Hawkesbury Shire Council v Mitchell

[1988] NSWLEC 159

Land and Environment Court

of New South Wales

CITATION:	Hawkesbury Shire Council v Mitchell & Anor [1988] NSWLEC 159
PARTIES:	APPLICANT Hawkesbury Shire Council RESPONDENTS Mr. and Mrs. Mitchell
FILE NUMBER(S):	40169 of 1987
CORAM:	Stein J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act.
CASES CITED:	Foodbarn Pty. Ltd. v. Solicitor-General ((l975); Sedevic v. Warringah Shire Council (Court of Appeal, l987) ; ACR Trading Pty. Ltd. v. Fatsel (Court of Appeal, l987); City Council v. R.A. Motors Pty. Ltd. ((l986)
DATES OF HEARING:
DATE OF JUDGMENT:	02/29/1988
LEGAL REPRESENTATIVES:	RESPONDENT Lewarne & Goldsmith, Solicitors

JUDGMENT:

HIS HONOUR: The applicant Council seeks certain declarations and orders concerning land at Lot 10, Deposited Plan 245757, Uworra Road, Wilberforce, relating to the use of the premises by the respondents, Mr. & Mrs. Mitchell, for the keeping of dogs.

As amended during the course of the hearing the relief claimed is as follows:-

l. A declaration that the respondents are keeping dogs on Lot 10, Deposited Plan 245757 Uworra Road, Wilberforce being the land comprised in Certificate of Title Volume 12243 Folio 165 and are conducting an animal establishment on the land without the consent of the applicant.

2. A declaration that the respondents have carried out development on the land, namely the construction of dog kennels, without the consent of the applicant first had and obtained.

3. An order that the respondents be restrained from keeping dogs on the land and conducting an animal establishment thereon without the consent of the applicant being had and obtained.

4. An order that the respondents demolish or remove from the land all structures erected without the consent of the applicant.

The land is zoned Rural l(bl) under the Hawkesbury Local Environmental Plan (the LEP) gazetted on 6 April l984. In this zone agriculture, other than animal establishments, may be carried out without development consent. If the use being put to the land is an animal establishment then it is a Column IV use and permissible with consent. The land is also within an Environmental Protection Area and clause 34(2) of the LEP provides that notwithstanding any other provision in the plan land within the protection area "shall not be developed" without consent. However, because I have concluded that the use by the respondents of the land is within the definition of "animal establishment" I need not stay to explore any consequences arising from clause 34.

The subject land is 4047m2 and has a substantial dwelling-house erected thereon. The respondents purchased the property in 1980. Prior to the purchase of the home, and since l974, the respondents have kept a significant number of red setter dogs and have bred litters from their dogs.

After moving into the subject property the respondents continued to keep dogs and constructed pens or runs under the house and in the backyard, together with shelters approximately 2m high and 3m long with a roof and concrete floor. These may be observed in the photographs tendered in the proceedings. The majority of the runs have concrete floors and drainage is provided.

Since l980 dogs varying in annual number from 6 to l3 have been kept on the property by the owners. The average annual number of dogs has been 10 and that is the number observed by a Council officer in July 1987, deposed to by Mr. Mitchell as being present in October l987 and is also, according to his oral evidence, the current number.

The cost of feeding the dogs is approximately $200.00 per month and the feed is imported from sources outside the subject land. Veterinary fees average around $100.00 per month. From time to time frozen semen has been imported and the cost of the semen and the operations has been $2,500.00. Since the respondents began their hobby they have sold some 24 puppies from 6 litters realising $3,500.00 or about $l50.00 per dog. In 1981 the imported semen resulted in two substantial litters enabling the respondents to sell l4 puppies. However, the last operation, some 18 months ago, was not successful producing only one puppy which was kept. The respondents have no present plans to produce further litters but it may be that these plans change in the future.

Some of the 10 dogs presently on the premises are kept for the purpose of showing and it appears that the keeping of the dogs is essentially a hobby and not a commercial operation.

In late October 1985 the respondents lodged a Development Application seeking the approval of the Council to the use of the property to keep dogs. The application acknowledged that "brick weather shelters.... were constructed 6 years ago". In February l986 amended plans were lodged for a new kennel block with 4 stalls. A number of objections to the application were received by Council as well as submissions in support.

The application was refused by Council for a number of reasons and notice of the determination was given to the respondents on l6 May l986. The Shire Clerk advised the respondents that they had one year to appeal, viz. by l6 May l987. In July l986 Council sought advice from the respondents as to whether they would reduce the number of dogs to 3, in accordance with Council's Dog Code, and also remove the unauthorised kennel structures. By way of reply the respondents indicated their intention to appeal. On 23 July l986 the Shire Clerk reaffirmed that the existing kennels were illegal as were the number of dogs being kept. Messrs. Lewarne & Goldsmith, Solicitors, were then retained by the respondents and asked the Council to refrain from commencing proceedings until they had obtained full instructions By letter dated 3 September 1986 Council's solicitors indicated to the respondents' solicitors that the Council was no longer prepared to refrain from commencing legal proceedings. By reply of l5 September l986 th

e respondents' solicitors stated that the respondents' property had been placed on the market for sale, adding:-

"We would be grateful if you would approach your client with a view to withholding its action on the basis that the purported nuisance will be abated immediately upon the sale of this subject property."

On 1 October l986 the respondents' solicitors wrote to the Council's solicitors saying:-

"We refer to our previous correspondence herein and would confirm that Mr and Mrs Mitchell are prepared to acknowledge that part of their premises are being used for the purpose of kennelling their large number of dogs, in contravention of your client Council's code.

Our clients have decided not to contest Council's decision and they are presenting their house for sale through the assistance of the L.J. Hooker Real Estate Agency at Windsor.

Having regard to the slow-down in the real estate market we would be grateful if Council would allow our clients a period of 6 months from todays' date in which to sell the property whereupon the affending(sic) nuisance will be removed."

As a result Council agreed to withhold proceedings until l May l987. However, the property was not sold and the situation continued until l4 July l987 when Council's solicitors again wrote indicating that "further complaints" had been received by Council and an inspection would be carried out with a view to commencing proceedings.

On 29 July l987 the Council Deputy Planner inspected the property and noted some 9 red setters kept in pens beneath the house and in 2 pens at the rear of the house, plus a terrier kept in a wire kennel. He took a number of photographs which were tendered in evidence. Council then filed the application in the Court on l8 August l987.

The evidence satisfies me that the respondents have never obtained any development consent from the Council for the subject use since it commenced in l980, nor does any consent to the use exist. The application made in 1985 was refused in May l986 and no appeal lodged with the Court. According to Mr. Mitchell another application to the Council was withdrawn.

The critical question is whether the use of the land is an "animal establishment" within the definition in the planning instrument. The definition is a follows:-

"'animal establishment' means a building or place used or intended for use for the intensive purposes of husbandry, boarding, training or keeping (or any combination of them) of animals, birds, fish, insects or the like, requiring the importation of feed from sources outside the land on which the development is conducted."

Do the facts establish that the subject premises are a building or place used for the intensive purposes of husbandry or keeping of animals? There is ample evidence that feed is imported from external sources and there is no dispute that "animals" include dogs. Before the Court is some limited evidence of "husbandry" but, in any event, evidence abounds of the "keeping" of dogs. But is the use for the "intensive purposes" of the keeping of dogs? In the agricultural sense and context I take 'intensive' to mean the use of management techniques to increase the production or carrying capacity of land. That is, rather than free range grazing off the land, a grazier brings in feed lots to intensify the carrying capacity.

So understood I regard the keeping of a significant number of dogs in various runs or pens on the land, the importation of their feed, as well as the importation of frozen sperm for breeding purposes and sale of litters from time to time, to be sufficient to satisfy the statutory definition. In so concluding I reject the submission based on Foodbarn_Pty. Ltd._v._Solicitor-General ((l975) 32 LGRA 157) that the use is ancillary to and subsumed into the dwelling house use. In my opinion the land is used for two distinct purposes neither of which is subservient to the other. Further, I do not accept that because the use is a hobby of the owners and essentially non-commercial in character, it cannot qualify within the definition.

It follows that the use requires the consent of the Council. Accordingly I find that there has been a breach of the environmental planning instrument and the Environmental Planning and Assessment Act.

However, should the Court grant the relief sought by the Council? On behalf of the respondents, Mr. Talbot argues that in the exercise of the discretion the orders should not be made. He points to the fact that there is no evidence of any environmental harm or damage resulting from the breach. Indeed, it is difficult to point to any specific aspect of the evidence which identifies any particular environmental or planning detriment and the respondents have denied any such allegation.

In the absence of such evidence (of environmental harm) should the Court decline to make the orders sought to remedy or restrain the breach? Mr. Talbot relies on statements in the Judgments of the Court in Appeal in Sedevic_v._Warringah_Shire_Council (Court of Appeal, Unreported l9 August l987). In considering the exercise of the discretion contained in section 124 of the Act, I apply the principles enunciated and collected by Kirby P. in Sedevic and also in ACR_Trading_Pty._Ltd._v._Fatsel (Court of Appeal, Unreported l7 November l987).

However, the instant case is to be distinguished from the facts in Sedevic which were unusual. Apart from the absence of specific harm, in that case the use was illegal and could not be made lawful, and the Court was presented with evidence of substantial hardship to the owners. By contrast no specific hardship case has been presented by the respondents. (Nonetheless I accept that there will be some hardship if the orders are made). The use is a permissible one and the respondents have already been refused consent by the Council and did not exercise their right of appeal. Further, while no adverse effect on the environment has been demonstrated, it is obvious that there are no beneficial effects arising from the use. In my opinion this is no mere technical breach of the law, see Parramatta City_Council_v._R.A._Motors_Pty._Ltd. ((l986) 59 LGRA 121). The owners have known since at least 1985, and probably before, that consent is required, and known since May 1986 that consent has been refused. Nonetheless, they

have chosen to continue the use in defiance of the Council and the planning laws. It is also important to note that the Council is seeking to enforce a public duty rather than a private right.

Taking into account and balancing all of the relevant factors to be weighed in the exercise of the discretion, I conclude that, notwithstanding the absence of specific evidence of environmental harm, the relief sought should be granted.

I propose to make the orders sought but will hear the parties on any submissions they may see fit to make on an appropriate suspension of the orders to allow the respondents to either seek development consent from the Council, or the Court, on appeal to the Court, or to remove the structures and dogs from the land. I am presently minded to suspend the operation of the orders for 6 months. The respondents are to pay the applicant's costs. The exhibits may be returned.