Vu Ho v Greater Dandenong City Council
[2013] VSCA 168
•27 June 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2012 0102
| VU HO | Appellant |
| v | |
| GREATER DANDENONG CITY COUNCIL | Respondent |
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| JUDGES | MAXWELL P, TATE JA and GARDE AJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 25 June 2013 |
| DATE OF JUDGMENT | 27 June 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 168 |
| JUDGMENT APPEALED FROM | Ho v Greater Dandenong City Council [2012] VSC 165 (Macaulay J) |
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LOCAL GOVERNMENT – Local law – Validity – Scope of Council’s law-making power – Planning scheme – Whether local law inconsistent with planning scheme – Dual or multiple controls over the use of land – Local law valid and not inconsistent – Whether usual costs rule applies – Whether public interest litigation – Appeal dismissed – Local Government Act 1989 (Vic) ss 3C, 3E, 3F, 111, 123, sch 8.
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| Appearances: | Counsel | Solicitors |
The Appellant appeared in person | ||
| For the Respondent | Mr J Delany SC with Mr N Tweedie | Maddocks |
MAXWELL P:
I agree with Garde AJA.
TATE JA:
I agree with Garde AJA.
GARDE AJA:
Background
Mr Vu Ho is a resident of the City of Greater Dandenong (the ‘Council’) and has a pet sheep. He keeps it from time to time on either of two properties in the City, one of which he occupies. Each property is less than half a hectare in area.
The Council has a Municipal Amenity Local Law (No 2 of 4 of 2011) (the ‘local law’). Clause 26.1 of the local law says:
An occupier of land which has an area of half a hectare or less must not keep any livestock on that land.
‘Livestock’ is defined in the local law to mean:
any animal of any species used in connection with primary production or kept or used for recreational purposes or for the purposes of recreational sport, other than a dog or cat.[1]
[1]Local law, cl 6.
Following the issue of an infringement notice under the terms of an earlier local law, the Council warned Mr Ho that he is at risk of prosecution under the current law if he keeps his pet sheep on the land in breach of cl 26.
Mr Ho brought a proceeding in this court seeking to have cl 26 of the local law quashed. His proceedings were unsuccessful and he was ordered to pay the costs of
the proceeding. He now appeals from the judgment of the trial judge, and has filed an amended notice of appeal dated 5 October 2012.
In an outline of submissions dated 16 November 2012, Mr Ho relies on three main contentions:
(a) the regulation of animal keeping by the Council’s local law is beyond the local law making power of the Council;
(b) there is a direct conflict between the Greater Dandenong Planning Scheme (the ‘planning scheme’) and cl 26 of the local law and an evident intent that the planning scheme should cover the field of regulation of animals generally or in particular the keeping of domestic pets ancillary to the permitted use of land as a residence; and
(c) legal costs should not have been awarded against him because the legal proceeding below was in the public interest and defence of democracy.
Each of these contentions can be shortly determined.
Is cl 26 of the local law within power?
Clause 3 of the local law states that it is made under s 111(1) of the Local Government Act1989 (Vic) (the ‘LGA’) and s 42 of the Domestic Animals Act1994 (Vic).
Section 111(1) of the LGA empowers councils to make local laws:
for or with respect to any act, matter or thing in respect of which the Council has a function or power under this Act or any other Act.
Section 111(1) is the source of the power of councils to make local laws. It is of broad compass, and extends to any act, matter or thing in respect of which council has a function or power under any statute.
Section 3E(1) of the LGA provides that the functions of a council include:
…
(g) exercising, performing and discharging the duties, functions and powers of Councils under this Act and other Acts;
(h) any other function relating to the peace, order and good government of the municipal district.
Section 3E(1)(g) refers to the duties, functions and powers of councils under the LGA or any other Act. Section 3E(1)(h) goes significantly further and refers to ‘any other function relating to the peace, order and good government of the municipal district.’ Whilst s 3E(1)(h) is of wide import, it is not without restriction as the local law must be with respect to a function that relates to the peace, order and good government of the municipal district. Thus, while local laws relating to the collection and disposal of waste within the municipal district would be valid if otherwise in accordance with the requirements of the LGA, laws relating to immigration, or trade and commerce generally, would not.
Section 3F of the LGA provides:
(1) Subject to any limitations or restrictions imposed by or under this Act or any other Act, a Council has the power to do all things necessary or convenient to be done in connection with the achievement of its objectives and the performance of its functions.
(2) The generality of this section is not limited by the conferring of specific powers by or under this or any other Act.
Section 3F is also of wide scope, referring to the objectives of a council which are set out in s 3C, and the functions of a council which are listed in s 3E of the LGA. Section 3F(2) makes it clear that the generality of s 3F(1) is not to be read as limited by the conferral of specific powers under the LGA or any other Act.
Section 3C of the LGA provides for councils to have a wide range of objectives. They include the promotion of the social, economic and environmental viability of the district, and the improvement of the overall quality of life of people in the local community.
The trial judge reviewed and analysed past decisions concerning the powers conferred on municipal councils in local government legislation.[2] I agree with his analysis and with his conclusion that the power to make laws for the peace, order and good government of the municipal district confers a broad power on the Council to make local laws within the scope of the Council’s functions and powers.
[2]Ho v Greater Dandenong City Council (2012) 188 LGERA 424, 432–435 [37]–[54] (Macaulay J) (‘Judgment’).
Two points should be emphasised. First, it is s 111(1) that is the source of the power to make local laws. This power is given content as to functions by s 3E(1)(a) to (h), as to powers by s 3F(1) and (2), and as to objectives by s 3C(1) and (2). Secondly, s 3(1)(h) is a very broad conferral of functions. Parliament has given councils every function (other than those mentioned in paragraphs (1)–(g)) which can be properly characterised as a ‘function relating to the peace, order and good government of the municipal district’.
Contrary to Mr Ho’s argument, s 3(1)(h) does not contemplate — less still require — that Parliament in future specify which ‘other functions’ councils are to have. The plain purpose of s 3(1)(h) is quite the opposite. It is to confer on councils a general law-making power, exercisable in aid of all of the proper functions of local government.[3] This was a deliberate departure from the former legislative scheme under which specific functions were enumerated.[4]
[3]Lynch v Brisbane City Council (1961) 104 CLR 353, 364; see Attorney-General (SA) v City of Adelaide [2013] HCA 3, [190].
[4]Prior to the amendments made by the Local Government (Domestic Reform) Amendment Act 2003, the functions of a council were specified in sch 8 to the Act.
Section 123 and sch 8 of the LGA are also important.[5] Under s 123, the Minister administering the LGA can recommend to the Governor-in-Council that a local law may be revoked in whole or part in any of the circumstances described in s 123(2). These include when there is a substantial breach of any of the matters specified in sch 8. Schedule 8 sets out the principles applying to local laws. Amongst other requirements, a local law must not exceed the power conferred by any Act under which the local law purports to be made.[6] A local law must not unduly trespass on rights and liberties of the person previously established by law,[7] or be inconsistent with the principles of justice and fairness.[8]
[5]Payne v Port Phillip City Council (2007) 158 LGERA 308, 316–7 [14]–[22] (Mandie J).
[6]Local Government Act 1989 (Vic) sch 8, cl 2(a).
[7]Ibid cl 2(f).
[8]Ibid cl 2(h).
In the course of his clearly presented argument, Mr Ho referred to s 42 of the Domestic Animals Act 1994 (Vic). This provision specifically authorises a council to make a local law for or with respect to:
(a) regulating the number of dogs or cats which may be kept on premises situated in the municipal district of the Council;
(b) prohibiting or regulating the keeping of dogs or cats in a specified area of the municipal district of the Council where threatened native fauna are at risk of attack;
(c) requiring owners of dogs to remove and dispose of faeces deposited by their dogs in public places.
This is an example of a power to make local laws additional to the power contained in s 111(1) of the LGA. Mr Ho also referred the court to the recent decision of the High Court of Australia in Attorney-General (SA) v Corporation of the City of Adelaide,[9] and to the need for the statutory provisions concerning local government to be construed having regard to the principles of legality and reasonable proportionality in determining whether a by-law or local law is to be considered incidental to a local law making power.[10]
[9][2013] HCA 3.
[10]Ibid [43] and [44] (French CJ), [116]–[123] (Hayne J), [148]–[151] (Heydon J), [202]–[206] (Crennan and Kiefel JJ) and [224] (Bell J).
In my opinion, it is clear beyond doubt that a local law prohibiting an occupier of land of limited area from keeping livestock on that land is concerned with social and environmental issues, and the overall quality of life of people in the district, not to mention the avoidance of nuisance, the prevention of noise and the welfare of the animals themselves. The local law is directed at the preservation of amenity within the Council’s municipal district, as its name and content confirm. There is no doubt that cl 26 of the local law is directed to the peace, order and good government of the municipal district of the Council. The result is that cl 26 of the local law is valid, and should be upheld and enforced by the Court.
As a result, I reject the first contention of Mr Ho.
Is there an inconsistency between cl 26 and the planning scheme?
Mr Ho contends that there is an inconsistency between cl 26 and the planning scheme. He says that:
(a) uses that are ancillary to land uses expressly permitted in a planning scheme are also permitted uses;
(b) the planning scheme allows land in the Residential 2 zone to be used as a dwelling and for home occupation;
(c) keeping pets on land is a use ancillary to the use of the land as a dwelling or for home occupation;
(d) therefore, the planning scheme permits the keeping of a pet sheep on land in the Residential 2 zone; and
(e) by prohibiting the keeping of a pet sheep on land which is zoned Residential 2, cl 26 of the local law is in conflict, and thereby inconsistent with the planning scheme.
In my opinion, there is no substance in these arguments. To use the words of Smith J in Wain v Maroondah City Council,[11] the situation is ‘a classic one of multiple controls’ with the provisions of the two regulatory regimes operating cumulatively.[12] Smith J held that, through the planning scheme on the one hand and the local laws on the other, ’the council provided planning controls at different levels of detail.’[13]
[11](2000) 112 LGERA 272.
[12]Ibid 279 [22].
[13]Ibid 279–80 [23].
There are many examples of multiple controls over land use found in Victoria. In addition to land use controls, there are often environmental, conservation, ecological, heritage, economic, subdivisional, health, transportation, extractive industry, gaming, or local government controls regulating the use or development of land. All applicable controls must be satisfied if the land use or activity is to be lawful. The present instance is one where there are planning controls relating to land and local government controls imposed through the local law.
Mr Ho also contended that his use of land amounted to ‘animal keeping’ within the meaning of the definition of ‘animal keeping’ in the planning scheme. Clause 74 defines ‘animal keeping’ to mean land used to:
(a) breed or board domestic pets; or
(b) keep, breed, or board racing dogs.
He said that because he was caring for his sheep from infancy to adulthood he was ‘breeding’ a domestic pet. He referred to the decision of Burdett v Bowden,[14] where the same definition of ‘animal keeping’ contained in another planning scheme was considered. Osborn J said:[15]
[14][2010] VSC 574 (Osborn J).
[15]Ibid [25]–[27] (citations omitted).
I also do not accept that the ordinary meaning of ‘domestic pets’ extends to the grazing and keeping of horses (used for riding and showing), on a property independently of a residence. The primary notion of a ‘pet’ is caught by the first definition offered by the Oxford English Dictionary:
Any animal that is domesticated or tamed and kept as a favourite or treated with indulgence and fondness…
I accept that most farm animals may be kept as ‘domestic pets’ and that it is not uncommon for lambs, kids, and other offspring of farm animals to be so kept. Indeed this seems to have been the literal meaning of the word as it was first used in Scotland and Northern England. I do not, however, accept that the grazing and keeping of horses for the purposes of riding and showing is itself the keeping of domestic pets. The notion of ‘domestic pets’ requires the keeping of the animals to be undertaken in conjunction with residence on land. It contemplates that the keeping of the animals is an adjunct to or incident of domestic life.
As defined, ‘animal keeping’ will occur when animals are bred for this purpose or animals otherwise kept for this purpose are provided with boarding. ‘Animal keeping’ is not concerned with the simple keeping of pets ancillary to residential or other activities. The simple keeping of dogs, cats, rabbits, monkeys, guinea pigs, rats, mice, turtles, fish, caged birds or other creatures as pets whether at home or elsewhere is not animal keeping.
In the decision of Burdett v Bowden, and contrary to Mr Ho’s submission, Osborn J was of the view that the simple keeping of pets, whether at home or elsewhere, was not animal keeping as defined in the planning scheme. It follows that the keeping of a sheep at home as a pet is not ‘animal keeping’ as defined in the planning scheme here.
However, even if it were correct, Mr Ho’s submission does not advance his position, as in the Residential 2 zone of the planning scheme, animal keeping is a Section 1 use, for which no planning permit is required provided that not more than two animals are kept. If more than two animals are kept, a planning permit must be obtained. The keeping of more than five animals is prohibited in the Residential 2 zone. The need for a planning permit if more than two animals are kept would impose an additional regulatory requirement on Mr Ho’s intended sheep keeping activity, whilst the keeping of more than five animals is prohibited.
In my view, there is no inconsistency at all between the planning scheme and the local law. Instead, this is a case where the land use or activity is regulated by two controls. Each must be satisfied if the activity desired by Mr Ho, namely the keeping of a pet sheep, can lawfully proceed.
In addition, cl 26.4 of the local law contains an inbuilt safeguard against inconsistency. It provides that the clause does not apply where the keeping of a particular type of animal or bird is permitted under the planning scheme or a planning permit is applicable for the land. As the trial judge pointed out, by so doing, the planning scheme is afforded primacy and there is no area in which the two provisions can operate inconsistently.[16]
[16]Judgment, 441 [96].
For these reasons, Mr Ho’s second main contention must also fail. There is no inconsistency between cl 26 of the local law and the provisions of the planning scheme.
Costs
The trial judge ordered Mr Ho to pay the Council’s costs of and incidental to the proceeding including reserved costs. He contends that his proceeding was in the public interest and defence of democracy.
This contention must be rejected. The costs of the proceeding below were in the discretion of the trial judge. No proper ground has been shown by Mr Ho for an appeal court to interfere with the exercise of discretion as to costs by the trial judge. Mr Ho was unsuccessful in the proceeding below and the trial judge took the view that costs should follow the event. The trial judge was not satisfied that there was any sufficient reason for him to do otherwise, and that it was just and fair to order the unsuccessful plaintiff to pay the defendant’s costs. Whilst Mr Ho contended that his proceeding should have been regarded as public interest litigation by the trial judge, we agree with the trial judge that it does not have that character. The proceedings are of a private character in defence of Mr Ho’s ongoing use of his own land. They were commenced after the Council warned Mr Ho that he was at risk of prosecution, and have no altruistic character or flavour. There is no reason to disturb the trial judge’s order as to costs, and no legal basis on which the order should be revisited by this Court.
Conclusion
The result is that each of Mr Ho’s three contentions and each of the grounds of appeal fail. The appeal should be dismissed.
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