Laidley Shire Council v Friend and Friend

[1997] QCA 12

IN THE COURT OF APPEAL	[1997] QCA 012
SUPREME COURT OF QUEENSLAND

Appeal No. 3748 of 1996

Brisbane

[Laidley Shire Council v. Friend & anor.]

BETWEEN:

COUNCIL OF THE SHIRE OF LAIDLEY

(Applicant) Appellant

AND:

GARY STEPHEN FRIEND

(First Respondent) First Respondent

AND:

KATHRYN JUNE FRIEND

(Second Respondent)	Second Respondent
Fitzgerald P. Davies J.A. McPherson J.A.

Judgment delivered 25 February 1997

Joint reasons for judgment of Fitzgerald P. and Davies J.A., separate concurring reasons of McPherson J.A.

APPEAL ALLOWED. THE ORDER MADE IN THE PLANNING & ENVIRONMENT COURT ON 12 APRIL 1996 SET ASIDE AND THE MATTER REMITTED TO THAT COURT FOR THE APPELLANT’S APPLICATION TO BE DETERMINED ACCORDING TO LAW.

THE RESPONDENT TO PAY THE APPELLANT’S COSTS OF THE APPEAL.
THE RESPONDENT GRANTED A CERTIFICATE UNDER THE APPEAL COSTS
FUND ACT 1973.
CATCHWORDS: BUILDING CONTROL AND TOWN PLANNING - Council

approval - keeping and breeding of greyhound dogs in Rural “A” zone - whether breeding of dogs for sale or profit within the meaning of “animal husbandry” as well as “kennel”

Counsel:	Mr D.R. Gore Q.C. for the appellant. The first respondent G.S. Friend appeared for the respondents.
Solicitors:	Connor O’Meara McConaghy for the appellant.
Hearing Date:	18 February 1997

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 3748 of 1996

Brisbane

Before Fitzgerald P.
Davies J.A.
McPherson J.A.

[Laidley Shire Council v. Friend & anor.]

BETWEEN:

COUNCIL OF THE SHIRE OF LAIDLEY

(Applicant) Appellant

AND:

GARY STEPHEN FRIEND

( First Respondent) First Respondent

AND:

KATHRYN JUNE FRIEND

(Second Respondent) Second Respondent

REASONS FOR JUDGMENT - FITZGERALD P. AND DAVIES J.A.

Judgment delivered 25 February 1997

This is an appeal from a decision of the Planning & Environment Court on 12 April 1996 dismissing an application by the appellant Council for a declaration and injunction against the respondents, Mr & Mrs Friend. The Planning & Environment Court dismissed the application on the sole ground that, although the respondents were conducting a “Kennel” within the meaning of the Town Planning Scheme for the Shire of Laidley on land at Lockyer Waters in the Laidley Shire zoned Rural ‘A’, the consent of the Council was unnecessary because the respondents were engaged in “Animal Husbandry” within the meaning of the Town Planning Scheme. The only question for this Court is whether that conclusion by the Planning & Environment Court was correct in law.

The material provisions of the Laidley Town Planning Scheme are in familiar form. The Scheme Area is divided into zones, and there is a table of zones containing three columns concerning purposes for which buildings or other structures may be erected or used or for which land may be used. Column III specifies the purposes in respect of which the Council’s consent is not required and, in relation to the Rural ‘A’ zone includes “Animal Husbandry”; column IV contains the purposes in respect of which the consent of the Council is required, and in relation to the Rural ‘A’ zone includes all purposes “other than those permitted by Column III or prohibited by Column V”; column V contains purposes which are prohibited. No column makes express reference to a “Kennel” in relation to the Rural ‘A’ zone.

By Part 1 Clause 1 of the Town Planning Scheme, terms including “Animal Husbandry” and
“Kennel” are given defined meanings “unless the context otherwise indicates or requires”.
“‘Animal Husbandry’ includes the keeping, depasturing and /or stabling of any animal, bird or

insect included in Appendix I hereto. The term also includes holding yards and hatcheries:-

APPENDIX I

Bees
Cattle
Dogs (more than two over the age of 6 months)
Ducks
Geese
Goats
Horses
Pigeons (except not more than 20 birds when housed
in an enclosed, covered structure)
Poultry (except not more than 20 birds when housed
in an enclosed, covered structure)
Sheep (more than 1);”

“Kennel” means “Any land, building or other structure used or intended for use for the boarding

of dogs or for the breeding of dogs for sale or profit;”. column IV of the Table of Zones in relation to the Rural ‘A’ zone. On another, somewhat narrower, reading of the Planning & Environment Court’s reasons, it was accepted that, while “Kennel” might be a column IV purpose in relation to a Rural ‘A’ zone, the respondents’ use of their land was also within the purpose of “Animal Husbandry” in column III so that the Council’s consent was unnecessary.

The Planning & Environment Court Judge found that the respondents’ use of their land for the
keeping and breeding of greyhound dogs was for the purposes of both “Animal Husbandry” and
“Kennel”. On one view of his reasons, his Honour considered that “the boarding of dogs” and
“the breeding of dogs for sale or profit” was wholly covered by the definition of “Animal

It is by no means as clear to us as it was to the Planning & Environment Court Judge that “Animal Husbandry” encompasses “the breeding of dogs for sale or profit”. While “keeping, depasturing and/or stabling” some of the animals, birds and insect in Appendix I to the definition of “Animal Husbandry” might inevitably involve breeding, for example, the keeping of bees, the same cannot be said of, for example, dogs or horses. It is even less possible to assert that breeding necessarily involves “sale or profit”.

However, even assuming that the Planning & Environment Court was correct in the view that, taken in isolation, the definition of “Animal Husbandry” is wide enough to include “the breeding of dogs for sale or profit”, the definition in question falls for consideration as part of a document having legal effect, the Town Planning Scheme, which also includes a definition of “Kennel”; the definition of “Animal Husbandry” must be read in that context. It is consonant with established principles of construction that the wide operation of which the general language in the definition of “Animal Husbandry” is capable should be read down by reference to the specific provisions contained in the definition of “Kennel”. In our opinion, when the definition of “Animal Husbandry” is read in that manner, it does not extend to “the breeding of dogs for sale or profit”.

Accordingly, we are of opinion that the decision of the Planning & Environment Court was in error and the appeal must be allowed. The order made in the Planning & Environment Court on 12 April 1996 should be set aside and the matter remitted to that Court for the appellant’s application to be determined according to law.

Although the orders sought in the notice of appeal do not include an order for costs, it was implicit in the submissions for the appellant that the respondent should be ordered to pay the costs of this appeal but granted a certificate under the Appeal Costs Fund Act 1973. That course seems to be appropriate.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 3748 of 1996

Brisbane

Before Fitzgerald P.
McPherson J.A.
Davies J.A.

[Council of the Shire of Laidley v. Friend]

BETWEEN:

COUNCIL OF THE SHIRE OF LAIDLEY

(Applicant) Appellant

AND:

GARY STEPHEN FRIEND

(First Respondent) First Respondent

AND:

KATHRYN JUNE FRIEND

(Second Respondent) Second Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 25 February 1997

The respondents to this appeal are owners of land located in the Rural A zone under the Town

Planning Scheme for the Shire of Laidley. The effect of the Scheme is that land in that zone may,

without consent of the Council, be used for the purpose of animal husbandry. On the other hand, such

land may not be used for the purpose of a kennel. The problem is that the expression “animal husbandry” is defined in such a way as to be capable, on one view of it, of including the whole of the

subject matter of “kennel” as defined.

In these circumstances the problem must, according to ordinary principles of interpretation, be

resolved by deciding which of the two provisions is dominant. In a context like this, the consideration

that the Scheme interferes with the ordinary rights of owners to use their property as they wish is entitled

to some, but certainly not decisive, weight. The apparent conflict between the two provisions must in

my opinion be resolved by applying the principle that general legislative provisions are to be read subject

to other specific provisions concerning the same subject matter. The prohibition against using land in

the relevant zone for the purpose of a “kennel” as defined is specific. The permission to use such land

for “animal husbandry” is general. That being so, the specific prohibition would ordinarily prevail.

The only ground for hesitating about that conclusion is not so much that, as regards dogs, the

two definitions are or may be to some extent co-terminous, but because of the form in which the

inclusionary definition of “animal husbandry” is cast. Keeping dogs is brought within its terms by a

specific extension of that definition. To that extent it might be said that both definitions are specific as

to dogs or keeping them on the land. Even so, I would nevertheless regard the prohibition against using

land for a kennel as more specific than the general provision permitting its use for animal husbandry

including dogs. Whatever the true scope of animal husbandry may be, the Scheme prohibits use of the

land for the purpose of a kennel as defined.

I agree with the orders proposed.