Ho v Greater Dandenong City Council
[2012] VSC 165
•30 April 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. S CI 2011 3806
| VU HO | Plaintiff |
| v | |
| THE GREATER DANDENONG CITY COUNCIL | Defendant |
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JUDGE: | MACAULAY J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 April 2012 | |
DATE OF JUDGMENT: | 30 April 2012 | |
CASE MAY BE CITED AS: | Ho v The Greater Dandenong City Council | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 165 | |
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LOCAL GOVERNMENT − Whether a local law prohibiting ‘livestock’ on land less than half a hectare should be quashed − Functions and powers of local government − Power of a Council to make local laws regulating the keeping of animals in its municipal district − Whether local law inconsistent with planning scheme − meaning of ‘ancillary’ uses or activities − planning scheme and local law operating as cumulative controls − ss 3C, 3E, 3F and 111 of the Local Government Act 1989 (Vic).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D McC Gibson | Hymans Solicitors |
| For the Defendant | Mr N Tweedie | Maddocks |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 1
Authority to make clause 26 of the amenity law?......................................................................... 3
What does clause 26 deal with?.................................................................................................. 3
Asserted power to make clause 26............................................................................................. 5
2003 amendment to the Local Government Act........................................................................... 5
Councils’ law making power since the 2003 amendment....................................................... 8
Conclusion on the ‘beyond power’ argument........................................................................ 12
Inconsistency with the planning scheme?................................................................................... 14
Intention to cover the field?....................................................................................................... 14
Conflict with an ‘ancillary’ use.................................................................................................. 15
What does the planning scheme say about the keeping of animals?.......................................... 16
Meaning of ‘use’ and ‘ancillary’ use......................................................................................... 17
Is keeping a domestic pet an ancillary use to residence?........................................................... 20
Does a planning scheme regulate ‘ancillary’ uses or activities?................................................ 21
Clause 26.4 – safeguard against inconsistency with the planning scheme........................ 22
Conclusion on the inconsistency argument............................................................................ 23
Conclusion......................................................................................................................................... 23
HIS HONOUR:
Introduction
Mr Vu Ho, the plaintiff, a resident within the City of Greater Dandenong, has a pet sheep. He keeps it from time to time on either of two properties in the city, one of which he occupies. Each property is less than half a hectare in area. Being an occupier of one of the properties on which he keeps his pet sheep Mr Ho falls foul of a provision of the Municipal Amenity Local Law[1] (“the amenity law”) made by the defendant council (“the Council”).
[1]Local Law Number 2 of 4 of 2011 of the Greater Dandenong City Council.
Clause 26.1 of the amenity law says:
An occupier of land which has an area of half a hectare or less must not keep any livestock on that land.
‘Livestock’ is defined in the amenity law in such a way as to arguably include Mr Ho’s pet sheep.[2]
[2]“Livestock” means any animal of any species used in connection with primary production or kept or used for recreational purposes or for the purposes of recreational sport, other than a dog or cat. (clause 6).
The Council issued Mr Ho an infringement notice for allegedly contravening an earlier local law in substantially the same terms as clause 26.1 set out above. That law was revoked on 25 July 2011 and was replaced with the current amenity law. Accordingly, while enforcement of the infringement notice is no longer being pursued, the Council has nevertheless warned Mr Ho that he is at risk of prosecution under the current law if he keeps his pet sheep on the land in breach of clause 26.
Mr Ho has responded by bringing this proceeding. In this proceeding he argues that clause 26 of the amenity law is invalid for two reasons: first, because the Council has no power to make laws regulating the keeping of animals on land within its municipality; and, secondly, because the law is inconsistent with the provisions of the Greater Dandenong Planning Scheme (‘the planning scheme’).[3]
[3]<
Both Mr Ho’s arguments find their foundation in s 111 of the Local Government Act 1989 (Vic) (‘the LG Act’). It provides, relevantly:
111 Powers to make local laws
(1)A Council may make local laws for or with respect to any act, matter or thing in respect of which the Council has a function or power under this or any other Act.
…
(4)If a planning scheme is in force in the municipal district of a Council, the Council must not make a local law which duplicates or is inconsistent with the planning scheme.
Mr Ho argues that the Council had no “function or power” under the LG Act (or any other Act) that authorised it, pursuant to subsection 111(1), to make clause 26 of the amenity law.[4] Alternatively, if the Council did have the relevant function or power enabling it to make the law, Mr Ho contends that the making of it infringed s 111(4) because the law is inconsistent with the planning scheme.
[4]The argument that the law was beyond the power of the council to make was arguably not raised on the plaintiff’s pleadings, however it was expressly agreed by the defendant that the argument should be raised and determined without any further amendment.
Section 103 of the Supreme Court Act 1986 (Vic) provides that, upon payment into court of a sum of money for security of costs, a person may apply to the Court for an order calling on a municipal corporation to show cause why a local law[5] which it made should not be quashed, either wholly or in part, for illegality. Ultimately, Mr Ho seeks orders of this Court quashing parts of clause 26 of the amenity law.
[5]Section 103 of the Supreme Court Act 1986 refers to a “by-law” but section 124 of the LG Act authorises a person to dispute the validity of a local law, under s 103, as if it were a by-law.
Accordingly, the issue in question is whether clause 26 of the amenity law is invalid and should be quashed. It is important to state what this case is not concerned with deciding. It is not concerned with the question whether or not Mr Ho has infringed or is infringing the amenity law. Nor, despite the impression given in argument, is it concerned with the resolution of what amounts to a ‘pet’ or a ‘domestic pet’.
For reasons which I explain below, clause 26 of the amenity law is not invalid for either of the reasons contended. The Council does have the power to make the laws set out in clause 26, and they are not inconsistent with the provisions of the planning scheme.
Authority to make clause 26 of the amenity law?
What does clause 26 deal with?
One of the stated purposes of the amenity law is to “regulate the keeping of animals (including birds)”.[6] But it has many other purposes; 24 in total. In addition to a division concerned with animals and birds, it has others concerned with safety, health and amenity; the environment; waste management; fencing of land holding livestock; and consumption and possession of alcohol.
[6]Clause 2.16.
The division concerning animals and birds (division 4) has four clauses: keeping animals (clause 24); animal shelters (clause 25); animal numbers (clause 26); and animal litter (clause 27).
Clause 26, with which this case is concerned, provides:
26. ANIMAL NUMBERS
26.1An occupier of land which has an area of half a hectare or less must not keep any livestock on that land.
26.2An occupier of land which has an area of half a hectare or less, must not, without a permit, keep or allow to be kept on that land more than the number of animals or birds set out in the following table, subject to:
(a)the total number of animals not exceeding 5; and
(b)the total number of birds (including roosters) not exceeding 20, for land with an area of more than 400 square metres; or
(c)the total number of birds not exceeding 10 for land with an area 400 square metres or less;
Species
Land Size
Maximum Number
Dogs
half a hectare or less
2
Cats
half a hectare or less
2
Ferrets, guinea pigs, rabbits or rodents
half a hectare or less
5
Rooster
400 square metres to half a hectare
1
Rooster
Less than 400 square metres
Nil
Birds (other than roosters)
400 square metres to half a hectare
20
Birds (other than roosters)
Less than 400 square metres
10
26.3For the purpose of determining whether an occupier of land is in breach of Clause 26.2, the progeny of any animal or bird lawfully being kept on the land shall not be regarded as animals or birds (as the case may be) during the first 12 weeks after their birth.
26.4This clause does not apply where the keeping of a particular type of animal or bird is permitted under the Planning Scheme or a Planning Permit applicable to the land.
‘Animal’ is defined in the amenity law to include every species of four-footed animal, and ‘livestock’ means any animal used in connection with primary production or kept or used for recreational purposes or for recreational sport, other than a dog or cat.
In substance, on land less than half a hectare, clause 26
· generally prohibits the keeping of animals other than dogs or cats for use in primary production, or for recreation or recreational sport; but
· subject to aggregate maximums, allows (without a permit) specified numbers of dogs, cats, certain small animals and, subject to additional area limits, birds.[7]
[7]Read in the context of the whole clause, cl 26.1 is implicitly subject to the operation of cll 26.2 and 26.3.
Therefore, assuming that the keeping of an animal for a recreational purpose includes the keeping of an animal as a pet,[8] clause 26 would appear to prohibit, for instance, the keeping on less than half a hectare of a pet pony, goat or sheep.
[8]The Macquarie Dictionary meaning of ‘recreation’ includes ‘a pastime, diversion, exercise or other resource affording relaxation and enjoyment’.
Asserted power to make clause 26
Clause 3 of the amenity law states that it is made under s 111(1) of the Local Government Act 1989 and s 42 of the Domestic Animals Act 1994.
Section 42 of the Domestic Animals Act only provides a limited basis for the power to make laws regulating the keeping of animals. That section authorises a council to make a local law with respect to regulating the number of dogs or cats which may be kept on premises situated in the municipal district of the council, but not other animals.
Both parties agree that, if the Council has power to make clause 26 in the amenity law, that power must be found in s 111(1) of the LG Act set out above, that is a power to make local laws “for or with respect to any act, matter or thing in respect of which the Council has a function or power under [the LG Act] or any other Act” [emphasis added].
Mr Ho contends that there is no function or power conferred upon the Council under any statute that specifically refers to regulating the keeping of animals (other than with respect to dogs and cats under the Domestic Animals Act as just mentioned). Therefore, he contends, except in relation to dogs and cats the Council did not have the power to make clause 26 which purports to control the keeping of a variety of types of animals.
It is not disputed that the LG Act does not give a council a function or power specifically in terms relating to the control or regulation of animals or animal keeping. But is that the end of the matter?
2003 amendment to the Local Government Act
The LG Act was, relevantly, amended by the Local Government (Democratic Reform) Act 2003 (‘the 2003 amendment’) in such a way as to recast the manner in which a council’s functions and powers were described. Prior to that amendment the functions and powers of a council were described in s 8, falling within Part 2 of the Act titled ‘The Council’. That part also contained s 6 (purposes of a council) and s 7 (objectives).
Section 8 (functions and powers) stated that a council had the functions specified in schedule 1 of the Act, and any other function conferred on a council by or under that Act or any other Act.
Schedule 1 of the Act, headed “Functions of Councils”, listed 42 specific functions including those of ‘animal control, protection and conservation’ and ‘animal impounding.’ Others included, for example, fire prevention and protection; tip establishment and operation; litter control; management, collection and disposal of municipal waste; parks, gardens and reserves; parking; prevention and abatement of nuisances; and so on.
Before the 2003 amendment, the law making power under s 111(1) was in the same terms as now, that is, it enabled a council to make local laws with respect to matters with which the council had a function or power under the LG Act or some other Act. Accordingly, that subsection directed attention, through s 8, to the functions specified in schedule 1 to the Act and, relevantly for present purposes, to the function of animal control, protection and conservation. Subsection 8(3) gave a council power to do all things necessary or convenient to be done for or in connection with the performance of those functions.
There seems little reason to doubt that, before the 2003 amendment, through the combination of these provisions a council had power to make local laws regulating the keeping of animals within its municipal district.
The 2003 amendment substituted a new s 1 to the Act, headed “Preamble”, and inserted a new s 1A providing that the Act was to be interpreted to give effect to the Preamble and also to the ‘local government charter’, a set of provisions introduced in a new Part 1A.
Part 1A – the local government charter – introduced six new sections, ss 3A – 3F, prescribing the purpose of local government, how a council was to be constituted, and its objectives, role, functions and powers. At the same time, s 8 and schedule 1, concerning functions and powers, were repealed. So too were the provisions previously dealing with objectives and purposes.
The new provisions with respect to the functions and powers of a council were set out in the local government charter in these terms :
3E What are the functions of a Council?
(1)The functions of a Council include—
(a)advocating and promoting proposals which are in the best interests of the local community;
(b)planning for and providing services and facilities for the local community;
(c)providing and maintaining community infrastructure in the municipal district;
(d)undertaking strategic and land use planning for the municipal district;
(e)raising revenue to enable the Council to perform its functions;
(f)making and enforcing local laws;
(g)exercising, performing and discharging the duties, functions and powers of Councils under this Act and other Acts;
(h)any other function relating to the peace, order and good government of the municipal district.
(2)For the purpose of achieving its objectives, a Council may perform its functions inside and outside its municipal district.
3F What are the powers of Councils?
(1)Subject to any limitations or restrictions imposed by or under this Act or any other Act, a Council has the power to do all things necessary or convenient to be done in connection with the achievement of its objectives and the performance of its functions.
(2)The generality of this section is not limited by the conferring of specific powers by or under this or any other Act.
[emphasis added]
No counterpart to the earlier schedule 1, listing specific functions, was enacted.
The ‘objectives’, referred to in s 3F(1) are set out in s 3C and include those to promote the social, economic and environmental viability of the district, and to improve the overall quality of life of people in the local community.
Councils’ law making power since the 2003 amendment
As I have already mentioned, Mr Ho argued that the absence of a specific function of regulating the keeping of animals in the district, or something similar, is fatal to the Council’s ability to make clause 26 of the amenity law.
As I understood it, he further argued that s 3E merely lists the functions a council may “deal with” – not necessarily what a council has power to make local laws about. He argued that the “good governance” function in s 3E(1)(h) does not authorise the making of laws with respect to the keeping of animals. Further, he said that if the LG Act or some other Act does not otherwise specify that a council has power to make laws regulating the keeping of animals, such power is not independently conferred by the general statement of powers under s 3F.
The Council submitted that the 2003 amendment introduced a new method of prescribing a council’s law making power. Rather than enumerating specific functions as had previously been the case, in substance the Act now authorises a council to make laws that are necessary or convenient to achieve peace, order and good government within its district.
Thus, says the Council, the proper enquiry is no longer to look for some specific power or function that describes, with particularity, the domain of the law in question, but to ask whether the law could reasonably be regarded as being necessary or convenient to achieve good government.
It contends that the power to make laws regulating the keeping of animals, such as is contained in clause 26 of the amenity law, is authorised under ss 3D, 3E, 3F in combination with s 111(1). That is, it is authorised by the power (s 3F) to do what is necessary and convenient in the performance of its function (s 3E(1)(h)) relating to the peace, order and good government of its district, and to achieve its objectives (s 3C) of the social, economic and environmental viability of the district and the improvement of the overall quality of life of people in the local community.
I agree with the Council’s submission.
In Leslie v City of Essendon[9] the Victorian Full Court considered the law-making power conferred upon a council under the Local Government Act 1958 (Vic). At that time the Act listed 32 specific purposes for law-making, adding a final purpose, cl (xxxiii), which was “generally in maintaining the good rule and government of the municipality”. Although, in that context, the final purpose was construed restrictively, O’Bryan J said
I do think, however, that a power to make by-laws for one purpose only, viz, for the good rule and government of the municipality or practically for that purpose alone will be interpreted in a very different way from a power expressed in like language but which is preceded by a power to make by-laws for thirty-two separate and distinct purposes, all or most of which are concerned with the good rule and government of the municipality. Apart from any authority, I would think that it is impossible as a matter of ordinary interpretation to give to cl (xxxiii) its full and natural meaning as though it appeared in a statute without any specific powers preceding it.[10]
[9](1952) VLR 222.
[10]Ibid 226.
After referring to that case, and specifically to O’Bryan J’s observation, in Lynch v Brisbane City Council[11], Dixon CJ (McTiernan and Fullagar JJ agreeing) said that where such or similar words appeared in a context such that they could not be read down as a “vague and almost nugatory ‘et cetera’”:
[t]hey give a power to lay down rules in respect of matters of municipal concern, matters that have been reasonably understood to be within the province of municipal government because they affect the welfare and good government of the city and its inhabitants. The words are not to be applied without caution nor read as if they were designed to confide to the city more than matters of local government. They express no exact limit of power but, directed as they are to the welfare and good government of a city and its inhabitants, they are not to be read as going beyond the accepted notions of local government.[12]
[11](1961) 104 CLR 353.
[12]Ibid 364.
The judgment of Kourakis J (Doyle CJ and White J agreeing) in Corporation of the City of Adelaide v Corneloup[13] contains an extensive survey of cases dealing with the broad formulation of municipal law-making power, ie “for good government”. It is not necessary that I repeat its contents. But his Honour’s survey bears out the observation of O’Bryan J in Leslie above. That is, it demonstrates that the inclusion of a broad good governance or convenience power at the end of or amongst a detailed list of very specific powers, functions or purposes may very well invite a different construction of the power than when it appears either alone or amongst a set of other broad general powers, functions or purposes.
[13][2011] SASFC 84, [76]-[98].
Subject to that observation, the phrase ‘peace, order and good government’ when used to prescribe law-making power, including that of a council, confers a very broad power to make laws.[14] It does not express a limitation upon that power other than by the implicit requirement that, in the case of local government, it be confined to accepted matters of concern to local government. The means of conferring effective law-making power upon a council is not limited to being conferred only by reference to a list of very specific functions or powers.
[14]Union Steamship Company of Australia Pty Ltd v King (1988) 166 CLR 1 ; Lynch v Brisbane City Council (1961) 104 CLR 353 ; Wake v Northern Territory (1996) 109 NTR 1; Goyma v Moore (1999) 154 FLR 298 ; McLaughlan Holdings Pty Ltd v Darwin City Council (1999) 154 FLR 288. (I gratefully acknowledge the collection of these authorities by Gregory McIntyre, ‘Report of Inquiry into the City of South Perth’, (2002) LGLJ 87, 93).
There are clear textual indications in the LG Act that support a broad, not restrictive, construction of the function of ‘peace, order and good government’ when determining a council’s law making power.
Within s 3E itself, the description of the relevant function is set out in an inclusive list. The first six functions describe generic activities, including ‘making and enforcing local laws’. The seventh picks up functions otherwise specified in the LG Act or other Acts. Then there appears, with an implicit ‘and’ before it, the function ‘any other function relating to the peace, order and good government of the municipal district’ [emphasis added]. So structured, each of the preceding seven functions are seen as but constituent elements of the wider class of function relating to peace, order and good government. It is therefore not possible to read s 3E(1)(h) as a nugatory ‘et cetera’.
Support for this construction comes from elsewhere within the LG Act. The Preamble[15] repeats the statement in s 74A(1) of the Constitution Act 1975 that local government consists of democratically elected councils “having the functions and powers that the Parliament considers are necessary to ensure the peace, order and good government of each municipal district”. Section 1A(1) of the LG Act states that the provisions of the Act are to be interpreted so as to give effect to the Preamble and the local government charter, and sub-s (2) says that the Preamble and the local government charter are not to be construed as limiting the functions and powers of councils under that Act or any other Act.
[15]Subsection 1(1).
Finally, in the second reading speech introducing the 2003 amending Act, the then Minister for Environment said, in respect of the Preamble and local government charter:
These amendments will not change the actual functions and powers of councils, but they will provide greater clarity about these matters than do the existing provisions.[16]
[16]Victoria, Parliamentary Debates, Legislative Assembly, 15 October 2003, 1028 (John Thwaites, Minister for Environment).
It is worth mentioning that not only did the 2003 amendment remove specific reference to animal keeping as a particular function of a council, it removed all of the specific listed functions that formerly appeared in schedule 1, some of which are mentioned above. In the light of the interpretation provisions within the LG Act and the second reading speech to which I have just referred, it was plainly not intended by the amendment that councils should be deprived of power to make local laws concerning their multifarious, traditional local government functions, previously the subject of specific description, such as rubbish removal, use of incinerators, camping or drinking on public land, and so on.
In the light of these guides to statutory interpretation[17] it is clear that Parliament intended to change the way it formulated the functions of councils by reference to which their powers to make laws were defined. Parliament did so by preferring the method, foreshadowed by O’Bryan J in Leslie, of conferring power to make laws for one purpose only, or practically for that purpose alone, namely, for the peace, order and good government of the municipality. That method was preferred to the alternative of enumerating a long list of much more particular functions, as was the case before the 2003 amendment.
[17]See Interpretation of Legislation Act 1984 (Vic) s 35(a) and s 35 (b)(ii).
Importantly, it was not intended by such amendment to reduce the functions or powers previously possessed and exercised by councils under the regimes that preceded it.
I have not found any particular explanation in parliamentary or other materials explaining the purpose of the change. It was but one element of a much wider package of changes intended to effect democratic reform to local government.
But, the reasons for the change with respect to functions and powers may readily be inferred. I infer the change was, in part, designed to try and avoid the kind of disputes that had arisen in the past as to whether a local law fell within a particular expression of function or power, on a meticulous construction of the relevant expression. Further, I infer it was designed to provide a more dynamic and flexible expression of law making power to enable councils to meet the governance needs of their communities as they change, as they invariably do.
Conclusion on the ‘beyond power’ argument
Returning to the specific subject of this case, it can scarcely be doubted that the regulation of animal keeping within a municipal district is a function reasonably understood to be within the province of local government. As demonstrated above, until 2003 such a function was expressly listed as one for the performance of which a council could (and commonly did) make local laws.
Clause 26 of the amenity law is concerned with controlling the types and numbers of animals that may be kept within the city of Greater Dandenong - chiefly (given the area condition) within the urban area of the city. Such control seems to me to fall readily within the concern of ‘peace’ and ‘order’ within a community. So too does it appear relevant to the achievement of such objectives as social and environmental viability of the district, and the quality of life of members of the community.
Employing the test proposed by Dixon CJ in Lynch, there is nothing in clause 26 which could be said to be going outside that which affects the welfare and good government of the city and its inhabitants.
It is not for me to comment upon whether such a law is, as a matter of policy, good or bad. It is only a question of whether it falls within power. Further, to the extent that it may be thought that clause 26 prohibits more than it should, the following remarks of Mann CJ remain apposite:
It is a mistake to exercise one's ingenuity in imagining cases which would seem to fall within the actual words of a by-law, and then to emphasize the hardships that would follow in such cases. A great many of such cases would probably be held not to be within the reasonable tenor of the by-law at all, when construed with reference to its subject-matter. But, even if some harmless act would fall within the words of this regulation, it is important to remember that all legislation must of necessity be in more or less general terms, and it is not rendered any the more or the less invalid because an attempt to suppress an evil may conceivably brand as an offence some act which in particular circumstances is harmless. It may well be a matter of opinion about many by-laws, as to whether they are not what might be called a somewhat fussy exercise of legislative powers, that they trench on the liberty of a great many people because of the use made of that liberty by comparatively few.[18]
[18]Seeligson v City of Melbourne (1935) VLR 365, 369-370.
In conclusion, I reject Mr Ho’s first argument that the regulation of animal keeping in general, and clause 26 of the amenity law in particular, is beyond the law-making power of the Council.
I now turn to his second argument.
Inconsistency with the planning scheme?
Because the planning scheme was in force at the time the amenity law was made, the Council was not authorised to make a local law which duplicated or was inconsistent with the planning scheme: s 111(4) LG Act. Mr Ho’s second argument is that the provisions of clause 26 of the amenity law are inconsistent with those of the planning scheme so that the making of clause 26 was beyond the Council’s statutory power.
Generally speaking, an inconsistency for these purposes may arise in at least one of two ways. It may arise because a local law is in direct conflict with a provision of the planning scheme in the sense that it is impossible to comply with both laws at once or because one says that an activity is legal while the other says the same activity is illegal.
Or, secondly, a local law may be inconsistent because the planning scheme was intended to “cover the field”. When mediating the potential overlap between laws of the same tier of government –
… it is a question of ascertaining the meaning and effect of the legislation which is to prevail in case of inconsistency. If its true meaning and effect is that it is to apply as the sole rule regulating the particular subject matter and to the exclusion of all other rules, then the other rules are necessarily inconsistent with it and must give way.[19]
[19]Tucker v Dickson (1981) 27 SASR 321, 329 (King CJ).
Intention to cover the field?
I did not understand Mr Ho to argue that the planning scheme is intended to cover the relevant field of regulating all the types and numbers of animals that may be kept or used, under any circumstance, in the municipal district of Greater Dandenong. In argument he concentrated on the species of inconsistency which rests upon a direct conflict.
In my view such an approach was justified. Although the planning scheme contains controls relating to animal use, it does so by reference to categories of animals and types of use which are quite specifically defined. In totality those uses may amount to a widespread range of controls, but overall the planning scheme does not reveal an intent to regulate animal keeping generally. For example, there is no attempt to expressly regulate the keeping of domestic pets on land in the district. As will appear, there is a reason that is so.
But whether or not Mr Ho’s argument involved, in effect, an argument that the planning scheme ‘covered the field’, what follows answers that proposition as well as the proposition that the two rules are in conflict.
Conflict with an ‘ancillary’ use
As I understood his argument as finally put, Mr Ho did not argue that there was a direct conflict between the local law and an express provision of the planning scheme. Rather Mr Ho argued there was an inconsistency between clause 26 and a use that was ancillary to an expressly permitted land use under the planning scheme. The argument went this way:
(a)Uses that are ancillary to land uses expressly permitted in a planning scheme are also permitted uses;
(b)The planning scheme allows land in residential 2 zone to be used as a dwelling and for home occupation;
(c)Keeping pets on land is a use ancillary to the use of land as a dwelling or for home occupation;
(d)Therefore, the planning scheme permits the keeping of a pet sheep on land in residential 2 zone;
(e)By prohibiting the keeping of a pet sheep on land which is zoned residential 2, clause 26 of the amenity law is in conflict, and thereby inconsistent, with the planning scheme.
Indeed, Mr Ho goes further and says that even if there is no conflict between the planning scheme and clause 26 in relation to the keeping of one pet sheep, clause 26 is nevertheless so broad that it conflicts with the planning scheme in respect of the keeping of other types of animals. He argued that he did not need to show that clause 26 was inconsistent with the planning scheme by reference to his own intended use but it was sufficient if he could show that the clause could be inconsistent by reference to other examples of animal keeping.
Before coming to the notion of ancillary use, it is worth recalling what the local law prohibits and what is expressly permitted under the planning scheme.
I have already set out above the full terms of clause 26 and its practical effect. It purports to regulate the number of particular animals and birds that may be kept on land of less than half a hectare (which would well encompass the conventional residential allotment).[20]
[20]Half a hectare is 5000 square metres. The ‘traditional quarter acre’ block of years gone by was around 900 square metres, but it is a matter of common knowledge that typical residential blocks have decreased in size since that era.
What does the planning scheme say about the keeping of animals?
The provisions governing the use of land within residential 2 zone, the zoning applicable to Mr Ho’s land, are to be found in cl. 32.02 of the planning scheme. That clause sets out those types of use of land which are allowed without a permit, those allowed only with a permit, and those which are prohibited.
A person may use land for ‘animal keeping (other than animal boarding)’ for up to two animals without a permit, and for up to five animals with a permit. Prohibited uses include ‘animal boarding’, ‘animal training’, ‘horse stables’ and ‘intensive animal husbandry’.
Each of these terms is defined in the planning scheme. Most relevantly, ‘animal keeping’ is defined to mean land used to (a) breed or board domestic pets, or (b) keep, breed, or board racing dogs. So defined, animal keeping does not include the keeping of domestic pets. ‘Animal boarding’ is defined to mean land used to board domestic pets, such as boarding kennels and a cattery, and ‘animal husbandry’ means the use of land to keep, breed, board or train animals, including birds.
It was conceded, correctly, that none of these terms is appropriate to cover the keeping of a pet sheep. Nor, for that matter, would it cover the keeping of, say, a pet goat, pony, rabbit, or guinea pig. The permitted use of ‘animal keeping’ only covers the activity of ‘keeping’ in respect of racing dogs.
Accordingly, there is no express provision in the planning scheme which permits the keeping of a pet sheep which would be in direct conflict with clause 26.1 to the extent that that clause prohibits the keeping of a domestic sheep on residential land. In other words, at least insofar as the keeping of a pet is concerned, there is no direct conflict between the amenity law and the planning scheme which would render the making of clause 26 of the amenity law illegal or beyond the power of the Council.
I accept that Mr Ho’s argument was not confined to the prohibition in clause 26.1 against keeping livestock (which excludes dogs and cats), and its conflict with the planning scheme. It extended to the effect of clause 26.2 on the keeping of dogs, cats and other small animals to the extent that either the prohibition or the requirement for a permit stipulated therein went beyond that which the planning scheme allowed or required in the same situation.
His argument is in part answered by a proper understanding of the different levels of control with which the amenity law and the planning scheme are concerned; and in part by the full terms of clause 26.
I turn to those matters.
Meaning of ‘use’ and ‘ancillary’ use
I will first deal with the notion of ‘ancillary’ use in the context of a planning scheme, which first requires considering what ‘use’ means in that context.
In McKinnon Hotels Pty Ltd v Glen Eira City Council (‘McKinnon Hotels’)[21] Osborn J described the overall structure of planning schemes. As his Honour observed, the Planning and Environment Act1987 authorises planning schemes to control the ‘use and development’ of land. ‘Use’ of land is given a particular extended meaning under s 3 of that Act, including ‘use or proposed use for the purpose for which the land has been or is being or may be developed’.[22]
[21][2011] VSC 627.
[22]Ibid [12].
In the course of his overview, his Honour emphasised that the concept of land use in the planning scheme is to be understood as the ‘real and substantial purpose of the use’, rather than a meticulous cataloguing of activities.[23] In support of that proposition, his Honour cited Kitto J in Shire of Perth v O’Keefe,[24] saying –
The application of the by-law [made by a town planning authority] in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date. This question being answered, it remains only to inquire, when a use that is being made of the premises at a later date is challenged as not being authorized by [the by-law], whether that use is really and substantially a use for the designated purpose.[25]
[23]Ibid [16].
[24](1964) 110 CLR 529.
[25]Ibid 535.
Likewise, in Cascone v Whittlesea Shire Council,[26] Ashley J considered whether a tribunal had correctly applied the test for categorising the use of land the subject of a planning permit application when determining whether that use fell within the permitted uses. In that context, his Honour surveyed cases distinguishing between use and activity and then emphasised the focus to be applied to the ‘purpose’ for which the land is used, not merely the various activities that may be undertaken upon it, saying:
(1)In characterising the proposed use of premises it is always necessary to ascertain the purpose of the proposed use.
(2)Whilst intended use of premises, in the sense of activities, processes or transactions to be undertaken, will be useful in casting light upon the purpose of the proposed use, it is wrong to determine the relevant purpose simply by identifying activities, processes or transactions and then fitting them to some one or more uses as defined in a scheme.[27]
[26](1993) 80 LGERA 367.
[27]Ibid 381.
Returning to McKinnon Hotels, having distinguished the concepts of ‘use’ and activities, Osborn J went on to explain that a planning scheme may independently regulate a number of activities, such as car parking and advertising, which may either constitute a dominant land use in their own right or be incidental (or ancillary) to the real and substantial use of the land.
In the planning scheme with which his Honour was dealing, as with the Greater Dandenong Planning Scheme, there were a number of provisions, headed ‘Particular Provisions’, which explicitly regulated particular activities which may be incidental or ancillary to the primary land use. One example is the regulation of satellite dishes, another is the regulation of advertising signs, and yet another, the regulation of private tennis courts. Each of these represent activities which, whilst not constituting the real and substantial purpose for the use of the land, are nonetheless chosen to be the subject of explicit controls.
Yet not all ancillary uses are the subject of express, independent controls. The concept of ancillary use or activity was helpfully described by Victorian Administrative Appeal Tribunal member, H. Gibson, in these terms:
It has always been recognised that land may be used for more than one use. Land can also be used for more than one activity. However, not all activities constitute separate uses in their own right. Sometimes activities will be ancillary or incidental to the primary use of the property, in which case they will not constitute a separate use but are considered to be part and parcel of the primary use. Whilst these are commonly termed ‘ancillary uses’, the word ‘use’ in this context is a misnomer. They are really activities which are an ancillary part of the primary use.[28]
[28]Pacific Seven Pty Ltd v City of Knox (1993) 11 AATR 325, 329.
Another statement to similar effect is found in the decision of Deputy President Russell Byard, also of the Victorian Administrative Appeals Tribunal, in the matter Valestro v City of Greater Geelong.[29] There, the Deputy President said:
Activities that are ancillary to the dwelling such as, for example, gardening or washing of clothes in the laundry are regarded in planning terms, as part of that residential use. Ancillary activities do not have to be essential to the primary use to qualify as such. The playing of tennis for enjoyment on a domestic tennis court is just as much an ancillary part of the residential use as clothes washing, even though most dwellings do not have associated tennis courts. The keeping of dogs as pets or as a hobby is also ancillary, in the same way; just as pottery or carpentry (other than as a business or home occupation) would be. If a person keeps dogs as pets or as a hobby and, as part of that, prepares and trains them for dog shows and obedience trials, then that too would be an ancillary part of the use of the land as a residence.
[29][1996] Vic CAT 485.
Is keeping a domestic pet an ancillary use to residence?
Mr Ho argued that although the keeping of a pet sheep is not explicitly the subject of a permitted use under the planning scheme, it may be regarded as an activity or use which is ancillary or incidental to a permitted use. He argued that the keeping of domestic pets is incidental to using land for residential accommodation and, as such, is accordingly permitted under the planning scheme.
There is no doubt that using premises as a dwelling or home occupation is a permitted use in a residential 2 zone. Further, it is not in dispute that keeping domestic pets on residential land may be an incidental or ancillary use to ordinary home residence.
In Andrew Burdett v Ronald Bowden,[30] Osborn J was required to determine an appeal against the refusal to grant a permit for a proposed use of land. It was necessary to properly characterise the existing use of the land. The land was currently used to keep four horses for the purpose of riding and showing. No dwelling was then on the land. One side argued the existing use was ‘animal keeping’ as defined in the planning scheme; the other said it amounted to no more than the keeping of domestic pets which did not constitute ‘animal keeping’.
[30][2010] VSC 574.
In the course of his judgment his Honour made these observations:[31]
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.[32] 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.
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.
[31]Ibid [26]-[27].
[32]Ibid [26], quoting Oxford English Dictionary (2nd ed, 1989).
With respect, I adopt his Honour’s reasoning. Applied to this case, the simple keeping of a pet sheep is not ‘animal keeping’ within the meaning of the planning scheme, but may well be a use or activity in conjunction with or ancillary to residing on the land. But the issue is not whether a sheep is a pet, or whether the keeping of such a pet may be an ancillary use, but whether the planning scheme purports to regulate that activity at all.
Does a planning scheme regulate ‘ancillary’ uses or activities?
Even though one may accept that the keeping of a domestic pet is part and parcel of the land use of residence permitted under a planning scheme, and in that sense not prohibited, that reasoning does not lead to the conclusion that the planning scheme purports to regulate or permit the ancillary activity of keeping domestic pets.
A planning scheme may do so if, as with the examples above of satellite dishes, advertising signs and private tennis courts, it regulates an associated activity which is not a land use as properly understood. But, apart from such specific provisions, it is not correct, in my view, to say that a planning scheme permits or otherwise controls incidental or ancillary activities part and parcel of a permitted use. A planning scheme’s control generally operates at a higher level of generality, that of real and substantial purpose for the use of land.
For these reasons, the planning scheme does not generally enter upon, or seek to cover, the field of regulation of ‘activities, processes and transactions’ below the level of uses which constitute the real and substantial purpose for the use of land.
Accordingly, I conclude that the keeping of animals on land less than half a hectare, as an ancillary activity to the permitted use of land as a dwelling, is not an activity regulated by the planning scheme.
I accept the Council’s submission that the proper analysis of the matter is consistent with that set out by Smith J in Wain v Maroondah City Council.[33] In that case, his Honour was faced with the same issue that arises in this case, namely, whether the provisions of a local law were inconsistent with those of a planning scheme either because the planning scheme covered the field or because there was a direct conflict between the relevant provisions.
[33][2000] VSC 540.
His Honour decided that there was no such inconsistency. His Honour found the situation was ‘a classic one of multiple controls’, with the provisions of the two regulatory regimes operating cumulatively.[34] He found that, through the planning scheme on the one hand and the local laws on the other, ‘the council provided planning controls at different levels of detail’.[35]
[34]Ibid [22].
[35]Ibid [23].
In my view, the same observations are apt in the current case. The planning scheme operates at a level of detail regulating the real and substantial use of land and, in limited situations, regulating lesser activities by use of ‘particular provisions’. None of the permitted uses, properly so called, relating to animals purport to regulate the keeping of pets as an ancillary incident to use of land as a domestic dwelling. It is at that level of detail that the local law, at least in part, operates. Nor does it purport to control uses beyond those of ‘keeping’, ‘boarding’ and ‘husbandry’ as specifically defined.
Thus, there is no necessary inconsistency and the provisions can be seen to be operating cumulatively.
Clause 26.4 – safeguard against inconsistency with the planning scheme.
Nevertheless, there is a built-in safeguard against inconsistency which would preserve the operation of the local law in case it did happen to conflict with the planning scheme.
That provision is clause 26.4 of the amenity law, which provides that the clause does not apply where the keeping of a particular type of animal or bird is permitted under the planning scheme or a planning permit is applicable to the land. In such a case, the planning scheme is accorded primacy and there is no area in which the two provisions can operate inconsistently.
Take a situation which is not Mr Ho’s case. Suppose an occupier of land of less than half a hectare breeds lambs on the land to be used as domestic pets. If it was land in a residential 2 zone, and breeding the lambs was the real and substantial purpose for the use of the land (perhaps unlikely), the use (‘animal keeping’) would be allowed, without a permit, if only two lambs were on the land and, with a permit, if no more than five lambs were on the land.[36]
[36]See [66]-[68] above.
If it applied to that situation, clause 26.1 of the amenity law would appear to be in conflict with the planning scheme because it prohibits that form of animal keeping absolutely.[37] But, because of clause 26.4, clause 26.1 would not apply. So no inconsistency arises.
[37]Lambs less than 12 weeks old would not be counted: see cl 26.3 of the amenity law.
Conclusion on the inconsistency argument
For these reasons, I reject the contention of Mr Ho that there is either direct conflict between the planning scheme and clause 26 of the amenity law, or that there is an evident intent that the planning scheme should cover the field of the regulation of animals generally, or in particular the keeping of domestic pets ancillary to the permitted use of land as a residence.
Conclusion
It follows from the conclusions I have reached on Mr Ho’s two arguments that his contention that clause 26 of the amenity law should be quashed fails.
The proceeding must be dismissed.
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