Bartlett v Gray
[2024] TASSC 81
•20 December 2024
[2024] TASSC 81
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Bartlett v Gray [2024] TASSC 81 |
| PARTIES: | BARTLETT, Lisa |
| v | |
| GRAY, Fahira | |
| GRAY, Brett | |
| PRATT, Jenni | |
| PRATT, Robert | |
| NORTHERN MIDLANDS COUNCIL | |
| FILE NO: | 3039/2023 |
| DELIVERED ON: | 20 December 2024 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 12 June 2024 |
| JUDGMENT OF: | Brett J |
| CATCHWORDS: |
Environment and planning – Development assessment and control – Assessment and control of particular matters – Commercial uses – Breeding and keeping animals – Whether Tribunal correctly concluded that appellant's use of land for purpose of dog breeding was contrary to planning scheme – Whether activity is exempt from requirement for permit – Appellant unable to demonstrate activity uses not more than 40 square metres of gross floor area of dwelling – Dog breeding activity in this case does not fall within definition of home occupation – Dog breeding activity not exempt.
Aust Dig Environment and Planning [1229]
Legislation:
Dog Control Act 2000
Land Use Planning and Approvals Act 1993, s 51(1), s 63B, s 63(2), s 64
Tasmanian Civil and Administrative Tribunal Act 2020, s 136
Tasmanian Planning Scheme – Northern Midlands, cl 1.2.2, cl 4, cl 4.0.1, cl 4.1.4, cl 6.2, cl 6.4.1, cl 6.7, 6.8,
6.9, cl C9.0
Cases:
Chugg v Pacific Dunlop Ltd [1990] HCA 41, (1991) 70 CLR 249
DPP v United Telecasters Sydney Ltd [1990] HCA 5, 1990 68 CLR 594
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 817
Gen 3 Developments Pty Ltd v Devonport City Council [2013] TASSC 6
Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211
Minister for Border Protection v SZVFW and Others [2018] HCA 30
Raff Angus Pty Ltd v Resource Management and Planning Appeal Tribunal [2018] TASSC 60
State of Tasmania v Munting [2024] TASSC 36
Warren v Coombes [1979] HCA 9; [1979] 142 CLR 53
REPRESENTATION:
Counsel:
Appellant: J Kitto Respondent: N Billett
Solicitors:
Appellant: J Kitto Respondent: BDF Law
| Judgment Number: | [2024] TASSC 81 |
| Number of paragraphs: | 56 |
Serial No 81/2024 File No 3039/2023
LISA BARTLETT v FAHIRA GRAY and ORS
| REASONS FOR JUDGMENT | BRETT J 20 December 2024 |
1 The appellant and the first respondents reside in Perth and are neighbours. They live in a low density residential area. The appellant operates a business from her home which involves breeding and selling dogs, in particular Labradoodles. Her property contains a single dwelling, in which she and her family live, and two sheds. One of the sheds was constructed specifically for the purpose of housing the dogs, and has a large fenced open air exercise area annexed to it. The dogs are kept and bred in that shed and a room in the house. It is a matter of dispute as to whether any other part of the property, including the second shed, is used for the purpose of the dog breeding activity.
2 The appellant has been granted a kennel licence pursuant to the Dog Control Act 2000 by the relevant municipal council, the Northern Midlands Council (the Council), which permits her to keep not more than 12 dogs on the property "for the purpose of companionship". It is a condition of the licence that breeding of dogs is not allowed, unless planning approval is obtained. However, the Council has told the appellant that she does not require a planning permit to breed and sell dogs for the purpose of her business, because it is a home occupation and, hence, exempt from the need for planning approval. In reliance on this advice, the appellant has not applied for or been granted a permit in respect of the dog breeding activity.
3 The first respondents are opposed to the appellant's conduct of the dog breeding business on her land, claiming that it impacts on their amenity because of barking and increased traffic. Two of the respondents live in the property next door to the appellant, approximately 80 metres from her house, and the other two own a property which is about 170 metres from the appellant's house. In January 2023, the first respondents gave a notice of suspected contravention to the Council pursuant to s 63B of the Land Use Planning and Approvals Act 1993 (LUPA) claiming that the appellant was contravening the relevant planning scheme, the Tasmanian Planning Scheme – Northern Midlands (the Scheme), by operating a commercial breeding kennel on her property when the use of her land for that purpose is prohibited in the relevant zone, the low density residential zone (the zone). When Council refused to take enforcement action, because of its view that the business is exempt from the need for planning approval, the first respondents commenced civil enforcement proceedings before the Tasmanian Civil and Administrative Tribunal (the Tribunal). The proceedings were brought pursuant to s 64 of LUPA. It is not in dispute that the first respondents had standing to do so.
4 On 6 October 2023, the Tribunal, constituted by Deputy President R Grueber and member K Loveday, after a hearing, determined that the use of the land to breed dogs was contrary to the provisions of the planning scheme and hence LUPA. It made an order precluding the appellant from using the property "for the use of domestic animal breeding", together with other consequential and associated orders. The appellant has now appealed from that decision to this Court. The appeal is authorised by s 136 of the Tasmanian Civil and Administrative Tribunal Act 2020, which permits an appeal from an order of the Tribunal made under s 64 of LUPA "on a question of law or fact".
5 There are several grounds of appeal but the determinative question raised by all of them is whether the Tribunal correctly concluded that the appellant's use of the land for the purpose of dog breeding was contrary to the planning scheme. There is no dispute that the relevant use is prohibited in the zone, but the appellant and the Council both contend that the nature of the activity carried on by the appellant is a home occupation, which is exempt from the requirement for a permit. A home occupation will be exempt if it satisfies a number of conditions. It is common ground that all but two of those conditions are satisfied. The two in dispute require firstly that not more than 40m2 of gross floor area of the dwelling is used for non-residential purposes and secondly, that the home occupation does not involve employment of persons other than a resident. The Tribunal was not satisfied as to the condition concerning employment, but found as a matter of fact that the area limit was exceeded, and
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hence the exemption did not apply. The Tribunal concluded in any event that the exemption does not apply to an activity which is prohibited in the zone, but only to activities which are capable of being granted a permit. The appeal challenges the finding in respect of both the condition concerning gross floor area and the conclusion that the exemption is inapplicable in any event. In respect of the former, the appellant argues that the evidence was insufficient to justify the finding, and in respect of the latter, she argues that the exemption, if applicable, applies to all uses, including those which are otherwise prohibited.
Nature of the appeal
6 In Gen 3 Developments Pty Ltd v Devonport City Council [2013] TASSC 6, Blow J (as his Honour then was) concluded in respect of the legislative predecessor of s 136, that the nature of the appeal was a rehearing, as opposed to an appeal in the strict sense or a hearing de novo. In my view, his Honour's reasoning compels the same conclusion in respect of an appeal under s 136. Neither party contends to the contrary.
7 An appeal of this nature involves a re-determination of the case by the appellate court. The fundamental purpose of the procedure is the correction of error. To achieve this, the appeal court must determine the facts as well as the law, for itself. It must do so on the basis of the evidence presented at first instance, together with any other evidence it might in its discretion admit on the appeal. In this case, there is no further evidence and, accordingly, the determination will be made on the basis of the evidence presented to the Tribunal. In respect of factual questions, the Court must have proper regard to the advantages enjoyed at first instance, for example in respect of oral evidence, but otherwise must determine the question for itself including, if necessary, by drawing appropriate inferences from the evidence. See Warren v Coombes [1979] HCA 9; [1979] 142 CLR 53, Minister for Border Protection v SZVFW and Others [2018] HCA 30 per Gageler J.
Background
8 On 1 September 2022, the appellant, who had recently purchased the property, wrote to the Council seeking approval to build two 6 x 4 sheds and a 6 x 6 garage. The email indicated that her intention was to keep 12 dogs in the sheds of a night and that she would also use the garage to house the dogs, although this seems to be pending the construction of the two dog sheds. On 31 October 2022, the Council issued a permit approving the development and use of the garage and two sheds. The only condition related to dogs was the requirement that the kennel licence restricting the number of dogs to 12 "must be adhered to".
9 On 28 October 2022, a planner, George Walker, wrote to the Council seeking confirmation that the appellant's proposed dog breeding activity constitutes a home occupation and is exempt from requiring a permit in accordance with cl 4.1.4 of the Scheme. Council replied to this email the same day, seeking a formal application and further information concerning the proposed dog breeding activity. The reply included the following:
"The dogs will kept in an external building – kennel which has a gross floor area of 24 square metres. New born puppies will be kept within a room inside the dwelling that has a gross floor area of approximately 8.9 square metres. The total gross floor area that will be used for the home occupation is therefore 32.9 square metres which is not more than 40 square metres. It is noted that outdoor area does not require to be considered under this criteria on the basis that it does not constitute gross floor area within the Scheme."
10 On 3 November 2022, the Council wrote to Mr Walker pointing out that in the appellant's application for development of a garage and two sheds, she had stated that both sheds would be used for housing dogs. The Council requested a detailed site and floor plan addressing this discrepancy. Mr Walker replied on the following day confirming that the appellant's intention was to only use one shed for housing dogs.
11 On 8 November 2022, the Council planner, Mr Robinson, wrote to Mr Walker noting that in view of the emails which included this advice, "the proposed breeding of dogs, as per the kennel licence, is exempt from requiring a planning permit as a home occupation as defined in cl 4.1.4 of the
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Tasmanian Planning Scheme". He added that the proposed dog breeding use "must remain in accordance with the provisions of cl 4.1.4 to maintain the exemption".
12 To date, the appellant has constructed only one of the sheds. The shed has an internal area of 24m2. A roofed awning area comprising 12m2 and a fenced outdoor exercise area comprising approximately 100m2 are attached to it. It is common ground that the dog breeding business uses this shed and the attached outdoor areas, as well as the internal room in the main house, which has an area of 9.91m2. Finally, there is the second shed, which was on the land when it was purchased by the appellant. It is a matter of dispute as to whether this shed is also used for dog breeding.
The alleged contravention
13 As the Tribunal correctly explained, its jurisdiction to make the orders in question arose pursuant to s 64(1) of LUPA. That section affords such jurisdiction upon application by a person with a proper interest in the subject matter, where a person has contravened a provision of Part 4. The relevant provision is s 63(2)(a) which provides that a person must not use land in a way that is contrary to a planning scheme. The first respondents allege that the appellant contravened the Scheme by using her land for the breeding of dogs as part of a commercial enterprise. The Tribunal found that the appellant was using her land in this way, and that that was in breach of the Scheme.
14 As would be expected, the Scheme seeks to regulate the use of land. Clause 6.4.1 provides that with certain exceptions, use of land must not be commenced or carried out without a permit granted and in effect in accordance with the Act and the provisions of the Scheme. The specified exceptions are set out in cl 6.5 and 6.6. These exceptions deal with exempt uses and uses in respect of which no permit is required. Having regard to the issues in this case, it is convenient to set out these clauses in full:
"6.4 Requirement for a Permit
6.4.1 Except as provided in sub-clauses 6.5 and 6.6 of this planning scheme, use or development of land must not be commenced or carried out:
(a) without a permit granted and in effect in accordance with the Act and the provisions of this planning scheme; or (b) in a manner contrary to the conditions and restrictions of a permit. 6.4.2 A change from an individual use to another individual use, whether within the same Use Class or not, requires a permit unless the planning scheme specifies otherwise.
6.5 Exempt Use or Development
6.5.1 A permit is not required to commence or carry out a use or development if it is exempt from requiring a permit under clause 4.0 of this planning scheme. 6.6 No Permit Required Use or Development
6.6.1 A permit is not required to commence or carry out a use or
development if:
(a)
the use is within a Use Class specified in the applicable Use Table as being a use for which no permit is required;
(b)
the use or development complies with each applicable standard and does not rely on any Performance Criteria to comply with each applicable standard;
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(c)
the use or development is not Discretionary under any other provision of this planning scheme;
(d)
the use or development is not Prohibited under any other provision of this planning scheme; and
(e)
a permit for such use and development is not required by a code.
6.6.2 A permit is not required to commence or carry out a use or development if it is No Permit Required under any other provision of this planning scheme."
15 Where a use does not fall within these exceptions, then the prohibition against commencing or carrying on the use without a permit contained in cl 6.4.1 will apply. In such a case, the provisions of cl 6.7, 6.8 and 6.9 determine how the Scheme regulates the grant of a permit. Clause 6.7 provides that a permitted use must be granted a permit, with or without conditions, cl 6.8 provides that the planning authority has a discretion to refuse or permit uses which are discretionary and cl 6.9 provides that uses which are prohibited must not be granted a permit. These clauses set out the circumstances that determine which clause is applicable. The primary factor is how the use is dealt with within the Use Table contained in the relevant zone.
16 The application of these provisions is achieved by the requirement in cl 6.2 that each proposed use must be categorised into one of a number of defined Use Classes contained in Table 6.2. The zone Use Table categorises uses into the relevant category by reference to these Use Classes. A use which is "directly associated with and a subservient part of another use on the same site must be categorised into the same Use Class as that other use." Otherwise, each separate use of the land must be individually categorised into a Use Class. In terms of categorisation, a "best fit" provision applies, in that if the use does not readily fit into a defined Use Class, it must be categorised into the one which is "most similar".
17 In this case, the Tribunal observed that the predominant use of the land is residential, which is described in the Use Table as "use of land for self-contained or shared accommodation". According to the zone Use Table, if this use is solely for a single dwelling, then it falls into the category of No Permit Required. The Tribunal concluded that the use of land for breeding dogs was to be categorised separately, into the Use Class "Domestic Animal Breeding, Boarding or Training". The description of that Use Class in Table 6.2 states "Use of land for breeding, boarding or training domestic animals. Examples include an animal pound, cattery and kennel". The Tribunal further noted that the appellant "did not contend that the breeding use was directly associated with and a subservient part of the residential use" and hence, in accordance with the relevant categorisation provisions, it was to be treated as a separate use. That Use Class is prohibited in the zone.
18 The issue which then fell to be determined by the Tribunal was whether the dog breeding activity, notwithstanding that it is prohibited, fell under the provisions dealing with exemption, and if so, whether this had the effect that it could be carried on without a permit notwithstanding the zone provisions. Exemptions are dealt with by cl 4. This clause is contained in the Administration clauses of the Scheme, and hence is separate to the use and development standards for zones and codes, see cl 1.2.2. It therefore applies generally to the operation of the Scheme, in a similar manner to the provisions of cl 6. Clause 4.0.1 provides that a use listed in the Tables in cl 4 "is exempt from requiring a permit provided it meets the corresponding requirements."
19 The appellant contended that the dog breeding activity falls within the category "home occupation", which is listed as an exempt use at cl 4.1.4. The Tribunal found that to fall within this category of exempt uses, the use must firstly answer the description of a "home occupation", and secondly, comply with all of the "corresponding requirements". There are several corresponding requirements specified for this category, but as I have already noted, only two were in contention. They are firstly that "not more than 40m2 of gross floor area of the dwelling is used for non-residential purposes" and secondly that the home occupation "does not involve employment of persons other than a resident." The Tribunal concluded that "home occupation" did not include uses which are prohibited in the relevant zone and that even if this was not correct, the relevant activity involved more than
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40m2 of gross floor area, and hence, for this reason, could not meet all of the corresponding requirements. Accordingly, the exemption did not apply, the activity was prohibited in the zone, and its conduct by the appellant was in contravention of the Scheme. It should be noted that the Tribunal was not satisfied that the activity involved employment of persons other than a resident, but this, of course, did not affect the ultimate finding given the finding on the other questions.
20 The issues raised by the grounds of appeal, which remain in contention on the arguments before me, are as follows:
•
Notwithstanding the failure of the appellant to argue the point before the Tribunal, or before me, several grounds of appeal challenge the Tribunal's finding that the dog breeding activity was not to be categorised as part of the residential use. The grounds assert that the dog breeding activity should be so categorised on the basis that it is directly associated with and a subservient part of that use.
•
The appellant asserts that the Tribunal erred by concluding that to fall within the exemption "home occupation", and hence be an exempt use for the purpose of Table 4.1.4, the use must both answer the description of a 'home occupation", and further meet all of the corresponding requirements for that category. It is argued that the use will be deemed to fall within the exemption if it meets all of the corresponding requirements.
•
The appellant argues that the Tribunal incorrectly determined that a prohibited use could not be a "home occupation", and hence be an exempt use under cl 4.1.4.
•
It is asserted that the Tribunal erred in fact in its conclusion concerning the gross floor area requirement contained in cl 4.1.4(a).
Should the dog breeding activity be classified as part of the Residential use?
21 The grounds of appeal asserting this argument are somewhat surprising. My review of the transcript reveals that the Tribunal's observation that the appellant had not during the hearing before it, contended that the breeding use was part of the residential use, is correct. Further, each party called and relied upon the evidence of an expert town planner. These witnesses conferred prior to the hearing and provided the Tribunal with a statement of facts upon which they agreed. This included an agreement that the "dog breeding activity is a use for a non-residential purpose."
22 It can be accepted that operating a business is not necessarily inconsistent with a residential use. Examples contained in the description of the Residential Use Class in Table 6.2 include a "home- based business". That term is defined in Table 3.1 in the Interpretation provisions as "the use of part of a dwelling by a resident for non-residential purposes" if certain conditions are met. Residential use "if for a home-based business" is permitted in the zone. The description of this dog breeding activity as a "home-based business" was not argued before the Tribunal, for good reason. Firstly, the appellant had not applied for or obtained a permit on that basis. Secondly, as was noted by the planning consultant who gave evidence for the Council, the use would in any event in this case actually be discretionary because it would activate the provisions of the Attenuation Code at cl C9.0, and there are 9 dwellings within the prescribed attenuation distance of 300m from the kennels. Finally, the definition of a "home-based business" restricts the activity to the dwelling. The appellant's dog breeding activity uses one or two outbuildings, which fall within the definition of "dwelling", but also a substantial area outside the dwelling. The use of the outdoor areas would take the activity out of the definition.
23 In any event, the Tribunal's conclusion that the dog breeding activity was not, in fact, a subservient part of the residential use was, on the evidence, clearly correct. In determining whether one use is a subservient part of another, the "question is one of fact and degree", per Glass JA in Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 817 at 161, cited with approval by Gibbs CJ in Lizzio v Ryde Municipal Council [1983] HCA 22; (1983) 155 CLR 211. In this case, there was ample evidence that the appellant was conducting a dog breeding business on the land, the scale of which was inconsistent with residential use. This included uncontested evidence that the appellant kept, bred and sold a significant number of dogs on the site. She had registered a business name "Tassie Devil Labradoodles" with the relevant authorities and was registered for GST. The first respondents produced photographic evidence that showed an advertisement for "Tassie Devil
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Labradoodles" on the appellant's vehicle and Facebook evidence which demonstrated advertisements for the sale of 41 puppies between November 2022 and April 2023. Although the Tribunal was not prepared to find that they were employees, the evidence established that at least two non-residents were regularly involved in the care of the dogs.
24 I am satisfied therefore that the dog breeding business was not a subservient part of the residential use and, hence, needed to be classified under a different Use Class. As already noted, the appropriate classification was "Domestic Animal Breeding, Boarding or Training". Further, when considering the application of cl 4.1.4(a), the activity clearly constituted a non-residential purpose, as agreed by the planning consultants. It follows that the grounds of appeal asserting that the dog breeding use was a part of the residential use are without merit.
Exemption as a home occupation
25 The Tribunal commenced its consideration of the purported exemption by noting that "home occupation" is not defined in the Scheme either as a separate Use Class or in any other way. Because it is not a defined Use Class, and must of necessity involve activities which do not fall within the Residential Use Class, the Tribunal considered that it appeared "to be a catch-all for non-residential uses". The Tribunal was clearly correct about this.
26 The question which next arises is whether the use, to fall within the exemption, must answer the description of a home occupation as well as satisfying the requirements in cl 4.1.4, or whether, in view of the absence of a definition, a use qualifies as a home occupation, irrespective of its nature, if it complies with those requirements. In other words, is a home occupation defined exclusively by the corresponding requirements?
27 In my view, the former is the correct interpretation of the Scheme. This is consistent with the structure inherent in cl 4.0.1. That clause provides that a listed use will be exempt "provided it meets the corresponding requirements". The clear intention is that the use must answer the description in the Table, and must also comply with the specified requirements. If the use was intended to be defined by the requirements, it would have been simple enough for the Scheme to say so, and a different formulation would have been employed.
28 The difficulty, of course, is that "home occupation" is not defined. However, the concept is easy enough to grasp. A home occupation self-evidently encompasses activity conducted in the home, that is within a residential context, but extends beyond the ambit of that context to non-residential uses. The reference to "occupation" suggests that the activity may have a commercial or professional element, but this is not an essential feature. In any event, it is clear that the term will encompass a diverse range of activity, which transcends the defined Use Classes and zone controls. I do not see any difficulty with the proposition that despite the lack of definition, an assessment must be made as to whether the relevant use answers the description of a "home occupation". This is a typical function of the planning process, and these types of assessments and categorisations are an inevitable feature of the use a single descriptor to capture a wide variety of potential uses.
29 The next question which arises is whether a home occupation can include a use which is otherwise prohibited under the Scheme, including by the requirements of one or more zones. The Tribunal concluded that it could not, and that only uses which were permitted or discretionary in the relevant zone fell within that definition. In particular in this case, uses which are prohibited in the residential zone could not amount to a home occupation for the purpose of the exemption. It reasoned that otherwise, it would "enable a residential property to be used for resource processing uses such as an abattoir or fish processing or recycling and waste disposal or a crematorium and cemetery use". It concluded that "a better interpretation of cl 4.1.4 is that it is restricted to uses which fall within categories of no permit required, permitted or discretionary in the relevant zone Use Table but are exempt from the requirement of a permit because of the scale".
30 The appellant argues that this restriction on the application of the exemption is unjustified. It is submitted that the structure and intended operation of the Scheme is that the Administration provisions such as cl 4 override the zone provisions, and that the Tribunal's decision is contrary to
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this. In particular, it renders the exemption provisions subject to the zone controls, which is not how
the Scheme is meant to operate.31 There is no question that, in construing the Scheme, context is an important consideration. Context can be derived from the structure of the scheme, and the way that various components are intended to work together in a cohesive way to achieve appropriate outcomes. Raff Angus Pty Ltd v Resource Management and Planning Appeal Tribunal [2018] TASSC 60. I agree with the appellant's point that the structure of this Scheme is that the Administration provisions, including those in relation to exemptions in cl 4, operate in a manner which transcends the various specific zone provisions. In particular, this structure is consistent with an exemption operating to take a use which answers the listed description outside the controls implemented by zone and other specific requirements. The provision in cl 4.0.1 that such a use will be "exempt from requiring a permit" acknowledges that the grant of a permit is the fundamental regulatory mechanism used to implement the controls over use and development set out in the various zone provisions. The categorisation system, the use of zone use tables and the treatment of an application for a permit depending on the application of the tables confirms this. The fact that the exemption provisions transcend all components of this system makes clear, in my view, that the intended operation of the Scheme is the removal of the use in question from this system. Because prohibited uses are part of the system whereby use is controlled by zone provisions, this means that the exemption will not be subject to such prohibition. A prohibited use must not be granted a permit, but this is irrelevant when the use in question is exempt from the requirement for a permit.
32 These observations do not deal completely with the Tribunal's reasoning. The Tribunal's point was that as a matter of construction, the term 'home occupation' does not include prohibited uses. It raised the practical difficulty that without such a restricted interpretation, the extreme examples referred to above may be exempt if conducted as a home occupation, notwithstanding that such use would be otherwise prohibited in a zone permitting residential use. It pointed out that such uses, conducted largely outside a dwelling, are not effectively controlled by the corresponding requirements of cl 4.1.4.
33 While I understand the practical concern raised by the Tribunal, I do not agree that "home occupation" should be defined so that only permitted or discretionary uses, and not those which fall within the prohibited category, can answer that description. This is contrary to the intended operation of the Scheme. It also creates potential difficulty because although the home occupation exemption will invariably apply in a residential context, this can, of course, occur in various zones, and can therefore be subject to different zone controls.
34 Accordingly, I reject the interpretation arrived at by the Tribunal. However, this does not mean that the exemption will therefore automatically extend to any use of the land which complies with the corresponding requirements. The separate need to answer the description of a "home occupation" remains an important control mechanism, although not in the specific way determined by the Tribunal. In particular, it is apparent that the exemption is intended to apply to small scale and low level activities which although non-residential, can be appropriately conducted on residential land. Hence, an assessment of nature and scale of the relevant activity is necessary to determine whether the exemption applies. While some limitation in this regard is incorporated into the requirements, such as the gross floor area requirement and those relating to repair and parking of motor vehicles, these factors are also relevant to the question of whether the activity properly answers the description of home occupation in the first place. The extreme examples referred to by the Tribunal would undoubtedly fail this test.
35 The intended importance of this assessment can be inferred from the limitations inherent in the controls applied by the corresponding requirements. A very obvious limitation concerns the conduct of an activity which utilises in whole or in part the outdoor areas of the relevant land. As I will discuss shortly, the gross floor area requirement is by definition limited to the area utilised by the use inside the buildings which constitute the dwelling. An activity which makes some use of space within the buildings but is primarily conducted outside them, on a much greater scale than that contemplated by a home occupation, would therefore not fall under the exemption. On the other hand, a conservative or moderate use of outdoor areas taken together with those inside the dwelling, might still properly be regarded as a home occupation. In my view, it would be completely unrealistic and contrary to the intention of the Scheme to exempt home occupations from the normal regulation of use
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without taking into account the scale and nature of the whole activity, including that conducted
outside the dwelling.36 In this case, the evidence, including that given by the planning consultant called as an expert witness by each party, focussed on assessing the use solely against the corresponding requirements. With respect to scale, the planners were concerned only with the gross floor area within the buildings attributed to the dog breeding activity, because this is the assessment required by cl 4.1.4(a). However, the appropriate assessment needed to take into account the scale of the entire operation, in order to determine whether it was in fact a home occupation, as opposed to a more significant business conducted on the property. This necessarily included taking into account the outdoor fenced dog run area and the area under the awning, which significantly increased the area utilised for the purpose of the dog breeding activity. I have already otherwise considered the operational scale of the business. In my view, when the scale of the whole operation is taken into account, the activity does not fall within the ambit of an activity contemplated as a home occupation intended to be exempt from the operation of the Scheme. It is clearly a more significant operation than that defined solely by the gross floor area taken up within the relevant buildings. It falls squarely within the use category "Domestic Animal Breeding, Boarding or Training".
37 It follows that although the Tribunal utilised a different and incorrect methodology, that is a strict exclusion of all prohibited activities from the definition of a home based business, ultimately, I have reached the same conclusion on the facts. The dog breeding activity in this case does not fall within the definition of a home occupation. It is appropriately therefore regulated by the relevant provisions of the zone which means that it is prohibited and cannot be granted a permit.
Compliance with the corresponding requirements
38 The Tribunal found that, in any event, the activity did not comply with all of the requirements set out in cl 4.1.4. The compliance of the activity with all of those requirements except two, was common ground. The two in contention were the gross floor area requirement and the employment of non-residents. The Tribunal concluded that it was not satisfied that there was a contravention of the employment requirement. Neither party has asserted that this conclusion is incorrect.
39 In respect of the gross floor area requirement, it was accepted by the Tribunal, the parties and the expert witnesses that only space within the house and outbuildings is relevant. It is uncontentious that the outbuildings are to be included because the definition of dwelling includes "any outbuilding and works normally forming part of a dwelling". This clearly includes free standing sheds on the land. The reference to "works" would also encompass the fenced exercise area. However, it was accepted by all that the reference to gross floor area limited the application of this requirement only to space within the relevant buildings. This is because the Scheme defines "gross floor area" to mean "the total floor area of the building measured from the outside of the external walls or the centre of a common wall". I accept this interpretation with respect to the particular requirement contained in cl 4.1.4(a), but this also emphasises the need to have regard to the entirety of the activity, including that conducted outside the buildings, when determining whether the activity is properly classified as a home occupation.
40 It is common ground that the dog breeding activity incorporated the newly constructed shed and the small room inside the house, which together have a floor area of 33.91m2. In issue were two other areas. The planning consultant called by the first respondents, Mr Boardman, in his evidence, opined that the commercial aspect of the business would require part of the house to be used as an office area, that is for administrative tasks and record keeping. He estimated an area of 10m2 for this purpose. Further, he concluded that the second shed, which was there before the larger shed was constructed, and is located towards the front of the house, was being used for meal preparation, laundry and dog grooming. He inferred this from his observation that these tasks were not accounted for in the area constituted by the larger shed and the small room inside the dwelling. The second shed was estimated by Mr Boardman to have an area of 16.4m2. The Tribunal was satisfied on the balance of probabilities that having regard to these considerations, more than 40m2 of gross floor area of the dwelling was used for non-residential purposes, in particular the dog breeding activity. This conclusion is in dispute.
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41 Counsel for the appellant argued that the evidence did not support an inference that either part of the house was used for office purposes related to the dog breeding activity, nor that the smaller shed was used for that activity. Counsel also argues that Mr Boardman's estimate of the area of the shed should not be accepted. It is submitted that there is no evidence that he measured the shed.
42 I accept counsel's submission concerning the office area. There was simply no evidence about this and, in particular, no evidence to establish that a part of the dwelling had been set aside for this purpose. I do not accept that it is inevitable that a business of this size would have required the allocation of separate space for this purpose. I regard this inference as highly speculative and am not satisfied of it on the balance of probabilities.
43 However, Mr Boardman's opinions concerning the second shed are in a different category. In particular, there is other evidence concerning this shed. I will now examine this evidence.
The second shed – the onus of proof
44 Before dealing with the detail of the evidence, I need to consider an aspect of the Tribunal's approach to this question. In particular, the Tribunal took into account that an inference concerning the use of the shed for the purpose of the dog breeding activity could be "more readily drawn by reason of the shifting onus and the failure of the respondent to give evidence to the contrary". The appellant did not give evidence at all, and the only evidence adduced by her came from a planning consultant, Mr Walker.
45 The Tribunal's reference to a "shifting onus" related to its determination that while the first respondents had the onus of establishing the contravention alleged by them, the onus of establishing that she was entitled to rely on the exemption contained in cl 4.1.4 shifted to the appellant.
46 In State of Tasmania v Munting [2024] TASSC 36, Blow CJ said:
"In the absence of any statutory provision as to the onus of proof, a claimant asserting a statutory right bears the onus of establishing the facts giving rise to the entitlement, but the opposite party bears the onus of establishing any facts necessary for defeating or excluding the claimant's right."
47 This principle applies also to an assertion of a statutory liability. In DPP v United Telecasters
Sydney Ltd [1990] HCA 5, 1990 68 CLR 594, Toohey and McHugh JJ said:
"When a statute imposes an obligation which is the subject of a qualification, exception or proviso, the burden of proof concerning that qualification, exception or proviso turns on whether it is part of the total statement of the obligation. If it is, the onus in respect of the qualification, exception or proviso is on the party asserting a breach of the obligation. If it is not, the party relying on the qualification, exception or proviso must prove that he or she has complied with its terms. See Vines v. Djordjevitch [1955] HCA 19; (1955) 91 CLR 512; Roddy v. Perry (No. 2) (1957) 58 SR (NSW) 41."
48 As these comments make clear, the issue of where the onus lies depends on statutory interpretation and, in particular, in the case of a qualification, exception or proviso, whether it is part of the obligation, the breach of which must be proved by the applicant, or alternatively whether it sets up special circumstances which "by reason of additional or special facts" remove the case from the primary liability, Vines v Djordjevic at [8]. This was further explained by Dawson, Toohey and Gaudron JJ in Chugg v Pacific Dunlop Ltd [1990] HCA 41, (1991) 70 CLR 249, in a passage quoted by Blow CJ in State of Tasmania v Munting:
"For the purpose of assigning the onus of proof, a distinction is made between a requirement which forms part of the statement of a general rule and a statement of some matter of answer, whether by way of exception, exemption, excuse, qualification, exculpation or otherwise (called an 'exception'), which serves to take a person outside the operation of a general rule.
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One indication that a matter may be a matter of exception rather than part of the statement of a general rule is that it sets up some new or different matter from the subject matter of the rule."
49 A factor which has been considered relevant to the assessment of where the onus lies in such circumstances is whether the exception, exemption or exclusion relies on facts which can be expected to be exclusively or predominantly within the knowledge of the party relying on same. See Vines v Djordjevitch
50 In all of the cases referred to above, the primary liability, and the exception to it, are contained within a statute. This case is one step removed from that. The power to make the relevant orders and grant relief under s 64 depends on the proof of a contravention of s 63(2) which provides that a person must not use land in a way that is contrary to a planning scheme. The relevant liability will therefore depend upon whether there has been such a breach and this will in turn depend on the terms of the relevant planning scheme. In this case, it is the Scheme that sets up the relevant exemption. It can be argued, therefore, that proof that the impugned use does not fall within that exemption rests on the party asserting the breach, the first respondents. In other words, it is part of the general condition of liability. However, when regard is had to the structure of the Scheme, and in particular, the purpose and nature of the exemption, I am satisfied that the onus of proof that the particular use falls within the exemption falls on the appellant. The general requirement of the Scheme is that a person must not use the land without a permit. That is a general and fundamental means of regulating use and is also reflected in s 51(1) of LUPA. Clause 6.5.1 provides for an exception where there is an exemption under cl 4.0. The exemptions are set up, as I have explained above, as particular circumstances which transcend and take the relevant use out of the more specific regulatory requirements of the zones. Further, the application of cl 4.1.4 requires the existence of facts which are likely to be exclusively or predominantly within the knowledge of the appellant. In those circumstances, I am satisfied that the Tribunal was correct to hold that proof that the use comes within the exemption shifts to the appellant. If it were otherwise then proof of a contravention would necessarily require the exclusion of all exemptions in every case.
The second shed – the evidence
51 Contrary to submissions made by counsel for the appellant, there is ample evidence of the existence of the second shed and its size. For example, a plan submitted by the appellant in her application for planning approval of the two additional sheds and the proposed garage clearly identifies an existing steel shed on the land, and shows dimensions of 6.3 m x 2.6 m, which is an area of 16.38m2. The shed can be seen in a number of photographs attached to the statutory declaration of Ms Gray. It is also shown in a floor plan annexed to Ms Gray's statutory declaration, obtained by her from Real Estate.com.
52 In respect of the use of that shed for the purpose of the dog breeding activity, the principal evidence comes from Ms Gray. In her statutory declaration, she attests that she has seen dog cages brought from the shed, and a person she describes as an employee taking and putting dog related "stuff" in the shed. She has also taken photographs which are attached to her declaration showing this person entering and leaving the shed. There is also the inference asserted in Mr Boardman's evidence that there is no other place in the larger shed or the home which would permit dog grooming activities.
53 Having regard in particular to the onus of proof, it is significant that the appellant did not give or adduce evidence in contradiction of the inference which arises from that evidence. Although the expert planner called by her, Mr Walker, made a bald assertion that the activity is limited to the larger shed and the small room in the dwelling, he did not provide any other evidence concerning the use of the smaller shed. The expert planner called by the Council similarly relied solely on the fact that the appellant had not disclosed the use of the smaller shed in her application. There was no other evidence at all which contradicted the evidence of Ms Gray or Mr Boardman about this question.
54 Accordingly, I agree with the Tribunal's conclusion that it can be inferred, on the balance of probabilities, that the smaller shed is used for the dog breeding activity. Having regard to that conclusion, the appellant is unable to demonstrate that the activity, being for a non-residential purpose, uses not more than 40m2 of gross floor area of the dwelling. It follows that the appellant cannot demonstrate that the dog breeding activity falls within the exception provided by cl 4.1.4.
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Accordingly, because the dog breeding use is prohibited in the zone, the contravention is established, and the Tribunal was correct to so find.
Conclusion
55 Although the appellant's counsel submitted that in the event of such a finding, the Court could consider modifying the orders made by the Tribunal to enable the activity to fall within the exemption, for example, by varying the order to permit the dog breeding use to continue on condition that the appellant not use more than 40m2 of the dwelling for that purpose, there is no ground of appeal which raises that issue. In any event, it would not be appropriate for the Court to take that step. The Tribunal correctly found the contravention proved and exercised its discretion to make the orders that it did. Given in particular the finding that the activity does not amount to a home occupation whether or not it complies with the relevant requirements, and is hence prohibited in the zone, it was inevitable that the order must be that the impugned use cease. I do not intend to interfere with the Tribunal's orders.
56 Accordingly, the appeal is unsuccessful and it is dismissed.
Bartlett v Gray [2024] TASSC 81
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