Cooke v Tweed Shire Council [2024] NSWCA 50

Cooke v Tweed Shire Council [2024] NSWCA 50

The activities carried out on the land formed a single integrated purpose—the growing and processing of hemp into infused products for commercial sale. The growing of hemp was 'production of a crop' (extensive agriculture) and permissible without consent, but processing/infusing/packaging constituted 'rural industry' under the LEP and required consent. The statutory scheme did not permit characterisation as intensive plant agriculture (horticulture), nor permit processing as ancillary to crop production. The primary judge was correct to find the overall use was 'rural industry' and not permitted without consent. The correctness standard applied on appeal; no error was demonstrated.

Parties
Appellant: Dolph Cooke; First Respondent: Tweed Shire Council; Second Respondent: Darko Kovac; Third Respondent: Peter Anthony Van Lieshout; Second Respondent (proceedings 2023/253064): Kempcove Pty Limited
Jurisdiction
Australia
Judgment Date
11 March 2024
Procedural Posture
Appeal / Court of Appeal Decision on Leave and Merits From Land and Environment Court Declaratory Judgment and Costs Order
Outcome
Appeal dismissed (leave to appeal granted to extent necessary)
Legal Topics
Land Use Characterisation, Permissible Development Under LEP, Civil Enforcement Proceedings, Standard of Appellate Review, Processing of Agricultural Products
Environment and Planning Law Administrative Law Land Use Characterisation Permissible Development Under LEP Civil Enforcement Proceedings Standard of Appellate Review Processing of Agricultural Products

Case Brief

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Parties

Dolph Cooke

Appellant

Tweed Shire Council

First Respondent

Darko Kovac

Second Respondent

Peter Anthony Van Lieshout

Third Respondent

Kempcove Pty Limited

Second Respondent (proceedings 2023/253064)

Procedural Posture

Appeal / Court of Appeal Decision on Leave and Merits From Land and Environment Court Declaratory Judgment and Costs Order

Legal Issues

  1. 1 Whether cultivation and processing of hemp is 'intensive plant agriculture' or 'extensive agriculture' under Tweed LEP and thus permitted without consent
  2. 2 Whether processing/infusing/packaging hemp was ancillary to cultivation or constituted a 'rural industry' requiring development consent
  3. 3 Proper approach/standard of review on characterisation of land use on appeal

Ratio Decidendi

The activities carried out on the land formed a single integrated purpose—the growing and processing of hemp into infused products for commercial sale. The growing of hemp was 'production of a crop' (extensive agriculture) and permissible without consent, but processing/infusing/packaging constituted 'rural industry' under the LEP and required consent. The statutory scheme did not permit characterisation as intensive plant agriculture (horticulture), nor permit processing as ancillary to crop production. The primary judge was correct to find the overall use was 'rural industry' and not permitted without consent. The correctness standard applied on appeal; no error was demonstrated.

Court Disposition

Appeal dismissed (leave to appeal granted to extent necessary)

Orders

  • Grant leave to appeal to the extent necessary from the Land and Environment Court orders of 11 July 2023 (declarations) and 22 September 2023 (costs)
  • Direct the undated further amended notice of appeal be filed within 7 days