Bosco v Gosford City Council

[2006] NSWLEC 573

Land and Environment Court

of New South Wales

CITATION:	Bosco v Gosford City Council [2006] NSWLEC 573
PARTIES:	APPLICANTS J & G Bosco RESPONDENT Gosford City Council
FILE NUMBER(S):	10418 of 2006
CORAM:	Moore C
KEY ISSUES:	Appeal :- Order to cease impermissible use
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 121B & s 121ZK Interim Development Order 122
CASES CITED:	Mulcahy v Blue Mountain City Council (1993) 81 LGERA 302
DATES OF HEARING:	8 August 2006
EX TEMPORE JUDGMENT DATE:	08/08/2006
LEGAL REPRESENTATIVES:	APPLICANTS Ms L White, solicitor RESPONDENT Mr M Everingham, solicitor Gosford City Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

MOORE C

8 August 2006

10418 of 2006 J & G Bosco v Gosford City Council

JUDGMENT

This decision was given as an extemporaneous decision. It has been revised and edited prior to publication.

1. COMMISSIONER: This is an appeal pursuant to s 121ZK of the Environmental Planning and Assessment Act 1979 against the issuing of an order by Gosford City Council (the council) to the Boscos. The order is couched in terms which requires them to cease hydroponic growing of lettuces at their property at 665 Scenic Road, Macmasters Beach (the site).

2. I had the opportunity of inspecting the site this morning in company with the legal representatives of the parties; the Boscos; and those officers of the council involved with the assessment and issuing of the notice.

3. I also heard evidence from one of the neighbours, the resident of 651 Scenic Road, Macmasters Beach who had lodged an objection to the Boscos’ activities. One of the other objectors, who is the immediate neighbour to the east, had provided a letter dated 3 August 2006 withdrawing his initial objection.

4. The matters that are in dispute between the parties arise from the provisions of the zoning table for the 7C(2) Conservation and Scenic Protection Zone within which a property is located. The zoning table under Interim Development Order 122 (the IDO) sets, as is customary, a range of developments that do not require consent. Relevantly, for the purposes of these proceedings, one of those purposes is agriculture.

5. The zoning table also sets a number of other activities that are permissible with development consent. The zoning table then provides that any activity which is not either permissible without consent or permissible with consent is prohibited.

6. Agriculture, as defined in clause 3 of the IDO, relevantly includes the horticultural production of vegetables not involving the erection of any structures. That is a permissible activity. Intensive agriculture is defined in the same clause as horticultural production of vegetables being production that necessitates the erection of structures. Intensive agriculture is not permissible in the zone.

7. My inspection of the site this morning disclosed that there are two groups of raised clusters of hydroponic channels erected on the site for the purposes of growing lettuces. In the downhill group, there are 15 sub-groups of channels comprising between them 129 channels in variously sized growing capabilities ranging on my count from 8 to 11 lettuces, depending, apparently, on the size of the resultant lettuce to be harvested from them. Each of the channels is some 18 m in length. The upper group comprised 115 channels in 14 sub-groups and are also 18 metres in length. They are similarly dispersed between larger and smaller groupings of growing capabilities. These channels are all raised above the ground by ~ 900 mm.

8. On my calculation, there is somewhat in excess of 4,300 m of channels with a growing capacity in excess of approximately 14,000 lettuces. In addition to those elements which are actively being used at the present time, it was clear that there is also tentative but possibly abandoned works that would have enabled additional elements to be installed.

9. The question that I am obliged to determine is whether the nature of the elements that support that hydroponic lettuce growing activity, that is the channels and their supporting members and, located downhill from them, an underground tank of ~ 3,500 litre capacity, constitute structures thus rendering the Boscos' activities intensive agriculture. This tank is contained in a small garden shed. From this tank, town water is pumped up to the uphill end of the structures. The water then trickles back down the structures returning to the tank - in a continuous loop process.

10. It was Mr Bosco’s evidence, on site, that the prime need of the lettuces is the oxygen that the plants obtain from the air and that the moisture provided to the roots of the plants is an ancillary but nonetheless essential element to the process.

11. There is also a smaller tank which is a reserve water supply. This tank is above ground and in the open it is adjacent to the downhill shed structure. Finally, there is a disused growing “igloo” now used for storage.

12. The question of whether or not the word “structure” is to be interpreted in a minute and prescriptive sense was dealt with by the Court of Appeal in Mulcahy v Blue Mountain City Council (1993) 81 LGERA 302.

13. During the discussion in that decision, Mahoney JA dealt with the application of a literal and absolutist meaning which would, as he says, require formal application for and the obtaining of approval for, for example, “The erection of combination stakes and chicken wire support to support tomatoes growing in a domestic back yard, the erection of a set of bookshelves against the study wall or the setting up and fastening to the wall and the floor of a set of cupboards or the like inside the home.” He rejected this approach.

14. The matter that I am required to address, as a matter of fact, is the question of the extent or degree to which the activity is being carried out and whether or not that brings it within the scope of something which necessitates the erection of structures.

15. I am satisfied that the elements that are constructed at the site do not fall within the de minimus context that Mahoney JA referred to in Mulcahy and that they are, in combination, structures that are necessary for the carrying on of the activity as it is presently undertaken by the Boscos. That activity is an activity which not only has been refused development consent by the council but, in its present form, is impermissible within the zone.

16. The consequence of this finding, on the facts, is that the appeal should be dismissed.

17. I have, however, raised with the parties the scope of what order is appropriate to be made in the proceedings.

18. I am satisfied that it is not appropriate for me to embark on a merit assessment of the structures that are now there and which are, to some extent, potentially capable of being converted into a complying activity. That is not an opinion to be interpreted, after the event of this decision, as implying acceptability of each or any of those individual structures, that is a matter to be dealt with between the Boscos and the council on some future application as they may be advised to make it. However, it is clear that horticultural production of lettuces, per se, is not prohibited on the site subject to other compliance with the planning regime.

19. I therefore consider that the appropriate order that I should make in substitution for the order that has been issued by the council is one that would require the Boscos to cease the production of lettuces using the present hydroponic set up that is located on the property.

20. Mr Everingham, solicitor for the council, has pressed on me that I should make a far more expansive order than that and require the removal of the structures in their entirety – such removal being removal of the channels, the channel supports, the underground tank, the shed and the above ground tank.

21. The question of the now abandoned igloo on the site was a matter that was conceded by the Boscos as being appropriate for removal.

22. It is my intention, however, not to issue such an expansive order.

23. I am not satisfied as to whether I would have the power to do so, given the nature of the order originally made by the respondent against the Boscos. Even if I did have the power to do so, as a matter of discretion under all the circumstances, it would be inappropriate for me so to require.

24. Cessation of the non-compliant use is sufficient to prevent the breach continuing and to provide sufficient stimulus to the Boscos to discuss, if possible, an orderly resolution to enable continued compliant agricultural activity on the land.

25. I also consider it would be inappropriate to require the cessation of the activity forthwith, given that there is a significant crop of lettuces currently under cultivation and a range of seedlings ready to be planted.

26. I therefore intend to dismiss the appeal and to issue a further order that will vary the order made by the Council dated 1 May 2006.

27. The new order will require the ceasing of the use of the premises for the purposes of hydroponic cultivation of lettuces after a period that will be sufficient to permit the present crop and seedlings to be harvested. The parties agree that four months would be a reasonable time for this outcome.

28. The effect of the orders of the Court will therefore be that the order of the council dated 1 May 2006 is upheld but that the order is varied by requiring the cessation, by 31 December 2006, of the use of the premises for the purposes of intensive agriculture by hydroponic production.

29. The exhibits, other than Exhibits 1 and 2, are returned.

Tim Moore
Commissioner of the Court