Mr Jeong dated 16 June 2023 (Ex 5); 6. Bushfire JER dated 9 June 2023 (Ex 6); 7. Volume 3 tabs 6-10 of the appendices to the Bushfire JER dated 9 June 2023 (Ex 7); and 8. Undertakings in proceeding 2021/364584 concerning Lot 34 (see above in [14]) and in proceeding 2021/364656 concerning Lot 3 (see above in [15]) provided to the Court on 27 June 2023 (Ex 8).

Expert Evidence

1. The following town planning expert affidavits were read: 1. Mr Chrystal town planner called by the Council dated 14 November 2022, 21 December 2022 and 22 February 2023; and 2. Mr Connelly town planner called by the Respondents dated 20 December 2022 and 30 January 2023.
2. The Council tendered town planning JERs dated 8 March 2023 (Ex E) and 24 March 2023 (Ex G).
3. The Council read the affidavit of Mr Watts surveyor dated 22 February 2023 and tendered his report dated 27 March 2023 (Ex J). The aerial surveying JER dated 21 March 2023 prepared by Mr Watts for the Council and Mr Connelly for the Respondents was tendered.
4. The Council read the affidavit of Mr Swain bushfire consultant dated 23 February 2023 [who later became unavailable and Mr Hawkins was briefed by the Council]. The bushfire JER prepared by Mr Hawkins and Mr Carroll called by the Respondents dated 9 June 2023 (Ex 6) and tabs 6 to 10 of volume 3 of the appendices to the bushfire JER (Ex 7) was tendered.

Issue 1 characterisation of use of the Development Site

1. The Court must characterise whether the land use on the Development Site is intensive plant agriculture or extensive agriculture (not requiring development consent) or for an agricultural produce industry (rural industry) (requiring development consent). The Court must also determine whether the making, bottling and packing of products using the hemp leaves grown on Lot 34 (chiefly the production of olive oil infused with cannabis) was: 1. Ancillary to an intensive plant agriculture purpose or extensive agriculture; or 2. Incidental to an intensive plant agricultural use or extensive agriculture, even if not ancillary to it?

Agreed summary of Respondents' sales evidence

1. The agreed summary of sales evidence produced by the Respondents for 2019 to 2023 (Ex K) shows a total number of hemp oil and balm product sales in 2021 of 11,819 amounting to $1,567,983.66 in revenue. The farm total share (total turnover of farm products) was $463,665.00. From 2019 to 2022 1,236,177 sales amounting to $5,331,908.75 occurred. The farm total share was shown as $1,670,560.00.

Rural industry development application

1. Appendix A to the statement of environment effects prepared by Mr Connelly in support of the Rural Industry DA DA22/0601 was a step by step outline of the cannabis infused olive oil production process extracted below:

Mr Chrystal's Evidence

1. Mr Chrystal town planner prepared an expert report dated 14 November 2022. His instructions were to prepare a report outlining his opinion on whether inter alia: 1. The various buildings/ structures on the subject land were exempt development; and 2. The use of the subject land should be characterised as a 'rural industry'.
2. In preparation of his report, Mr Chrystal reviewed the information brief provided to him by the Council and attended a site inspection on 12 October 2022 accompanied by Mr Cooke. The information brief included aerial imagery of the site, council officer's site inspection notes dated 28 May 2021, a copy of the hemp licence (see above in [6]), 2020 Farm Transformation YouTube video and the Respondents' DA and BIC documents.
3. Mr Chrystal formed the view that the purpose of the hemp being grown and processed at the Development Site is to produce products for sale. The Development Site should be characterised as being for the purpose of rural industry, in particular agricultural produce industry. He accepted that the growing of the hemp may satisfy the definition of intensive plant agriculture in a general sense. In his view the growing of hemp was not the dominant or sole purpose for which the Development Site is being used. Handling, treating, production, processing, storage and packing of hemp occurred to produce a product for sale. Extensive agriculture did not capture the purpose for which the hemp was grown and the other activities to produce various products for sale.
4. Mr Chrystal observed the following activities based on the evidence presented to him and his observations during the site visit: a. growing of (Low THC) Cannabis plants (this occurs in Buildings Q to V - noting no plants in these areas at time of inspection, and within Building 2, 6, 7, Z) … d. splicing and planting seedlings in different media (this occurs at several locations by admission of Mr Cooke - within Building 6 and 7 predominantly, although the plantings may also occur externally on rare occasions - quality control permitting) e. cloning of female plant (this occurs at several locations by admission of Mr Cooke - within Building 6 and 7 predominantly), f. growing of plants in various media and various stages of maturation (this was noted to be occurring within Building 2, Building 6, Building 7, Building Z and Buildings Q to V being the greenhouses/igloos were external grow areas - noting this was not evident during my site inspection). g. harvesting the stalk, stem and leaves, h. drying (various methods - natural and accelerated) of the harvested elements of the plants in Building 7 and Building Z, and combination of harvested product (crushed/macerated) with oil and placed within glass bottles then distributed off-site/shipped elsewhere from online sales and/or "the shop". This was described in limited detail by Mr Cooke as occurring in Building Z.
5. Mr Chrystal observed that the primary activity in terms of consumption of land area is the growing of the cannabis plant. He opined the primary purpose of that plant growth is to harvest, dry, process and then produce a product which can then be sold.
6. He considered various buildings and structures on the Development Site could not be exempt development as the Development Site is used for a rural industry purpose. Farm buildings need to be ancillary to an agriculture use.
7. Mr Chrystal prepared a report dated 22 February 2023 in reply to Mr Connelly's reports dated 20 December 2022 and 20 January 2023. In Mr Chrystal's view the step by step process outlined provided by Mr Connelly of the cannabis infused olive oil production process extracted above in [64] is evidence that the land uses are for a single purpose of development being agricultural produce industry. The cannabis leaf is grown and harvested at Buildings 2 (temporarily), 6, 7 Q to V, and Z. The cannabis leaf is handled, treated, processed and packed at Buildings 3, 7 and Z.

Oral Evidence

1. In cross-examination, Mr Chrystal was asked whether he considered the relationship between dominant and ancillary purposes to form the view that the growing of hemp is not the dominant or sole purpose for which the Development Site is being used. He responded the Development Site has a number of discrete uses and the sale of commercial products was the dominant purpose. Mr Chrystal agreed the sole purpose test was inappropriate for characterisation. Asked whether the sowing, growing, harvesting and storage of hemp could have a commercial purpose, Mr Chrystal stated the activities could be considered horticulture for a commercial purpose. Mr Chrystal stated that the treating and handling of the hemp leaves for a commercial purpose is the relevant use by which to characterise the Development Site in contrast to the Respondents' proposition that horticulture includes harvesting, cutting and drying the hemp leaves.
2. Mr Chrystal stated it was unclear how the farm was financed. The commercial value of the hemp plant comes after processing. Mr Chrystal agreed with the Respondents' proposition that the secondary processing of the hemp did not deprive the farming, being the growing, sowing and harvesting, of its commercial purpose. Mr Chrystal agrees that there are two uses on the Development Site being intensive plant agriculture and agriculture product industry (rural industry). Asked whether he agreed the secondary processing was entirely dependent on the farming, Mr Chrystal agreed it was a self-contained operation. Mr Chrystal stated the secondary processing could continue with product brought to the Development Site. Mr Chrystal accepted that importing product to the Development Site was not the nature of the Respondents' operation. Asked whether the secondary processing was incidental to the farming and could not occur without farming, he stated the primary purpose of growing the hemp is to create the products.
3. In reference to the definition of extensive agriculture in the TLEP, Mr Chrystal agreed that hemp is not used for fodder and is a crop. Mr Chrystal agreed the definition of extensive agriculture refers to beekeeping and dairy farming that involves the production of honey and milk. He does not agree the scope of crop production allows secondary processing to fall within the meaning of extensive agriculture.
4. During re-examination in chief, Mr Chrystal stated that Mr Cooke made it clear to him on his site inspection that the hemp plant had no value. Value is derived after the additional processes when the products are available for sale.

Mr Connelly's Evidence

1. Mr Connelly town planner prepared an expert report dated 20 December 2022. His instructions were to prepare an expert report outlining his opinion whether: i. The various buildings and structures on the subject land are exempt development; … iii. Whether the use of the subject land should be characterised as a "rural industry" and requiring development consent; iv. Whether the use of the subject land should be characterised as being for extensive agriculture/intensive plant agriculture and is permissible without development consent; and … x. Any other observation in response or reply to the Applicant (Council)'s evidence.
2. He inspected the Development Site on 17 February, 22 February and 16 November 2022 and interviewed Mr Cooke. He searched public records and registers applicable to the Development Site including bushfire mapping and the ePlanning Spatial Viewer. He obtained expert reports concerning wastewater, contamination, structure certification and historical aerial imagery from specialist consultants. He met with agronomist Mr Allen to clarify concepts associated with extensive agriculture, intensive plant agriculture and rural industries. He reviewed a cultural heritage assessment report prepared by the Tweed Local Aboriginal Land Council and the affidavits of Ms Pitt dated 9 November 2022, Mr Weaver dated 9 December 2022 and Mr Chrystal dated 14 November 2022. Mr Connelly also submitted the Dwelling House DA, Rural Industry DA and BIC application to the Council with statements of environmental effects he had prepared.
3. Based on his inspection of the site and discussions with Mr Cooke, he formed the view that the activities carried out on the Development Site conformed to the definition of intensive plant agriculture involving horticulture as defined in the TLEP. Based on Mr Allen's advice Mr Connelly stated that most horticultural crops require some level of 'post-picking' activity. The drying of hemp leaves is akin to macadamia nut de-husking and fleshy fruit dipping. Mr Connelly described the olive oil infusion process as set out below: "Leaves from the plants are macerated and soaked in olive oil. After a period the leaf residue is filtered, leaving an oil residue. That oil is placed in 50ml glass bottles and shipped from the site. Sometimes the olive oil is mixed with beeswax or the like to create a "balm" like product which is also shipped from the site. This bottling and balm making process is consistent with the definition of "treating, processing and packing of plant agricultural products for commercial purposes" and accordingly this last part of the agricultural process would, in my view, fit the definition of "agricultural produce industry".
4. A discrete and incidental rural industry emerges only when the dried hemp leaf is processed to produce, for example, an infused oil and that oil is then bottled into smaller units for sale purposes. Drying, cutting, and packaging of hemp does not create a rural industry. Provided the hemp is not processed into, for example, an infused oil, there is no rural industry at this site.
5. Mr Connelly agreed with Mr Chrystal above in [67] that the use of the Development Site was not extensive agriculture as the growing of hemp is not the production of crops or fodder.
6. Mr Connelly stated that 450 bottles of cannabis infused olive oil, with volumes of 15ml-50ml, are bottled each month.
7. Mr Connelly provided his opinion about each building's use, characterisation and the application of planning controls. This evidence is not summarised as the parties agree I am not now required to form a view about each building's characterisation.

Oral Evidence

1. In cross-examination Mr Connelly agreed that the definition of horticulture required the cultivation of plant material, being foliage in these circumstances, for commercial purposes. He confirmed he had not been provided evidence about the sale of foliage. Asked whether the importation of olive oil to the Development Site was within the scope of extensive agriculture or intensive plant agriculture, Mr Connelly replied he did not think the activity was. He was not aware of the number of bottles of oil sold when he formed the view a discrete and incidental rural industry being agricultural produce industry was occurring on the Development Site. Mr Connelly recalled seeking consent for the bottling of 450 bottles monthly in the Rural Industry DA.
2. Mr Connelly agreed he had not referred to sales when he stated the second use is a discrete and incidental use in the town planning JER dated 8 March 2023. Asked whether he had been provided records of sales for raw foliage, Mr Connelly said he had not. He had not been told the raw hemp has limited value and that the hemp oil has value. Asked whether the Development Site use was a discrete and incidental use based on the sales above in [63], Mr Connelly stated it was discrete and incidental in land use terms. Mr Connelly was not aware of any other commercial purpose being carried out on the land except for the production of hemp-related products. Mr Connelly disagreed with the Council proposition that the production of hemp related products is the only use being carried out on the Development Site for the purposes of the TLEP.
3. Asked whether he was aware of any evidence of cultivation of plant material and raw foliage sales, Mr Connelly was not aware of any such evidence. Mr Connelly disagreed with the Council's proposition that the Development Site could not be characterised as extensive agriculture or intensive plant agriculture. When Mr Connelly attended the Development Site he observed an enormous effort put to the cultivation of growing foliage. His usual practice was not to use quantum of sales for characterisation. Questioned whether he relied on the definition in the TLEP, Mr Connelly stated his usual practice was to rely on his look, feel and intuition about the activities based on his visual examination of activities.
4. Asked whether farm buildings require development consent, Mr Connelly noted that intensive agriculture does not require development consent. He had regard to the land use table when he read the definition of farm buildings. He stated that when a farm building had an agricultural purpose that has consent or does not require consent, the building itself did not require consent.
5. Given the definition of farm building, whether development consent was required for a farm building ancillary to any agriculture use, Mr Connelly responded the land use table has primacy and one must have regard to exemptions in the land use table and read them into the definition. Asked whether there was a limit to the number of farm buildings one could have on land on which extensive agriculture was carried out, he responded that the limit was the number required for the extensive agriculture use.

Town planning joint expert evidence dated 8 March 2023

1. In the town planning JER dated 8 March 2023 the experts disagreed about the nature of the land use at the site. Mr Chrystal stated the land purpose served is a commercial purpose being the sale of hemp based products. This purpose is properly characterised as an agricultural produce industry. Mr Connelly stated the land is used for two purposes. The first is intensive plant agriculture in the style of horticulture involving the propagation, growing and harvesting of hemp foliage. The second use is a discrete and incidental agricultural produce industry involving the infusing of oil and then bottling that oil into small units.

Council's submissions

1. The evidence before the Court demonstrates that the Mr Cooke became part owner of Lot 34 on 29 November 2018. He caused development to be carried out after that date which included clearing of land and the erection of 29 new structures over the course of 2019 to 2021 (as identified by Mr Watts below in [130]) and the commencement of an operation involving the handling, treatment, production, processing, storage and packing of hemp and hemp related products for commercial purposes, without development consent. Over 2020 and 2021 the Council received numerous complaints relating to the development on the lots and commenced an investigation (as identified by Ms Pitt above in [40]).
2. The Council submitted that the use of the Development Site is for a rural industry being an agricultural produce industry which requires development consent under category 3 in the land use table for Zone RU2 Rural Landscape in the TLEP. The definition of 'agricultural produce industry' in the TLEP refers to the handling, treating, processing, storing or packing of plant agricultural products for commercial purposes. As no development consent has been obtained as required by s 4.2 of the EPA Act given the provisions of the TLEP the Respondents are in breach of the EPA Act.
3. Mr Connelly's December 2022 Report indicates that he inspected the Development Site and interviewed Mr Cooke. Based on matters admitted by Mr Cooke and identified in the Respondents' evidence above in [78], as well as the Council's points of defence and evidence above in [68], the following activities, transactions or processes were carried out on the Development Site: 1. growing and harvesting of hemp or cannabis plants; 2. drying of the harvested hemp plant; 3. crushing of harvested hemp plants; 4. crushed harvested and dried hemp leaves are infused into cold olive oil; 5. oil tinctures are extracted from hemp plants; 6. products derived from the hemp plant are processed; 7. products derived from the hemp plant are stored; 8. products derived from the hemp plant are bottled and packaged; and 9. residue material from the above activities is converted into biochar and utilised on the site.
4. On the basis of the Respondents' own pleadings and evidence, the activities on the Development Site involve the 'handling, treating, production, processing, storage or packing' of plant materials and plant products. The description referred to above satisfies the discrete elements of a rural industry or agricultural produce industry being the handling, treating, production, processing, storage and packing of plant materials or products as set out below: 1. handling of plant material or products: this is made out by the crushing of harvested hemp plants the maceration of leaves from plants as well as the filtering of the leaf residue; 2. treating of plant material or products: (a) is repeated, as well as the infusion into cold olive oil into dried and crushed hemp; 3. production and processing of plant material or products: (a) and (b) are repeated; 4. storage of plant material or products: this is admitted by Mr Cooke and Mr Kovac; and 5. packing of plant material or products: this is admitted, products derived from the hemp plant are bottled and packaged on the Development Site.
5. Mr Connelly's evidence is there is a discrete and incidental rural industry operating on the Development Site, see above in [79], [83].
6. The handling, treating, production, storage or packing of plant materials and plant product is for commercial purposes. Mr Connelly's evidence is that oil and balm-like products are shipped from the Development Site for commercial purposes. The characterisation of extensive agriculture or intensive plant agriculture put forward by the Respondents involves handling of plants for commercial purposes. The hemp licence [see above in [6]) and sale of products online and off-site at a store (see above in [50]-[51]) inter alia indicates the plant processing is for commercial purposes. The Respondents accept that the activities carried out on the Development Site are for commercial purposes.
7. At issue is whether there are two purposes as suggested by Mr Connelly or just one overarching purpose as suggested by Mr Chrystal. Clause 2.3(3) of the TLEP and Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400 at [27], [33]-[34] require that development must be for a purpose. The end to which the Development Site is seen to serve is the production of cannabis-based goods for commercial purposes, an agricultural produce industry. That is the overall purpose of the activities being conducted. The relevant production activities do not cease at the stage of the harvesting of the cannabis plant; they continue through to the handling, processing, storage and packaging of the oils and balms produced. The agricultural activities and the processing and production of activities are part of an integrated and indivisible process. Applying cl 2.3 of the TLEP, the agricultural use is subsumed within the rural industry use.
8. In reply to the Respondents' submissions, the activities, transactions or processes on the Development Site are agreed. On this agreed basis the Court itself is equipped to apply the definitions in the TLEP. Other developments in the local government area are irrelevant to the task of characterisation on a particular site. To characterise the use of the Development Site as intensive plant agriculture is contrary to the provisions of the TLEP and the authorities and ignores the ultimate purpose for which the cannabis plants are grown and harvested.
9. Ancillary or incidental uses as submitted by the Council are not pleaded or otherwise made out. Firstly, under cl 2.3(3) of the TLEP, reflecting the Standard Instrument - Principal Local Environmental Plan (2006 EPI 155a) (NSW) (the Standard Instrument), if the agricultural uses on the Development Site are found to be for the purpose of an agricultural produce industry the question of whether the uses were ancillary or incidental does not arise. Matters raised by the Respondents such as the percentage of land use for certain activities are irrelevant. The governing provision is cl 2.3(3) of the TLEP and the issue of ancillary or incidental development must not concern the Court.
10. Secondly, even if the concept of ancillary and incidental development could be relied upon, it is fundamentally flawed in the Respondents' circumstances. The test of whether a purpose of development is incidental and subordinate to another purpose is whether the two purposes are not severable but are 'inextricably linked' such that they ordinarily occur together rather than are merely sometimes associated with each other as a matter of convenience: Scott's Provisions Stores Pty Ltd v Sydney City Council (1958) 3 LGRA 191 (Scott's) at 194-195. A purpose is ancillary only where a purpose of development is incidental and subordinate to another purpose, it is subsumed within that other purpose and it is ignored and treated as part of the other purpose for characterisation: Bonus Pty Ltd v Leichhardt Municipal Council (1954) 19 LGR 375, Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 (Foodbarn). If the Court found it necessary to apply the Scott's test, the growing and harvesting of cannabis plants on one hand and the production of hemp oil on the other are severable, separate and independent purposes. The activities on the Development Site could easily cease at the harvesting of plants rather than continue to the macerating, soaking, straining, separating, bottling phases and beyond.
11. Conspicuously absent from the Respondents' submissions are submissions relating to the relevant activities being carried out for 'commercial purposes'. The definition of 'intensive plant agriculture' relied upon by the Respondents in its pleadings and its submissions contemplates 'cultivation of crops for commercial purposes'. However, if the development is for the purposes of plant agriculture as the Respondents contend, there is no evidence about how the cultivation of crops is monetised. It was open to the Respondents to lead evidence that the crops are grown, harvested, sold and then transported to market for their commercial sale. It has not done so. The only evidence of any produce being sold is in the form of hemp oil and the Council relies on [63] above in this regard. There is no evidence of the cultivation of mere crops for commercial purposes.
12. Critically, as a result of a further call for the production of Mr Cooke's sale records pursuant to a Notice to Produce filed 13 March 2023, it is clear that Mr Cooke is operating a business of approximately $1.5 million per annum in turnover of cannabis-based products as summarised in Ex K set out above in [63]. These sale records are all the more noteworthy given that a previous Notice to Produce filed 7 March 2022 seeking these documents went unanswered, and inexplicably, in its pleadings and responses to Notices to Admit Facts, Mr Cooke denies that the activities carried out on the Development Site are for commercial purposes.
13. The Respondents' submissions below in [107] seeks to minimise the significance of the manufacturing/production use and assert that only '6 to 22 litres of oil' are produced per month. This concession is important. When cannabis oil was for sale on the Australian Cannabis University website for approximately $45 for 50ml in late 2022, one can imagine that significant profits were available with the sale of 22 litres per month.

Respondents' submissions

1. The Respondents submitted that the land use being carried out on the Development Site is intensive plant agriculture or extensive agriculture, for which development consent was not required as both were permissible uses not requiring consent under the land use table for the RU2 rural landscape zone in the TLEP.
2. The Respondents relied on the definition of 'horticulture' in the TLEP to characterise the Development Site as being used for intensive plant agriculture. Horticulture means the cultivation of foliage and the Macquarie Dictionary defines foliage as the leaves of a plant. Propagating and harvesting hemp falls within the definition of horticulture.
3. Ali v Liverpool City Council [2009] NSWLEC 1327 (Ali) at [237], El Boustani v Minister Administering the Environmental Planning Act 1979 [2011] NSWLEC 214 (El Boustani) at [6] and Refalo v Camden Council [2021] NSWLEC 1485 (Refalo) at [2], [70] demonstrate what uses can fall within the meaning of intensive plant agriculture. For example, in Ali the use of greenhouses and igloos for horticultural production was considered to be for the purpose of intensive plant agriculture. The greenhouses and other structures on Lot 34 used for the cultivation of hemp plants, and the various facilities that support this cultivation, are for the purposes of intensive plant agriculture being incidents of the overall use and being development for that purpose. This reflects a common sense characterisation approach as required by Chamwell.
4. The Respondents accepted that viewed in isolation the olive oil infusion with hemp and bottling and packaging of that product may be an agricultural produce industry, but that process is incidental to the hemp crop farming. The secondary processing activity would not be there if not for the hemp farm and is incidental to it for that reason: Baulkham Hills v O'Donnell (1990) 69 LGRA 404 (Baulkham Hills); Foodbarn. Whatever value-adding of product occurs to produce infused olive oil as secondary processing serves the overall predominant purpose of farming, being extensive agriculture.
5. All of the evidence before the Court should be considered which includes the expert evidence. Mr Chrystal confirmed that the primary activity on the Development Site in terms of land use area was growing hemp as summarised above in [69]. The secondary processing activities occurring in the quality control and testing lab were an insignificant part of the overall area of the Development Site. The activities that took place in that building did not define or characterise the purpose of the use of the Development Site. Those activities were a consequence of the intensive plant agriculture. To characterise use as agricultural produce industry would be an erroneous approach to characterisation of the use of the Development Site on the evidence and applying Chamwell particularly at [35].
6. Six to twenty-two litres of oil was bottled per month based on the evidence in [81] above. The physically insignificant quantity and limited location of processing compared to the hemp farming is relevant to the task of characterisation: Lizzio v Ryde Municipal Council (1983) 155 CLR 211; Bob Blackmore Pty Ltd v Anson Bay Co (Australia) Pty Ltd [1990] NSWCA 25. In Jungar Holdings Pty Ltd v Eurobodalla Shire Council (1989) 70 LGRA 79 Hemmings J found processing by-products from the abattoir along with material from off-site to achieve a commercial outcome was not a separate purpose and was subsumed in the overall purpose of the abattoir.
7. The purpose of the use of the Development Site is as an operating farm. Given the consequential nature of the production activities which process the crop from the farming operation overall, Mr Chrystal's conclusion that the production gives rise to an overall characterisation of agricultural produce industry must be rejected. The end processing was just the way the crop on the Development Site is packaged up into a marketable form.
8. In reply to the Council's submissions above in [96], the reference to the concept of 'ultimate purpose' (a term for which the Council does not cite any authority) seeks to characterise a land use or its purpose by reference to the article ultimately produced and sold. Consistently with this approach, a Griffith orange farm also producing marmalade and selling it at a roadside stall or sending it off by post would be characterised for the industrial purpose of jam manufacture or the like. The relationship of the clubhouse in Peters v Manly Municipal Council [2007] NSWCA 343 at [21] is similar as it can be said that the raison d'être for the existence of the bottling of hemp oil is the hemp farm. In Peters the golf course use as such extending over the whole of the land was the dominant purpose, the use of the clubhouse building subordinate or ancillary. The same applies to the oil infusion and botting activities and the shed in which they are carried out and the hemp farm here.
9. In reply the Council's submissions above in [97] are erroneous. The principles of ancillary and incidental use in Foodbarn and Baulkham Hills are applied to cases decided pursuant to LEP's generally. See Botany Bay City Council v Pet Carriers International [2013] NSWLEC 147. There is no authority that the principles do not apply to cases decided in relation to the Standard Instrument.
10. In response to the Council's submissions above in [98], the Respondents do not need to show the oil infusion and bottling are inextricably linked to the hemp farming to be ancillary to the intensive plant agriculture use, but that they are inspired by the same purpose: Foodbarn. Contrary to the Council's submissions, it is the Council that is seeking to injunct the farming activities, for example the greenhouses. If any relief is granted, it would leave the hemp farming untouched. In any event the application of the Scott's (or Baulkham Hills) test does suggest that the oil infusion and bottling are incidental and non-independent from the farming. One cannot have the oil infusion and bottling operation without the farming. They do not have to be on the same land, but they are here, and the oil infusion and bottling is incidental to the farming.
11. In reply to the Council's submissions above in [99], the oil production monetises the hemp farming. The hemp licence from the Department of Primary Industries authorised hemp crop production for commercial purposes.

Consideration of Issue 1

1. Under s 4.2 if an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry out the development on land to which the provision applies unless '(a) such a consent has been obtained and is in force, and (b) the development is carried out in accordance with the consent and the instrument.'
2. At issue is which definition of activity in the TLEP applies to the characterisation of the use occurring on the Development Site. The Council contends for a rural industry, being an agriculture produce industry. The Respondents argue they are undertaking intensive plant agriculture being horticulture, or extensive agriculture being crops (which I note Mr Connelly does not support), the bottling of oil infused with cannabis being ancillary to that principal use. The parties agree that a commercial operation is occurring on the Development Site.
3. There is no dispute as to the nature of the activities being conducted on the Development Site, the evidence of the town planners about these being drawn from site inspections carried out by Mr Chrystal and Mr Connelly and based on discussions with Mr Cooke summarised above in [65]-[88].
4. The principles to be applied to characterisation have been identified in Chamwell at [27], [33], [35], [34], [36] inter alia, as relied on by both parties. These state: 27 In planning law, use must be for a purpose: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534-535 and Minister Administering the Crown Lands Act v New South Wales Aboriginal Land Council (1993) 80 LGRA 173 at 188. The purpose is the end to which land is seen to serve. It describes the character which is imparted to the land at which the use is pursued: Shire of Perth v O'Keefe (1964) 110 CLR 529 at 534. … 33 The fact that the nature of the uses of different components or parts of the development may vary is not necessarily of importance. Obviously, the only part of the proposed development that will have a use of the specific nature of supermarket is that part of the building which incorporates the supermarket. The nature of the uses of other parts of the building, such as the car park, driveways, access ways, and landscaped forecourt, is different. 34 However, the nature of the use needs to be distinguished from the purpose of the use. Uses of different natures can still be seen to serve the same purpose: see 35 In this case, the use of the car park, driveways, access ways and landscaped forecourt are each designed to serve the end of enabling the supermarket to be carried on. That is their purpose and that purpose imparts to the land on which those uses are pursued the character of shop, including the supermarket. The end to which the parts of the land in Lot D is to serve is not roads. 36 The characterisation of the purpose of a use of land should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on, not in terms of the detailed activities, transactions or processes: Royal Agricultural Society of NSW v Sydney City Council (1987) 61 LGRA 305 at 310.
5. The activities being conducted on the land must be considered in light of the relevant definitions in the TLEP namely agricultural produce industry (rural industry), or intensive plant agriculture (horticulture) or alternatively extensive agriculture (crop production for commercial purposes). The definitions are extracted above in [23].
6. Extensive agriculture includes the production of crops or fodder for commercial purposes, the grazing of livestock for commercial purposes, bee keeping and a pasture-based dairy. Horticulture means the cultivation of foliage for commercial purposes in addition to fruits, nuts, vegetables and cut flowers inter alia. These definitions suggest that the crop or plant (foliage) being grown is itself for commercial purposes. The evidence confirms that the commercial value of product on the Development Site is derived from the production and sale of hemp infused olive oil in bottles, the hemp leaves alone having no effective commercial value. The growing of the hemp is not the production of a crop for commercial production the hemp leaves alone having no commercial value. While the submission of the Respondents that the infusing of oil and bottling is monetising the hemp leaves is broadly correct in a practical sense that does not mean that the definitions in the TLEP are met. No analogy can arise to beekeeping or dairy production, contrary to the Respondents' submission that these provided relevant context. I note this is addressing the term extensive agriculture which Mr Connelly did not consider described what was occurring on the Development Site. That is the first reason why these definitions do not apply.
7. Secondly, the more accurate description of what is occurring is found in the definition of rural industry, namely the handling, treatment, processing and packing of a plant agricultural product for commercial purposes. The amount of infused oil produced is described by the Respondents as insignificant. Whether that is a relevant observation or not, its commercial value is clear from the sales evidence summarised above at [63] amounting to a total of $1,670,560.00 in 2019 to 2022. The hemp leaves on their own have no commercial value. I do not accept the Respondent's submission that the hemp leaves are monetised for the purpose of the definition of horticulture (intensive plant agriculture) by the additional processing needed to create separate saleable product with the hemp leaves. Mr Connelly considered that the activities on the Development Site met the definition of horticulture, seeking to compare the processing of hemp leaves into other product as akin to macadamia husking and fruit dipping. Neither of those two examples caused the product of a horticultural activity to be completely transformed into another product, which is what has been occurring on the Development Site and I do not accept his opinion in this regard. This finding further supports the application of the rural industry definition to the Respondents' activities.
8. Thirdly, a key basis for the Respondents' submission that the growing of hemp plants was the dominant activity which was horticultural in nature was that the area occupied by that activity was greater than the processing and bottling activity. That is too simplistic an approach to what is occurring on the Development Site. Looking beyond merely the area occupied by each aspect of the activity, accepting that growing hemp plants in greenhouses occupies more space than the buildings used for drying and bottling, the overall purpose for the collective activity being undertaken on the Development Site is the production for commercial purposes of the cannabis infused olive oil which is then sold.
9. I do not need the assistance of expert planning evidence to draw the conclusions I have above as the evidence of what is occurring essentially speaks for itself. It is apparent that I agree with Mr Chrystal's analysis of what is occurring on the Development Site, and with his opinion that those activities are a rural industry rather than the approach of Mr Connelly which seeks to cast the bottling activity as ancillary to the activity of intensive plant agriculture. Mr Connelly also stated that he did not consider the sales evidence in drawing his conclusions, a major oversight in my view.
10. Accepting the substance of the well-known authorities of Foodbarn and Baulkham Hills relied on by the Respondents, each case must be determined on its own facts as a matter of degree as those cases emphasise. That the bottling processes can take place elsewhere is irrelevant. I must consider what is actually occurring on the Development Site in light of the relevant definitions in the TLEP. Accordingly conclusions drawn in other cases such as Ali, El Boustani and Refalo which the Respondents relied on are not of any assistance. Ali had only a tangential mention of horticultural production areas comprising greenhouses and igloos. That case did not consider the purpose of a use, rather evidence was directed to considering the rural character of a particular locality. The reliance on Peters is misplaced as given the evidence of the commercial value of the infused olive oil sold the conclusion readily drawn is that the raison d'être for the growing of hemp is the production of infused oil.
11. Addressing the Respondents' submissions concerning incidental and ancillary the evidence does not support a finding that the processing and bottling of product using the hemp leaves is ancillary or incidental to the hemp plant growing.
12. The Council argued that cl 2.3(3)(a) of the TLEP which states that reference to a type of building or other thing is a reference to development for the purposes of that thing means that concepts of ancillary and incidental do not arise under the statutory regime implementing the Standard Instrument, essentially asserting that cases such as Foodbarn and Baulkham Hills do not need to be considered in determining if an activity is ancillary. Unsurprisingly this submission was rejected by the Respondents as their primary case about legality is based on finding that the processing and bottling of value-added product is ancillary to the principal use of farming hemp plants. Clause 2.3(3) refers to building use which does not cover all aspects of development as defined in the EPA Act so that its application will depend in large part on the particular circumstances of a case. I have been largely considering the overall use of the Development Site, without needing to consider the uses of particular buildings. On a preliminary view the clause is not a complete answer to the Respondents' case.
13. The use of the Development Site was for a rural industry (agricultural produce industry) which required development consent under the land use table for the RU2 rural landscape zone in the TLEP. To reflect the questions posed in issue 1 the making, bottling and packaging of products from the hemp is not ancillary or incidental to intensive plant agriculture or extensive agriculture.

Issue 5 development consent required

1. The answer to issue 5 depends on the outcome to issue 1. As I have determined the use is for a rural industry which requires development consent I do not need to answer issue 5 which asked whether the farm buildings (as defined in the issues) required development consent. I note that the Respondents agree that the farming buildings are being used for the applicable use of the Development Site, which I have found to be use for a rural industry. This agreement is relevant to the second declaration, sought by the Council in each proceeding which concerns the use of buildings.

Issue 8 Building A development consent required

1. The SOAF pars 37-43 above in [30] identify the agreed matters concerning Building A. The parties accepted that the outcome of issue 8 depended on the finding on issue 1. As the Council has succeeded on issue 1 there is no basis to argue that Building A is ancillary to a lawful use for which no development consent is required. Issue 8 no longer needs to be decided.

Issue 2 onus of proof regarding exempt development

1. I do not need to resolve issue 2 in light of my conclusions below in issue 4 that the Codes SEPP does not apply to Buildings 6 and 7, which the Council has established on the balance of probabilities as I outline below.

Issue 4 exempt development

1. Issue 4 whether Buildings 6 and 7 are exempt development as provided for under the Codes SEPP remains for consideration. The buildings are located on Lot 34. At issue for Building 6 is compliance with the minimum building separation of 6m from Building 5 as required by cl 2.32(1)(g). At issue for Buildings 6 and 7 is whether the ridgeline control in cl 2.32(1)(c) of the Codes SEPP is met.

Aerial Survey Evidence on building separation

1. Mr Watts surveyor prepared an aerial imagery interpretation report dated 22 February 2023. Twenty four aerial images were analysed to identify when buildings and structures could first be observed on the Development Site. The following table details when buildings or structures were first observed: Table of the First Observation of Buildings/Structures Between 1 January 2018 and 7 June 2021 Period of Construction or First Appearance of Period of Construction or First Appearance of 11 July 2019 to 20 August 2019 4 and 5 20 August 2019 to 6 August 2020 A, I to P, R, S, W, X, Z, 1, 6, 9 and (vii) 31 August 2020 to 27 March I to P, Q, T, U, V, 7, 8, (viii) 27 March 2021 to 7 June 2021 6 (concrete blocks), A (shipping container)

1. As part of his report Mr Watts annotated a Google Earth image dated 6 August 2020 titled 'Appearance of Buildings 1, 5, 6, X and Z Between 20 August 2019 and 6 August 2020.' In reference to Building 5, a roof covered the shipping containers as at 6 August 2020. Building 6 was first observed on 6 August 2020.
2. Mr Watts prepared a supplementary report dated 27 March 2023 identifying that Buildings 5 and 6 are 4.5m apart on an aerial image dated 7 June 2021.

Mr Chrystal's Evidence

1. In Mr Chrystal's expert report dated 14 November 2022 he opined Buildings 6 and 7 do not satisfy the building separation standard contained in cl 2.32(1)(g) of the Codes SEPP.
2. Buildings 6 and 7 cannot satisfy the ridgeline development standard at cl 2.32(1)(c) of the Codes SEPP. A contour plan tendered by the Council (Ex H) was an appendix to Mr Chrystal's report and is extracted below. It shows black lines denoting ridgelines, yellow lines denoting contour lines, a yellow dashed boundary line identifying the 100m buffer zone and an orange dashed boundary line identifying the 20m buffer zone.

Oral Evidence

1. Mr Chrystal agreed in oral evidence he had not measured the Australian height datum (AHD) of the buildings or any position of the land, nor had it been surveyed. Asked what definition of ridgeline he had applied to form his view that Buildings 6 and 7 would not meet the ridgeline requirements, he replied that he understood the control related to the location of buildings on visually prominent sites being the top of a hill, crest or ridgeline. He considered the top of a hill to be interchangeable with ridgeline. He used a layperson's definition of hill being the topmost point of the land as you stand on it. This can be identified from one's own observations. Asked what the difference between an undulation and a hill is, Mr Chrystal stated a hill slopes away steeply in either direction. He agreed that he had defined a hill by reference to whether there would be a level of visibility in the surrounding area if a building was placed on top. Asked who drew the black lines on the contour map, Mr Chrystal answered the GIS technical director in his business.

Mr Connelly's Evidence

1. In Mr Connelly's expert report dated 20 December 2022 he gave evidence on whether buildings were exempt development. As the term ridgeline is not defined in the Codes SEPP or EPA Act Mr Connelly identified that common or technical definitions can be used to determine if the buildings are on or proximate to a ridgeline. The common definition as provided in the Macquarie Dictionary of ridgeline is 'the line formed by the top of a mountain or mountain range'. The common definition of hill is 'a conspicuous natural elevation of the earth's surfaces, smaller than a mountain'. The technical definitions from the Australian soil and land survey field handbook published by the CSIRO can be applied.
2. Mr Connelly attached to his report a map of topographic features prepared by his office identifying where the Development Site has a crest, slope or ridge, also extracted below.

Oral evidence - Building Separation

1. Asked whether cl 2.32(g) of the Codes SEPP was limited by the time of construction of a building in its terms, Mr Connelly replied no. Mr Connelly agreed with the Council's proposition that he had been instructed at the time of construction that the building separation was greater than 6m and had become less over time. He did not independently verify that information. He does not challenge Mr Watt's report. Directed to an image in Mr Watt's report dated 22 February 2023 described above in [131], Mr Connelly confirmed he still presses the position that at the time of construction Building 5 was not formalised at the roof. He did not agree the photo disproved his instructions. He agreed that Building 6 was first observed and a roof covered the shipping containers on 6 August 2020. Asked whether his evidence is that there was a separation distance of at least 6m between Buildings 5 and 6, he replied no.
2. In re-examination, asked whether the Google Earth image at 6 August 2020 provides any information about whether the roof on Building 5 existed when Building 6 was constructed, he answered no.

Oral evidence - Ridgeline

1. Mr Connelly agreed in oral evidence cl 2.32(1)(c)(ii) is triggered if the natural ground is less than 20m lower than the ridgeline of any hill. Mr Connelly was shown the contour plan (Ex H) extracted above in [134]. Mr Connelly agreed the contour lines are marked in yellow and are 5m apart in distance. Mr Connelly agreed that the marking in the yellow dashed box indicates a buffer distance of 100m. He agreed that there are four contour lines between the black line and the 100m buffer to the north indicating at least a 20m drop. He agreed six contour lines between Building 3 and the buffer distance denotes a fall in the land of 30m. Asked whether cl 2.32(1)(c)(ii) of the Codes SEPP applies because the natural ground level of the landholding within a 100m of the top of the hill is at least 20m lower than the ridgeline, Mr Connelly disagreed. Mr Connelly agreed to the height differentials put to him by the Council. Mr Connelly did not agree the land is a hill. Asked where a reference to a crest can be found in the Codes SEPP, Mr Connelly stated you won't find the word.
2. On the assumption the land is a hill and the black line on Mr Chrystal's contour map is a ridgeline and given the development control in cl 2.32(1)(c) of the Codes SEPP, Mr Connelly agreed that the maximum height of Building 6 must be 180m (AHD) as the height of the land is 185m (AHD). Based on the same assumptions, the maximum height of Building 7 must be 175m (AHD) as the land has a height of 180m.
3. Mr Connelly had not determined the maximum height of Building 6. On the assumption the hill has a ridgeline, he could not say whether the building is located 5m below the ridgeline. Mr Connelly agreed that Building 6 sits at the highest point whether the land slopes to the north and south.
4. Asked whether he measured the height of Building 7, he replied he knew the height was 7m based on a plan. Shown an image of Building 7, Mr Connelly agreed that the land fell in a north-westerly and southerly direction on either side of the building. Mr Connelly agreed Building 7 at a height of 7m would sit above the ridgeline on the assumption that the black lines on Ex H denoted a ridgeline. He considered that assumption to be erroneous.

Town planning joint expert report dated 24 March 2023

1. In the town planning JER dated 24 March 2023 the town planners prepared a table in which they commented about the application of the Codes SEPP to buildings the subject of the summons.
2. Mr Chrystal opined Building 6 was located within 6m of Building 5 and 7 contrary to cl 2.32(1)(g). Building 5 was constructed between 11 July 2019 and 20 August 2019. Buildings 6 and 7 satisfied the building separation standard if earthworks were excluded. Both buildings failed to comply with the ridgeline standard in his opinion.
3. Mr Connelly stated Buildings 6 and 7 were located on a crest rather than a ridge. He was instructed at the time of its construction Building 6 was located greater than 6m from Building 5, noting Building 5 was not formalised as a structure by roofing until sometime between 20 August 2019 to 6 August 2020 according to Mr Watts. He estimates that Building 7 is located about 15m from Building 6.

Building 6 does not comply with cl 2.32(1)(g) minimum building separation of 6m between farm buildings

1. A question whether Building 6 complies with cl 2.32(1)(g) which specifies a minimum building separation of 6m between farm buildings arises. The issue can be shortly dealt with.
2. The undisputed aerial survey evidence of Mr Watts summarised above in [130] establishes that Building 6 is within 6m of Building 5 and does not therefore comply with cl 2.32(1)(g).
3. The Respondents submitted that based on Mr Connelly's expert opinion Building 6 was exempt at the time it was built and that is when the Codes SEPP is applied. Effectively that construction of the Codes SEPP would mean that landowners are not responsible for ongoing compliance with the Codes SEPP after a particular point in time. No statutory construction basis for limiting the Codes SEPP in that fashion was identified and such an approach would lead to potentially absurd results. On this basis alone Building 6 is not exempt development as it is now less than 6m from Building 5 which does not comply with cl 2.32(1)(g). Regardless of the onus of proof in relation to the application of the Codes SEPP (issue 2), on the balance of probabilities Building 6 is not exempt development.

Buildings 6, 7 do not comply with cl 2.32(1)(c) ridgeline control

1. Clause 2.32(1)(c) requires that farm buildings be sited so that the highest point is 5m below a ridgeline if located within 100m of a ridgeline when land is more than 4ha and the natural ground at any point within 100m of a ridgeline is at least 20m lower than the ridgeline. The issue arises of whether the location of Buildings 6 and 7 complies with this clause. If not compliant the buildings cannot be exempt development.

Council's submissions

1. Mr Connelly's opinion that the commonly used dictionary definition of ridgeline is the line formed by the top of a mountain or mountain range is readily addressed by the text of cl 2.32(1)(c)(ii) which ties a ridgeline to one 'of any hill'. The ridgeline control relates to farm buildings in cl 2.32 as criteria (i) - (iii) are satisfied because: 1. the landholding has an area of more than 4ha; 2. Mr Chrystal provides mapping with contour levels in his evidence (see above in [134]) to show that the natural ground levels at any point within 100m of the ridgeline of any hill is at least 20m lower than the ridgeline; and 3. the buildings are within 100m of that ridgeline.
2. Any farm building must be sited on the landholding "so that the highest point of the development is at least 5m below that ridgeline." The purpose of such a control is clearly to reduce the visual impacts of farm buildings in rural environments.
3. The reference to 'that ridgeline' in the operative part of the control is a cross reference to (ii) which refers to 'ridgeline of any hill'. It follows that there is no ambiguity on the face of the clause which would require recourse to the dictionary definitions. The nature of the relevant hill (with ridgeline behind it) is identified in the contour plan above in [134] that was annexed to Mr Chrystal's Report, as well as the images attached to Ms Pitt's affidavit including the photo extracted above in [47] which clearly shows the contours of the Development Site and the ridgeline depicted in the contour plan provided by Mr Chrystal.

Respondents' submissions

1. Mr Connelly's opinion concerning the meaning of ridgeline should be adopted. Mr Connelly has applied the ordinary meaning of the term 'ridgeline'. Slopes or sloping or undulating land do not constitute a ridgeline and it would be contrary to the plain language of clause 2.32(1)(c) and the ordinary English meaning of the term to construe it in that way.
2. The evidence before the Court does not show that the ridgeline standard was breached. Exhibit H is a 2017 photograph with 2021 data addition (presumably the contour lines). This appears on the face of the document. It is of no assistance unless it is assumed and there is no evidence that this is the case that the land has remained unchanged since 2017.
3. There have been no measurements of the AHD height of the buildings or any AHD height measurement of the land. In these circumstances, the limitation in clause 2.32(1)(c)(ii) cannot sensibly be applied. In relation to Building 7, a 7m high two-storey shed, there is no measurement of its final height above AHD or ground level. The Applicant says this does not matter, however, the mere fact that it is located on a gentle hill or slope does not mean it is on a ridge.

Consideration of ridgeline

1. Clause 2.32(1)(c)(i) applies to the Development Site in particular Lot 34 in that it is more than 4ha. The application of subcll (1)(ii) and (iii) appears to be disputed by the Respondents, namely whether the natural ground level is more than 20m lower than a ridgeline at any point and whether the buildings are within 100m of a ridgeline because the meaning of ridgeline is disputed. The Respondents also dispute that the buildings are not 5m below the ridgeline as the control requires.
2. The definition of ridgeline in cl 2.32(1)(c) should first be considered as the Respondents submit that the location of Buildings 6 and 7 is not on or near a ridgeline. The express application of the clause to 'ridgeline of a hill' in subcl (1)(c)(ii) does not require recourse to a dictionary definition. I do not therefore accept Mr Connelly's opinion relying on a single dictionary definition of ridgeline which happens to refer to 'mountain' as supplanting the plain meaning of the clause. There is no statutory construction basis for doing so given the express wording of the clause. The words 'ridgeline of a hill' can be applied given their plain, ordinary meaning in the context of the clause: Sydney Seaplanes Pty Ltd v Page (2021) 393 ALR 485; (2021) 106 NSWLR 1; [2021] NSWCA 204 at 491-494.
3. The next matter is whether Buildings 6 and 7 are at or near the ridgeline of a hill. Mr Connelly submitted the land formation is best described as a crest. I understand this was intended to distinguish the land from being a hill. According to Mr Chrystal the commonly understood meaning of hill includes the land's highest point and could include a crest. I accept Mr Chrystal's common sense approach to identifying a hill. Identification of a physical land formation of a hill is not a matter of particular specialist expertise and measurement beyond usual observation where land slopes away steeply as the land around Buildings 6 and 7 does. The plan Ex H extracted above in [134] which identifies ridgelines informs the location of Buildings 6 and 7. That plan shows contour lines suggestive of steeply falling slopes from the highpoint of the hill on which Buildings 6 and 7 have been built. The naked eye and common experience enables the identification of a hill in these circumstances. Mr Chrystal's observations as an experienced town planner that a hill with a ridgeline exists is accepted. The plan provided by Mr Connelly extracted above at [137] was not of assistance in identifying the features of the land.
4. The Australian Cannabis University video provided by the parties, a still of which is extracted above in [47], enables anyone to observe that Buildings 6 and 7 are located on or very near a ridgeline and protrude above the ridgeline of the hill on which they are located.
5. The hill being considered is a natural formation of the land according to the evidence presented. It can be assumed to have been there for many centuries. The Respondents' submission that the Council had to show that the landform had not altered between 2017 the date of the underlying plan in Ex H and the 2021 data added to the plan identifying ridgelines before any conclusion could be drawn that Ex H was accurate is not accepted as a matter that the Council had to address in its evidence. I consider Ex H to depict ridgelines on hills on Lot 34 including a ridgeline very near Buildings 6 and 7.
6. I accept Mr Chrystal's opinion that Buildings 6 and 7 are higher than 5m below the ridgeline on which they are located. Further, the height of Building 7 was 7m based on a plan according to Mr Connelly. Shown an image of Building 7 in cross-examination, Mr Connelly agreed that the land fell in a north-westerly and southerly direction on either side of the building. Mr Connelly agreed Building 7 at a height of 7m would sit above the ridgeline on the assumption that the black lines on Ex H denoted a ridgeline. While he did not agree that Ex H showed a ridgeline I have accepted that it does.
7. It is unnecessary for the Council to have obtained AHD measurements of the land or Buildings 6 and 7 in order for necessary findings to be made given the clear evidence of the form of the slope in the area of Buildings 6 and 7 and their position in relation to the ridgeline of the hill. The highest points of the buildings are not 5m below the ridgeline as required by cl 2.32(1)(c). The buildings are not exempt development.

Conclusion on issue 4

1. Regardless of the onus of proof in relation to the application of the Codes SEPP (issue 2), on the balance of probabilities the Codes SEPP in cl 2.32(1)(c) has not been complied with for Buildings 6 and 7. Nor does Building 6 comply with cl 2.32(1)(g) of the Codes SEPP. Neither farm building is exempt development.

Issue 10 exercise of discretion

1. The Court is conferred with a broad discretionary power under s 9.46 of the EPA Act as to whether or not to make a declaration of invalidity and/or an order restraining a breach of the EPA Act if such a breach has been established. The further amended summonses above in [17] and [19] identify declarations and orders sought in relation to each of the lots.

Council's evidence

1. In addition to expert evidence such as Mr Watts concerning extent of clearing, the Council relies on Ms Pitt's affidavit dated 9 November 2022 which sets out a chronology of lengthy correspondence which encouraged the Respondents to regularise their use from May 2020 to June 2021 summarised in part above in [40]-[42].

Respondents' evidence

1. The Respondents' evidence on discretion is as follows: 1. The biodiversity report dated May 2023 prepared by Biodiversity Australia (annexed to the affidavit of Mr Jeong dated 16 June 2023) that assesses the environmental impacts on the land. The report will support the Respondent's case in the Class 1 proceeding. 2. The low-THC hemp licence issued under special legislation applying to farming for this crop (see above in [6]) [I note that the application to renew the hemp licence has been refused]. 3. The Respondents read the affidavit of Mr Kershaw builder dated 22 March 2023. On 20 March 2023 Mr Kershaw visited Lot 34 to inspect the structures on it. He provided a quote for demolition, removal and disposal of all the structures subject of summons excluding Building H at an authorised landfill at a cost of $325,260 plus GST. The estimated amount of time to complete the work overall was 28 working weeks.

Expert Evidence

1. The aerial surveying JER dated 21 March 2023 prepared by Mr Watts for the Council and Mr Connelly for the Respondents identified vegetation change and clearing. Mr Watts aerial survey report dated 22 February 2023 identified that approximately 14,900m² of vegetation was cleared in the period after November 2018 in the area where Buildings 2 to 7 are located.
2. The Council read the affidavit of Mr Swain bushfire consultant dated 23 February 2023 during the first hearing period (who became unavailable). The Respondents tendered the bushfire JER prepared by Mr Hawkins and Mr Carroll dated 9 June 2023. Annexed to the Bushfire JER dated 9 June 2023 was Mr Hawkins' bushfire risk assessment on the Development Site dated 4 April 2023. He undertook a site inspection on 14 March 2023 where he considered the buildings against the AS3959 construction standards. It was his opinion that the majority of the buildings considered in this report have a bush fire attack level rating of 'flame zone.' The flame zone determination implies that direct flame contact on a structure is likely.

Council's submissions

1. The making of any order or declaration in this Court in proceedings of this nature is discretionary, pursuant to s 9.46 of the EPA Act. The discretion is to be exercised judicially: Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 (Sedevcic) at 339-240. Concerning the factors identified in Sedevcic: 1. It cannot be said that breaches complained of in these proceedings are purely technical and unnoticeable other than to a person well versed in the relevant law. The breaches are numerous, obvious and egregious; 2. It cannot be said that there was a delay in bringing the action; and 3. There is no evidence that the breaches have been shown to have a beneficial effect.
2. As Pepper J noted in Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 at [20]: …the making of the declarations marks the disapproval of the Court of conduct that Parliament has proscribed. It also serves to discourage others from acting in a similar way and may, therefore, be seen to have a deterrent and educative element. The granting of the declaration may accordingly be seen as advancing the regulatory objects of the EPAA…
3. In reply to the Respondents' submission that the Court would consider in the exercise of discretion whether the breaches are of a purely technical nature below in [189(1)], the breaches involve the erection and use of 27 structures on the Development Site. The Council received numerous complaints that the use of the land required development consent and the relevant buildings were not exempt development.
4. In reply to the Respondents' submission that the Court would consider whether the breach has a beneficial effect given the utility and medicinal role of the cannabis products below in [189(2)], the Council submits there was no evidence before the Court of the benefit of the particular cannabis produced, nor any evidence they are unavailable elsewhere.
5. In reply to the Respondents' submission that the Court would consider the public interest as the hemp farming operation is licenced below in [189(3)] in the exercise of discretion, the application to renew the hemp licence was refused.
6. The Court would treat with scepticism the Respondents' submission that refusal of Mr Cooke's hemp licence 'radically changed the factual circumstances relevant to the Court's discretion in this case'. In the Respondents' March submissions, the existence of the licence was said to be a reason for a favourable exercise of the Court's discretion. It is contradictory to then say that the decision by the Department of Primary Industries not to renew the same licence has the same effect. In fact, the licence has very little bearing on the nature of these proceedings which relate to breaches of planning law rather than subsidiary approvals which simply control and regulate the type of agricultural product harvested on the Development Site.
7. In reply to the Respondents' submission that the Court would consider the absence of proof of harm to the environment below in [189(4)] in the exercise of discretion, the Council submits the Court can infer the works involved some harm to the environment. Extensive earthworks have occurred, an extensive area of vegetation has been cleared and a significant number of structures were erected without consent.

Breach not remedied, relief necessary

1. It is a nonsense to say that any breach has been 'remedied' by the non-renewal of the licence in response to the Respondents' submission below in [196]. Utility, force and effect remains in a declaration and restraining order relating to the carrying out of an agricultural produce industry on the Development Site for reasons including: 1. The declaration and orders sought do not relate to 'hemp farming' per se, the relief relates to an agricultural produce industry being a form of rural industry on the Development Site. In the absence of an appropriate declaration and orders from the Court there would be nothing to prevent: 1. the processing of raw hemp product (already grown and harvested on the Development Site) in buildings on the Development Site; 2. the processing of hemp products where that hemp has been imported from off-site; or 3. the processing of another agricultural product in circumstances that require development consent. 1. There is no guarantee that the hemp licence will not be renewed, and if renewed in favour of Mr Cooke without a declaration and orders the use could be continued unlawfully without sanction from the Court; 2. If the licence is ultimately not renewed, a fresh application for a licence could be made by a third party with the ability to operate under that licence and recommence the processing activities on the Development Site.
2. The breach could only be remedied (in part) by a development consent and BIC that authorises the use of the Development Site the subject of these proceedings. The Respondents' express an intention to continue hemp farming subject to the appropriate authorisations being in force.
3. The pre-litigation correspondence between the Council and Mr Cooke demonstrate the Council consistently engaged with the Mr Cooke over 2020 and 2021 to regularise the breaches of the EPA Act. On every occasion the Council was rebuffed leading to the commencement of these proceedings.
4. In reply to the submission below in [192] regarding ecologically sustainable development, the Court should not 'soften' the relief sought. No evidence is relied on to support the Respondents' submission.
5. The submission below in [197] that a Court order for demolition would be to direct Mr Cooke and Mr Kovac to carry out work in breach of the EPA Act is wrong. The demolition and removal of a structure erected unlawfully is an order that can be lawfully made by the Court. It also ignores the primacy of the Court's powers and the statutory override in section 4.4 of the EPA Act: Anastasiou v Wallace [2020] NSWLEC 14 at [42]-[51].
6. The Court should not reward conduct which constitutes the wholesale disregard for the law, for commercial purposes, over a long period of time. Mr Cooke has been fined for a failure to comply with the conditions of the hemp licence. Rather than being a factor in favour of the exercise of discretion, the Court would observe that the cessation of activities on the Development Site has only occurred temporarily and only after the regulatory authorities have exercised their powers to enforce the outcome. The Court should exercise its power to enforce this outcome. The utility and necessity of the relief sought in these proceedings remains.

No delay in making orders

1. Relief should not be staggered to allow the two Class 1 appeals to be determined first. Prayer 8 in proceeding 2021/364584 and prayer 5 in proceeding 2021/364656 of relief sought by the Council suspend the operation of the orders until the relevant application is determined.
2. For this reason, there is no need to defer any decision in respect of relief until after the Class 1 appeals have been determined as suggested by the Respondents. That would not be consistent with the just, cheap and quick resolution of the proceedings as required by s 56(1) of the Civil Procedure Act 2005 (NSW).

Bushfire Safety

1. Bushfire safety issues have arisen as the Respondents made the following assertions about bushfire safety in the Rural Industry DA and Dwelling House DA (the latter not now pressed): 1. The whole of the Development Site is mapped either 'Category 1 vegetation' or as 'Vegetation Buffer' under the requirements of Planning for Bushfire Protection 2006 (Rural Industry DA and Dwelling House DA) (the latter not now pressed). 2. No APZ requirement for proposed rural outbuildings under Planning for Bushfire Protection 2006 (Rural Industry DA). I note under the Codes SEPP an outbuilding means a class 10a farm building inter alia under the Building Code of Australia (also known as the National Construction Code). 3. The dwelling (Buildings A and 2) met the construction requirements for the bushfire attack level required as per AS3959-2018 Construction of Buildings in Bushfire-Prone Areas and the National Association of Steel-framed Housing Bushfire Standard (2014) (Dwelling House DA) (not now pressed).
2. The Council engaged Mr Swain who prepared a report dated 23 February 2023 and concluded that there was grave risk associated with their use of the Development Site. He considered that the construction standards applied to each building would not remove the threat of bushfire attack. Bushfire risk was a key reason for refusal of the development applications.
3. In summary, there is no discretionary matter that has been raised that sufficiently outweighs the general public interest in the performance of development in accordance with the requirements of the EPA Act. The Court should not exercise its discretion in favour of the Respondents.

Respondents' submissions

1. The Court is conferred with a broad discretionary power under s 9.46 of the EPA Act as to whether or not to make an order restraining a breach of the Act if such a breach has been established. The Respondents ask the Court to decline to grant any relief. In the alternative, the Respondents ask the Court to defer making any orders pending the determination of the Class 1 appeals on foot.
2. In their March submissions, the Respondents summarised relevant factors for the Court in the exercise of discretion to include: 1. whether the breaches are of a purely technical nature, unnoticeable other than to a person well versed in the relevant law - this is a farm; the buildings are farm buildings; and the failure of any particular building to satisfy a requirement for exempt development (say in respect of separation or ridgelines) is a technical matter; 2. the breach, in reality, is shown to have a beneficial effect given the utility and medicinal role of locally-sourced cannabis product(s) [I note no production of cannabis products is occurring following refusal of a hemp licence]; 3. public interest as the hemp farming operation is local industry, and a local employer, that is expressly licenced under legislation [I note refusal of hemp licence]; and 4. absence of proof of harm to the environment.
3. The recent events since the first period of the hearing outlined above in [5]-[15] are relevant to the exercise of discretion. In relation to the agricultural use of the property, the temporary but lawfully mandated cessation of the farming and ancillary processing (given the refusal of the hemp licence) means that there is nothing to be remedied or restrained at present in terms of any physical farming or processing activity on the land.
4. The applicable principles are set out in ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 (ACR Trading) and Sedevcic. In its exercise of power, the Court is to have regard to the objects of the EPA Act: F Hannan Ltd v Electricity Commission of NSW (No 3) (1985) 66 LGRA 306 at 311, 313 (F Hannan); Hopkins v Quinn [2016] NSWLEC 163 (Hopkins).
5. The use of discretion should ensure the Respondents are safeguarded against abuse of process. The Court is permitted 'to soften, according to the justice of particular circumstances, the application of rules which, though right in the general, may produce an unjust result in the particular case': Sedevcic at 340. The appropriate 'softening' might be best achieved by postponing any relief: Woollahra Municipal Council v Carr (1982) 47 LGRA 105.
6. In ACR Trading, Kirby P (as he then was) noted that 'The discretion conferred by s 124(1) is a mollifying one'. Among the various circumstances taken into account in the exercise of discretion in ACR Trading at 83 was that 'the only environmental consideration suggesting the need for injunctive relief (other than simply the existence of a breach of the EPA Act) was the potential of an offensive activity which, so far, had not once manifested itself.'
7. These are civil not criminal proceedings. The civil enforcement jurisdiction of this Court is not to be used as punishment under the guise of remedying a breach and a 'declaration of breach of a statute in civil enforcement proceedings is not to be equated with entry of a conviction upon a finding of guilt in a criminal prosecution': Great Lakes v Lani (2007) 158 LGERA 1 at 13 . As stated by Moore J in Hopkins at 104: The discretion under s 124 of the EP&A Act is either therapeutic or prophylactic. It is not punitive and I should not approach it in that fashion.

Public Interest

1. In Sedevcic, the Court of Appeal dismissed an appeal from a refusal by the Court to grant an injunction to restrain a long-standing beneficial, but unlawful, use of land. The Respondents' submissions dated 30 March 2023 extracted below submitted that the use of the Development Site was in the public interest as follows: … The hemp farm is licensed under special legislation applying to farming for this crop. [As already noted this is not the current situation given the refusal of a hemp licence.] The operating farm on the land is a non-profit organisation that focuses on teaching hands-on skills to farm workers (EB2076, Exhibit SC-1 of affidavit of Stephen Connelly sworn on 20 December 2022, [1.6.3]). In addition, ACU provides free and low-cost education via its website (EB1166). The 'Australian Cannabis University' has 6,700 members who have the opportunity to buy products via the ACU website and share and learn via the on-line community groups, and the membership fee is only $1 (reflecting the non-profit and communitarian objectives of ACU and the hemp farm) (EB1166). The cannabis farmed on the land is used for medicinal and healing purposes and is the subject of positive testimonials about positive health impacts (EB1337, Youtube video 'We are Australian Cannabis University' referred to in Exhibit to Affidavit of Chrystal affirmed on 14 November 2022, [1.37]: "rheumatoid arthritis for 30 years… 30 years of pain to go to no pain; its just healed so much" and "cancer… rather than sleeping an hour and a half at a time… I was sleeping through the night" & EB1127, Exhibit AP-1 to affidavit of Amelia Pitt affirmed on 9 November 2022, page 190). Locally farmed product available supports local employment and industry. As part of the activities in the public interest, the Respondents permit cancer patients and other sick persons to stay on the land and use Building A as a respite space (EB1224, Exhibit AP-1 to affidavit of Amelia Pitt affirmed on 9 November 2022, page 287 & EB1340 Exhibit to Affidavit of Chrystal affirmed on 14 November 2022, [2.8a.-b.]). The Respondents have also permitted a young woman suffering from Crohn's disease to say in Building 2 while she sought alternative treatments to ease her discomfort. The Respondents have also allowed a respected Aboriginal elder to stay on the land and have discussed with local indigenous people the possibility of young men coming to the site for cultural practices. …

Breach remedied, relief unnecessary

1. The declarations sought by the Council would serve no purpose in resolving any matter presently in dispute that serves the objects of the EPA Act or would add anything to any injunctive relief: Bronger v Greenway [2023] NSWCA 104 at [71]-[73]. There is no need for injunctive orders for cessation of use, as the uses have ceased. The refusal of the hemp licence means that to the extent there has been any breach, the breach has been remedied. As in Sedevcic at 347, in these proceedings there is an 'absence of any proven planning detriment or prejudice to people living in the area'. In light of recent developments, there is no risk of any future environmental harm or other harm that necessitate orders.
2. The Council also seeks orders for demolition of all buildings and structures the subject of these proceedings. Citing Hopkins at [86]-[89] to facilitate ecologically sustainable development is an object of the EPA Act and demolition orders that expend significant resources, without practical benefit, would be contrary to this objective. The Respondents have provided undertakings to the Court set out above in [12] and [13] to demolish the impugned structures, subject to obtaining a development consent. No one is harmed by the presence of the structures, and any Court order for demolition (absent a development consent) would be to direct the Respondents to carry out work in breach of the EPA Act: Cando Management and Maintenance Pty Ltd v Cumberland Council (2019) 237 LGERA 128; [2019] NSWCA 26 at [138]. (I note that the Council in its latest summonses is proposing that any demolition orders be stayed pending the outcome of the Class 1 proceedings now before the Court.)
3. The affidavit of Mr Kershaw sets out an estimate of the cost and time required to demolish various buildings on site. Mr Kershaw estimates the total cost will be $325,260 plus GST and time required will be 28 working weeks (see above in [167(3)]). The Respondents submit that the Court is able to take judicial notice of the fact that cost and time estimates in construction projects are prone to being exceeded. The Respondents submit that it would be appropriate to allow 12 months for any required demolition to take place so that the demolition can take place in a safe, efficient and orderly manner and to provide an opportunity to the Respondents to spread demolition costs. Any such period of time should only run from the final determination of the Respondents' development applications and BIC applications by the Court, so a period of 12 months after that date should be allowed.

Defer making orders pending Class 1 appeals

1. Alternatively, the Court should defer any decision in respect of relief until after the Class 1 appeals have been determined. The Court's broad discretion permits this degree of flexibility. In the event the Class 1 appeals are successful, there would be no basis for the Court granting any relief in relation to the use of the buildings the subject of those applications. Any orders in the meantime would not serve any purpose (least of all the objects of the EPA Act).
2. Orderly development would involve awaiting the outcome of the Class 1 appeals. As stated by Jagot J in Sahade v The Owners - Strata Plan No. 62022 & Ors [2006] NSWLEC 770 at 10: In my view, s 124(3) of the Environmental Planning and Assessment Act 1979 is an important provision disclosing part of the legislative scheme that underlies the statute. That is, there is a clear intention disclosed by s 124(3) that, where the relevant breach of this Act is the carrying out of development without development consent, in circumstances where development consent can be obtained for the development, there should be an opportunity for prospective respondents to proceedings or actual respondents to proceedings to make application to adjourn proceedings to enable a development application to be made and determined under Pt 4. I consider that s 124(3) has an important role to play in achieving the objects of the Act, as set out in s 5, because it is through a process of assessment and determination of a development application that all relevant matters under s 79C of the Act can be weighed, assessed and determined.
3. The determination of issue 10 is clearly not urgent and must abide the outcome of two Class 1 Appeals.

Bushfire Safety

1. In the bushfire JER dated 9 June 2023, the experts agreed no bushfire resistant construction measures were required for class 10a rural outbuildings. The Class 1 appeal seeks consent for rural outbuildings only.
2. I note an outbuilding is defined in the Codes SEPP to include a class 10a farm building under the Building Code of Australia (also known as the National Construction Code). The bushfire evidence in the JER is relevant to the determination of both Class 1 appeals. Conditions can be applied to the Development Site, and its buildings and access as part of the determination of the Class 1 appeals. The Court only need note the bushfire evidence will be addressed in the Class 1 jurisdiction.

Consideration of exercise of discretion

1. The Council has been successful in relation to the principal issue in these two matters, as found in issue 1. The use of the Development Site for the activities the subject of evidence requires development consent which it does not presently have. Should the declarations and orders sought in the latest summonses dated 27 June 2023 be made?
2. I discussed in Kempsey Shire Council v Thrush & Anor [2011] NSWLEC 93 [45]-[47] the Court's broad discretion in the context of a number of authorities referred to by the parties as follows: This Court has broad discretion in determining whether the relief sought ought be granted and in what form where a breach of the EPA Act is established. The wide discretion of the Court has been recognised in cases such as F Hannan Pty Ltd v Electricity Commission (NSW) (No 3) (1985) 66 LGRA 306 at 313. In Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Kirby P (as he then was) identified a number of principles to take into account at 339 - 341. The principles emphasise, inter alia, the wide nature of the discretion and the importance of upholding public laws as follows: Because s 123 of the Act permits any person (and not just the Attorney-General or a person with a sufficient interest), to bring proceedings in the Court for an order to remedy or restrain a breach of the Act, there is indicated a legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured. ... Where the application for the enforcement of the Act is made by the Attorney-General, or a council, a court may be less likely to deny equitable relief than it would in litigation between private citizens: Associated Minerals Consolidated Ltd v Wyong Shire Council (at 692). This is because the Attorney-General or the Council are seen as the proper guardians of public rights. Their interest is deemed to be protective and beneficial, not private or pecuniary: cf Rowley v New South Wales Leather Trading Co Pty Ltd v Woollahra Municipal Council (1980) 46 LGRA 250. Of course, as the development or administrative law demonstrates, administrators who advise the Attorney-General or councils can sometimes act from motives which are less disinterested. Courts will be alert to insensitive, unthinking administration in this as in other fields of law. In ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 Kirby P at 82D stated that discretion permits the refusal of relief if granting it would work an injustice disproportionate to securing enforcement of the legislation. In Sedevcic Kirby P at 340F set out several guidelines for the exercise of discretion to the effect that discretion can be more readily exercised where the breach is more easily remedied than for, say, a static structure that requires demolition. Ultimately Kirby P recognised as relevant to the judicial perception of the need to balance the public interest in compliance with the law with the degree of irremediability arising from a breach (340F).
3. I will further consider these principles in considering the exercise of my discretion in the particular circumstances of this case.

Breach not technical, no delay in seeking orders

1. The breach of the EPA Act by the Respondents is not technical in nature given the large number of buildings and structures built over a wide area on the Development Site without development consent.
2. Mr Cooke proved somewhat resistant to the council officers advising him that development consent was required for the activity he was undertaking without development consent on the Development Site based on the uncontested evidence of Ms Pitt. Many of the structures he caused to be erected were not complying development, as identified in the history set out in Ms Pitt's affidavit summarised above in [39]-[49]. In failing to obtain development consent the Respondents gained a private advantage compared to others who complied with the requirements of the EPA Act and that advantage continued for a considerable period of well over two years.
3. The Council did not delay in commencing proceedings and it was necessary to do so given the Respondents' behaviour.

Public Interest

1. While the Respondents have submitted that they are undertaking an activity with community benefits, which I broadly accept, the extent of that benefit is difficult to gauge. The basis for most of the submissions extracted above in [195] is second hand being statements made by Mr Cooke to other people who have repeated them. It is difficult to attribute this evidence much weight given its untested and second hand nature. As the Council submitted there is no evidence adduced of any lack of availability of the beneficial product being produced by the Respondents if they are not available as a source. Whether or not the activity is in the public interest, it resulted in a commercial operation with substantial sales of product to the public as well as members of the Australian Cannabis University.

Refusal of hemp licence irrelevant to exercise of discretion

1. That the activities by the Respondents have presently ceased due to the recent refusal of a hemp licence under legislation administered by the Department of Primary Industries can be noted and is the practical reason why all activity has ceased on the Development Site. I otherwise consider that event has little relevance to this proceeding which is concerned with breaches of the EPA Act. The event of refusal of the hemp licence does not cure the breaches of the EPA Act established by the Council. Nor have these been remedied in a legal sense. As the Council submitted, if a hemp licence is ultimately issued the same planning issues remain for consideration.

Bushfire safety / vegetation removal

1. No finding will be made on bushfire safety matters given the pending Class 1 appeals which will consider that topic and it was not fully argued before me with only cursory reference to the bushfire material.
2. Some clearing of vegetation occurred albeit the Council has not pressed the issue concerning the extent of clearing in the context of the Codes SEPP (issue 3). Mr Watts identified 14,900m² of vegetation cleared in the period after November 2018 in the area where Buildings 2 to 7 are located in his report dated 22 February 2023. The extent of environmental impact caused by the clearing is unknown.

Conclusion

1. Balancing these various matters and in light of the principles identified above I consider I should make the declarations sought in the Third Further Amended Summons in proceeding 2021/364584 concerning Lot 34, and in the Second Further Amended Summons in proceeding 2021/364656 concerning Lot 3 given the nature of the breaches and the delay in seeking to have them regularised by Mr Cooke in particular. The declarations sought by the Council are directed to Mr Cooke only. The determination of issue 1 will be of assistance in the Class 1 appeals in clarifying the appropriate characterisation of the activity occurring on the Development Site and the making of declarations further confirms those findings.
2. The Council seeks several orders for injunctive relief and demolition of various buildings in both proceedings, with any such orders to be postponed pending the outcome of the two Class 1 proceedings presently on foot. The Respondents submit that it is more appropriate given s 1.3 of the EPA Act that no orders for demolition be considered until after the outcomes of the Class 1 proceedings is known. The orders sought by the Council include postponement of any demolition until the outcome of the Class 1 proceedings is known.
3. As there is possible complexity in the outcome of both Class 1 proceedings in relation to the legal status of various buildings I will postpone the making of any demolition orders until these have been determined. I observe that a much longer timeframe than 28 days should be allowed in the event that demolition becomes necessary, given the evidence of Mr Kershaw that at least 28 weeks would be needed if all structures are to be removed. It is unnecessary to make any injunctive orders in the current circumstances.

Costs

1. The usual costs order in civil enforcement proceedings is that costs follow the event so that the Council as the successful party would expect to obtain a costs order in its favour in the absence of any disentitling conduct. The Respondents indicated they may wish to make submissions on costs, as did the Council. To accommodate these submissions I will reserve costs, noting that there appear to be reasonable grounds to make the usual order. A timetable to deal with costs will be discussed with the parties.

Declarations (2021/364584)

1. The Court makes the following declarations in proceeding 2021/364584: 1. A declaration that the First Respondent has breached s 4.2(1)(a) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by using land identified as Lot 34 in DP 755714 located at 2956 Kyogle Road, Kunghur, New South Wales (Lot 34) and structures thereon for the purposes of an agricultural produce industry, being a type of rural industry (by the handling, treating, processing and storage of produce from agriculture for commercial purposes) being development permissible with consent pursuant to the Tweed Local Environmental Plan 2014 (TLEP), for which consent has not been obtained. 2. A declaration that the First Respondent has breached s 4.2(1)(a) of the EPA Act by carrying out building works for the purposes of an agricultural produce industry (being a type of rural industry) on Lot 34 for which development consent is required for which none has been obtained, comprising: 1. alterations and additions to a building comprising a site office, kitchen facilities, laboratory area and attached timber deck, located in the area marked '3' on the site map annexed hereto and marked Annexure A (Site Map); 2. the erection of a rectangular greenhouse measuring approximately 16m in length and 8m in height, located in the area marked '6' on the Site Map; 3. the erection of a two-storey shed located in the area marked '7' on the Site Map; 4. the installation of two shipping containers, with an associated roof covering and awnings, in the location marked '8' on the Site Map; 5. the construction of six greenhouses approximately 100m² in area in the areas marked 'Q', 'R', 'S', 'T', 'U' and 'V' on the Site Map; 6. the erection of 8 shipping containers in the locations marked 'I', 'J', 'K', 'L', 'M', 'N', 'O' and 'P' on the Site Map; 7. the installation of two water tanks, located in the areas marked '3' and 'W' on the Site Map; and 8. a plastic igloo/greenhouse structure, earthworks, retaining walls, and placement of concrete blocks in the locations marked, 'C', '6' and '7' on the Site Map. 1. A declaration that the First Respondent has breached s 4.2(1)(a) of the EPA Act by carrying out building works on Lot 34 comprising a structure (located in the area marked 'A') for which development consent is required for which none has been obtained. 2. Orders 4-9 in the Third Further Amended Summons dated 27 June 2023 stood over. 3. The parties to approach the Court within 14 days after final determinations of Class 1 appeal (2023/00192915) and Class 1 appeal (2023/00193058). 4. Costs are reserved. 5. Liberty to restore on 3 days notice.

Declarations (2021/364656)

1. The Court makes the following declarations in proceeding 2021/364656: 1. A declaration that the First Respondent has breached s 4.2(1)(a) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by using land identified as Lot 3 in DP 1264574 located at 2924 Kyogle Road, Kunghur, New South Wales (Lot 3) for the purposes of an agricultural produce industry, being a type of rural industry (by the handling, treating, processing, storage and packing of produce from agriculture for commercial purposes) being development permissible with consent pursuant to the Tweed Local Environmental Plan 2014 (TLEP), for which consent has not been obtained. 2. A declaration that the First Respondent has breached s 4.2(1)(a) of the EPA Act by carrying out development on Lot 3 for which development consent is required but for which none has been obtained, comprising: 1. the construction of a building which is located in the area marked 'X' on the site map annexed hereto and marked Annexure A (Site Map); and 2. the construction of a two-storey shed and adjacent water tank which is located in the area marked 'Z' on the Site Map. 1. Orders 3-6 in the Second Further Amended Summons dated 27 June 2023 stood over. 2. The parties to approach the Court within 14 days after determination of Class 1 appeal (2023/00192915) and Class 1 appeal (2023/00193058). 3. Costs are reserved.

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: 12 July 2023