Grasso and Grasso v Stanthorpe Shire Council

[1996] QCA 187

IN THE COURT OF APPEAL	[1996] QCA 187
SUPREME COURT OF QUEENSLAND
Appeal No. 251 of 1995
Brisbane
Before	Fitzgerald P. Pincus J.A. Williams J.

[Grasso & Anor. v. Stanthorpe Shire Council]

BETWEEN:

SEBASTIANO GRASSO AND SALVATRICE GRASSO

(Plaintiffs) Appellants

AND:

STANTHORPE SHIRE COUNCIL

(Defendant) Respondent

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 14/06/1996

The circumstances giving rise to this appeal from the Planning and Environment

Court are set out in the judgment of Williams J. I am in substantial agreement with his

Honour’s reasons, but will add some observations of my own.

It is by no means clear to me that the appellants’ complaints in relation to the

Planning and Environment Court judgment involve a mistake or error in law: Local

Government (Planning and Environment) Act 1990, sub.s. 7.4(3). However, in view of the

opinion which I have formed on the merits of those complaints, it is unnecessary to

determine that issue.

The appellants’ property is situated in a “low density residential” zone in the Town Plan for the Shire of Stanthorpe. Accordingly, “agriculture”, which includes “... land ... used ... for horticulture or the growing of crops, fruit, vegetables and the like ...” except “ancillary

domestic horticulture” is prohibited. Subject to the exception related to “ancillary domestic

horticulture”, agriculture includes:

“...

Market gardening (more than two hundred (200)m2 of area);

Orchard (more than two hundred (200)m2 of area);

...”.

Unless the appellants’ activities can be accurately described as ancillary domestic

horticulture or land that is not used for “agriculture” unless there is a greater commercial

element than is involved in the appellants’ activities, it is difficult to discern why the

appellants’ use of their land is not “agriculture” within the meaning of the Town Plan and

accordingly prohibited. Emphasis is given to this concern because the appellants’

application to the respondent Stanthorpe Shire Council described their use of their

property as a “Market-garden - Grapes and Fruit Trees”, and it is plain that the area planted

with grapes and fruit trees is considerably in excess of 200m2. While I have found it

unnecessary to determine whether the appellants’ activities constitute “agriculture” or to

speculate whether their application for the respondent Council’s consent was an attempt

to forestall such a suggestion, the activities prohibited in a low density residential zone as

“agriculture” are material in determining whether activities meet the description of another

use which can be carried on with the respondent’s consent (“home occupation”) and, if so,

whether such consent should be granted.

By their application for the respondent Council’s consent and their pursuit of

appeals first to the Planning and Environment Court and now to this Court, the appellants

accepted, indeed contended, that they were engaged in a “home occupation” on the property in question. It was a necessary consequence that they were carrying on an

“occupation”, which, as I have already indicated, they described as “Market-garden -

Grapes and Fruit Trees”. Before this Court, the appellants attempted to escape any

possible embarrassment occasioned by that statement of their “occupation” on their

property by contending that it would better be described as “fruit growing”, apparently

intending to include both the grapes in the vineyard sections and the other fruit in the

orchard section under that compendious description. While the extent of the appellants’

commercial activities on the property is limited, it remains their own contention that they are

engaged in an “occupation” on the property. That assertion is not only a pre-requisite to

their application to the respondent Council and the resulting proceedings in the Planning

and Environment Court and this Court but consistent with the proposition that an activity

may be described as “commercial” or even a “business” although small in scale: cf Hope

v. Bathurst City Council (1980) 144 CLR 1.

The appellants do not come within the definition of “home occupation”, with the

consequence that the Council could not grant a consent to their use of their property, unless

the “occupation” is “carried out in or under [their] dwelling house or within the curtilage of

[their] dwelling house”. Whether or not there is some basis for criticism of aspects of the

Planning and Environment Court judgment on this issue, the conclusion that the appellants’

“occupation” was not “carried out in or under ... or within the curtilage of ...” their dwelling

house was not only open to the Planning and Environment Court but, on the facts which it

had before it, the correct conclusion. Williams J. has noted details of the property and the

appellants’ activities, and the statements made in their application to the respondent

Council, which include the description of the activities as a market garden and contained

the statement that, in conjunction with the use of the land as a residence, grapes and fruit are grown “over the balance area of land not utilised for residential purposes.” I cannot

discern how “the balance area of land not utilised for residential purposes” could be

described as part of the “curtilage” of the appellants’ dwelling house particularly having

regard to the size of the “balance area” and the visual separation between that area and

the area surrounding the dwelling house which is landscaped with shrubs and flowers.

If the appellants got past that first hurdle they confronted, two further obstacles which

could only be avoided by express permissions from the Council; one, necessary

permission was to use a source of power other than that specified in para. (1)(a) of the

definition of “home occupation”, and the other was to use for their “occupation” an area in

excess of that limited by para. (2) of that definition, 45m2.

It was submitted that the Planning and Environment Court judgment did not directly

address the latter two issues, but I do not accept that that is so. On the facts which it had

before it, it was not only open to that Court to conclude that the necessary permissions

were inappropriate, but, especially in relation to the area permitted to be used by para. (2)

of the definition of “home occupation”, any other conclusion would have been unjustifiable;

the effect of such a permission would have been to allow use of a much larger area than

is accepted as appropriate in the definition of “home occupation” and to engage in

activities which bordered on, if they did not extend to, “agriculture”.

In summary, I have not identified any error by the Planning and Environment Court

and, in particular, have not found any mistake or error in law. On the contrary, the

circumstances are such that the Planning and Environment Court’s seems to me to have

been the only decision reasonably open to it. The appellants’ activities do not fall within the

definition of “home occupation” and there was no basis for the exercise of any discretions

involved in that definition in favour of the appellants.

I agree that the appeal should be dismissed with costs.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 14/06/1996

Having read the reasons of the President and those of Williams J., I agree with their Honours

that the relevant "occupation" was not carried on within the curtilage of the appellants’ dwelling

house, having regard to the considerations which their Honours have mentioned.

It is not easy to avoid a feeling of some sympathy for the appellants. First, the activity they wish

to engage in, growing grapes and fruit trees on their land, seems a rather innocuous one, unlikely to

offend any reasonable neighbour. Second, their pursuit of the matter in this Court appears to have

been an ill-advised course; even if there were such errors in the primary judge’s reasons as counsel

for the appellants contended for, that would have been unlikely to bring ultimate success to the

appellants.

Assuming all else in favour of the appeal, the objective the appellants desired could never be

attained unless they had permission from the Council (or from the Court on appeal from the Council)

to use for horticulture very much more land than the definition of "home occupation" contemplates.

Neither the reasons of the Council for refusing the application, nor those of the Planning and

Environment Court for refusing the appeal, gave any ground for thinking that the necessary

permission to use such an area would be forthcoming.

I agree that the appeal must be dismissed with costs.

Judgment delivered 14/06/1996

Separate reasons for judgment of each member of the Court, all concurring as to the order made.

APPEAL DISMISSED WITH COSTS.

CATCHWORDS:	PLANNING AND ENVIRONMENT Discussion of the terms "Home Occupation" and "Curtilage" in the context of a market garden within a low density residential zone. Royal Sydney Golf Club v. Federal Commissioner of Taxation (1955) 91 CLR 610; Milro Pty Ltd v. Associated Securities Ltd (1970) 2 NSWR 70.
Counsel:	Mr PJ Lyons QC for the appellants Mr SM Ure for the respondent
Solicitors:	VC Catanzaro for the appellants

King and Company for the respondent

Hearing Date: 27 May 1996

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No 251 of 1995

Brisbane

Before Fitzgerald P

Pincus JA Williams J

[Grasso & Anor v. Stanthorpe Shire Council]

BETWEEN:

SEBASTIANO GRASSO
and
SALVATRICE GRASSO

(Plaintiffs)

Appellants

AND:

STANTHORPE SHIRE COUNCIL

(Defendant)

Respondent

REASONS FOR JUDGMENT - WILLIAMS J

Judgment delivered the 14th day of June 1996.

This is an appeal from a decision of the Planning and Environment Court sitting at Stanthorpe

dismissing an appeal against the refusal of the respondent, Stanthorpe Shire Council, to approve an

application by the appellants, Sebastiano and Salvatrice Grasso for town planning consent to use land

in a Low Density Residential zone for the purpose of Home Occupation (Market-garden - Grapes and

Fruit Trees).

The principal submission advanced on behalf of the appellants is that the learned judge
constituting the Planning and Environment Court erred in law in construing the definition of "home

occupation" in the Town Plan, and further erred in law in applying that definition to the facts of the case

before him. If that submission was accepted then the matter would have to be sent back to the Planning

and Environment Court for further consideration.

In my view it is critical to the outcome of this litigation to note the precise application which was

made to the respondent. The land in question is situated in Lock Street, Stanthorpe, and has an area

of 3,819 square metres. It is zoned Low Density Residential. There is a dwelling house erected thereon

having a gross floor area of 117 square metres. The application stated the proposed use in the following

terms: "Home Occupation (market-garden - grapes and fruit trees)". The application stated that the

"nature of machinery to be used" was the following: "Kubota 15Hp Tractor, hand operated Rotary Hoe

5hp". Under the heading "present use of land" the appellants inserted the following information: "The

land is presently being used as a residence in conjunction with the growing of grapes and fruit trees over

the balance area of land not utilised for residential purposes." There was then attached to the

application a plan of the allotment showing the location of the house, the location of a shed/garage, and

the location of three areas where grapes and fruit trees were planted. There was a large area having

dimensions 36.3 metres by 47.5 metres where grapes were growing, an area 13 metres by 27.5 metres

where some 36 fruit trees were growing, and another smaller area 4.6 metres by 21.6 metres where

more grapes were growing.

It is convenient to record at this point that a town planner who prepared a report for the

respondent (J Davis) stated that an inspection of the site indicated "a distinct separation between the

area recognised as being attached to the dwelling house and the vineyard". Her report went on to say

that the curtilage of the dwelling house had a lawn and was landscaped with shrubs and flowers. She

stated that the orchard and vineyard do not resemble a domestic garden or recreation area normally attached to a dwelling house but are laid out as they would be on a farm. The appellant's town planner,

Kumskov, appeared in oral evidence to accept that there was such a visual separation between the

landscaped area around the house, and the balance area on which grape vines and fruit trees were

planted.

Under the relevant Town Plan "home occupations" can be conducted in a "low density

residential" zone only with the consent of the local authority. "Home occupation" is defined in the

relevant Town Plan as follows:-

"Any occupation or profession carried out in or under a dwelling house or within the curtilage of a dwelling house by a person resident therein and in the conduct of which:-

(1) (a) no source of power other than one (1) or more single-phase electric motors having a total connected load of not more than one point five (1.5) kW is used, except with, and in accordance with, the conditions of an express permission of the Council;

(b)        any such machine shall not be used between the hours of eight o'clock in the evening and seven o'clock in the morning (8.00pm and 7.00am);

(2)	the area used, whether temporarily or permanently, does not exceed 45 square metres, except with and in accordance with the conditions of an express permission of the Council;
(3)	no sign other than a sign not exceeding point three (0.3) square metre in area and bearing only the name of the occupier and of the occupation is displayed;
(4)	there is no public display of goods on the premises;
(5)	no load is imposed on any public utility greater than that which is normally required by other uses permitted in the zone in which the dwelling is situated.
The term does not include any occupation or profession which causes injury to or has a prejudicial effect on the amenity of the locality in which it is carried on due to the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, grit, oil, waste products or anything whatsoever or constitutes a hazard."

At a meeting on 25 October 1994 the respondent considered the application and resolved to refuse it for the following reasons:-

"(1)

The proposed use does not comply with the definition of "Home Occupation"
contained in the Shire of Stanthorpe Town Planning Scheme specifically:-

(a)	The area proposed to be used exceeds 45m2. The maximum area permitted to be used for the home occupation should not exceed 200m2 as such greater area would have the potential to conflict the character and amenity of the existing and future residential neighbourhood.
(b)	The proposed use will impose a load upon a public utility (water supply) greater than that which is normally required by other uses in the residential area.

(2)

The use of the site for agriculture has the potential to conflict with the residential uses in the locality by way of noise from agricultural equipment and spray drift.

(3)

The scale of the operation is inconsistent with the existing and future residential
character of the neighbourhood.

(4)

The intensity of the use and the scale of the operation exceed that normally associated with a home occupation. The use of chemicals and use of machinery is dependent upon the size of the operation. These will exceed that which could reasonably be expected in a residential neighbourhood."

The Notice of Appeal to the Planning and Environment Court referred to a number of grounds

of appeal. It was therein asserted that at least part of the subject land had been used for the purpose

of growing grapes uninterruptedly since 1976. It was asserted that the proposed use would not

generate any additional traffic, and also that there would be no interference with the amenity of

surrounding properties. It was stated that only a hand-operated knapsack was used for the application

of chemicals to the crops. Finally it was asserted that in "making the home occupation personal to the

appellants so long as they remain in use and occupation of the land will acknowledge the existing use

and allow it to be discontinued when the appellants move".

The critical question for this court is whether or not there was any error of law demonstrable

in the reasoning of the Planning and Environment Court in dismissing the appeal from the respondent's
decision.

In my view the initial words "occupation or profession" in the definition of "home occupation"

are of critical importance. Giving them their appropriate meaning in the context, the application is one

to use the dwelling house or its curtilage for the purpose of an income producing business. That such

was the intention of the applicants in this case is reinforced by their use of the expression "market-

garden" in more particularly describing the proposed use. This was not an application seeking consent

of the local authority for the growing of fruit trees or grape vines as part of landscaping or for ornamental

or aesthetic purposes or purely for recreational purposes. It is not necessary for the court to consider

whether or not any permission of the local authority may have been required for the growing of such

plants for those purposes.

At the outset of the hearing of the appeal senior counsel for the appellants submitted that the

application should have been treated by the respondent as an application to use the land for "fruit

growing". Even if those two words were substituted for the words "market-garden - grapes and fruit

trees" in the application it would not alter the position; the introductory words still make it clear that the

application must relate to the occupation, that is business, of fruit growing.

Each of the local authority, the Planning and Environment Court, and this court, has been

concerned only with the application for consent to use the subject land for purposes of "home

occupation". It is therefore necessary to apply the definition of "home occupation" to the details of the

application.

In the reasons for judgment of the Planning and Environment Court reference was made to the

definition in the Oxford English Dictionary of "curtilage": "A small court, yard, or piece of ground

attached to a dwelling house, and forming one enclosure with it". It was submitted by counsel for the

appellants that the judge erred in adopting that definition for Australian conditions. The meaning of the term has been discussed in Royal Sydney Golf Club v. Federal Commissioner of Taxation (1955) 91

CLR 610 at 626-7 and Milro Pty Ltd v. Associated Securities Ltd (1970) 2 NSWR 70 at 74-5. It can

probably be deduced from those cases that the appropriate test is to ask the question, what land

actually or supposedly contributes to the enjoyment of the building for the fulfilment of its purposes?

The answer to that question would always be dependent upon the particular facts of the case; what

constitutes the curtilage of a building would normally be a question of fact to be determined upon the

evidence in the particular case. The relevant evidence may well include the nature of the use of the

building, and any visual or physical separation of the building and the land immediately and otherwise

surrounding it.

The learned judge in the Planning and Environment Court did not expressly indicate he was

making a finding of fact on the evidence in the case before him; he merely said "I do not think that the

area under cultivation is in fact the "curtilage" of the dwelling house." He did go on to elaborate

distinctions between the physical confines of the house and the whole of the area contained in the one

title deed. In my view his Honour was in effect making a finding of fact on the evidence before him.

I have already referred to the virtually unchallenged evidence that in this case there was a visual

distinction between the landscaped area immediately around the dwelling and the balance area on which

the fruit trees were growing and the grape vines were being cultivated.

It is sufficient to say that in the circumstances his Honour made no error of law on the evidence

before him in deciding that the curtilage of the dwelling house in question did not extend to the whole

of the area the subject of the application.

It was accepted that approximately 2,180 square metres of the total area (3,819 square metres)

were used for the cultivation of the fruit trees and grape vines. As was noted in the court below that

area "greatly exceeds" the 45 square metres referred to in the definition. It is true that the local authority has the discretionary power to approve of the use of more than 45 square metres for a particular home

occupation, but nevertheless the proposition remains valid that the proposed user here was greatly in

excess of that basically contemplated for use as a home occupation. Putting the learned judge's

observation in context, it appears to me he was saying that the local authority was justified in refusing

the application because of the very large area involved in the proposed use and the scale of the

operation.

Reference was then made in the reasons to the machinery referred to in the application. The

horse power involved was again greatly in excess of that specified in paragraph (1) of the definition of

home occupation. Potentially there were problems with noise given the large area involved.

Given that the respondent on the hearing of this appeal indicated it was not relying on any point

relating to the demand on the public water utility that aspect of the matter need not be considered

further.

In the light of the definition of home occupation it cannot be said, in my view, that either the

respondent local authority or the Planning and Environment Court were wrong in concluding that the

proposed use did not come within the scope of the definition of home occupation if only because of the

scale of the operation proposed. The intended use of the land is so extensive and greater than that

contemplated by the definition that the local authority was clearly entitled to take the view that, applying

the definition, this was not a situation where consent should be granted.

There is much in the material filed in the Planning and Environment Court on behalf of the

appellants which goes to the reasonableness of the proposed user given their personal circumstances.

It is easy to feel some sympathy for the appellants, and it may well be that the amenity of the immediate

neighbourhood would not be adversely affected by their carrying on the proposed activity. The affidavit

material filed on behalf of the appellants indicates that in fact only a minute percentage of produce from the cultivation is sold or disposed of to outsiders; most is consumed by the family. It is not objectively

a commercial operation. But such considerations are not decisive for present purposes. The question

is whether or not the respondent and/or the Planning and Environment Court erred in law in concluding

that consent to the proposed use should not be granted. For the reasons given above I cannot discern

any such error as would entitle this court to intervene.

In the course of his reasons the learned judge constituting the Planning and Environment Court

expressed the view that the proposed user by the appellants fell within the definition of "agriculture" in

the Town Plan. That also appears to be the view of the respondent given the wording of its reasons for

refusing consent. So far as is relevant "agriculture" is defined in these terms:

"Any land, building or other structure or any part thereof used or intended for use for
horticulture or the growing of crops, fruit, vegetables and the like including, but not
restricted to the following:-
...
Market gardening (more than two hundred (200)m2 of area);
Orchard (more than two hundred (200)m2 of area);
Orchard (more than two hundred (200)m2 of area);

Plant nursery (more than two hundred (200)m2 of area);

The term does not include ancillary domestic horticulture."

In my view it was permissible to refer to other uses as defined in the Town Plan in order to test

whether the proposed use was within the definition "home occupation". Agriculture is not permitted in

a low density residential zone. However by implication from the definition it could be said that market

gardening, where the area involved was less than 200m2, was not a prohibited use in such a zone. But

as indicated above the area in question here is well in excess of that. Further, the observation could be

made that what was proposed here was not ancillary domestic horticulture because of the business

element necessarily involved.

In all the circumstances there is no need to look at the later town planning scheme which this
court was informed has come into force since the matter was before the Planning and Environment

Court.

The appeal should be dismissed with costs.