Burdett v Bowden
[2010] VSC 574
•10 December 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 9625 of 2009
| ANDREW BURDETT | Appellant |
| v | |
| RONALD HENRY BOWDEN and MORNINGTON PENINSULA SHIRE COUNCIL | Respondents |
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JUDGE: | OSBORN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 December 2010 | |
DATE OF JUDGMENT: | 10 December 2010 | |
CASE MAY BE CITED AS: | Burdett v Bowden & Anor | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 574 | |
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TOWN PLANNING – Appeal on question of law – Characterisation of existing use of land identified by Tribunal as critical issue – Characterisation not open – Definition of ‘animal keeping’ – Potential relevance of existing use to development permit application – Green Wedge Zone – Environmental Significance Overlay.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J Gobbo QC with Mr N Tweedie | Norton Rose |
| For the Respondents | No appearance |
HIS HONOUR:
This is an appeal on questions of law from a decision of the Victorian Civil and Administrative Tribunal (‘the Tribunal’).
By that decision the Tribunal directed that a planning permit not issue with respect to the erection of a dwelling and stables and the incidental removal of some native vegetation at 955 Frankston-Flinders Road, Somerville.
The land that is the subject of appeal has an area of 8.102 hectares. It is located within the municipality of the Mornington Peninsula Shire Council (the ‘responsible authority’) and is subject to the provisions of the Mornington Peninsula Planning Scheme (‘the planning scheme’).
It is located within a Green Wedge Zone – Schedule 2 and is affected by an Environmental Significance Overlay – Schedule 1: Moorooduc Plain and Balcombe Valley.
A permit application was lodged on behalf of the appellant on 11 April 2008. Further information relating to the application was requested by the Mornington Peninsula Shire Council and amended plans and supporting material were then provided to it.
The application was advertised and the first respondent objected to the proposal by way of an initial objection and then by way of a supplementary objection following the amendment of the proposal.
On 15 April 2009, the responsible authority issued a notice of decision to grant a permit for ‘development of a dwelling, outbuilding, and associated works in accordance with the endorsed plan’.
The first respondent then applied under s 82(1) of the Planning and Environment Act 1987 to review the responsible authority’s decision to grant a permit.
After various interlocutory steps the application for review was heard on 14 August 2009. A consultant town planner appeared on behalf of the responsible authority. A consultant town planner also appeared on behalf of the first respondent. Mr Paul Connor of counsel appeared for the appellant and called evidence from a town planner.
Early in its reasons the Tribunal recorded the fact that it was concerned with the proper characterisation of the existing use of the land under the planning scheme.
In terms of how it presented to me at the hearing, Council has taken the view that the current use occurring on the land is “Extensive animal husbandry”. It has also supported the proposal for the new dwelling etc and issued a Notice of Decision to Grant a Permit. There was objections received from one neighbour, being Mr Bowden whose property is located further south. Mr Bowden has sought review of Council support for the proposal at the Tribunal, and the hearing of this matter occurred before me on 24 July 2009.[1]
[1]Bowden v Mornington Peninsula Shire Council [2009] VCAT 1973 (21 September 2009), [3].
It went on to say:
7 I see two critical aspects to this proceeding, being:
§clarify/characterising the existing use of the appeal site; and
§having done this, then making a judgement whether the proposed new dwelling and outbuilding can be supported, in terms of the nature of the site and the policy framework.
8On this first point, I do not accept that the existing use of the land is for “Extensive animal husbandry”. Rather, I consider that the current use of what I understand to be four horses on the site (all owned by the Applicant) to be “Animal keeping (other than animal boarding)”. I note that in the Green Wedge Zone (Schedule 2) in question here, this use is “as-of-right” provided that no more than five animals are in question (which is the case here).
9On the second point, whilst this has not been an easy judgement to arrive at, ultimately I am not satisfied that the proposed new dwelling and stables can be justified on a site zoned GW2 in the circumstances in question here. I agree with the Applicant for Review that, when all is said and done, what is proposed here is in many respects the type of large residential dwelling proposal that one would commonly find on land zoned Residential 1 or Low Density Residential Zone. In my view the proposed horse related activities here cannot be seen as anything higher than a form of domestic hobby/activity.
10On this basis, I am struggling to see that what is essentially a domestic residential dwelling proposal can be justified having regard to the objectives of the GW2, which are quite rigorous in terms of encouraging “sustainable farming activities”, enhancing the “cultural heritage significance and the character of open rural and scenic non-urban landscapes” etc. While it is more a secondary factor, I also have some concerns whether a two storey dwelling is compatible with this type of rural setting where dwellings are typically large but single storey, and also regarding “piece-meal development” issues.[2]
[2]Ibid, [7]-[10].
The use characterisation issue was identified as a ‘critical’ threshold question by the Tribunal. The present appeal challenges the Tribunal’s approach to this threshold issue. The appellant contends that it was not open to the Tribunal to conclude that the existing use of the land was ‘animal keeping’ and that in any event the Tribunal erred in the view it took of the significance of this question.
Animal keeping
The planning scheme contains a definition of ‘animal husbandry’:
Animal husbandry Land used to keep, breed, board, or train animal, including birds.[3]
[3]Mornington Peninsula Planning Scheme, cl 74.
In turn that definition includes three other defined terms and one term which is not defined which were potentially relevant to the Tribunal’s considerations. The undefined term is ‘horse stables’. The defined terms were ‘animal keeping’, ‘extensive animal husbandry’ and ‘intensive animal husbandry’. They are respectively defined as follows:
Animal keeping Land used to:
a) breed or board domestic pets; orb) keep, breed, or board racing dogs.
Extensive animal husbandry Land used to keep or breed farm animals, including birds, at an intensity where the animals' main food source is obtained by grazing, browsing, or foraging on plants grown on the land. It includes:
a) emergency and supplementary feeding; and
b) the incidental penning and housing of animals, including birds, for brooding, weaning, dipping, or other husbandry purposes.
Intensive animal husbandry Land used to keep or breed farm animals, including birds, by importing most food from outside the enclosures. It does not include:
a) an abattoir or sale yard;b) emergency and supplementary feeding if incidental to the use of land for extensive animal husbandry; or
c) the penning and housing of animals, including birds, for brooding, weaning, dipping or other husbandry purposes if incidental to the use of land for extensive animal husbandry.[4]
[4]Ibid.
At the date of the hearing there was no dwelling upon the land. The appellant kept four horses on the land. The first respondent’s planner drew attention to the fact that there were already eight horse boxes on the property and that six further stalls were shown on the plan for the new proposal. It was submitted that this would generate a capacity to accommodate 14 horses.
The appellant’s planning witness stated that the area of the land was sufficient in her experience as a horsewoman and farmer to provide sufficient pasture for eight horses.
She also stated that whereas the current position was that the four horses on the land were ponies used in show events, the appellant’s intention was to breed horses upon the property. Some cutting of hay occurred at present and would continue. It was intended to create a business on site once the dwelling was completed.
The responsible authority accepted that the current use of the property fell within the definition of extensive animal husbandry.
The planner for the first respondent contended that the use was either a form of animal husbandry which was further undefined or a form of intensive animal husbandry because it would be necessary to provide feed principally from off-site sources.
The Tribunal elaborated its conclusions on characterisation as follows:
24.… the evidence before me points to the four horses here being used essentially as pets. Whilst the position might have been different if there was any real evidence of commercial horse breeding activities occurring or if at least some of the horses were owned by third parties and there was reliable evidence of an arms-length commercial agistment arrangement which has been operating for some time, this is not the case here. Accordingly, I am struggling to see how the circumstances here are different in any meaningful way to the situation of a family living on a generous size lot with some form of residential zoning, and then keeping several horses of their own as pets.
25.The other key aspect of the definition of “Extensive animal husbandry” is that the main food source of the relevant animals must be “... obtained by grazing, browsing, or foraging on plants grown on the land”. There was strong disagreement during the hearing whether or not the relevant horses can primarily sustain themselves by grazing on the pasture/grass on the appeal site, as compared to a situation where the horses need significant supplementary feeding. Whilst I note that Ms Katz as part of her evidence indicated that she runs her own farm and offered the view that the horses here had sufficient pasture to require only minimal supplementary feeding, she was appearing as a planning not a farming expert. Hence I can give this aspect of her evidence only modest weight.
26.In a situation where there are conflicting submissions whether there is enough pasture on the subject land to provide the primary food for these four horses, and where there is no suitable expert evidence presented to me on this issue, then this makes it very difficult in practice for the Tribunal to resolve this issue in the Permit Applicant’s favour.
27.In summary then, in the circumstances in question here, I am unconvinced that the Permit Applicant has established that the keeping of the four horses in question on the subject land involves these horses being “farm animals”, whose main food source is simply the available pasture on the site. Rather, I see the preferable characterisation of the existing activity as being a form of “Animal keeping” which is an as-of-right use under the GW2 with only four horses involved.[5]
[5]Bowden v Mornington Peninsula Shire Council [2009] VCAT 1973 (21 September 2009), [24]-[27].
The Tribunal concluded that the current use was one of animal keeping. I accept that this conclusion was one of fact and this Court should not interfere with it if the conclusion was open on the evidence. It is a question of law whether a particular characterisation was open on the evidence.[6] When regard is had to the definition of animal keeping, however, the land could only have been regarded as being used for animal keeping if it were:
Land used to:
(a) breed or board domestic pets; …
[6]Franceschini v Melbourne and Metropolitan Board of Works (1980) 57 LGRA 284, 295.
There was no evidence of breeding as part of the current use. Indeed, the evidence was to the contrary.
It is also very difficult as a matter of ordinary language to describe the grazing and keeping of four ponies as ‘boarding’, unless perhaps it be done for reward in respect of animals owned by third parties. Even in these circumstances however it would normally be described either as agistment or the keeping of a horse stables.
The Tribunal’s own reasons appeared to acknowledge the absence of evidence of the elements of breeding or boarding,[7] yet it was critical to establish one of these elements in order to satisfy the definition of animal keeping. I am satisfied that it was not open to the Tribunal to conclude that the current use of the land is one of animal keeping because there was no evidence of breeding or boarding of animals.
[7]See [24] of the decision quoted above.
I also do not accept that the ordinary meaning of ‘domestic pets’ extends to the grazing and keeping of horses (used for riding and showing), on a property independently of a residence. The primary notion of ‘pet’ is caught by the first definition offered by the Oxford English Dictionary:[8]
Any animal that is domesticated or tamed and kept as a favourite or treated with indulgence and fondness; …[9]
[8]2nd ed, 1989.
[9]The Macquarie Dictionary (2nd Rev, 1987) offers the primary meaning as ‘any domesticated or tamed animal that is cared for affectionately.’
I accept that most farm animals may be kept as ‘domestic pets’ and that it is not uncommon for lambs, kids, and other offspring of farm animals to be so kept. Indeed this seems to have been the literal meaning of the word as it was first used in Scotland and Northern England.[10] I do not, however, accept that the grazing and keeping of horses for the purposes of riding and showing is itself the keeping of domestic pets. The notion of ‘domestic pets’ requires the keeping of the animals to be undertaken in conjunction with residence on land. It contemplates that the keeping of the animals is an adjunct to or incident of domestic life.
[10]See the Oxford English Dictionary (2nd ed, 1989).
As defined, ‘animal keeping’ will occur when animals are bred for this purpose or animals otherwise kept for this purpose are provided with boarding. ‘Animal keeping’ is not concerned with the simple keeping of pets ancillary to residential or other activities. The simple keeping of dogs, cats, rabbits, monkeys, guinea pigs, rats, mice, turtles, fish, caged birds or other creatures as pets whether at home or elsewhere is not animal keeping. Accordingly, the first challenge made to the Tribunal’s decision must succeed.
Because the Tribunal’s conclusion in this regard was characterised by it as ‘critical’ and because it is apparent that its conclusion was the commencement of its reasoning process this is sufficient to dispose of the appeal.
The relevance of the existing use
I will, however, add in respect of the second ground of appeal pursued before me (namely, whether the Tribunal misdirected itself as to the significance of the existing use) that I accept that an underlying issue for the Tribunal was to consider the inter-relationship of the permit application before it with the future use of the land as a whole. Amongst other things, the decision guidelines contained in the zone provisions of the planning scheme[11] relating to development permits require regard to be had as appropriate to:
·How the use or development relates to rural land use, rural diversification, natural resource management, natural or cultural heritage management, recreation or tourism.
·Whether the site is suitable for the use or development and the compatibility of the proposal with adjoining land uses.
[11]Mornington Peninsula Planning Scheme, cl 35.04-6.
In other words, it was open to it to consider the probable and possible consequences of the grant of the proposed permit for development upon the use of the land, and the acceptability in planning terms of those consequences.
For the sake of completeness, I would also observe that the characterisation of the existing use of the land could not easily be determinative of the land use implications of the proposal unless the Tribunal was satisfied that the grant of the permit sought would probably result in a continuation of that use. It is difficult to see that that conclusion was open. It is apparent that the permit itself sought to provide increased accommodation for horses.
Conclusion
The above conclusions are dispositive of this appeal but are not conclusive of the planning merits of the application, including its consistency with the purpose of the zone and relevant planning policy. Accordingly, the appeal will be allowed and the matter will be remitted for rehearing in accordance with law by a differently constituted division of the Tribunal.
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