Cooke v Tweed Shire Council - [2024] NSWCA 50

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Cooke v Tweed Shire Council [2024] NSWCA 50
Hearing dates: 21 February 2024
Date of orders: 11 March 2024
Decision date: 11 March 2024
Before: Ward P at [1];
Gleeson JA at [2];
Basten AJA at [3]
Decision:
(1)   To the extent necessary, grant the appellant leave to appeal from the judgment and orders made in the Land and Environment Court on 11 July 2023 (declarations) and on 22 September 2023 (costs).
(2)   Direct that the undated further amended notice of appeal be filed within 7 days of the delivery of this judgment and dispense with any further procedural steps in relation to the notice of appeal.
(3)   Extend the time for filing the first respondent’s notice of contention dated 20 February 2024 and grant the first respondent leave to rely upon it in the appeal.
(4)   Dismiss the appeal.
(5)   Order that the appellant pay the first respondent’s costs of the proceedings in this Court.

Catchwords:
APPEALS – judgment of Land and Environment Court – standard of review – characterisation of land use – evaluative judgment – correctness standard applied
ENVIRONMENT AND PLANNING – civil enforcement proceeding – Local Environment Plan – permissible uses not requiring consent – characterisation of land use – cultivation of low-THC hemp – processing hemp leaves – production of goods for sale – whether cultivating hemp was “horticulture” or “extensive agriculture” – whether processing ancillary or incidental to cultivation activities – uses requiring consent – processing plant agricultural products for commercial purposes – “rural industry” – separate uses or one integrated purpose

Legislation Cited:
Environmental Planning and Assessment Act 1979 (NSW), s 3.13
Hemp Industry Act 2008 (NSW), s 5
Land and Environment Court Act 1979 (NSW), s 56A, 57, 58
Environmental Planning and Assessment Regulation 2000 (NSW), Sch 3, cl 37A
Hemp Industry Regulation 2016 (NSW), cl 10
Tweed Local Environmental Plan 2014
Uniform Civil Procedure Rules 2005 (NSW), r 51.40

Cases Cited:
Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404
Bronger v Greenway Health Centre Pty Ltd t/as Greenway Plaza Pharmacy [2023] NSWCA 104
Chief Commissioner of State Revenue v Godolphin Australia Pty Ltd [2023] NSWCA 44
Costa v The Public Trustee of NSW [2008] NSWCA 223
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; 97 ALJR 857
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
People for the Plains Inc v Santos NSW (Eastern)Pty Ltd [2017] NSWCA 46
Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40
Toner Design Pty Ltd v Newcastle City Council [2013] NSWCA 410
Tweed Shire Council v Cooke (No 2) [2023] NSWLEC 98

Category: Principal judgment
Parties:
Proceedings 2023/253053
Dolph Cooke (Appellant)
Tweed Shire Council (First Respondent)
Darko Kovac (Second Respondent) (Submitting appearance)
Peter Anthony Van Lieshout (Third Respondent) (Submitting appearance)
Proceedings 2023/253064

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NSWCA 50
Decision Date: 11 March 2024

CaseChat Overview and Summary

The appeal concerned a dispute between Cooke (the appellant) and Tweed Shire Council (the respondent) regarding the characterisation of land use for the cultivation and processing of low-THC hemp. The matter came before the Court of Appeal of New South Wales following a judgment of the Land and Environment Court.

The primary legal issues before the Court of Appeal were whether the Land and Environment Court had erred in its characterisation of the appellant's activities, specifically whether the cultivation of low-THC hemp constituted "horticulture" or "extensive agriculture" under the relevant Local Environmental Plan, and whether the processing of hemp leaves and production of goods for sale were ancillary or incidental to the cultivation, or constituted a separate use requiring consent as a "processing plant agricultural products for commercial purposes" or "rural industry". The Court was required to determine the appropriate standard of review for the Land and Environment Court's evaluative judgment on land use characterisation.

The Court of Appeal applied a correctness standard of review to the Land and Environment Court's characterisation of the land use. It reasoned that the Land and Environment Court had correctly identified the relevant provisions of the Local Environmental Plan and had undertaken a proper evaluative exercise in characterising the appellant's activities. The Court found that while cultivation might fall within permissible uses, the processing of hemp leaves for commercial sale constituted a separate use that was not ancillary or incidental to cultivation and required development consent under the category of "rural industry" or "processing plant agricultural products for commercial purposes".

The Court of Appeal dismissed the appeal and ordered that the appellant pay the respondent's costs. Leave to appeal was granted to the extent necessary, and directions were given regarding the filing of amended notices of appeal and notice of contention.

Orders

Orders of the court

(1) To the extent necessary, grant the appellant leave to appeal from the judgment and orders made in the Land and Environment Court on 11 July 2023 (declarations) and on 22 September 2023 (costs).

(2) Direct that the undated further amended notice of appeal be filed within 7 days of the delivery of this judgment and dispense with any further procedural steps in relation to the notice of appeal.

(3) Extend the time for filing the first respondent’s notice of contention dated 20 February 2024 and grant the first respondent leave to rely upon it in the appeal.

(4) Dismiss the appeal.

(5) Order that the appellant pay the first respondent’s costs of the proceedings in this Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Cooke v Tweed Shire Council [2024] NSWCA 50
Hearing dates:	21 February 2024
Date of orders:	11 March 2024
Decision date:	11 March 2024
Before:	Ward P at [1]; Gleeson JA at [2]; Basten AJA at [3]
Decision:	(1) To the extent necessary, grant the appellant leave to appeal from the judgment and orders made in the Land and Environment Court on 11 July 2023 (declarations) and on 22 September 2023 (costs). (2) Direct that the undated further amended notice of appeal be filed within 7 days of the delivery of this judgment and dispense with any further procedural steps in relation to the notice of appeal. (3) Extend the time for filing the first respondent’s notice of contention dated 20 February 2024 and grant the first respondent leave to rely upon it in the appeal. (4) Dismiss the appeal. (5) Order that the appellant pay the first respondent’s costs of the proceedings in this Court.
Catchwords:	APPEALS – judgment of Land and Environment Court – standard of review – characterisation of land use – evaluative judgment – correctness standard applied ENVIRONMENT AND PLANNING – civil enforcement proceeding – Local Environment Plan – permissible uses not requiring consent – characterisation of land use – cultivation of low-THC hemp – processing hemp leaves – production of goods for sale – whether cultivating hemp was “horticulture” or “extensive agriculture” – whether processing ancillary or incidental to cultivation activities – uses requiring consent – processing plant agricultural products for commercial purposes – “rural industry” – separate uses or one integrated purpose
Legislation Cited:	Environmental Planning and Assessment Act 1979 (NSW), s 3.13 Hemp Industry Act 2008 (NSW), s 5 Land and Environment Court Act 1979 (NSW), s 56A, 57, 58 Environmental Planning and Assessment Regulation 2000 (NSW), Sch 3, cl 37A Hemp Industry Regulation 2016 (NSW), cl 10 Tweed Local Environmental Plan 2014 Uniform Civil Procedure Rules 2005 (NSW), r 51.40
Cases Cited:	Baulkham Hills Shire Council v O’Donnell (1990) 69 LGRA 404 Bronger v Greenway Health Centre Pty Ltd t/as Greenway Plaza Pharmacy [2023] NSWCA 104 Chief Commissioner of State Revenue v Godolphin Australia Pty Ltd [2023] NSWCA 44 Costa v The Public Trustee of NSW [2008] NSWCA 223 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore [2023] HCA 32; 97 ALJR 857 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 People for the Plains Inc v Santos NSW (Eastern)Pty Ltd [2017] NSWCA 46 Singer v Berghouse (1994) 181 CLR 201; [1994] HCA 40 Toner Design Pty Ltd v Newcastle City Council [2013] NSWCA 410 Tweed Shire Council v Cooke (No 2) [2023] NSWLEC 98
Category:	Principal judgment
Parties:	Proceedings 2023/253053 Dolph Cooke (Appellant) Tweed Shire Council (First Respondent) Darko Kovac (Second Respondent) (Submitting appearance) Peter Anthony Van Lieshout (Third Respondent) (Submitting appearance) Proceedings 2023/253064