Great Lakes Council v Big Island Forster Pty Limited & Ors

[2007] NSWLEC 270

Land and Environment Court

of New South Wales

CITATION:	Great Lakes Council v Big Island Forster Pty Limited & Ors [2007] NSWLEC 270
PARTIES:	APPLICANT Great Lakes Council FIRST RESPONDENT Big Island Forster Pty Limited SECOND RESPONDENT Nino Lani THIRD RESPONDENT Lampo Pty Limited
FILE NUMBER(S):	40234 of 2007
CORAM:	Pain J
KEY ISSUES:	Civil Enforcement :- whether development consent required for grazing Continuing Use Rights : -whether continuing use rights exist for grazing - whether use abandoned
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s109 Environmental Planning and Assessment Amendment Act 1997 Schedule 1 Great Lakes Local Environmental Plan 1996
CASES CITED:	Bonus Pty Ltd v Leichhardt Municipal Council (1954) 19 LGR (NSW) 375; Council of City of Parramatta v Brickworks Limited (1971-1973) 128 CLR 1; Hudak v Waverley Municipal Council (1989) 18 NSWLR 709; Lane Cove Municipal Council v Lujeta Pty Ltd (1986) 58 LGRA 157; Minister for Planning v Rose Bay Marina Pty Ltd (2003) 126 LGERA 181; Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305; South Sydney City Council v Houlakis & Anor (1996) 92 LGERA 401; Sydney City Council v Ke-Su Investments Pty Ltd (No2) (1982) 51 LGRA 186; Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 25 NSWLR 580; Webber v Minister for Housing and Local Government [1976] 3 All ER 981
DATES OF HEARING:	7 May 2007 8 May2007 9 May2007
DATE OF JUDGMENT:	27 June 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr T Howard SOLICITORS Mallik & Co FIRST, SECOND AND THIRD RESPONDENTS Mr P McEwen SC SOLICITORS Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

27 June 2007

40234 of 2007 Great Lakes Council v Big Island Forster Pty Limited and Ors

JUDGMENT

1 Her Honour: The Council is seeking declarations and orders that the use of land at Forster in Lots 239 and 242 DP 753168, known as Big Island (the land), for agriculture, including the grazing of livestock particularly goats, is unlawful without development consent. Agriculture is permissible on Big Island with development consent under the Great Lakes Local Environmental Plan 1996 (the LEP).

2 The First Respondent owns Big Island having purchased it in July 2003 from Mrs Muriel Ravell. The Second Respondent is the director of the Third Respondent which had goats grazing on the island. The goats should have all been removed pursuant to interlocutory orders requiring their removal made by Jagot J on 29 March 2007.

3 The First Respondent relies on continuing use rights, characterised as the grazing of livestock, as the lawful basis for the grazing of goats pursuant to s 109(1) of the Environmental Planning and Assessment Act 1979 (the EP&A Act). The Council disputes that such continuing use rights exist. Alternatively, if they did exist at a certain date they have since been abandoned. The relevant date at which continuing use rights must be established by the First Respondent is the introduction of the LEP on 13 December 1996. If continuing use rights are proved at that date by the First Respondent, the Council has the onus of proving that those rights were abandoned after 13 December 1996 subject to the rebuttable presumption of abandonment which arises under s 109(3).

4 Section 109(1) of the EP&A Act is potentially applicable because agriculture is not prohibited under the LEP but is permissible with consent. Section 109 provides:

(1) Nothing in an environmental planning instrument operates so as to require consent to be obtained under this Act for the continuance of a use of a building, work or land for a lawful purpose for which it was being used immediately before the coming into force of the instrument or so as to prevent the continuance of that use except with consent under this Act being obtained.
(2) Nothing in subsection (1) authorises:

…
(b) any increase in the area of the use made of a building, work or land from the area actually physically and lawfully used immediately before the coming into operation of the instrument therein mentioned, or
(c) without affecting paragraph (a) or (b), any enlargement or expansion or intensification of the use therein mentioned, or
…
(e) the continuance of the use therein mentioned where that use is abandoned.
(3) Without limiting the generality of subsection (2) (e), a use is presumed, unless the contrary is established, to be abandoned if it ceases to be actually so used for a continuous period of 12 months.


Section 109 was inserted into the EP&A Act in 1997 by the Environmental Planning and Assessment Amendment Act 1997, Schedule 1 [32].

Issues identified

5 As identified in the Council’s submissions there are three questions the Court must consider:

(i) was the use to which the First Respondent claims entitlement being carried out on the land in the period immediately preceding 13 December 1996?
(ii) if that grazing use is established was it abandoned after 13 December 1996? There are two relevant periods to consider, firstly, up to 2003 when the First Respondent purchased Big Island from Mrs Ravell and, secondly, after the date of sale in 2003.
(iii) if the use was being carried out on the land in the period before 13 December 1996 has the use been enlarged or expanded? (cf s 109(2)(c))

Respondents’ evidence

6 The evidence of use of Big Island for grazing of livestock (namely cattle) from before 1943 and thereafter is contained in an affidavit of Mr Underwood sworn 29 December 2007. A summary drawn from MFI 1 handed up by the First Respondent’s counsel and based on that affidavit and other material follows:

1943 – Ronald Underwood first aware of Big Island; attends with father on horseback; father runs 20 head of cattle on Big Island, rotated every three to four weeks, from father’s property “Seaview”. This activity continued until 1957 (other island in Wallace Lake grazed by Underwood family)
1963 – Underwood’s partnership with Rasmussen and Schubert terminates; Underwood continues to graze cattle on Big Island – installs spear point bore and windmill; windmill stolen and he (Underwood) installs petrol pump and six cattle troughs.
1964 – Schubert remains in partnership with Rasmussen; and continues to use Big Island to fatten cattle until 1966
1966 – Rasmussens sell (by transfer of Crown Lease) [?1961] [sic] Big Island to Stan and Muriel Ravell;
Underwood into partnership with Ravell “MURG Cattle” to fatten cattle on Big Island (Muriel, Underwood, Ravell, Georgina)
MURG Cattle run up to 74 head on Big Island with the use of Stan Ravell’s property at “Coomba Park”, and Underwood’s property, “Carmona”
1972 – August 31: Mr and Mrs Ravell owners tenants in common
1974 – June 1: Original of MURG Cattle “Stock Diseases Act Brucellosis Vaccination Report”
1977 – Board’s “Stock Movement Bood” is sent to Underwood
Early 1980s – Partnership of Underwood and Stan Ravell terminates when Ravell sells “Coomba Park”

None of that history is disputed by the Council.

7 Mr Underwood’s affidavit dated 29 March 2007 further states he made an agreement with Mr Ravell, co-owner of Big Island with his wife Mrs Muriel Ravell in the early 1980s that he could take cattle onto Big Island. After Mr Ravell died in 1984 Mr Underwood continued to take cattle to Big Island infrequently. At par 19, 20 he states:

I then continued to run cattle for Carmona and rotate them to Big Island until Big Island was sold to its current owner in 2003. I was not required to pay any rent or fee for the use [of] the land during this time. I ran up to 74 head of cattle on Big Island until it was sold. At the time of the sale I still had three head of cattle left on Big Island and I transferred those cattle to the new owner.
To my personal knowledge there has always been cattle grazed continuously (other than small breaks of a couple of months) on Big Island from at least 1943 until the present time. I personally grazed cattle continuously from 1943 until Big Island was sold to its current owner in 2003.

8 In his affidavit sworn 7 May 2007 Mr Underwood states at par 9, 10, 13:

In the late 1990s I removed a group of approximately 24 to 26 head of cattle from the island which I sold. I knew I had other cattle left grazing on the island. On approximately 5 or 6 occasions I rode over to the island to look for my cattle. On 3 or 4 of these occasions I could not find any cattle. On 2 occasions I found a cow and roped it. I then went and got my trailer, took it off the island to my property for further grazing and later sold it.
By 1999/2000 there were 3 cattle left grazing on the island. I intended to go back to the island on and off to try and locate and rope those cattle for sale or for meat. However, I became sick in 2000 and I could not go back to the island. The 3 cattle, which I owned, remained on the island until the island was sold to Nino Lani. When the island was sold I gave the 3 cattle on the island to Nino.
…
I was a primary producer including the grazing of cattle on my land and on Big Island and this status gave me many benefits such as land tax relief on my properties. I am still a primary producer and graze cattle. In 2003 my intention was to remain a primary producer and to continue to graze cattle on Big Island.

9 Attached to Mr Underwood’s second affidavit sworn 7 May 2007 are five Annual Stock Movement Permits issued to him by the Gloucester Rural Lands Protection Board (the GRLP Board), dated 24 February 2003, 31 March 2004, 24 March 2005, 31 March 2006 and 1 April 2007, four Stock Licences issued to him by the GRLP Board valid from 30 April 1999 to 30 April 2000, 30 March 2000 to 30 April 2001, 25 April 2001 to 30 April 2002 and 19 March 2002 to 30 April 2003, and a Brucellosis – Report of Vaccination dated 19 June 1974. The Annual Stock Movement Permits and Stock Licences authorise journeys between "Lakes Way" and "sundry paddocks". The vaccination report refers to the location of the cattle vaccinated as "Forster". There is no mention of Big Island in these documents but reference is made to Carmona elsewhere. These documents are all relatively recent, dating from 2000. No earlier documents relating to the movement of stock to Big Island by Mr Underwood were produced.

10 The Respondents also tendered a National Vendor Declaration (Cattle) and Waybill book (exhibit 2) containing copies of forms completed by Mr Underwood when consignments of cattle were transferred from Forster to Taree and Gloucester between March 2005 and May 2006.

11 The affidavit of Mr Milsson, a director of the First Respondent, states that it was the intention of the First Respondent at the time of purchase of Big Island to use it for grazing. He annexes to his affidavit variations of land tax returns for the 2004 and 2005 years which identify the use of the land as stock grazing.

12 The affidavit of Mr Lani (Second Respondent), director of Lampo Pty Ltd (Third Respondent), annexes an undated document headed “Commercial Lease” relating to the grazing of stock on Big Island. The document is signed by a single director only of the First Respondent. It is not signed by the lessee Lampo Pty Ltd. Nor is it stamped. He also stated that the Third Respondent commenced grazing goats on Big Island in 2004 and had approximately 50 to 60 goats there. In oral evidence Mr Lani stated that he had not seen the lease document before these Court proceedings commenced and that it was irrelevant in any event to his use of the island for grazing goats. He also stated that the only access to Big Island is across his property, which property he had owned for about thirty-four years, and anyone wanting access to Big Island must ask him. He stated that Mr Underwood had sought permission every time he went on the land and this occurred very occasionally.

13 Mr Underwood, Mr Lani and Mr Milsson gave oral evidence and were cross-examined.

Council’s evidence

14 The Applicant relied on the following affidavits:

(i) Muriel Violet Ravell sworn 1 May 2007

(ii) Gregory Pevitt sworn 26 April 2007 and 21 March 2007

(iii) Mathew John Bell sworn 26 April 2007 and 21 March 2007

(iv) Brian Brooker sworn 21 March 2007 and 26 April 2007

(v) Paul Schuetrumpf sworn 20 March 2007

(vi) Robin Mallik sworn 20 March 2007

(vii) Robert James Lee sworn 26 April 2007

15 Much of the Council’s evidence concerned the environmental damage caused to Big Island by the grazing of goats. This evidence is not relevant for this part of the proceedings and I will not therefore refer to it in great, or any, detail. This applies to the affidavits of Mr Brooker, Mr Schuetrumpf and most of Mr Bell’s and Mr Pevitt’s affidavits. I also do not need to refer to the affidavit of Mr Mallik.

16 Mrs Ravell’s affidavit evidence was that:

My husband Stan Ravell and I purchased land known as Lots 242 and 239 DP 753168 and more commonly known as Big Island (hereinafter referred to as ‘the land’) about 46 years ago
Stan passed away 23 years ago and after his death there were some cattle on the land. I kept the cattle on the land to maintain the Rural zoning, however about 3 years after Stan’s passing I had all the cattle removed from the land.
There have not been any cattle on the land to my knowledge or with my consent for the last 20 years.
I sold the land in 2003.
I can recall that there have been about four substantial fires within the last 20 years on the land. The last fire on the land was about 5 or 6 years ago. To the best of my knowledge there were no cattle on the land when the fires went through the land.
Since the passing of Stan I have had sole ownership and control over the land. I have never given anyone any permission to graze cattle or anything else on the land and I have never leased the land out to anyone.

17 Mr Pevitt, Investigation and Regulatory Control Officer with the Council, states in his first affidavit that there are no development consents permitting the use of the land for agricultural or grazing purposes. He states he visited the island on 13 November 2006 when he saw about 12 goats, and that mangroves had been eaten to a height of about 1.5m. He states that after this visit he was told by an employee of Mr Lani that Mr Lani had “put about 300 goats on the island about 6 to 12 months ago” and did not intend to remove them. He states that on 20 November 2006 he was told by Mr McKinnon, one of the directors of the First Respondent, "they have been grazing on the land for years".

18 Mr Lee states in his affidavit that he has lived at Forster Keys since 1995. Between 1995 and 2004 he was a police officer in the area. He states that he can see part of Big Island clearly from his house and is familiar with the island. He stated "I had never seen any livestock, including cattle and goats on Big Island until about 12 months ago when I noticed goats walking on Big Island... ". He stated that he "noticed a big change in the appearance of the vegetation on Big Island" since about July 2006. Since he noticed the goats, the mangroves on Big Island have begun to look different from the mangroves on two nearby islands. He states that he has seen “goats standing on their hind legs eating the vegetation up high".

19 Mr Bell is a Senior Environmental Officer and Ecologist employed by the Council. In his first affidavit, he stated that he attended Big Island on 13 November 2006 in order to assess any ecological harm caused by goats or other livestock. In his second affidavit, Mr Bell states that he saw increased damage on his visit to Big Island six months later on 12 April 2007. Further, he states at par 14 (b):

[this] profound change. . . leads me to the opinion that there could not have been grazing or grazing of this type or intensity on Big Island over any long period prior to November 2006.

20 Under a subpoena for production, the GRLP Board provided “Return of Stock and Land” for the years 1995 – 2005 for Big Island (exhibit 1). Prior to 2001, the Board’s forms required the landowner to specify the number and type of stock on the land, for example goats and cattle, over the age of six months. For these years, all stock numbers are marked "nil" and the forms are signed by Mrs Ravell. From 2001, the land owner could tick a box if there were nil stock on the land and this box was ticked on the 2001 - 2003 returns for Big Island, signed by Mrs Ravell. The “nil stock” box is also ticked on the 2004 return signed by Mr McKinnon. The 2005 return was signed by Mr Lani and indicated that there were 17 beef cattle and “nil” goats over the age of six months on the property.

Issues considered
Respondents’ argument

21 In relation to issue (i) (see par 5), the First Respondent has continuing use rights for the grazing of livestock due to the long history of grazing of cattle on the property by Mr Underwood and others. That use was occurring at 13 December 1996.

22 In relation to issue (ii), abandonment, the grazing use occurring at 13 December 1996 continued into the late 1990s. While Mr Underwood had removed most of his cattle by 1999/2000, he intended to continue using Big Island for the grazing of livestock and he had three cattle on Big Island. That use continued after the purchase of Big Island in 2003 by the First Respondent because three cattle remained on the island until goats were introduced by the Second and/or Third Respondent in 2004. The intention to continue the use of grazing of livestock was held by the First Respondent when it purchased Big Island in 2003. A variation in detail or interruption or temporary use does not change (or abandon) an existing use, see Lane Cove Municipal Council v Lujeta Pty Ltd (1986) 58 LGRA 157 at 160, Bonus Pty Ltd v Leichhardt Municipal Council (1954) 19 LGR (NSW) 375, Webber v Minister for Housing and Local Government [1976] 3 All ER 981.

23 In relation to issue (iii), continuing uses should be characterised broadly, see Council of the City of Parramatta v Brickworks Limited (1971-1973) 128 CLR 1, Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305. The inquiry is directed to the genus of the activity not the species.

24 A change from cattle to goat grazing has not lead to an enlargement, expansion or intensification of the use, as it is still the same genus of use, see Minister for Planning v Rose Bay MarinaPty Ltd (2003) 126 LGERA 181.

Council’s arguments

25 An initial question arises of how the continuing use should be characterised. The introduction of s 109(1) was recognised in Vaughan-Taylor v David Mitchell-Melcann Pty Ltd (1991) 25 NSWLR 580 as changing the way that uses should be characterised, given the reference to intensification of use in s 109(2)(c). A greater degree of specificity of a use is required as a result of that legislative change. See also South Sydney City Council v Houlakis & Anor (1996) 92 LGERA 401. Here the use is for cattle grazing at most and should not include goats.

26 In relation to issue (i), the First Respondent has not discharged the onus of proof it bears to prove that there was an continuing use of the land for the grazing of livestock (namely cattle) at 13 December 1996. The uncontradicted evidence of Mrs Ravell, the owner of the land, is that all cattle were removed in 1987 and there have been no cattle on the land with Mrs Ravell’s knowledge or consent since then. She had given no-one permission to graze cattle. That evidence is confirmed by the documents lodged with the GRLP Board provided under subpoena for 1995 – 2005 (see par 20). Mr Underwood’s evidence should be given little weight in these circumstances. Further his affidavit of 7 May 2007 refers to matters about which the Council had no notice when it accepted the course of moving the hearing back to Sydney the Friday before the hearing commenced on Monday.

27 In relation to issue (ii), the First Respondent has not discharged its onus to prove that the use of grazing for livestock which existed at 13 December 1996 was not abandoned before 2003. The rebuttable presumption of abandonment in s 109(3) arises from the facts of this case and the onus of proof therefore falls on the First Respondent. That is clear from Mr Underwood’s evidence in his second affidavit and his oral evidence that he did not go to Big Island from 2000 to 2003. It was also his intention to sell his property, Carmona, in 2000. Alternatively, if not abandoned before 2003, the use was abandoned when the First Respondent bought Big Island.

28 In relation to issue (iii), the use of Big Island for the grazing of goats is an intensification of the use from the grazing of cattle which existed in 1996 and 2003 (three cattle) and is not permitted without development consent by virtue of s 109(1).

Finding

29 I will determine this case in relation to issues (i) and (ii) which relate to the grazing of cattle. I do not need to consider the Council’s argument on characterisation of the use or whether there was intensification of the use (issue (iii)).

Issue (i) – whether continuing use of grazing established

30 The first issue to consider is whether the First Respondent has satisfied the onus of proof it bears on the balance of probabilities that a use for grazing of livestock (whether limited to cattle or not) did exist at 13 December 1996.

31 Mrs Ravell, the sole owner of Big Island since 1987, stated that she did not give permission to anyone to put cattle on Big Island (see par 16). Mrs Ravell makes no mention of Mr Underwood in her affidavit. It is difficult to reconcile her evidence with that of Mr Underwood, given the election of the Respondents not to cross-examine Mrs Ravell. Having determined the working day before the hearing not to cross-examine Mrs Ravell, who was not therefore present at the hearing in Sydney as she resides in the Forster area, the First Respondent’s counsel sought to rely on the further affidavit of Mr Underwood dated 7 May 2007 filed at the commencement of the hearing in response to Mrs Ravell’s affidavit. I would not allow parts to be read in light of objections from the Council that its case was prejudiced, as it clearly was. The Respondents’ counsel then sought an adjournment. The Council then withdrew its objections to the affidavit, which was then read, as it wished the matter to be finally dealt with. These unsatisfactory circumstances mean that while the Council was able to cross-examine Mr Underwood and did so, it was not in a position to seek further clarification of matters from Mrs Ravell. Her evidence as co-owner of Big Island from 1974, and sole owner since 1987, that she had not allowed any cattle on Big Island since 1987 stands unchallenged by cross-examination. The “Return of Stock and Land” documents filed by Mrs Ravell with the GRLP Board from 1995 to 2003 which refer to “nil” cattle on Big Island are in evidence (see par 20).

32 The Respondents’ counsel described Mr Underwood’s placement of cattle on Big Island from the early 1980s under the agreement with Mr Ravell as a licence at will which he submitted did not end when Mr Ravell died. No reference was made to case law as authority or to statute to support this submission. In the absence of further argument it appears surprising that Mr Underwood could continue to take cattle to land he did not own without the consent of the then owner Mrs Ravell. The legal status of the agreement between Mr Underwood and Mr Ravell in the absence of consent from Mrs Ravell as co-owner of Big Island is also unexplored in the Respondents’ submissions.

33 There is a possibly significant legal issue as to whether the First Respondent can rely at all on Mr Underwood’s evidence of his use of Big Island for grazing up to 13 December 1996, in light of the uncontradicted evidence of Mrs Ravell that she did not consent to anyone using Big Island for grazing from 1987. Reliance by the First Respondent’s counsel on the finding in Sydney City Council v Ke-Su Investments Pty Ltd (No2) (1982) 51 LGRA 186 that lawful in s 109(1) refers to lawful in a planning sense only and not under the general law, would require further consideration in the particular circumstances of this case, in my view. In Ke-Su the tenant had an entitlement to be on the land. It is not self-evident that Mr Underwood had any legal entitlement to go onto Big Island. I should stress that I make absolutely no criticism of Mr Underwood by these observations, rather it is a reaction to the First Respondent’s case as presented. It is unnecessary to resolve these issues given the way I consider this matter should be determined.

34 On the assumption that Mr Underwood’s grazing use can be relied on by the First Respondent, I need to determine whether it has discharged the onus of proving on the balance of probabilities that the use of grazing of livestock continued up to 13 December 1996. The affidavit evidence of Mr Underwood is set out at par 7 and 8 above.

35 That evidence is contradictory but essentially the general statements of Mr Underwood’s grazing use of Big Island for cattle up to 2003 in par 19 and 20 in his first affidavit are qualified in his second affidavit. In his second affidavit he stated that the removal by him of a large number of cattle, 24-26, from Big Island occurred in the late 1990s but in oral evidence he said early 1990s. In re-examination during oral evidence he was referred back to his affidavit and confirmed that it was the late 1990s. It was also his intention to remove all the cattle he had on Big Island at that time. He went back more than once to try to muster the remaining cattle and left three cattle on Big Island because he could not catch them as they had become too wild.

36 Mr Underwood stated that he always sought Mr Lani’s consent when he wanted access to Big Island. Mr Lani’s oral evidence was that Mr Underwood approached him very occasionally for access to Big Island over a thirty-four year period. This evidence provides no assistance in determining dates when cattle grazing occurred or when cattle were removed.

37 No evidence such as documents or other objective material is adduced to verify this vague evidence on this important matter. I consider it is unclear when Mr Underwood removed the last large group of 24 cattle from Big Island.

38 The case law relied on by the First Respondent (see par 22), to the effect that an interruption of use or intermittent use does not prevent a use continuing, does not assist in the circumstances of this case as those cases had quite different facts. In Webber, a field was used for a camping site in summer and for grazing cattle and weekly football in winter. It was held that the normal use was for both winter grazing and summer camping. Diplock LJ (Lord Denning MR and Edmund Davies LJ agreeing on the result) distinguished at 985 between "normal use" and " use on occasion", “ie between activities which account for a substantial part of the total amount of activity taking place on the land and those activities which take place only occasionally". He continued :

"I see no reason why the "normal use" referred to in this subsection should not embrace two different recurrent activities. There may be cases in which it is difficult to decide whether a particular activity is carried on to a sufficient extent and with sufficient regularity to constitute part of the "normal use" or is only occasional. Where, however, as in the present case, each activity takes place for about six months of each year, I find no difficulty in saying that each is part of the "normal use" of the land."

Clearly the facts of that case are unlike the matter before me and the findings cannot apply here.

39 In these circumstances I do not consider the First Respondent has discharged the onus of proof it has on the balance of probabilities to prove that there was a use of land for the grazing of livestock on Big Island as at 13 December 1996. No criticism is intended of Mr Underwood in making that finding. The matters under consideration happened some time ago.

Issue (ii) – abandonment of continuing use, s 109(3)

40 If I am wrong in that regard and the grazing of cattle did continue on and after 13 December 1996, the next issue (issue (ii)) arises as to whether that grazing use was abandoned, firstly, by 2003 when the First Respondent bought Big Island. If not already abandoned, secondly, did the use continue from 2003 when the land was sold to the First Respondent.

41 Since 1997 s 109(3) has raised a rebuttable presumption of abandonment if a use ceases for twelve months. There is evidence that Mr Underwood did not go to Big Island for three years from at least 2000 to 2003. The continuation of use relied on in the First Respondent’s case is that three cattle continued to graze on Big Island from an unspecified time no later than 1999/2000 and since then. These cattle remained only because Mr Underwood was unable to catch them. Cattle left to their own devices, as these were, will inevitably graze. That is not a relevant “use” of land by anybody and cannot sustain a finding of continuing use of the land for grazing.

42 The only direct evidence of intention to continue the use relied on in the First Respondent’s case is the statement of intention to continue the grazing use on Big Island from 2003 in Mr Underwood’s second affidavit at par 13 (see par 8). None of the documents referred to by Mr Underwood in his affidavit (see par 9) or the National Vendor Declaration and Waybill book (see par 10) refer to Big Island. These documents suggest that Mr Underwood did continue or wish to continue his activities as a primary producer. Given that his evidence is that he undertook those activities in several locations confirmed by the references to places other than Big Island in the documents, I do not consider that the inference arises that he intended to continue using Big Island given that he removed all the cattle that he could sometime in the 1990s and certainly by 1999/2000. The Return of Land and Stock documents (see par 20) sent to the GRLP Board by Mrs Ravell in 2000 to 2003 confirm her evidence that no stock were on Big Island.

43 Reliance was also placed in the First Respondent’s submissions on there being an arrangement between Mr Underwood and Mr Lani to bring stock on and off Big Island through Mr Lani’s land. Mr Lani owned the land over which access to Big Island was required for about thirty-four years. Mr Lani’s evidence is that very occasionally Mr Underwood would ask him for access to Big Island. When this was done is unspecified but I infer it occurred very occasionally over that thirty-four year period. It does not provide support that there was an intention to continue grazing by Mr Underwood.

44 Mr Underwood stated in his oral evidence that he became sick in 2000 and could not go back to Big Island. He also stated that he intended to sell his property Carmona at that time and destroyed a lot of his business records. This further suggests abandonment of the grazing use of Big Island on his part by 2000 at the very latest.

45 In Hudak v Waverley Municipal Council (1989) 18 NSWLR 709 at 716 Hope J stated that the objective circumstances should be considered in addition to the subjective intention to continue the grazing use. The objective circumstances confirm there was abandonment of grazing by 2000 at the very latest when all but three of the cattle were removed by him. The presence of those three cattle was not a continuation of the grazing use. The fact that Mr Underwood states in his affidavit of 7 May 2007 that “In 2003 my intention was to remain a primary producer and to continue to graze cattle on Big Island” (par 13 of his affidavit) in the absence of any evidence that he physically did so does not “save” the use of grazing as a continuing use in my view. The subjective intention to continue the use from 2003 expressed by Mr Underwood does not overcome the objective circumstances.

46 I consider the Council has discharged its onus of proving on the balance of probabilities that the grazing use was abandoned by 2000, the rebuttable presumption of abandonment in s 109(3) not being rebutted by the First Respondent. It is unnecessary therefore to consider the period from 2003 when the First Respondent bought Big Island.

47 These findings on issues (i) and (ii) mean that the First Respondent cannot rely on the grazing of livestock as a continuing use at the time it bought the property in 2003. Undertaking such activity therefore requires development consent under the LEP.

48 Given these findings I consider I should make the declarations and most of the orders sought by the Council. As the successful party in Class 4 proceedings, the Council would normally have its costs paid by the Respondents. The question of whether the costs should be borne by the three Respondents is reserved for 7 days. If no application is made in relation to costs by the Respondents, they are to pay the Applicant’s costs.

Orders

49 The Court makes the following declaration and orders.

The Court declares that the use of the land known as Lots 239 and 242 DP 753168 for the purpose of agriculture, including for the purpose of the keeping or grazing of goats or other livestock, is unlawful without development consent.

The Court orders that:

1. Each of the First, Second and Third Respondents by themselves or their servants or agents are restrained from using the land for the purpose of agriculture, including for the purpose of the keeping or grazing of goats or other livestock, or causing or permitting the land to be so used without first obtaining development consent.

2. Each of the First, Second and Third Respondents remove, or cause to be removed, all goats and any other livestock from the land within 30 days of the date of this order.

3. Each of the First, Second and Third Respondents by themselves or their servants or agents are restrained from introducing any goats or other livestock on the land or causing or permitting the introduction of any goats or other livestock on the land without first obtaining development consent.

4. The Respondents have liberty to apply within 7 days in respect of the costs order failing which the Respondents are to pay the Applicant’s costs.

5. The exhibits be returned.