Tweed Shire Council v Cooke - [2023] NSWLEC 73

Land and Environment Court

New South Wales

Medium Neutral Citation: Tweed Shire Council v Cooke [2023] NSWLEC 73
Hearing dates: 27 – 31 March, 20, 27 June 2023
Decision date: 11 July 2023
Jurisdiction: Class 4
Before: Pain J
Decision:
See below in [218]-[219].

Catchwords:
CIVIL ENFORCEMENT – whether use of site for purpose of rural industry requiring development consent in rural zone for which no development consent – whether use of site for purpose of intensive plant agriculture or extensive agriculture in rural zone for which no development consent required - characterisation of activities of making, bottling and packaging of products on site using hemp plants grown on site
CIVIL ENFORCEMENT – farm buildings not exempt development as fail to comply with specified separation distance and fail to comply with ridgeline control in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW)
CIVIL ENFORCEMENT – declarations of unlawful use of land and buildings made – orders postponed until outcome of two Class 1 appeals known

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 56
Environmental Planning and Assessment Act 1979 (NSW), ss 1.3, 4.2, 4.4, 9.16, 9.46
Hemp Industry Act2008 (NSW)
Local Government Act 1993 (NSW), s 68
Standard Instrument—Principal Local Environmental Plan (2006 EPI 155a) (NSW)
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW), cl 2.32
Tweed Local Environmental Plan 2014 (NSW), cl 2.3,

Cases Cited:
ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67
Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6
Ali v Liverpool City Council [2009] NSWLEC 1327
Anastasiou v Wallace [2020] NSWLEC 14
Baulkham Hills v O’Donnell (1990) 69 LGRA 404
Bob Blackmore Pty Ltd v Anson Bay Co (Australia) Pty Ltd [1990] NSWCA 25
Bonus Pty Ltd v Leichhardt Municipal Council (1954) 19 LGR 375
Botany Bay City Council v Pet Carriers International [2013] NSWLEC 147
Bronger v Greenway [2023] NSWCA 104
Cando Management and Maintenance Pty Ltd v Cumberland Council (2019) 237 LGERA 128; [2019] NSWCA 26
Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400
El Boustani v Minister Administering the Environmental Planning Act 1979 [2011] NSWLEC 214
F Hannan Pty Ltd v Electricity Commission of New
South Wales (No 3) (1985) 66 LGRA 306
Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157
Great Lakes v Lani (2007) 158 LGERA 1
Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6
Hopkins v Quinn [2016] NSWLEC 163
Jungar Holdings Pty Ltd v Eurobodalla Shire Council (1989) 70 LGRA 79
Lizzio v Ryde Municipal Council (1983) 155 CLR 211
Peters v Manly Municipal Council [2007] NSWCA 343
Refalo v Camden Council [2021] NSWLEC 1485
Sahade v The Owners – Strata Plan No. 62022 & Ors [2006] NSWLEC 770
Scott’s Provisions Stores Pty Ltd v Sydney City Council (1958) 3 LGRA 191
Sydney Seaplanes Pty Ltd v Page (2021) 393 ALR 485; (2021) 106 NSWLR 1; [2021] NSWCA 204
Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335
Woollahra Municipal Council v Carr (1982) 47 LGRA 105

Texts Cited:
AS3959-2018 Construction of Buildings in Bushfire-Prone Areas
National Association of Steel-framed Housing Bushfire Standard (2014)
Planning for Bushfire Protection 2006
Planning for Bushfire Protection 2019
Macquarie Dictionary on-line

Category: Principal judgment
Parties: Tweed Shire Council (Applicant)
Dolph Cooke (First Respondent)
Dark Kovac (Second Respondent, 2021/364584)
Peter Anthony Van Lieshout (Third Respondent, 2021/364584) (submitting appearance)
Kempcove Pty Ltd (Second Respondent, 2021/364656) (submitting appearance)
Representation:
Counsel:
J Farrell (Applicant)
C Ireland with A Jucha (First and Second Respondents)
Solicitors:
Sparke Helmore Lawyers (Applicant)
Ellis & Baxter Solicitors (First and Second Respondents, 2021/364584)
Australian Law Group (Third Respondent, 2021/364584) (Second Respondent, 2021/364656)

File Number(s): 2021/364584, 2021/364656

JUDGMENT

Civil enforcement
Events after first hearing
Third further amended summons filed in court 27 June 2023 (2021/364584) Lot 34
Second further amended summons filed in court 27 June 2023 (2021/364656) Lot 3
Legislation
Environmental Planning and Assessment Act 1979 (NSW) (EPA Act)
State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) (Codes SEPP)
Tweed Local Environmental Plan 2014 (NSW) (TLEP)

Issues
Agreed chronology
Statement of agreed facts
Evidence
Documents in Evidence Book
Council’s Evidence
Respondents’ Evidence
Expert Evidence

Issue 1 characterisation of use of the Development Site
Evidence
Town Planning Evidence
Council’s submissions
Respondents’ submissions

Consideration of Issue 1
Issue 5 development consent required
Issue 8 Building A development consent required
Issue 2 onus of proof regarding exempt development
Issue 4 exempt development
Aerial Survey Evidence on building separation
Town Planning Evidence
Building 6 does not comply with cl 2.32(1)(g) minimum building separation of 6m between farm buildings
Buildings 6, 7 do not comply with cl 2.32(1)(c) ridgeline control
Consideration of ridgeline

Conclusion on issue 4
Issue 10 exercise of discretion
Council’s evidence
Respondents’ evidence
Expert Evidence
Council’s submissions
Respondents’ submissions

Consideration of exercise of discretion
Conclusion

Costs
Declarations (2021/364584)
Declarations (2021/364656)

JUDGMENT

Civil enforcement

Tweed Shire Council (the Council) the Applicant has commenced two civil enforcement proceedings in relation to alleged breaches of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) concerning the use of land Lot 34 DP 755714 (Lot 34) and separately Lot 3 DP 1264574 (Lot 3) (the Development Site) in Kunghur northern NSW for growing hemp plants and related activities.
In proceeding 2021/364584 regarding use of Lot 34 the First Respondent Mr Cooke and the Second Respondent Mr Kovac are co-owners of Lot 34 together with the Third Respondent Mr Van Lieshout who filed a submitting appearance save as to costs. In proceeding 2021/364656 regarding use of Lot 3 Mr Cooke is the First Respondent and Kempcove Pty Ltd the Second Respondent is the sole owner of Lot 3. Kempcove Pty Ltd has filed a submitting appearance save as to costs. Mr Cooke and Mr Kovac are the active respondents in relation to the Lot 34 proceeding and Mr Cooke is the active respondent in relation to the Lot 3 proceeding (the Respondents).
It is not disputed that the Development Site was used for the growing of hemp plants and the use of hemp leaves to infuse olive oil which is bottled and packaged for sale on-line and in leased shop premises in Murwillumbah called Australian Cannabis University Store. As discussed below in [5]-[15], due to recent events the use is currently not occurring.
On 8 April 2022 an order was made that the matters should be heard together and that evidence in one case be evidence in the other. The proceedings were stood over on 30 March 2023 part heard to enable evidence on bushfire safety to be prepared. Further days of hearing were held on 20 June 2023 and 27 June 2023. Significant events occurred in the intervening period from the Respondents’ point of view as attested to in the affidavit of Mr Jeong solicitor dated 16 June 2023 which leave was given to rely on in court on 20 June 2023. These events are recorded below in [5]-[15]. Changes in the summonses also resulted from these events.

Events after first hearing

Low-THC hemp licence refused

Mr Jeong solicitor affirmed an affidavit dated 16 June 2023 which attested that Mr Cooke’s application for a low-THC hemp licence as required by the Hemp Industry Act2008 (NSW) was refused. Mr Jeong is instructed that all farming and ancillary activities including the occupation of buildings for residential use have ceased. Two Class 1 appeals are also now on foot.

Low-THC hemp licence issued 8 January 2013, 9 January 2018

Mr Cooke was the licensee for low-THC hemp licence HIA 38 issued on 8 January 2013 in force until 8 January 2018.The licence was subject to general conditions that apply under the Hemp Industry Act. Mr Cooke was then issued low-THC hemp licence 50157 dated 9 January 2018 expiring 8 January 2023. The licence authorised the following activities on Lot 34:

Cultivate low-THC hemp for commercial production;

Supply low-THC hemp for commercial production;

Cultivate low-THC hemp for use in manufacturing process; and

Supply low-THC hemp for use in manufacturing process.

Rural industry development application refusal Class 1 appeal

A Class 1 appeal (2023/00192915) in relation to the refusal by the Council of development application DA/0601 seeking approval for the use of buildings on the Development Site as farm buildings (Rural Industry DA) was filed in the Court on 16 June 2023. Consent for use as farm buildings is sought in relation to Buildings I-P (shipping containers), 3 (kitchen and office), 6-7 (greenhouse, two storey shed and retaining walls), X (timber hut, security), Z (lab building), A (general manager's facilities), Q-V (agricultural greenhouses), W (water tank), 5 (two shipping containers with associated roof covering), 4 (toilet structure), 8 (greenhouse tool containers), B (toilet), C (small greenhouse), E (toilet), Y (composting toilet) and AA (unless earlier removed by the Respondents).
Consent for demolition is sought in relation to buildings G (shed), 1 (goat shed), 2 (Darko's cabin), and 5 (two shipping containers and roof).

Building information certificate refusal Class 1 appeal

A Class 1 appeal (2023/00193058) in relation to the refusal of building information certificate (BIC) BC22/0058 was lodged on 16 June 2023. The BIC is sought in relation to Buildings I-P (downtown), 3 (Kitchen & office), Z (lab building), X (security), and 6a (retaining walls).
Mr Jeong affirmed an affidavit dated 26 June 2023 which attests that a BIC application was lodged on 25 June 2023 for Buildings A, B and C. These buildings are the subject of the Class 1 Appeal (2023/00192915) seeking approval for the Rural Industry DA. The Respondents prepared a summary document listing structures subject to the BIC appeal and structures subject of the further BIC application (marked MFI 4)
I note for completeness that no Class 1 appeal was lodged for the refusal of the development application DA22/0742 seeking approval for an expanded dwelling house (Dwelling House DA). Buildings A and 2 were the subject of that DA.

Undertakings

An undertaking by the Respondents was provided to the Court in proceeding 2021/364584 concerning Lot 34 on 20 June 2023 (Ex 4) as follows:

The First and Second Respondents undertake:
(a)   not to undertake any hemp farming, or ancillary activities including hemp processing activities (subject to (b) below), on either Lot 34 or Lot 3 unless and until a renewed or new hemp licence is issued by the Department of Primary Industries in respect of the lot;
(b)   not to make any residential use of Building A and Building 2 on Lot 34 that is the subject of these proceedings and under the care and control of the First or Second Respondents (unless and until development consent is granted for such residential use);
(c)   to demolish: the two sheds marked ‘G’ (noting ‘H’ has been demolished); Building 1 (Goat shed); Building 2 (Wooden Cabin); Building 5 (two shipping containers and associated roof covering and awnings), subject to obtaining development consent for such demolition; and
(d)   to remove: shipping container beside Building 1 and caravan near Building F.

An undertaking in very similar terms was provided to the Court by Mr Cooke in proceeding 2021/364656 concerning Lot 3 on 20 June 2023 (Ex 4) as follows:

The First Respondent undertakes:
(a)   not to undertake any hemp farming, or ancillary activities including hemp processing activities (subject to (b) below), on either Lot 34 or Lot 3 unless and until a renewed or new hemp licence is issued by the Department of Primary Industries in respect of the lot;
(b)   not to make any residential use of Building A and Building 2 on Lot 34 that is the subject of these proceedings and under the care and control of the First or Second Respondents (unless and until development consent is granted for such residential use);
(c)   to demolish: the two sheds marked ‘G’ (noting ‘H’ has been demolished); Building 1 (Goat shed); Building 2 (Wooden Cabin); Building 5 (two shipping containers and associated roof covering and awnings), subject to obtaining development consent for such demolition; and
(d)   to remove: shipping container beside Building 1 and caravan near Building F.

The use of various compost toilets remained in dispute pending approval under s 68 of the Local Government Act 1993 (NSW) (LG Act) which the Respondents accepted they needed. By affidavit affirmed 26 June 2023, Mr Jeong stated that a LG Act application for the toilet structures being Buildings B, E, 4 and Y and a toilet structure near Buildings Q to V was lodged on 25 June 2023. A further undertaking was given to the Court on 27 June 2023 in proceeding 2021/364584 (Ex 8) as follows:

1. The First and Second Respondents undertake not to make any use of the toilet structures on Lot 34 or Lot 3 that are the subject of these proceedings and under the care and control of the First or Second Respondents, being Buildings B, E, 4 and Y and a toilet structure near Buildings Q to V, unless and until approval is granted for their use under section 68 of the Local Government Act 1993.

A further undertaking in very similar terms was given to the Court on 27 June 2023 in proceeding 2021/364656 (Ex 8) as follows:

1. The First Respondent undertakes not to make any use of the toilet structures on Lot 34 or Lot 3 that are the subject of these proceedings and under the care and control of the First or Second Respondents, being Buildings B, E, 4 and Y and a toilet structure near Buildings Q to V, unless and until approval is granted for their use under section 68 of the Local Government Act 1993.

These changed circumstances reduced the need to consider most issues heard in the first tranche of the hearing, and changed the nature of the relief sought by the Council as reflected in the recently further amended summonses set out below in [17] and [19].

Third further amended summons filed in court 27 June 2023 (2021/364584) Lot 34

The Council seeks the following relief in proceeding 2021/364584 concerning Lot 34 in the Third Further Amended Summons filed in court 27 June 2023 (marked MFI 5):

The Court notes and accepts the undertaking of the First and Second Respondents in the affidavit of Mr Jeong dated 16 June 2023 , as amended on 20 June 2023, and further undertakings dated 26 June 2023 and orders the following relief:
1 A declaration that the First Respondent has breached section 4.2(1)(a) of the Environmental Planning and Assessment Act 1979 (EPA Act) by using land identified as Lot 34 in DP 755714 located at 2956 Kyogle Road, Kunghur, New South Wales (Lot 34) and structures thereon for the purposes of an agricultural produce industry, being a type of rural industry (by the handling, treating, processing and storage of produce from agriculture for commercial purposes) being development permissible with consent pursuant to the Tweed Local Environmental Plan 2014 (LEP), but which consent has not been obtained.
2 A declaration that the First Respondent has breached section 4.2(1)(a) of the EPA Act by carrying out building works for the purposes of an agricultural produce industry (being a type of rural industry) on Lot 34 for which development consent is required but which none has been obtained, comprising:
a)   alterations and additions to a building comprising a site office, kitchen facilities, laboratory area and attached timber deck, located in the area marked “3” on the site map annexed hereto and marked Annexure A (Site Map);
b)   the erection of a rectangular greenhouse measuring approximately 16 metres in length and 8metres in height, located in the area marked “6” on the Site Map;
c)   the erection of a two-storey shed located in the area marked “7” on the Site Map;
d)   the installation of two shipping containers, with an associated roof covering and awnings, in the location marked “8” on the Site Map;
e)   the construction of six greenhouses approximately 100m2 in area in the areas marked “Q”, “R”, “S”, “T”, “U” and “V” on the Site Map;
f)   the erection of 8 shipping containers in the locations marked “I”, “J”, “K”, “L”,”M”, “N”, “O” and “P” on the Site Map;
g)   the installation of two water tanks, located in the areas marked “3” and “W” on the Site Map; and
h)   a plastic igloo/greenhouse structure, earthworks, retaining walls, and placement of concrete blocks in the locations marked, “C”, “6” and “7” on the Site Map.

3 A declaration that the First Respondent has breached section 4.2(1)(a) of the EPA Act by carrying out building works on Lot 34 comprising a structure (located in the area marked “A”) for which development consent is required but which none has been obtained.
4   An order that the First Respondent by himself, his employees, servants and agents be restrained from using or permitting to be used or recommencing the use of Lot 34 for the purposes of an agricultural produce industry (being a type of rural industry) and any buildings thereon as farm buildings, without first obtaining development consent.
5   Subject to orders 8 and 9, an order that the First Respondent, by himself, his employees, servants and agents within 28 days remove and demolish all buildings and structures referred to in paragraph 2 above and dispose of any residual building material following demolition of the buildings and structures at an authorised waste facility.
6   Subject to orders 8 and 9, an order that the First Respondent, by himself, his employees, servants and agents within 28 days remove and demolish the building located in the area marked “A” and dispose of any residual building material following demolition of the buildings and structures at an authorised waste facility.
7   An order that the First Respondent, by himself, his employees, servants and agents within 7 days remove any caravans remaining on Lot 34.
8   The time for compliance with orders 5 and 6 does not commence until the appeals in proceedings 2023/00192915 and 2023/00193058 are finally determined.
9   In the event that upon the final determination of proceedings 2023/00192915 and 2023/00193058 the appeals are upheld, and the Court grants a development consent and a building information certificate, the First and Second Respondent may within 28 days approach the Court for a variation of orders 5 and 6.
10   An order that the Respondents pay the Applicant’s costs of these proceedings.
11   Such other or further orders as the Court sees fit.
12   Liberty to restore on 3 days notice.

The Site Map attached to the summonses was updated during the hearing and is extracted below in [20].

Second further amended summons filed in court 27 June 2023 (2021/364656) Lot 3

The Council seeks the following relief in proceeding 2021/364656 concerning Lot 3 in the Second Further Amended Summons filed in court 27 June 2023 (marked MFI 5):

The Court notes and accepts the undertaking of the First Respondent in the affidavit of Mr Jeong dated 16 June 2023, as amended on 20 June 2023 and further undertakings dated 26 June 2023, and orders the following relief:
1 A declaration that the First Respondent has breached section 4.2(1)(a) of the Environmental Planning and Assessment Act 1979 (EPA Act) by using land identified as Lot 3 in DP 1264574 located at 2924 Kyogle Road, Kunghur, New South Wales (Lot 3) for the purposes of an agricultural produce industry, being a type of rural industry (by the handling, treating, processing, storage and packing of produce from agriculture for commercial purposes) being development permissible with consent pursuant to the Tweed Local Environmental Plan 2014 (LEP), but which consent has not been obtained.

2 A declaration that the First Respondent has breached of section 4.2(1)(a) of the EPA Act by carrying out development on Lot 3 for which development consent is required but which none has been obtained, comprising:
(a) the construction of a building which is located in the area marked “X” on the Site Map; and
(b) the construction of a two-storey shed and adjacent water tank which is located in the area marked “Z” on the Site Map.

3   An order that the First Respondent by himself, his employees, servants and agents be restrained from using or permitting to be used or recommencing the use of Lot 3 for the purposes of an agricultural produce industry (being a type of rural industry) and any buildings thereon as farm buildings, without first obtaining development consent.
4   Subject to orders 5 and 6, an order that the First Respondent, by himself, his employees, servants and agents within 28 days remove and demolish all buildings and structures referred to in paragraph 2 above and dispose of any residual building material following demolition of the buildings and structures at an authorised waste facility.
5   The time for compliance with order 4 does not commence until the appeals in proceedings 2023/00192915 and 2023/00193058 are finally determined.
6   In the event that upon the final determination of proceedings 2023/00192915 and 2023/00193058 the appeals are upheld, and the Court grants a development consent and a building information certificate, the First Respondent may within 28 days approach the Court for a variation of order 4.
7   An order that the Respondents pay the Applicant’s costs of these proceedings.
8   Such other or further order as the Court deems fit.

The Site Map attached to the summonses was updated during the hearing and is extracted below (marked MFI 3).

Legislation

Environmental Planning and Assessment Act 1979(NSW) (EPA Act)

Section 4.2 of the EPA Act states:

Part 4 Development assessment and consent
Division 4.1 Carrying out of development—with consent, without consent and prohibited
…
4.2 Development that needs consent
(1) General If an environmental planning instrument provides that specified development may not be carried out except with development consent, a person must not carry the development out on land to which the provision applies unless—
(a) such a consent has been obtained and is in force, and
(b) the development is carried out in accordance with the consent and the instrument.
Maximum penalty—Tier 1 monetary penalty.

(2) For the purposes of subsection (1), development consent may be obtained—
(a) by the making of a determination by a consent authority to grant development consent, or
…

State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) (Codes SEPP)

Clause 2.32 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) (Codes SEPP) [historical version for 1 January 2019 to 7 January 2019 agreed to apply] states:

Part 2 Exempt Development Codes
Division 1 General Exempt Development Code
…
Subdivision 16 Farm buildings (other than stock holding yards, grain silos and grain bunkers)
…
2.32 Development standards
(1) The following standards are specified for that development:
…
(c) if the development:
((i) is on a landholding that has an area of more than 4ha, and
(ii) is on a landholding in relation to which the natural ground at any point within 100m of the ridgeline of any hill is at least 20m lower than the ridgeline, and
(iii) is located within 100m of that ridgeline,
it must be sited on the landholding so that the highest point of the development is at least 5m below that ridgeline,

…
(g) a farm building must be located at least 6m from any other farm building (including any farm building that is a stock holding yard, grain silo or grain bunker) on the landholding or on an adjoining landholding,

…

Tweed Local Environmental Plan 2014 (NSW) (TLEP)

The relevant clauses of the Tweed Local Environmental Plan 2014 (NSW) (TLEP) state:

…
Part 2 Permitted or prohibited development
…
2.3 Zone objectives and Land Use Table
(1) The Land Use Table at the end of this Part specifies for each zone—
(a) the objectives for development, and
(b) development that may be carried out without development consent, and
(c) development that may be carried out only with development consent, and
(d) development that is prohibited.

(2) The consent authority must have regard to the objectives for development in a zone when determining a development application in respect of land within the zone.
(3) In the Land Use Table at the end of this Part—
(a) a reference to a type of building or other thing is a reference to development for the purposes of that type of building or other thing, and
(b) a reference to a type of building or other thing does not include (despite any definition in this Plan) a reference to a type of building or other thing referred to separately in the Land Use Table in relation to the same zone.

(4) This clause is subject to the other provisions of this Plan.
…
Land Use Table
Zone RU2 Rural Landscape
1 Objectives of zone
• To encourage sustainable primary industry production by maintaining and enhancing the natural resource base.
• To maintain the rural landscape character of the land.
• To provide for a range of compatible land uses, including extensive agriculture.
• To provide for a range of tourist and visitor accommodation-based land uses, including agri-tourism, eco-tourism and any other like tourism that is linked to an environmental, agricultural or rural industry use of the land.
2 Permitted without consent
Environmental facilities; Environmental protection works; Extensive agriculture; Home occupations; Intensive plant agriculture
3 Permitted with consent
Airstrips; Animal boarding or training establishments; Aquaculture; Bed and breakfast accommodation; Boat launching ramps; Boat sheds; Camping grounds; Caravan parks; Cellar door premises; Cemeteries; Community facilities; Crematoria; Depots; Dual occupancies (attached); Dwelling houses; Eco-tourist facilities; Educational establishments; Extractive industries; Farm buildings; Farm stay accommodation; Flood mitigation works; Forestry; Funeral homes; Garden centres; Group homes; Helipads; Home-based child care; Home businesses; Home industries; Hostels; Industrial retail outlets; Industrial training facilities; Information and education facilities; Intensive livestock agriculture; Jetties; Kiosks; Landscaping material supplies; Markets; Open cut mining; Places of public worship; Plant nurseries; Recreation areas; Recreation facilities (major); Recreation facilities (outdoor); Restaurants or cafes; Roads; Roadside stalls; Rural industries; Rural supplies; Rural workers’ dwellings; Signage; Timber yards; Transport depots; Truck depots; Turf farming; Veterinary hospitals; Water recreation structures; Water supply systems; Wharf or boating facilities
4 Prohibited
Any development not specified in item 2 or 3
…
Dictionary
…
agricultural produce industry means a building or place used for the handling, treating, processing or packing, for commercial purposes, of produce from agriculture (including dairy products, seeds, fruit, vegetables or other plant material), and includes wineries, flour mills, cotton seed oil plants, cotton gins, feed mills, cheese and butter factories, and juicing or canning plants, but does not include a livestock processing industry.
agriculture means any of the following—
(aaa) agritourism,
(a) aquaculture,
(b) extensive agriculture,
(c) intensive livestock agriculture,
(d) intensive plant agriculture.
…
extensive agriculture means any of the following—
(a) the production of crops or fodder (including irrigated pasture and fodder crops) for commercial purposes,
(b) the grazing of livestock (other than pigs and poultry) for commercial purposes on living grasses and other plants on the land as their primary source of dietary requirements, and any supplementary or emergency feeding, or temporary agistment or housing for weaning, dipping, tagging or similar husbandry purposes, of the livestock,
(c) bee keeping,
(d) a dairy (pasture-based) where the animals generally feed by grazing on living grasses and other plants on the land as their primary source of dietary requirements, and any supplementary or emergency feeding, or temporary agistment or housing for weaning, dipping, tagging or similar husbandry purposes, of the animals.
…
farm building means a structure the use of which is ancillary to an agricultural use of the landholding on which it is situated and includes a hay shed, stock holding yard, machinery shed, shearing shed, silo, storage tank, outbuilding or the like, but does not include a dwelling.
…
horticulture means the cultivation of fruits, vegetables, mushrooms, nuts, cut flowers and foliage and nursery products for commercial purposes, but does not include a plant nursery, turf farming or viticulture.
…
intensive plant agriculture means any of the following—
(a) the cultivation of irrigated crops for commercial purposes (other than irrigated pasture or fodder crops),
(b) horticulture,
(c) turf farming,
(d) viticulture.
…
rural industry means the handling, treating, production, processing, storage or packing of animal or plant agricultural products for commercial purposes, and includes any of the following—
(a) agricultural produce industries,
(b) livestock processing industries,
(c) composting facilities and works (including the production of mushroom substrate),
(d) sawmill or log processing works,
(e) stock and sale yards,
(f) the regular servicing or repairing of plant or equipment used for the purposes of a rural enterprise.
…

Issues

In the course of the hearing the following issues were identified as requiring resolution in both proceedings, not all of which remain to be determined in light of evidence adduced and events which have occurred since the first hearing as indicated below:

Defined terms
•   Alleged exempt works and structures means building 6, building 7, buildings Q – V, water tank W.
•   Codes SEPP is the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
•   Farm building means building 3, 5, 6, 7, 8, C (igloo), Q – V, I-P, G, W, X, Z and 1 (including shipping container)
•   SEPP 4 means State Environmental Planning Policy No 4 – Development Without Consent and Miscellaneous Exempt and Complying Development 1981
•   Development Site is Lot 34 and Lot 3
•   LEP is the Tweed Local Environmental Plan 2014
•   Lot 34 is Lot 34 in DP 755714
•   Lot 34 Proceedings is 2021/00364584
•   Lot 3 is Lot 3 in DP 1264574
•   Lot 3 Proceedings is 2021/00364656
ISSUES FOR DETERMINATION
1.   Characterisation of the land use – intensive plant agriculture, extensive agriculture or agricultural produce industry (rural industry)
a.    Is the making, bottling and packaging of products from the hemp (chiefly olive oil infused with hemp) ancillary to an intensive plant agriculture purpose or extensive agriculture?
OR
b.   Is the making, bottling and packaging of products from the hemp (chiefly olive oil infused with hemp) incidental to an intensive plant agricultural use or extensive agriculture, even if not ancillary to it ?

2.   If the land use is an agricultural produce industry, who bears the onus of proving that the exempt development provisions under the Codes SEPP can be relied upon in respect of the Alleged exempt works and structures?
3.   In relation to the Alleged exempt works and structures, has it been proved that any removal a tree [sic] or other vegetation required a permit, approval or development consent for the purposes of clause 1.16(3)(b)? [not pressed]
4. Do the Alleged exempt works and structures comply with the development standards in clause 2.32(1) of the Codes SEPP, in particular:
a.   Subclause (c) relating to ridgelines [building 6 and 7 only];
b.   Subclause (f) relating to boundary setbacks (building W only) [no longer arises];
c.   Subclause (g) relating to building separation [building 6 and 7 only];
d.   Subclause (i) relating to the design and specifications of a professional engineer [not pressed];

5.   If the development is characterised as intensive plant agriculture or extensive agriculture at question 1, is the construction and use of the Farm Buildings development that required development consent? [depends on answer to issue 1]
6.   Can building G rely on the provisions of clause 10 of SEPP 4? [no longer arises]
7.   Is the use of the timber cabin being building 2 the carrying out of development for the purposes of multi dwelling housing, being a prohibited use? In the alternative, is it development for the purposes of a dwelling, requiring consent? [no longer arises]
8.   Did the building of a timber cabin in the area marked A require development consent? [depends on answer to issue 1]
9. Was an approval under the Local Government Act required for the installation of moveable dwellings and human waste storage facilities (buildings B, E, Q-V, Y) on the Development Site? [no longer arises]
10.   In relation to any residual contravention of planning law arising from the above issues, the scope of any relief and whether it should it be limited to the making and sale of hemp products, and its timing, or suspension, in the exercise of the Court’s discretion.

In relation to issue 4 addressing whether some buildings are exempt development, Buildings Q-V, W and G no longer arise. Issues 6, 7 and 9 no longer arise.
The remaining issues are 1, 2, 4, 5 and 8. The outcome of issues 5 and 8 depends on my finding in relation to issue 1. Issues 2 and 4 are linked. The Court will need to determine issue 4 in respect of Buildings 6 and 7. Issue 10 concerning what relief may be appropriate in the exercise of the Court’s discretion depends on the determination of the other issues.
It is agreed that no development consent is held for any activity or building on Lot 34 or Lot 3.

Agreed chronology

The parties helpfully agreed on the following chronology dated 6 April 2023:

Date	Event
28 March 1979-31 July 1987	Building 3 works first undertaken and Building (iv) commences construction.
31 July 1987 – 28 July 1991	Buildings (i) and (ii) constructed.
28 July 1991 – 16 August 1987	Buildings (vi) constructed; modification of Buildings 3 and (iv).
16 August 1987-25 June 2004	Building (ii) extended.
25 June 2004 – October 2009	Building 2 constructed.
October 2009 – 6 May 2012	Building 1 constructed; Building (iv) modified.
6 May 2012-20 April 2015	Building (v) constructed.
19 October 2012	Application for Hemp Licence made by First Respondent for Lot 2 DP 611556 “Nightcap Forest” property.
8 January 2013	Hemp Licence No. HIA 38 issued to First Respondent permitting: 1. cultivation of low-THC hemp for commercial production, and 2. supply of low-THC hemp for commercial production.
7 May 2018	Renewal of Hemp Licence determined and approved.
11 August 2018	Application to vary Hemp Licence signed by First Respondent to include: * cultivation for manufacturing and scientific purposes, and * supply for manufacturing and scientific purposes.
1 September 2018	Application to vary Hemp Licence lodged by First Respondent. Requested variation described as: “Cultivation of low THC hemp for use in manufacturing so I can create hemp bricks and hemp oil and add new farm”.
29 November 2018	The First and Lot 34 Second Respondent acquire an interest in Lot 34.
22 January 2019	Further information submitted in support of application to vary Hemp Licence (including consent of Lot 34 Third Respondent).
In 2019	Toilet Y is constructed.
19 February 2019 to 11 July 2019	Extension works to the south of Building 3 are carried out.
11 July 2019 to 20 August 2019	Toilet 4 and Building 5 are constructed.
20 August 2019 to 6 August 2020	Buildings A, I-P (four shipping containers), R, S, 6, 9, X and Z as well as Tank W are constructed and Building 1 and 5 modified. Building (vii) also constructed.
20 March 2020	Council receives a complaint about development on Lot 34.
6 August 2020 to 17 August 2020	Timber deck constructed at Building 3; formation of earth pads for Buildings Q-V; modification to Building 2.
17 August 2020 – 23 August 2020	Continuation of deck construction at Building 3.
23 August 2020 to 27 March 2021	Buildings I-P (additional shipping containers installed), Q-V (four greenhouses), 7,8 and Earthworks 7 are constructed; Building A and 3 modified (including installation of Tank 3) Building (viii) also constructed.
10 September 2020	Application to vary Hemp Licence signed by First Respondent to include: * cultivation for manufacturing and scientific purposes, and * supply for manufacturing and scientific purposes. Application form describes manufacturing process low THC hemp to be subjected to as involving “fibre extraction, hemp seed soil extraction, biochar, building materials etc” with up to 1 tonne of low THC hemp estimated to be supplied for commercial production annually.
11 September 2020	Application to vary Hemp Licence emailed by First Respondent to Department of Primary Industries
16 September 2020	Amelia Pitt of Council sends and receives email to Lot 34 Third Respondent after attempts to contact First Respondent.
17 September 2020	Amelia Pitt of Council receives two emails from First Respondent.
3 November 2020	First Respondent sends email to Amelia Pitt of Council in reply to Ms Pitt’s emails dated 30/9/20 and 30/10/20.
11 November 2020	Application to vary Hemp Licence determined and approved for cultivation and supply of low THC hemp for manufacturing
15-16 November 2020	Council receives emails about development on Lot 34.
9 February 2021	Council receives complaint about development on Lot 34.
11 February 2021	Council receives email about development on Lot 34.
18 January 2021	Email from First Respondent to Department of Primary Industries requesting that reference to “Nightcap Forest” be removed from Hemp Licence.
12 February 2021	Telephone discussion between Amelia Pitt of Council and First Respondent.
25 February 2021	Letter from Council to First Respondent about site inspection request.
22 March 2021	Letter from Council to First Respondent in about entering land on 7 April 2021.
27 March 2021 to 7 June 2021	Earthworks 6 are constructed; Building 8 is modified; shipping container near Building A installed.
6 April 2021	Telephone discussion between Amelia Pitt of Council and First Respondent.
14 April 2021	Videos entitled “ACU – Farm Cinematics”, “Farm Transformation 2020” and “We are Australian Cannabis University” are uploaded on YouTube.
6, 9 and 27 April 2021	Email correspondence between Amelia Pitt of Council and Ellis & Baxter Lawyers.
12 May 2021	Amelia Pitt receives complaint from resident about concrete trucks utilising Mandalay Road.
18 May 2021	Council receives complaint from resident about development on Lot 34.
26 May 2021	Amelia Pitt sends email to First Respondent advising of Council inspection on 28 May 2021.
28 May 2021	Inspection of Lot 34 and Lot 3 undertaken by Amelia Pitt and Lindsay McGavin of Council.
After 28 May 2021	The following are installed: • plastic igloo/greenhouse structure at the location marked “C” on the Summons, • the Q-V Caravan, • The Q-V Toilet, and • An additional shipping container near Building 1. [Note: These buildings are not shown on Annexure A]
11 June 2021	Melanie Williams of Council visits Leased Premises.
18 June 2021	Council sends letter to First Respondent in outlining Council’s position on development on Lot 34 and Lot 3 and requesting response within 14 days.
29 July 2021	Videos are uploaded on YouTube.
8 October 2021	Council receives a copy of the Hemp Licence which (as at 8 October 2021) had an issue date of 8 January 2018 and an expiry date of 8 January 2023, and authorised the following on Lot 34 (which is described in the Hemp Licence as “The Uni, 2956 Kyogle Road, (10 hectares) 34, KUNGHUR, NSW 2484”): • Cultivate low-THC Hemp for commercial production, • Supply low-THC Hemp for commercial production, • Cultivate low-THC Hemp for use in manufacturing process, and • Supply low-THC Hemp for use in manufacturing process.
5 November 2021	The First Respondent’s two leases of Leased Premises commence.
5 November 2021	Letter sent by Sparke Helmore Lawyers to Respondents.
16 November 2021	Letter to Sparke Helmore from lawyer Lot 34 Third Respondent and Lot 3 Second Respondent.
25 November 2021	Letter from Ellis & Baxter Lawyers to Sparke Helmore.
1 December 2021	Letter from Sparke Helmore in reply to letter dated 25 November 2021.
17 December 2021	Letter from Ellis & Baxter Lawyers to Sparke Helmore.
20 December 2021	Letter to Sparke Helmore from lawyer Lot 34 Third Respondent and Lot 3 Second Respondent.
23 December 2021	Proceedings are commenced.
10 May 2022	Melanie Williams of Council accesses the ACU website.
8 September 2022	Building DA lodged with Council.
13 September 2022	BIC Application lodged with Council.
12 October 2022	Inspection of Lot 34 and Lot 3 undertaken by Amelia Pitt and Lindsay McGavin of Council, together with Council’s planning expert Peter Chrystal.
8 November 2022	Dwelling DA lodged with Council.
16 November 2022	Council undertakes inspection of Lot 34 in association with assessment of Building DA.
29 November 2022	Council undertakes an inspection of southern portion of Lot 34 in association with assessment of Dwelling DA.
20 December 2022	First Respondent makes application to renew Hemp Licence.
7 March 2023	Dwelling DA and Building DA are refused by Council.
8 March 2023	BIC Application is refused by Council.

The recent events after the first hearing detailed above in [5]-[15] are not included in the agreed chronology.

Statement of agreed facts

The parties helpfully agreed on the following statement of agreed facts (SOAF) dated 6 April 2023:

The Land
1   Lot 34 in DP 755714 is located at 2956 Kyogle Road, Kunghur, New South Wales (Lot 34)
2   Lot 3 in DP 1264574 (Lot 3) is a part physical road and part paper road. It is partly bushland.
3   Lot 34 is split in the south-east by Lot 3.
4   Lot 34 and Lot 3 (the Land) are located in the Tweed Local Government Area, approximately 30km south-west of Murwillumbah on the north coast of NSW.
5   The closest town to the Land is the village of [Kunghur], located approximately 2.3km away to the south-east.
6   The Land is accessible by local, privately owned roads (which are accessible off Kyogle Road) including Mandalay Road.
7   The Land is mapped as bushfire prone land and comprises areas classified as “Vegetation Category 1” and “Vegetation Buffer”.
Zoning of Land
8   Lot 34 and Lot 3 are zoned RU2 Rural Landscape under the Tweed Local Environmental Plan 2014 (TLEP)
9   Within the RU2 zone:
(a)   “dwelling houses”, “farm buildings” and “rural industry” are permissible only with development consent,
(b)   “multi-dwelling housing” and “secondary dwellings” are prohibited, and
(c)   “intensive plant agriculture” is permissible without development consent.

The Proceedings
10   Proceedings 2021/00364584 relate to Lot 34 (Lot 34 Proceedings).
11   Proceedings 2021/00364656 relate to Lot 3 (Lot 3 Proceedings).
The Respondents
Lot 34 Proceedings
12   Mr Dolph Cooke (First Respondent) is the First Respondent in both the Lot 34 Proceedings and the Lot 3 Proceedings.
13   The First Respondent is an individual and a part owner of Lot 34, being a joint tenant holding a one-half share with Darko Kovac (Lot 34 Second Respondent).
14   The First Respondent and Lot 34 Second Respondent are tenants in common with Peter Van Lieshout (Third Respondent).
15   The Third Respondent is an individual and owns a half share of Lot 34 as tenant in common with the First and Second Respondent.
16   The Third Respondent has filed a submitting appearance in the Lot 34 Proceedings.
Lot 3 Proceedings
17   Kempcove Pty Ltd is an Australian proprietary company limited by shares with ACN 071 654 638 (Lot 3 Second Respondent).
18   The Lot 3 Second Respondent is the owner of Lot 3.
19   The Lot 3 Second Respondent has filed a submitting appearance in the Lot 3 Proceedings.
Australian Cannabis University
20   The First Respondent is a registered lessee of premises located at 6-10 Wharf Street, Murwillumbah, being part of Lot 1 DP 104284 (Leased Premises).
21   A business known as the “Australian Cannabis University Store” (the Store) operates from the Leased Premises.
22   Registered lease AR771096 for the Leased Premises describes the permitted use as comprising:
Sale of books, medicinal oils, beauty products, health products, alternative fabric clothing, housewares, DVDs, hemp food and products, lifestyle products, educational materials, conducting of educational and tuition classes, organic gardening products, cultivation products and farm accessories.

23 The First Respondent operates an organisation known as the “Australian Cannabis University” (ACU).
24 The ACU has a website.
The Hemp Licence
25 The Department of Primary Industries issued to the First Respondent Licence [50157] under the Hemp Industry Act with an issue date of 8 January 2018 and an expiry date of 8 January 2023. Licence [50157] authorised the following on Lot 34 (which is described in the Hemp Licence as “The Uni, 2956 Kyogle Road, (10 hectares) 34, KUNGHUR, NSW 2484”):
Cultivate low-THC Hemp for commercial production
Supply low-THC Hemp for commercial production
Cultivate low-THC Hemp for use in manufacturing process
Supply low-THC Hemp for use in manufacturing process

26   The Hemp Licence does not apply to Lot 3.
27   An application to renew the Hemp Licence was made by the First Respondent on 20 December 2022.
28   The use of the land for hemp farming and the production of products from the hemp has temporarily ceased pending renewal of the Hemp licence.
Hemp growing, harvesting and processing
29   The following activities take place (or have taken place) on the Land and are carried out by or on behalf of the First Respondent:
(a)   Hemp and cannabis plants (which is a crop) is grown (Hemp),
(b)   Harvested hemp plants are harvested and dried,
(c)   Harvested and dried hemp plants are crushed,
(d)   Cold olive oil is infused with crushed and dried harvested hemp leaves, with those leaves then filtered leaving an oil residue,
(e)   The oil residue is then bottled,
(f)   The temporary storage of products derived from the Hemp, and
(g)   The historical (between 2018 and 2022) extraction of oil tinctures from Hemp.

30   Dried Hemp is processed on the Land to produce an infused oil and that oil is then bottled into smaller units.
31   The cultivation of Hemp on the Land is for commercial purposes.
32   Some or all of the ingredients of CBD-A oil and CBD1G oil are produced on Lot 34.
33   Some or all of the ingredients of CBD oil double strength are produced on Lot 34.
34   Products derived from Hemp are processed, stored, bottled and packaged on Lot 3.
35   About 450 bottles of cannabis infused olive oil have been bottled on Lot 3monthly.
36   The products available on the ACU website for purchase include:
(a)   T Balm,
(b)   1 THCA Organic Olive Oil,
(c)   1C CBDA in Organic Olive Oil, and
(d)   1G, CBDA-DS Double Strength,

The buildings on Lot 34
Building A
37   A timber hut structure with a roof and deck has been constructed on Lot 34 in the area marked “A” of the Summons Site Map. It comprises two rooms which, as at 12 October 2022, contained:
(a)   A double bed mattress in one of the rooms, and
(b)   A double bed and other furnishings in the other room.

38   Building A has toilet and bath facilities.
39   Building A was first constructed between 20 August 2019 to 6 August 2020.
40   Building A was modified between 31 August 2020 and 27 March 2021.
41   Building A has a residential character.
42   Building A has been constructed by or on behalf of the First Respondent.
43   No development consent has been granted for the construction of Building A.
44   No development consent has been granted for a dwelling house on Lot 34 and Lot 3.
45   The First Respondent and Lot 34 Second Respondent have lodged DA22/0742 which seeks consent for the use of Building A as an “expanded dwelling house” (in conjunction with Building 2) (Dwelling DA).
46   No application for a Building Information Certificate (BIC) has been lodged with Council for Building A.
47   The Dwelling DA was refused by Council on 7 March 2023.
Building 2
48   A timber cabin building is located on Lot 34 in the area marked “2” of the Summons Site Map (Building 2).
49   Building 2 has three bedrooms, a living area, kitchen and dining facilities but no laundry.
50   Building 2 was constructed between 29 June 2004 to October 2009.
51   Building 2 is occupied from time to time by the Lot 34 Second Respondent.
52   The First Respondent and Lot 34 Second Respondent have used Building 2 for residential purposes.
53   The Lot 34 Second Respondent is not employed by the First Respondent.
54   Building 2 has been used for the growing of cannabis plants.
55   No development consent has been granted for the erection or use of Building 2 for the purposes of a dwelling house.
56   No development consent has been granted for a dwelling house on Lot 34 and Lot 3.
57   The First Respondent and Lot 34 Second Respondent have lodged the Dwelling DA which seeks consent for the use of Building 2 as an “expanded dwelling house” (in conjunction with Building A).
58   No application for a BIC has been lodged with Council for Building 2.
59   The Dwelling DA was refused by Council on 7 March 2023.
Building 3
60   The First Respondent has carried out, or caused to be carried out, alterations and additions to a building located at Site 3 on the Summons Site Map (Building 3) comprising a site office, kitchen facilities, laboratory area and attached timber deck.
61   The alterations and additions to Building 3 were carried out between 19 February 2019 to 27 March 2021.
62   No development consent has been obtained for the construction or use of Building 3.
63   The First Respondent and Lot 34 Second Respondent have lodged DA22/0601 (Building DA) which seeks consent for the use of Building 3 for the purposes of “farm workers lunch facilities, deck, rec area and managers office”.
64   An application for a Building Information Certificate (BC22/0058) (BIC Application) has been made for Building 3.
65   The Building DA was refused by Council on 7 March 2023.
66   The BIC Application was refused by Council on 8 March 2023.
Building 5
67   The First Respondent has carried out, or caused to be carried out, the placement of two shipping containers and associated roof coverings and awnings at Site 5 on the Summons Site Map (Building 5).
68   Building 5 was constructed between 11 July 2019 to 20 August 2019. Roofing to Building 5 was installed between 20 August 2019 and 6 August 2020.
69   Building 5 is used for the purposes of storage, as well as the growing and cloning of infant plants.
70   Building 5 was constructed for the purposes of an agricultural produce industry and is used for that purpose.
71   No development consent has been obtained for the construction or use of Building 5.
72   The First Respondent and Lot 34 Respondent have lodged the Building DA which seeks consent for the use of Building 5 for the purposes of “infant growing nursery and propagation #2 + dry store containers”.
73   The BIC Application has been made for Building 5.
74   The Building DA was refused by Council on 7 March 2023.
75   The BIC Application was refused by Council on 8 March 2023.
Building 6
76   The First Respondent has carried out, or caused to be carried out, the erection of a rectangular greenhouse measuring approximately 16 metres in length and 8 metres in height at Site 6 on the Summons Site Map (Building 6).
77   Building 6 was constructed between 20 August 2019 and 6 August 2020.
78   Building 6 is used for the growing of infant cannabis plants, cloning of female plants, planting seedlings and managing the selection of seeds for those plants.
79   No development consent has been obtained for the construction or use of Building 6.
80   No application for development consent or a BIC has been made for Building 6.
Building 7
81   The First Respondent has carried out, or caused to be carried out, the erection of Building 7 which is a two-storey shed.
82   Building 7 was constructed between 31 August 2020 and 27 March 2021.
83   Building 7 is known as “Pandora’s Box” and is used for the drying and growing of cannabis plants, cloning of female plants, managing the selection of seeds for those plants, planting seedlings, as well as the storage of electrical cables, lights, plant growing trays, fertilisers and chemicals/minerals.
84   No development consent has been obtained for the construction or use of Building 7.
85   No application for development consent or a BIC has been made for Building 7.
Building 8
86   The First Respondent has carried out, or caused to be carried out, the installation of two shipping containers with an associated roof covering and awning at Site 8 on the Summons Site Map (Building 8).
87   Building 8 was constructed between 31 August 2020 and 27 March 2021.
88   Building 8 was modified between 27 March 2021 and 7 June 2021.
89   Building 8 is used to store potting mix, irrigation pipes, connectors and various gardening tools.
90   No development consent has been obtained for the construction or use of Building 8.
91   No application for development consent or a BIC has been made for Building 8.
Buildings Q-V
92   The First Respondent has carried out, or caused to be carried out, the construction of six greenhouses approximately 100m2 in area in the areas marked “Q”, “R”, “S”, “T”, “U” and “V” on the Summons Site Map (Buildings Q-V).
93   Buildings R-S were constructed between 20 August 2019 to 6 August 2020. Buildings Q-V were constructed between 6 August 2020 and 27 March 2021.
94   Buildings Q-V are used for the growing of cannabis plants.
95   Buildings Q-V were constructed for the purposes of an agricultural produce industry and is used for that purpose.
96   No development consent has been obtained for the construction or use of Buildings Q-V.
97   No application for development consent or a BIC has been made for Buildings Q-V.
Buildings I-P
98   The First Respondent has carried out, or caused to be carried out, the installation of 8 shipping containers in the locations marked “I”, “J”, “K”, “L”, “M”, “N”, “O” and “P” on the Summons Site Map (Buildings I-P).
99   Buildings I-P are used for the storage of various items, including as a dry store, storage of potting mix and materials, storage of farm machinery and building supplies.
100   Four shipping containers within Buildings I-P were installed between 20 August 2019 to 6 August 2020. Additional shipping containers were installed between 31 August 2020 and 27 March 2021.
101   No development consent has been obtained for the construction or use of Buildings I-P.
102   Buildings I-P are not exempt development.
103   The First Respondent and Lot 34 Second Respondent have lodged the Building DA which seeks consent for the use of Buildings I-P for the purposes of “farm implementation storage and general main dry store”.
104   The BIC Application has been made for Buildings I-P.
105   The Building DA was refused by Council on 7 March 2023.
106   The BIC Application was refused by Council on 8 March 2023.
Buildings “G” and “H”
107   The First Respondent has carried out, or caused to be carried out, the installation of 2 sheds at the locations marked “G” and “H” on the Summons Site Map (Buildings G and H).
108   No development consent has been obtained for the construction or use of Buildings G and H.
109   Building H was present on Lot 34 when the Lot 34 Proceedings were commenced.
110   At some time between the commencement of the Lot 34 Proceedings and 12 October 2022, Building H was demolished.
111   No application for development consent or a BIC has been made for Buildings G and H.
Water tanks “3” and “W”
112   The First Respondent has carried out, or caused to be carried out, the installation of 2 water tanks at the locations marked “3” and “W” on the Summons Site Map (Tank 3 and W).
113   Tank W was installed between 20 August 2019 and 6 August 2020.
114   Tank 3 was installed between 31 August 2020 and 27 March 2021.
115   No development consent has been obtained for the installation or use of Tank 3 and W.
116   No application for development consent or a BIC has been made for Tank 3 and W.
Site C Greenhouse
117   The First Respondent has carried out, or caused to be carried out, the installation of a plastic igloo/greenhouse structure at the location marked “C” on the Summons Site Map (Site 3 Greenhouse).
118   The Site C Greenhouse was constructed after 26 May 2021.
119   No development consent has been obtained for the installation or use of the Site C Greenhouse.
120   No application for development consent or a BIC has been made for the Site C Greenhouse.
Earthworks “C”, “6” and “7”
121   The first Respondent has carried out or caused the carrying of out earthworks, retaining walls and placement of concrete blocks at the locations marked “C”, “6” and “7” on the Summons Site Map (Earthworks C, 6 and 7).
122   Earthworks 6 were carried out between 27 March 2021 to 7 June 2021.
123   Earthworks 7 were carried out between 31 August 2020 to 27 March 2021.
124   No development consent has been obtained for Earthworks C, 6 and 7.
125   Earthworks C, 6 and 7 are not exempt development.
126   The First Respondent and Lot 34 Second Respondent have lodged the Building DA which seeks consent for Earthworks C, 6 and 7 for “soil retention and erosion control”. The BIC Application has also been lodged for these works.
127   The Building DA and BIC Application were refused by Council on 7 and 8 March 2023 respectively.
Other buildings on Lot 34 that are not the subject of the Proceedings
128   There are two dwellings and a building capable of being used for the purposes of residential accommodation located in the south-west portion of Lot 34.
The buildings on Lot 3
Building 1
129   The First Respondent has constructed or caused to be constructed a building comprising a timber shed at the location marked “1” on the Summons Site Map (Building 1).
130   Building 1 is not exempt development, and no development consent for its construction or use has been obtained.
131   The First Respondent and Lot 34 Second Respondent have lodged the Building DA which seeks consent for the demolition of Building 1.
132   The Building DA was refused by Council on 7 March 2023.
Additional shipping container
133   The First Respondent has installed or caused to be installed a shipping container near Building 1 (Lot 3 Container).
134   No development consent has been obtained for the installation or use of the Lot 3 Shipping Container.
135   No application for development consent or a BIC has been made for the Lot 3 shipping container.
Building X
136   The First Respondent has constructed or caused to be constructed a building at the location marked “X” on the Summons Site Map (Building X).
137   Building X was constructed after November 2018, and between 20 August 2019 to 6 August 2020.
138   No development consent has been obtained for the installation or use of Building X.
139   The First Respondent and Lot 34 Second Respondent have lodged the Building DA which seeks consent for the use of Building X for the purposes of “visitor and staff check in”.
140   The BIC Application has also been made for Building X.
141   The Building DA and BIC Application were refused by Council on 7 and 8 March 2023 respectively.
Building Z
142   The First Respondent has constructed or caused to be constructed a two-storey shed and adjacent water tank at the location marked “Z” on the Summons Site Map (Building Z).
143   The First Respondent did not obtain the consent of the Lot 3 Second Respondent, the owner of Lot 3, prior to erecting Building Z).
144   Building Z is used for the purposes of a laboratory, production and bottling of cannabis products, as well as the drying and growing of cannabis plants.
145   Building Z was constructed between 20 August 2019 to 6 August 2020.
146   No development consent has been obtained for the installation or use of Building Z.
147   The First Respondent and Lot 34 Second Respondent have lodged the Building DA which seeks consent for the use of Building Z for the purposes of “product (plant) testing and receiving/dispatch”.
148   The BIC Application has also been made for Building Z.
149   The Building DA and BIC Application were refused by Council on 7 and 8 March 2023 respectively.
Moveable Dwellings on Lot 34
150   There are two caravans on Lot 34:
(a)   The caravan located in the area marked “F” of the Site Map, and
(b)   The caravan located near the buildings marked “Q” to “V” of the Site Map (Q-V Caravan).

151   The two caravans have been installed by or on behalf of the First Respondent.
152 There has been no approval issued for the installation of moveable dwellings on Lot 34 under section 68 of the Local Government Act 1993 (LG Act).
153 The First Respondent and Lot 34 Second Respondent propose to make applications under section 68 of the LG Act at a future date.
Human Waste Storage Facilities on Lot 34 and Lot 3
154   On Lot 34 the following free-standing compost toilet structures have been erected:
(a)   Two structures in the areas marked “B” and “E” of the Site Map (Toilet B and E), and
(b)   Another structure near the greenhouses marked “Q” to “V” (Toilet Q-V).

155 A compost toilet structure has been erected on Lot 3 in the area marked “Y” on the Site Map (Toilet Y).

156   A toilet amenities facility (comprising 2 facilities) and underground septic tank has been installed on lot 34 in the area marked “4” of the Site Map (Toilet 4).
157   Toilet 4 was constructed between 11 July 2019 to 20 August 2019.
158   Toilet Y was constructed in 2019.
159   Toilet Q-V was constructed after 28 May 2021.
160   Toilets B, E, 4, Y and Q-V are operational.
161 There has been no approval issued for the installation and operation of human waste facilities on Lot 34 under section 68 of the LG Act.
162 The First Respondent and the Lot 34 Second Respondent propose to make applications under section 68 of the LG Act for wastewater treatment facilities when the BIC has been granted.
163   The First Respondent and Lot 34 Second Respondent have lodged the Building DA which seeks consent for the use of Toilet Y.
164   The BIC Application has also been made for Toilet Y.
165   The Building DA and BIC Application were refused by Council on 7 and 8 March 2023 respectively.
166   No application for development consent or a BIC has been made for Toilets B, E, 4 or Q-V.

As a number of issues now no longer arise for determination the level of detail encompassed in the SOAF need not be considered in full. Recent events also supersede some of the agreed matters.

Evidence

Documents in Evidence Book

The following applications were related to or the subject of lay and expert evidence relied on by the parties. The details of the applications have been superseded by the recent events set out above in [5]-[15].

Dwelling house development application

Dwelling House DA DA22/0742 was lodged by Mr Connelly of Planners North on a without admissions basis with the Council on 8 November 2022. Buildings 2 and A were the subject of the Dwelling House DA. The pre-lodgement application form for the Dwelling House DA identified the proposed type of development as ‘dwelling’. The application sought land use approval for an expanded dwelling house. The application was supported by a statement of environmental effects, building plans, a bushfire assessment report and a BASIX certificate. [Note: Dwelling House DA not subject to Class 1 appeal].

Farm buildings and rural industry development application

Rural industry DA DA22/0601 was lodged by Mr Connelly on a without admissions basis with the Council on 8 September 2022. The pre-lodgement application form for the farm buildings and rural industry identified the proposed type of development as ‘farm buildings’. The application sought land use approval for seven buildings and demolition for one building. In addition, consent was sought for on-site bottling of cannabis infused olive oil. The application was supported by a statement of environment effects, building plans, site contamination assessment, structural engineering advice, wastewater assessment report, cultural heritage site inspection and building cost estimates prepared by the proponent. The refusal of this DA is the subject of the Class 1 Appeal 2023/00192915 above in [7].

Building Information Certificate application for farm buildings

BIC application BC22/0058 was lodged with the Council on 13 September 2022. The BIC application was prepared by Mr Connelly on behalf of Mr Cooke for Buildings 3, 12, 14, 15 and 18. The application was supported by an engineering report dated 2 August 2022. The refusal of the BIC application is the subject of the Class 1 appeal 2023/00193058 above in [9].

Council’s Evidence

The Council read the following lay affidavits:

Mr McKelvey solicitor dated 7 November 2022;

Ms Pitt technical officer at the Council dated 9 November 2022;

Ms Williams compliance officer at the Council dated 10 November 2022; and

Mr Weaver town planner at the Council dated 9 December 2022 and 21 February 2023.

The Council tendered the following exhibits:

Court book (Ex A);

Evidence book volume 1 (Ex B);

Evidence book volume 2 (Ex C);

Evidence book volume 3 (Ex D);

Evidence book volume 4 tab 49 containing town planning joint expert report (JER) dated 8 March 2023 (Ex E);

Supplementary evidence book (Ex F);

Town planning JER dated 24 March 2023 (Ex G);

Contour plan (Ex H);

Supplementary aerial imagery interpretation report of Mr Watts dated 27 March 2023 (Ex J);

Agreed summary of sales evidence produced by the Respondents in response to notice to produce dated 13 March 2023 (Ex K); and

Site visit photographs by Mr Weaver dated 14 March 2023. Mr Connelly and Mr Swain attended the site inspection with Mr Weaver (Ex L).

The Council also compiled a document of photos of buildings in evidence on Lot 34 (marked MFI 1) and a document of photos of buildings in evidence on Lot 3 (marked MFI 2).

Ms Pitt’s affidavit

Ms Pitt technical officer of the Council was a compliance officer from October 2019 to 4 March 2022 responsible for investigating complaints about alleged breaches of the LG Act and the EPA Act.
On or about 20 March 2020, the Council received a complaint via a request form on the Council’s website about development being undertaken on Lot 34. The complaint alleged clearing and erection of buildings with no development consent. The complainant expressed concern about the amount of builders’ vehicle using the access road. An investigation commenced. Ms Pitt sent an email to the complainant to explain the investigation could take longer than usual due to COVID-19 and the large volume of complaints. Site visits were limited or restricted in the short term. Further complaints about the development were made to the Council in November 2020 and in January, February and May 2021.
Ms Pitt deposed to her attempts to contact and her communications with the Respondents from May 2020 to June 2021 via phone and correspondence. An email sent by Mr Cooke to Ms Pitt on 17 September 2020 stated all buildings erected complied with the state government requirements to be less than 200m² and were farm sheds not required to be subject to development applications.
Following a phone conversation on 12 February 2021, Ms Pitt caused a letter dated 25 February 2021 to be sent to Mr Cooke regarding an allegation of potential unauthorised works on Lot 34 DP 755714. In the letter the Council noted that Mr Cooke has been undertaking works on Lot 34 he believed exempt from requiring development consent. The letter explained that the limited information Mr Cooke had provided so far had not demonstrated that the provisions of the Codes SEPP had been met. The Council indicated it was possible some works may be exempt from development consent and other works would require development consent. The Council requested Mr Cooke provide a detailed explanation of all development demonstrating how it met the development standards for exempt development or that a site visit be undertaken to determine whether development applications may be required.
Ms Pitt attended a site inspection of a nearby lot in Kunghur on 2 March 2021 with Mr Van Lieshout (Third Respondent in Lot 34 proceedings). He stated ‘there might be 20 cars coming past some days, all heading to the [Australian Cannabis] University. Workers, construction vehicles, cement trucks.’
On 22 March 2021 the Council sent a notice of intention to enter and inspect Lot 34 under s 9.16 of the EPA Act. The letter advised an inspection would be carried out on 7 April 2021 for the purposes of investigating works that were believed to require development consent.
Ms Pitt described Mr Cooke as being irate and abusive on a phone call on 6 April 2021 to confirm arrangements for the site inspection on 7 April 2021.
Ms Pitt attended a site inspection on 28 May 2021 accompanied by the Council’s manager of development assessment and compliance, an employee of the Australian Cannabis University and two police officers. Ms Pitt recorded observations about and took photographs of various structures on the Development Site. In relation to Building 7 the Australian Cannabis University employee stated the plan was to use the shed for ‘processing the plants and drying and that kind of thing.’
Ms Pitt completed other investigation activities related to Lot 34 and Lot 3. A search of the Council’s development consent and approvals register found no record or any development consent or building approval granted for Lot 34 or Lot 3. Ms Pitt completed aerial image and social media and internet searches extracting and annotating relevant screenshots. One screenshot was of a Google Earth Pro image from August 2020 that depicted recent works and clearing. Another series of screenshots were taken from a YouTube video called the Australian Cannabis University Healing testimonies dated 29 July 2021, one of the screenshots is extracted below.
Ms Pitt undertook an inspection of Lot 34 and Lot 3 accompanied by the Council’s manager of development assessment and compliance, the Council’s town planning expert Mr Chrystal and Mr Cooke on 12 October 2022. Ms Pitt identified changes to works and structure from her first inspection. Ms Pitt took photographs of the buildings. Building A had further improvements since her previous inspection on 28 May 2021 including decking and balustrades. She heard Mr Cooke state the plan for Building A was for cancer patients to be able to stay and get some respite or rest in a peaceful place.
Building 7 contained approximately 12 black canvas-type rooms containing lights, fans and trays for growing plants. Two or three of the rooms were in use. On the second storey there was a black tent and a cool room in separate corners. A set of scales, scissors and some equipment or machines were observed along with drying lines and wires rigged up. Mr Cooke and another man who was accompanying him stated the area was used for drying.

Ms Williams’ affidavit

Ms Williams compliance officer of the Council since 4 January 2021 was responsible for investigating complaints about alleged breaches of the LG Act and the EPA Act. Ms Pitt requested Ms Williams visit the Australian Cannabis University store located in Murwillumbah. On 11 June 2021 she attended the store and had the following conversation with a woman who worked there:

Melanie: Hi - I am looking for cannabis oil to assist my mother who has Parkinson’s disease. What type of products do you sell that might help my mother with tremors?
Female: We sell a number of products. Firstly we have CBD oil 1G which contains THC and is the strongest. Someone might get a high from this and should be careful driving. This product is $65 for a small jar.
We also sell CBD - double strength which $65 and about 0.035% strength and is within the guidelines.
We sell cannabis oil for $35 which is for about 50ml. It is recommended to take 1 drop each day and then 2 drops and then 3 drops, increasing as the desired effect is felt. In a worst case scenario in terms of pain/condition, and someone can’t sleep, they should take the 1G product.
We also have a jar of cream with cannabis oil that is $45. This gives tingles on the skin and can help when rubbed in.
All the cannabis is grown locally and made locally. We have our [own] site which allows us to sell the cannabis oil cheaper than other places and there is no mark up from big pharmaceutical companies. Our products are the same thing as what you can get through a doctor but are much cheaper.

On or about 10 May 2022 Ms Williams accessed the Australian Cannabis University online store. Ms Williams and Ms Pitt viewed the products available for sale. Ms Williams observed that many of the oils advertised for sale on the website appeared to be in the same brown glass bottle shown to her when she visited the store in Murwillumbah.

Mr Weaver’s affidavits

Mr Weaver town planner at the Council affirmed an affidavit dated 9 December 2022. He was the assessing officer for development application DA22/0742 (Dwelling House DA) and DA22/0601 (Rural Industry DA) made by Planners North on behalf of Mr Cooke and Mr Kovac. The Dwelling House DA sought development consent for the use of Buildings 2 and A as dwelling houses on the northern section of Lot 34.
Mr Weaver inspected Lot 34 on 16 November 2022 along with Mr Cooke as part of his assessment of the Rural Industry DA. He also reviewed aerial images of Lot 34. During the inspection Mr Cooke stated words to the following effect about one of the structures in the southern portion of Lot 34:

“That’s [V]an Lieshout’s. I don’t have anything to do with it. Someone lives there. I don’t know them.”

Aware that there were additional structures in the southern portion of Lot 34 and at least one was being used as a place of residence, Mr Weaver inspected Lot 34 on 29 November 2022 to understand the extent of other residential uses being carried out to determine the permissibility of the proposed dwelling house. [I note the evidence about residential character no longer arises.]
Mr Weaver deposed another affidavit dated 21 February 2023 that identified which buildings were the subject of the Dwelling House DA, Rural Industry DA and Building Information Certificate application. The details of this affidavit are reflected in the SOAF above in [30].

Respondents’ Evidence

The Respondents read the following lay affidavits:

Mr Kershaw builder dated 22 March 2023; and

Mr Jeong solicitor dated 16 June 2023 and 26 June 2023 discussed above in [5]-[15].

The Respondents tendered the following exhibits:

Evidence book volume 4 tabs 45-48 (Ex 1);

The Respondents’ supplementary evidence book (Ex 2);

Design and specification documents produced pursuant to the Notice to Produce dated 27 March 2023 that called for any document depicting design and specifications for Buildings 3, 6, 7, 10, G and Q to V (Ex 3);

Undertakings in proceeding 2021/364584 concerning Lot 34 (see above in [12]) and in proceeding 2021/364656 concerning Lot 3 (see above in [13]) provided to the Court on 20 June 2023 (Ex 4);

Exhibit to the affidavit of Mr Jeong dated 16 June 2023 (Ex 5);

Bushfire JER dated 9 June 2023 (Ex 6);

Volume 3 tabs 6-10 of the appendices to the Bushfire JER dated 9 June 2023 (Ex 7); and

Undertakings in proceeding 2021/364584 concerning Lot 34 (see above in [14]) and in proceeding 2021/364656 concerning Lot 3 (see above in [15]) provided to the Court on 27 June 2023 (Ex 8).

Expert Evidence

The following town planning expert affidavits were read:

Mr Chrystal town planner called by the Council dated 14 November 2022, 21 December 2022 and 22 February 2023; and

Mr Connelly town planner called by the Respondents dated 20 December 2022 and 30 January 2023.

The Council tendered town planning JERs dated 8 March 2023 (Ex E) and 24 March 2023 (Ex G).
The Council read the affidavit of Mr Watts surveyor dated 22 February 2023 and tendered his report dated 27 March 2023 (Ex J). The aerial surveying JER dated 21 March 2023 prepared by Mr Watts for the Council and Mr Connelly for the Respondents was tendered.
The Council read the affidavit of Mr Swain bushfire consultant dated 23 February 2023 [who later became unavailable and Mr Hawkins was briefed by the Council]. The bushfire JER prepared by Mr Hawkins and Mr Carroll called by the Respondents dated 9 June 2023 (Ex 6) and tabs 6 to 10 of volume 3 of the appendices to the bushfire JER (Ex 7) was tendered.

Issue 1 characterisation of use of the Development Site

The Court must characterise whether the land use on the Development Site is intensive plant agriculture or extensive agriculture (not requiring development consent) or for an agricultural produce industry (rural industry) (requiring development consent). The Court must also determine whether the making, bottling and packing of products using the hemp leaves grown on Lot 34 (chiefly the production of olive oil infused with cannabis) was:

Ancillary to an intensive plant agriculture purpose or extensive agriculture; or

Incidental to an intensive plant agricultural use or extensive agriculture, even if not ancillary to it?

Evidence

Agreed summary of Respondents’ sales evidence

The agreed summary of sales evidence produced by the Respondents for 2019 to 2023 (Ex K) shows a total number of hemp oil and balm product sales in 2021 of 11,819 amounting to $1,567,983.66 in revenue. The farm total share (total turnover of farm products) was $463,665.00. From 2019 to 2022 1,236,177 sales amounting to $5,331,908.75 occurred. The farm total share was shown as $1,670,560.00.

Rural industry development application

Appendix A to the statement of environment effects prepared by Mr Connelly in support of the Rural Industry DA DA22/0601 was a step by step outline of the cannabis infused olive oil production process extracted below:

Town Planning Evidence

Mr Chrystal’s Evidence

Mr Chrystal town planner prepared an expert report dated 14 November 2022. His instructions were to prepare a report outlining his opinion on whether inter alia:

The various buildings/ structures on the subject land were exempt development; and

The use of the subject land should be characterised as a ‘rural industry’.

In preparation of his report, Mr Chrystal reviewed the information brief provided to him by the Council and attended a site inspection on 12 October 2022 accompanied by Mr Cooke. The information brief included aerial imagery of the site, council officer’s site inspection notes dated 28 May 2021, a copy of the hemp licence (see above in [6]), 2020 Farm Transformation YouTube video and the Respondents’ DA and BIC documents.
Mr Chrystal formed the view that the purpose of the hemp being grown and processed at the Development Site is to produce products for sale. The Development Site should be characterised as being for the purpose of rural industry, in particular agricultural produce industry. He accepted that the growing of the hemp may satisfy the definition of intensive plant agriculture in a general sense. In his view the growing of hemp was not the dominant or sole purpose for which the Development Site is being used. Handling, treating, production, processing, storage and packing of hemp occurred to produce a product for sale. Extensive agriculture did not capture the purpose for which the hemp was grown and the other activities to produce various products for sale.
Mr Chrystal observed the following activities based on the evidence presented to him and his observations during the site visit:

a. growing of (Low THC) Cannabis plants (this occurs in Buildings Q to V – noting no plants in these areas at time of inspection, and within Building 2, 6, 7, Z)
…
d. splicing and planting seedlings in different media (this occurs at several locations by admission of Mr Cooke – within Building 6 and 7 predominantly, although the plantings may also occur externally on rare occasions – quality control permitting)
e. cloning of female plant (this occurs at several locations by admission of Mr Cooke – within Building 6 and 7 predominantly),
f. growing of plants in various media and various stages of maturation (this was noted to be occurring within Building 2, Building 6, Building 7, Building Z and Buildings Q to V being the greenhouses/igloos were external grow areas – noting this was not evident during my site inspection).
g. harvesting the stalk, stem and leaves,
h. drying (various methods – natural and accelerated) of the harvested elements of the plants in Building 7 and Building Z, and combination of harvested product (crushed/macerated) with oil and placed within glass bottles then distributed off-site/shipped elsewhere from online sales and/or “the shop”. This was described in limited detail by Mr Cooke as occurring in Building Z.

Mr Chrystal observed that the primary activity in terms of consumption of land area is the growing of the cannabis plant. He opined the primary purpose of that plant growth is to harvest, dry, process and then produce a product which can then be sold.
He considered various buildings and structures on the Development Site could not be exempt development as the Development Site is used for a rural industry purpose. Farm buildings need to be ancillary to an agriculture use.

In reply to the Respondents’ submission that the Court would consider whether the breach has a beneficial effect given the utility and medicinal role of the cannabis products below in [189(2)], the Council submits there was no evidence before the Court of the benefit of the particular cannabis produced, nor any evidence they are unavailable elsewhere.
In reply to the Respondents’ submission that the Court would consider the public interest as the hemp farming operation is licenced below in [189(3)] in the exercise of discretion, the application to renew the hemp licence was refused.
The Court would treat with scepticism the Respondents’ submission that refusal of Mr Cooke’s hemp licence ‘radically changed the factual circumstances relevant to the Court’s discretion in this case’. In the Respondents’ March submissions, the existence of the licence was said to be a reason for a favourable exercise of the Court’s discretion. It is contradictory to then say that the decision by the Department of Primary Industries not to renew the same licence has the same effect. In fact, the licence has very little bearing on the nature of these proceedings which relate to breaches of planning law rather than subsidiary approvals which simply control and regulate the type of agricultural product harvested on the Development Site.
In reply to the Respondents’ submission that the Court would consider the absence of proof of harm to the environment below in [189(4)] in the exercise of discretion, the Council submits the Court can infer the works involved some harm to the environment. Extensive earthworks have occurred, an extensive area of vegetation has been cleared and a significant number of structures were erected without consent.

Breach not remedied, relief necessary

It is a nonsense to say that any breach has been ‘remedied’ by the non-renewal of the licence in response to the Respondents’ submission below in [196]. Utility, force and effect remains in a declaration and restraining order relating to the carrying out of an agricultural produce industry on the Development Site for reasons including:

The declaration and orders sought do not relate to ‘hemp farming’ per se, the relief relates to an agricultural produce industry being a form of rural industry on the Development Site. In the absence of an appropriate declaration and orders from the Court there would be nothing to prevent:

the processing of raw hemp product (already grown and harvested on the Development Site) in buildings on the Development Site;

the processing of hemp products where that hemp has been imported from off-site; or

the processing of another agricultural product in circumstances that require development consent.

There is no guarantee that the hemp licence will not be renewed, and if renewed in favour of Mr Cooke without a declaration and orders the use could be continued unlawfully without sanction from the Court;

If the licence is ultimately not renewed, a fresh application for a licence could be made by a third party with the ability to operate under that licence and recommence the processing activities on the Development Site.

The breach could only be remedied (in part) by a development consent and BIC that authorises the use of the Development Site the subject of these proceedings. The Respondents’ express an intention to continue hemp farming subject to the appropriate authorisations being in force.
The pre-litigation correspondence between the Council and Mr Cooke demonstrate the Council consistently engaged with the Mr Cooke over 2020 and 2021 to regularise the breaches of the EPA Act. On every occasion the Council was rebuffed leading to the commencement of these proceedings.
In reply to the submission below in [192] regarding ecologically sustainable development, the Court should not ‘soften’ the relief sought. No evidence is relied on to support the Respondents’ submission.
The submission below in [197] that a Court order for demolition would be to direct Mr Cooke and Mr Kovac to carry out work in breach of the EPA Act is wrong. The demolition and removal of a structure erected unlawfully is an order that can be lawfully made by the Court. It also ignores the primacy of the Court’s powers and the statutory override in section 4.4 of the EPA Act: Anastasiou v Wallace [2020] NSWLEC 14 at [42]-[51].
The Court should not reward conduct which constitutes the wholesale disregard for the law, for commercial purposes, over a long period of time. Mr Cooke has been fined for a failure to comply with the conditions of the hemp licence. Rather than being a factor in favour of the exercise of discretion, the Court would observe that the cessation of activities on the Development Site has only occurred temporarily and only after the regulatory authorities have exercised their powers to enforce the outcome. The Court should exercise its power to enforce this outcome. The utility and necessity of the relief sought in these proceedings remains.

No delay in making orders

Relief should not be staggered to allow the two Class 1 appeals to be determined first. Prayer 8 in proceeding 2021/364584 and prayer 5 in proceeding 2021/364656 of relief sought by the Council suspend the operation of the orders until the relevant application is determined.
For this reason, there is no need to defer any decision in respect of relief until after the Class 1 appeals have been determined as suggested by the Respondents. That would not be consistent with the just, cheap and quick resolution of the proceedings as required by s 56(1) of the Civil Procedure Act 2005 (NSW).

Bushfire Safety

Bushfire safety issues have arisen as the Respondents made the following assertions about bushfire safety in the Rural Industry DA and Dwelling House DA (the latter not now pressed):

The whole of the Development Site is mapped either ‘Category 1 vegetation’ or as ‘Vegetation Buffer’ under the requirements of Planning for Bushfire Protection 2006 (Rural Industry DA and Dwelling House DA) (the latter not now pressed).

No APZ requirement for proposed rural outbuildings under Planning for Bushfire Protection 2006 (Rural Industry DA). I note under the Codes SEPP an outbuilding means a class 10a farm building inter alia under the Building Code of Australia (also known as the National Construction Code).

The dwelling (Buildings A and 2) met the construction requirements for the bushfire attack level required as per AS3959-2018 Construction of Buildings in Bushfire-Prone Areas and the National Association of Steel-framed Housing Bushfire Standard (2014) (Dwelling House DA) (not now pressed).

The Council engaged Mr Swain who prepared a report dated 23 February 2023 and concluded that there was grave risk associated with their use of the Development Site. He considered that the construction standards applied to each building would not remove the threat of bushfire attack. Bushfire risk was a key reason for refusal of the development applications.
In summary, there is no discretionary matter that has been raised that sufficiently outweighs the general public interest in the performance of development in accordance with the requirements of the EPA Act. The Court should not exercise its discretion in favour of the Respondents.

Respondents’ submissions

The Court is conferred with a broad discretionary power under s 9.46 of the EPA Act as to whether or not to make an order restraining a breach of the Act if such a breach has been established. The Respondents ask the Court to decline to grant any relief. In the alternative, the Respondents ask the Court to defer making any orders pending the determination of the Class 1 appeals on foot.
In their March submissions, the Respondents summarised relevant factors for the Court in the exercise of discretion to include:

whether the breaches are of a purely technical nature, unnoticeable other than to a person well versed in the relevant law – this is a farm; the buildings are farm buildings; and the failure of any particular building to satisfy a requirement for exempt development (say in respect of separation or ridgelines) is a technical matter;

the breach, in reality, is shown to have a beneficial effect given the utility and medicinal role of locally-sourced cannabis product(s) [I note no production of cannabis products is occurring following refusal of a hemp licence];

public interest as the hemp farming operation is local industry, and a local employer, that is expressly licenced under legislation [I note refusal of hemp licence]; and

absence of proof of harm to the environment.

The recent events since the first period of the hearing outlined above in [5]-[15] are relevant to the exercise of discretion. In relation to the agricultural use of the property, the temporary but lawfully mandated cessation of the farming and ancillary processing (given the refusal of the hemp licence) means that there is nothing to be remedied or restrained at present in terms of any physical farming or processing activity on the land.
The applicable principles are set out in ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 (ACR Trading) and Sedevcic. In its exercise of power, the Court is to have regard to the objects of the EPA Act: F Hannan Ltd v Electricity Commission of NSW (No 3) (1985) 66 LGRA 306 at 311, 313 (F Hannan); Hopkins v Quinn [2016] NSWLEC 163 (Hopkins).
The use of discretion should ensure the Respondents are safeguarded against abuse of process. The Court is permitted ‘to soften, according to the justice of particular circumstances, the application of rules which, though right in the general, may produce an unjust result in the particular case’: Sedevcic at 340. The appropriate ‘softening’ might be best achieved by postponing any relief: Woollahra Municipal Council v Carr (1982) 47 LGRA 105.
In ACR Trading, Kirby P (as he then was) noted that ‘The discretion conferred by s 124(1) is a mollifying one’. Among the various circumstances taken into account in the exercise of discretion in ACR Trading at 83 was that ‘the only environmental consideration suggesting the need for injunctive relief (other than simply the existence of a breach of the EPA Act) was the potential of an offensive activity which, so far, had not once manifested itself.’
These are civil not criminal proceedings. The civil enforcement jurisdiction of this Court is not to be used as punishment under the guise of remedying a breach and a ‘declaration of breach of a statute in civil enforcement proceedings is not to be equated with entry of a conviction upon a finding of guilt in a criminal prosecution’: Great Lakes v Lani (2007) 158 LGERA 1 at 13 . As stated by Moore J in Hopkins at 104:

The discretion under s 124 of the EP&A Act is either therapeutic or prophylactic. It is not punitive and I should not approach it in that fashion.

Public Interest

In Sedevcic, the Court of Appeal dismissed an appeal from a refusal by the Court to grant an injunction to restrain a long-standing beneficial, but unlawful, use of land. The Respondents’ submissions dated 30 March 2023 extracted below submitted that the use of the Development Site was in the public interest as follows:

…
The hemp farm is licensed under special legislation applying to farming for this crop. [As already noted this is not the current situation given the refusal of a hemp licence.]
The operating farm on the land is a non-profit organisation that focuses on teaching hands-on skills to farm workers (EB2076, Exhibit SC-1 of affidavit of Stephen Connelly sworn on 20 December 2022, [1.6.3]). In addition, ACU provides free and low-cost education via its website (EB1166).
The ‘Australian Cannabis University’ has 6,700 members who have the opportunity to buy products via the ACU website and share and learn via the on-line community groups, and the membership fee is only $1 (reflecting the non-profit and communitarian objectives of ACU and the hemp farm) (EB1166).
The cannabis farmed on the land is used for medicinal and healing purposes and is the subject of positive testimonials about positive health impacts (EB1337, Youtube video ‘We are Australian Cannabis University’ referred to in Exhibit to Affidavit of Chrystal affirmed on 14 November 2022, [1.37]: “rheumatoid arthritis for 30 years… 30 years of pain to go to no pain; its just healed so much” and “cancer… rather than sleeping an hour and a half at a time… I was sleeping through the night” & EB1127, Exhibit AP-1 to affidavit of Amelia Pitt affirmed on 9 November 2022, page 190). Locally farmed product available supports local employment and industry.
As part of the activities in the public interest, the Respondents permit cancer patients and other sick persons to stay on the land and use Building A as a respite space (EB1224, Exhibit AP-1 to affidavit of Amelia Pitt affirmed on 9 November 2022, page 287 & EB1340 Exhibit to Affidavit of Chrystal affirmed on 14 November 2022, [2.8a.-b.]).
The Respondents have also permitted a young woman suffering from Crohn’s disease to say in Building 2 while she sought alternative treatments to ease her discomfort.
The Respondents have also allowed a respected Aboriginal elder to stay on the land and have discussed with local indigenous people the possibility of young men coming to the site for cultural practices.
…

Breach remedied, relief unnecessary

The declarations sought by the Council would serve no purpose in resolving any matter presently in dispute that serves the objects of the EPA Act or would add anything to any injunctive relief: Bronger v Greenway [2023] NSWCA 104 at [71]-[73]. There is no need for injunctive orders for cessation of use, as the uses have ceased. The refusal of the hemp licence means that to the extent there has been any breach, the breach has been remedied. As in Sedevcic at 347, in these proceedings there is an ‘absence of any proven planning detriment or prejudice to people living in the area’. In light of recent developments, there is no risk of any future environmental harm or other harm that necessitate orders.
The Council also seeks orders for demolition of all buildings and structures the subject of these proceedings. Citing Hopkins at [86]-[89] to facilitate ecologically sustainable development is an object of the EPA Act and demolition orders that expend significant resources, without practical benefit, would be contrary to this objective. The Respondents have provided undertakings to the Court set out above in [12] and [13] to demolish the impugned structures, subject to obtaining a development consent. No one is harmed by the presence of the structures, and any Court order for demolition (absent a development consent) would be to direct the Respondents to carry out work in breach of the EPA Act: Cando Management and Maintenance Pty Ltd v Cumberland Council (2019) 237 LGERA 128; [2019] NSWCA 26 at [138]. (I note that the Council in its latest summonses is proposing that any demolition orders be stayed pending the outcome of the Class 1 proceedings now before the Court.)
The affidavit of Mr Kershaw sets out an estimate of the cost and time required to demolish various buildings on site. Mr Kershaw estimates the total cost will be $325,260 plus GST and time required will be 28 working weeks (see above in [167(3)]). The Respondents submit that the Court is able to take judicial notice of the fact that cost and time estimates in construction projects are prone to being exceeded. The Respondents submit that it would be appropriate to allow 12 months for any required demolition to take place so that the demolition can take place in a safe, efficient and orderly manner and to provide an opportunity to the Respondents to spread demolition costs. Any such period of time should only run from the final determination of the Respondents’ development applications and BIC applications by the Court, so a period of 12 months after that date should be allowed.

Defer making orders pending Class 1 appeals

Alternatively, the Court should defer any decision in respect of relief until after the Class 1 appeals have been determined. The Court’s broad discretion permits this degree of flexibility. In the event the Class 1 appeals are successful, there would be no basis for the Court granting any relief in relation to the use of the buildings the subject of those applications. Any orders in the meantime would not serve any purpose (least of all the objects of the EPA Act).
Orderly development would involve awaiting the outcome of the Class 1 appeals. As stated by Jagot J in Sahade v The Owners – Strata Plan No. 62022 & Ors [2006] NSWLEC 770 at 10:

In my view, s 124(3) of the Environmental Planning and Assessment Act 1979 is an important provision disclosing part of the legislative scheme that underlies the statute. That is, there is a clear intention disclosed by s 124(3) that, where the relevant breach of this Act is the carrying out of development without development consent, in circumstances where development consent can be obtained for the development, there should be an opportunity for prospective respondents to proceedings or actual respondents to proceedings to make application to adjourn proceedings to enable a development application to be made and determined under Pt 4. I consider that s 124(3) has an important role to play in achieving the objects of the Act, as set out in s 5, because it is through a process of assessment and determination of a development application that all relevant matters under s 79C of the Act can be weighed, assessed and determined.

The determination of issue 10 is clearly not urgent and must abide the outcome of two Class 1 Appeals.

Bushfire Safety

In the bushfire JER dated 9 June 2023, the experts agreed no bushfire resistant construction measures were required for class 10a rural outbuildings. The Class 1 appeal seeks consent for rural outbuildings only.
I note an outbuilding is defined in the Codes SEPP to include a class 10a farm building under the Building Code of Australia (also known as the National Construction Code). The bushfire evidence in the JER is relevant to the determination of both Class 1 appeals. Conditions can be applied to the Development Site, and its buildings and access as part of the determination of the Class 1 appeals. The Court only need note the bushfire evidence will be addressed in the Class 1 jurisdiction.

Consideration of exercise of discretion

The Council has been successful in relation to the principal issue in these two matters, as found in issue 1. The use of the Development Site for the activities the subject of evidence requires development consent which it does not presently have. Should the declarations and orders sought in the latest summonses dated 27 June 2023 be made?
I discussed in Kempsey Shire Council v Thrush & Anor [2011] NSWLEC 93 [45]-[47] the Court’s broad discretion in the context of a number of authorities referred to by the parties as follows:

This Court has broad discretion in determining whether the relief sought ought be granted and in what form where a breach of the EPA Act is established. The wide discretion of the Court has been recognised in cases such as F Hannan Pty Ltd v Electricity Commission (NSW) (No 3) (1985) 66 LGRA 306 at 313. In Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Kirby P (as he then was) identified a number of principles to take into account at 339 - 341. The principles emphasise, inter alia, the wide nature of the discretion and the importance of upholding public laws as follows:
Because s 123 of the Act permits any person (and not just the Attorney-General or a person with a sufficient interest), to bring proceedings in the Court for an order to remedy or restrain a breach of the Act, there is indicated a legislative purpose of upholding, in the normal case, the integrated and co-ordinated nature of planning law. Unless this is done, equal justice may not be secured.

...
Where the application for the enforcement of the Act is made by the Attorney-General, or a council, a court may be less likely to deny equitable relief than it would in litigation between private citizens: Associated Minerals Consolidated Ltd v Wyong Shire Council (at 692). This is because the Attorney-General or the Council are seen as the proper guardians of public rights. Their interest is deemed to be protective and beneficial, not private or pecuniary: cf Rowley v New South Wales Leather Trading Co Pty Ltd v Woollahra Municipal Council (1980) 46 LGRA 250. Of course, as the development or administrative law demonstrates, administrators who advise the Attorney-General or councils can sometimes act from motives which are less disinterested. Courts will be alert to insensitive, unthinking administration in this as in other fields of law.

In ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 Kirby P at 82D stated that discretion permits the refusal of relief if granting it would work an injustice disproportionate to securing enforcement of the legislation.
In Sedevcic Kirby P at 340F set out several guidelines for the exercise of discretion to the effect that discretion can be more readily exercised where the breach is more easily remedied than for, say, a static structure that requires demolition. Ultimately Kirby P recognised as relevant to the judicial perception of the need to balance the public interest in compliance with the law with the degree of irremediability arising from a breach (340F).

I will further consider these principles in considering the exercise of my discretion in the particular circumstances of this case.

Breach not technical, no delay in seeking orders

The breach of the EPA Act by the Respondents is not technical in nature given the large number of buildings and structures built over a wide area on the Development Site without development consent.
Mr Cooke proved somewhat resistant to the council officers advising him that development consent was required for the activity he was undertaking without development consent on the Development Site based on the uncontested evidence of Ms Pitt. Many of the structures he caused to be erected were not complying development, as identified in the history set out in Ms Pitt’s affidavit summarised above in [39]-[49]. In failing to obtain development consent the Respondents gained a private advantage compared to others who complied with the requirements of the EPA Act and that advantage continued for a considerable period of well over two years.
The Council did not delay in commencing proceedings and it was necessary to do so given the Respondents’ behaviour.

Public Interest

While the Respondents have submitted that they are undertaking an activity with community benefits, which I broadly accept, the extent of that benefit is difficult to gauge. The basis for most of the submissions extracted above in [195] is second hand being statements made by Mr Cooke to other people who have repeated them. It is difficult to attribute this evidence much weight given its untested and second hand nature. As the Council submitted there is no evidence adduced of any lack of availability of the beneficial product being produced by the Respondents if they are not available as a source. Whether or not the activity is in the public interest, it resulted in a commercial operation with substantial sales of product to the public as well as members of the Australian Cannabis University.

Refusal of hemp licence irrelevant to exercise of discretion

That the activities by the Respondents have presently ceased due to the recent refusal of a hemp licence under legislation administered by the Department of Primary Industries can be noted and is the practical reason why all activity has ceased on the Development Site. I otherwise consider that event has little relevance to this proceeding which is concerned with breaches of the EPA Act. The event of refusal of the hemp licence does not cure the breaches of the EPA Act established by the Council. Nor have these been remedied in a legal sense. As the Council submitted, if a hemp licence is ultimately issued the same planning issues remain for consideration.

Bushfire safety / vegetation removal

No finding will be made on bushfire safety matters given the pending Class 1 appeals which will consider that topic and it was not fully argued before me with only cursory reference to the bushfire material.
Some clearing of vegetation occurred albeit the Council has not pressed the issue concerning the extent of clearing in the context of the Codes SEPP (issue 3). Mr Watts identified 14,900m² of vegetation cleared in the period after November 2018 in the area where Buildings 2 to 7 are located in his report dated 22 February 2023. The extent of environmental impact caused by the clearing is unknown.

Conclusion

Balancing these various matters and in light of the principles identified above I consider I should make the declarations sought in the Third Further Amended Summons in proceeding 2021/364584 concerning Lot 34, and in the Second Further Amended Summons in proceeding 2021/364656 concerning Lot 3 given the nature of the breaches and the delay in seeking to have them regularised by Mr Cooke in particular. The declarations sought by the Council are directed to Mr Cooke only. The determination of issue 1 will be of assistance in the Class 1 appeals in clarifying the appropriate characterisation of the activity occurring on the Development Site and the making of declarations further confirms those findings.
The Council seeks several orders for injunctive relief and demolition of various buildings in both proceedings, with any such orders to be postponed pending the outcome of the two Class 1 proceedings presently on foot. The Respondents submit that it is more appropriate given s 1.3 of the EPA Act that no orders for demolition be considered until after the outcomes of the Class 1 proceedings is known. The orders sought by the Council include postponement of any demolition until the outcome of the Class 1 proceedings is known.
As there is possible complexity in the outcome of both Class 1 proceedings in relation to the legal status of various buildings I will postpone the making of any demolition orders until these have been determined. I observe that a much longer timeframe than 28 days should be allowed in the event that demolition becomes necessary, given the evidence of Mr Kershaw that at least 28 weeks would be needed if all structures are to be removed. It is unnecessary to make any injunctive orders in the current circumstances.

Costs

The usual costs order in civil enforcement proceedings is that costs follow the event so that the Council as the successful party would expect to obtain a costs order in its favour in the absence of any disentitling conduct. The Respondents indicated they may wish to make submissions on costs, as did the Council. To accommodate these submissions I will reserve costs, noting that there appear to be reasonable grounds to make the usual order. A timetable to deal with costs will be discussed with the parties.

Declarations (2021/364584)

The Court makes the following declarations in proceeding 2021/364584:

A declaration that the First Respondent has breached s 4.2(1)(a) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by using land identified as Lot 34 in DP 755714 located at 2956 Kyogle Road, Kunghur, New South Wales (Lot 34) and structures thereon for the purposes of an agricultural produce industry, being a type of rural industry (by the handling, treating, processing and storage of produce from agriculture for commercial purposes) being development permissible with consent pursuant to the Tweed Local Environmental Plan 2014 (TLEP), for which consent has not been obtained.

A declaration that the First Respondent has breached s 4.2(1)(a) of the EPA Act by carrying out building works for the purposes of an agricultural produce industry (being a type of rural industry) on Lot 34 for which development consent is required for which none has been obtained, comprising:

alterations and additions to a building comprising a site office, kitchen facilities, laboratory area and attached timber deck, located in the area marked ‘3’ on the site map annexed hereto and marked Annexure A (Site Map);

the erection of a rectangular greenhouse measuring approximately 16m in length and 8m in height, located in the area marked ‘6’ on the Site Map;

the erection of a two-storey shed located in the area marked ‘7’ on the Site Map;

the installation of two shipping containers, with an associated roof covering and awnings, in the location marked ‘8’ on the Site Map;

the construction of six greenhouses approximately 100m² in area in the areas marked ‘Q’, ‘R’, ‘S’, ‘T’, ‘U’ and ‘V’ on the Site Map;

the erection of 8 shipping containers in the locations marked ‘I’, ‘J’, ‘K’, ‘L’, ‘M’, ‘N’, ‘O’ and ‘P’ on the Site Map;

the installation of two water tanks, located in the areas marked ‘3’ and ‘W’ on the Site Map; and

a plastic igloo/greenhouse structure, earthworks, retaining walls, and placement of concrete blocks in the locations marked, ‘C’, ‘6’ and ‘7’ on the Site Map.

A declaration that the First Respondent has breached s 4.2(1)(a) of the EPA Act by carrying out building works on Lot 34 comprising a structure (located in the area marked ‘A’) for which development consent is required for which none has been obtained.

Orders 4-9 in the Third Further Amended Summons dated 27 June 2023 stood over.

The parties to approach the Court within 14 days after final determinations of Class 1 appeal (2023/00192915) and Class 1 appeal (2023/00193058).

Costs are reserved.

Liberty to restore on 3 days notice.

Declarations (2021/364656)

The Court makes the following declarations in proceeding 2021/364656:

A declaration that the First Respondent has breached s 4.2(1)(a) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) by using land identified as Lot 3 in DP 1264574 located at 2924 Kyogle Road, Kunghur, New South Wales (Lot 3) for the purposes of an agricultural produce industry, being a type of rural industry (by the handling, treating, processing, storage and packing of produce from agriculture for commercial purposes) being development permissible with consent pursuant to the Tweed Local Environmental Plan 2014 (TLEP), for which consent has not been obtained.

A declaration that the First Respondent has breached s 4.2(1)(a) of the EPA Act by carrying out development on Lot 3 for which development consent is required but for which none has been obtained, comprising:

the construction of a building which is located in the area marked ‘X’ on the site map annexed hereto and marked Annexure A (Site Map); and

the construction of a two-storey shed and adjacent water tank which is located in the area marked ‘Z’ on the Site Map.

Orders 3-6 in the Second Further Amended Summons dated 27 June 2023 stood over.

The parties to approach the Court within 14 days after determination of Class 1 appeal (2023/00192915) and Class 1 appeal (2023/00193058).

Costs are reserved.

**********

Decision last updated: 12 July 2023

Medium Neutral Citation:	Tweed Shire Council v Cooke [2023] NSWLEC 73
Hearing dates:	27 – 31 March, 20, 27 June 2023
Decision date:	11 July 2023
Jurisdiction:	Class 4
Before:	Pain J
Decision:	See below in [218]-[219].
Catchwords:	CIVIL ENFORCEMENT – whether use of site for purpose of rural industry requiring development consent in rural zone for which no development consent – whether use of site for purpose of intensive plant agriculture or extensive agriculture in rural zone for which no development consent required - characterisation of activities of making, bottling and packaging of products on site using hemp plants grown on site CIVIL ENFORCEMENT – farm buildings not exempt development as fail to comply with specified separation distance and fail to comply with ridgeline control in State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW) CIVIL ENFORCEMENT – declarations of unlawful use of land and buildings made – orders postponed until outcome of two Class 1 appeals known
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 Environmental Planning and Assessment Act 1979 (NSW), ss 1.3, 4.2, 4.4, 9.16, 9.46 Hemp Industry Act2008 (NSW) Local Government Act 1993 (NSW), s 68 Standard Instrument—Principal Local Environmental Plan (2006 EPI 155a) (NSW) State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (NSW), cl 2.32 Tweed Local Environmental Plan 2014 (NSW), cl 2.3,
Cases Cited:	ACR Trading Pty Ltd v Fat-Sel Pty Ltd (1987) 11 NSWLR 67 Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 Ali v Liverpool City Council [2009] NSWLEC 1327 Anastasiou v Wallace [2020] NSWLEC 14 Baulkham Hills v O’Donnell (1990) 69 LGRA 404 Bob Blackmore Pty Ltd v Anson Bay Co (Australia) Pty Ltd [1990] NSWCA 25 Bonus Pty Ltd v Leichhardt Municipal Council (1954) 19 LGR 375 Botany Bay City Council v Pet Carriers International [2013] NSWLEC 147 Bronger v Greenway [2023] NSWCA 104 Cando Management and Maintenance Pty Ltd v Cumberland Council (2019) 237 LGERA 128; [2019] NSWCA 26 Chamwell Pty Limited v Strathfield Council (2007) 151 LGERA 400 El Boustani v Minister Administering the Environmental Planning Act 1979 [2011] NSWLEC 214 F Hannan Pty Ltd v Electricity Commission of New South Wales (No 3) (1985) 66 LGRA 306 Foodbarn Pty Ltd v Solicitor-General (1975) 32 LGRA 157 Great Lakes v Lani (2007) 158 LGERA 1 Hill Top Residents Action Group Inc v Minister Administering the Sporting Venues Authorities Act 2008 (No 4) [2011] NSWLEC 6 Hopkins v Quinn [2016] NSWLEC 163 Jungar Holdings Pty Ltd v Eurobodalla Shire Council (1989) 70 LGRA 79 Lizzio v Ryde Municipal Council (1983) 155 CLR 211 Peters v Manly Municipal Council [2007] NSWCA 343 Refalo v Camden Council [2021] NSWLEC 1485 Sahade v The Owners – Strata Plan No. 62022 & Ors [2006] NSWLEC 770 Scott’s Provisions Stores Pty Ltd v Sydney City Council (1958) 3 LGRA 191 Sydney Seaplanes Pty Ltd v Page (2021) 393 ALR 485; (2021) 106 NSWLR 1; [2021] NSWCA 204 Warringah Shire Council v Sedevcic (1987) 10 NSWLR 335 Woollahra Municipal Council v Carr (1982) 47 LGRA 105
Texts Cited:	AS3959-2018 Construction of Buildings in Bushfire-Prone Areas National Association of Steel-framed Housing Bushfire Standard (2014) Planning for Bushfire Protection 2006 Planning for Bushfire Protection 2019 Macquarie Dictionary on-line
Category:	Principal judgment
Parties:	Tweed Shire Council (Applicant) Dolph Cooke (First Respondent) Dark Kovac (Second Respondent, 2021/364584) Peter Anthony Van Lieshout (Third Respondent, 2021/364584) (submitting appearance) Kempcove Pty Ltd (Second Respondent, 2021/364656) (submitting appearance)
Representation:	Counsel: J Farrell (Applicant) C Ireland with A Jucha (First and Second Respondents) Solicitors: Sparke Helmore Lawyers (Applicant) Ellis & Baxter Solicitors (First and Second Respondents, 2021/364584) Australian Law Group (Third Respondent, 2021/364584) (Second Respondent, 2021/364656)
File Number(s):	2021/364584, 2021/364656