Land and Environment Court of New South Wales CITATION : Hawkesbury Shire Council v Castles & Anor [1988] NSWLEC 129 APPLICANT Hawkesbury Shire Council FIRST RESPONDENT PARTIES : George Emmanuel Castles SECOND RESPONDENT John Muir FILE NUMBER(S) : 40170 of 1987 CORAM: Hemmings J KEY ISSUES: :- LEGISLATION CITED: Environmental Planning and Assessment Act, 1979 Local Government Act 1919. Foodbarn Pty Ltd v. Solicitor-General (1975); CASES CITED: Hawkesbury Shire Council v. Mitchell & Anor, 29th February, (1988) ; ACR Trading Pty Ltd and Anor v. Fat-sel Pty Ltd (1987) ; Warringah Shire Council v. Sedevcic (1987) DATES OF HEARING: DATE OF JUDGMENT: 07/29/1988 LEGAL REPRESENTATIVES: JUDGMENT: HIS HONOUR: George Emmanuel Castles and John Muir are the registered proprietors of premises Lot 11 Deposited Plan 245757, Uworra Road, Wilberforce ("the land") and which is in the area of the Shire of Hawkesbury. The land has an area of about one acre, and at the time of acquisition in January, 1984 contained a dwelling house, a double garage and a concrete kennel. The Council of the Hawkesbury Shire ("Council") seeks declarations and other orders with respect to the lawfulness of the keeping of dogs on the land and orders for demolition of the kennels. The land is situate within a Rural 1 (b1) zone pursuant to Hawkesbury Local Environmental Plan 1984 ("the LEP") and its use as an "animal establishment" is permissible with consent thereunder. It is common ground that prior to 1984 the use of premises for the husbandry, boarding, training or keeping of dogs was "agriculture", and could be carried out on the land without the approval of Council. The land is also situate within an Environmental Protection Area in which land shall not be developed without consent. The respondents sought such consent by application to Council dated 15th October, 1985. It proposed the keeping of "show dogs" and the housing of a maximum of twelve dogs on the land. Council at its meeting of 13th May, 1986 rejected the application for the following reasons:|CF2.|PSI provisions of Council's Code for the Housing 2. The applicant has not satisfied Council that environmental effect on adjoining lands and to the effect of waste water on the wetlands to pollution and traffic generation. that Council's Code could not be complied with 4. The application is not in the public establishment. 2. Such use is unlawful without the prior approval of in contravention of its Code. The respondents submit: 1. The activities do not fall within the definition of keeping of the dogs - b) was not an "intensive" purpose; 2. The keeping of animals is the continuation of the immediately before the coming into force of the "At the time of writing, CH BENDALE SILVER LADY (Imp Statesman (Imp UK). Most are spoken for, but one home. Maggie is the dam of 4 Champions from her second. litter of seven, four dogs, three bitches by available to show homes. Tamevalley Highland Thistle (Imp UK) ex Ch mother of 5 males, 3 slate, 2 blue and 2 females, 1 One male and one female of show quality are still A litter is also planned from the Pure Magic our brown dog, WILLOWMEAD GLINT OF GOLD (Imp UK). of bitches is the lovely brown girl, NZ CH very successful show career in New Zealand and will to have a litter by Ch Jonjorj Pure Magic (iid UK). of any of these litters, or of the Stud Dogs, to Our breeding programme is based on the famous consistently successful lines in the U.K. and a chat about our favourite subject - very busy people."|CF1.|PSO The respondents brought twelve dogs to the land in 1984 and have continued to keep about the same number of dogs plus progeny on the land at any one time. They are housed in the said masonry kennel, in movable runs in a garage building and in the dwelling house (one dog is described as a house pet). The twelve dogs are registered with the Royal Agricultural Society Kennel Control. Show dogs are bred on the premises for sale or barter. Breeding dogs and frozen semen are occasionally imported to improve stud stock. They may get two litters per year and the average litter size is six or seven puppies. Videos are made available for potential customers. Not all puppies are sold and imperfect dogs are destroyed. Pups sell for about $200 each at about eight weeks old. The dogs are fed on dog biscuits and other food brought to the land for this purpose by the respondents. Mr and Mrs O'Rourke, the former owners, erected the masonry kennel without the prior consent of Council. They kept three to five dogs for domestic purposes and over the period of their ownership only had one or two litters. I am satisfied on the evidence that the use by the respondents is not the continuation of the same purpose as that for which the land was used by the O'Rourkes. The use of the land by the respondents was apparently brought to Council's attention by a complaint from a neighbour concerning noise from the dogs. The dogs have since been "de-barked", which I understand reduces but does not eliminate noise from barking. Council's Senior Health and Building Surveyor, Mr B. Malouf, inspected the land in March and May, 1988 and noticed what he considered was an offensive odour emanating therefrom. He observed a considerable accumulation of canine excreta, torn newspapers, hair clippings and dog food. He was of the opinion that the premises were not maintained in a satisfactory state of cleanliness, which caused it to be "extremely smelly and untidy" and that the excreta and other waste materials were likely to be washed into a wetland area adjoining a nearby creek. The respondents assert that, whilst the dogs are kept and bred on the land, it is essentially a hobby and not a viable commercial operation. There appears to be little doubt that owing to the high cost of maintaining the dogs, profit from the sale of progeny was unlikely to exceed expenses significantly, if often or at all. However, I am satisfied on the evidence that the breeding and keeping of animals by the respondents on the land is a separate purpose and not subsidiary or incidental to its use as a dwelling; Foodbarn Pty Ltd v. Solicitor-General (1975) 32 L.G.R.A. 157. The major matter in dispute is whether the land is being used for the purpose of an "animal establishment" within the meaning of the LEP. It is defined in cl.4 as follows:|CF2.|PSI "... means a building or place used or intended for use for the intensive purposes of husbandry, boarding, training, or keeping (or any combination of them) of animals, birds, fish, insects or the like, requiring the importation of feed from sources outside the land on which the development is conducted."|CF1.|PSO There is no issue that, for relevant purposes, the respondents use a building or place on the land for the husbandry and keeping of animals, i.e. twelve dogs and their progeny. I am satisfied on the evidence that there is no source of food on the land for such dogs and all feed is imported from sources outside such land. The question is whether the said husbandry and keeping is an intensive purpose within the meaning of the definition. The word "intensive" is not defined in the LEP or the model provisions of the Environmental Planning and Assessment Act, 1979 ("the E.P.& A. Act"). It is, however, an ordinary English word and it follows that its meaning in this context is a question of fact and not law, which may be resolved with the assistance of dictionaries. The Macquarie Dictionary defines it as characterising something by the quality or condition, "of existing or occurring in a high or extreme degree". The subject definition of "animal establishment" was introduced into the LEP, in common with many others at that time, to distinguish and control certain activities from those normally within the purview of "agriculture". Such latter purpose was normally permissible without the necessity of development consent. I note that the dictionary defines "intensive stocking" as being a "technique of stocking land on a long term basis above what is normally considered to be the carrying capacity of the land, for example by implementing strategic or rotational grazing". Stein J. in Hawkesbury Shire Council v. Mitchell & Anor, 29th February, 1988 (unreported) said: |CF2.|PSI "But is the use for the 'intensive' purposes of the keeping of dogs? In the agricultural sense and context I take 'intensive' to mean the use of management techniques to increase the production or carrying capacity of land. That is, rather than free range grazing off the land, a grazier brings in feed lots to intensify the carryingcapacity."|CF1.|PSO The husbandry and keeping of animals on this land is for a large number, i.e. twelve dogs and their regular progeny. For that purpose they are housed in high numbers in a kennel and two buildings designed and erected for domestic purposes on a limited part of the land. One such building used for the purpose is a dwelling house. It appears that most of the pups are kept in the house. Breeding stock and semen for fertilisation of stock are imported to increase and improve progeny in the activities of husbandry on the land. In my judgment the respondents use the buildings on the land for the intensive purposes of husbandry and keeping of dogs requiring the importation of feed from sources outside the land on which such development is conducted. Such use is therefore for the purpose of an animal establishment and, not having been approved by Council as the consent authority, is prohibited. I find that the respondents are therefore in breach of the LEP and the provisions of the E.P.& A. Act. If an applicant has established that a breach of a planning law has occurred and, further, that a continuous breach is threatened, it is usually entitled to an injunction to restrain such continued breach, subject to the exercise of the Court's discretion. Such discretion permits, in appropriate cases, refusal of injunctive relief where to grant it would work such an injustice as to be disproportionate to the ends secured by enforcement of the legislation; ACR Trading Pty Ltd and Anor v. Fat-sel Pty Ltd (1987) 11 N.S.W.L.R. 67, at 82. The relevant authorities and principles applicable to the approach to be taken when exercising such discretion are collected and explained by Kirby P. in Warringah Shire Council v. Sedevcic (1987) 10 N.S.W.L.R. 335, at 339-341. I am called upon to exercise that wide discretion with respect to both the unauthorised use of the land as an animal establishment, and the unauthorised building, i.e. the kennel. Council submits that in the exercise of such discretion and the power vested by s.124 of the E.P.& A. Act the, Court should make orders which would not allow the land to be used for the keeping of animals other than in accordance with Council's Code. It is not claimed by Council that the kennel building or the land is unfit or inappropriate for use for the keeping of some dogs. I am informed that pursuant to Council's Code for the keeping of dogs, the land might be suitable for the keeping of up to four dogs. Whilst such Code may be a relevant matter for consideration, I do not think that it is a proper basis for the making of orders. Such Code is merely an expression of Council's general policy with respect to the keeping of animals. Unless and until Council properly exercises its powers pursuant to s.289(e) of the Local Government Act to regulate the use of the land for the keeping of animals, and thereby either prohibit the keeping of any animals or limit the numbers, the respondents are entitled to keep d ogs thereon and without development consent, provided such use is not for the purpose of an "animal establishment". It appears inevitable that Council will exercise its powers pursuant to s.289(e) to regulate the use of the land, and I am satisfied that the respondents will not be restrained from keeping some dogs on the land. If Council regulates the use of the land pursuant to the said s.289(e) and the respondents are dissatisfied with the number of dogs thereby permitted, they may elect to make a further and different development application for an animal establishment. That may result in an approval from Council or this Court on appeal. In the meantime, the Health Surveyor has adequate powers otherwise to ensure that the premises are used in such a way as to avoid nuisance or danger to health. In my judgment, notwithstanding hardship to the respondents, this is not an appropriate case to refuse Council an injunction to restrain the breach of the provisions of the LEP. It is not a technical breach, and I am satisfied that the present use as conducted in its uncontrolled manner and unlimited numbers is causing avoidable environmental harm. The respondents were aware at all relevant times that the use of the land for such purposes was unlawful and required the consent of Council. They could have, but elected not to appeal to this Court against Council's refusal of an application for the necessary approval. However, I am also satisfied that the operation of such orders should be suspended for an appropriate period. I therefore propose to make an order restraining the breach, but suspend the operation of the order for a period up to twelve months and with liberty to apply. The kennel was not erected by the respondents and has been in continuous existence on the land for many years. It is not a large structure and is on an allotment of approximately one acre and is not visible from the public road. It is of mainly masonry construction and, in my opinion, not dissimilar to animal housing likely to be found in a rural area. Council has made no submission that it is dilapidated or unsightly, and I note that it has never taken any steps to exercise its powers pursuant to s.317B of the Local Government Act 1919. In the circumstances, whilst I am fully conscious of my duty to enforce obligations imposed by the public law, I consider that, in the subject circumstances, the hardship and loss to the respondents satisfy me that it is inappropriate for the Court to order demolition of the kennels. I order: 1. A declaration that the respondents are using premises Lot 11 Deposited Plan 245757 Uworra Road, Wilberforce for the purpose of an animal establishment without the consent of the Council of the Shire of Hawkesbury, contrary to the provisions of the Hawkesbury Local Environmental Plan 1984. 2. The respondents, their servants and agents be restrained from using, causing, permitting or suffering the said premises to be used for the keeping of dogs otherwise than in accordance with an approval under that instrument, or in accordance with a direction pursuant to s.289(e) of the Local Government Act 1919. 3. The operation of Order 2 be postponed until the making of such approval or direction or 1st August, 1989, whichever event occurs first in time. 4. Exhibits may be released. 5. Respondents to pay the costs of the applicant. 6. Liberty to apply on seven (7) days' notice. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.