Adams v Island Industries Pty Limited

Federal Court of Australia|2007-06-07|Before: Weinberg CJ

REASONS FOR JUDGMENT 1 This is an appeal from a decision of the Administrative Review Tribunal ("the Tribunal") dated 25 September 2006. That decision set aside a compliance order dated 22 August 2006 which was issued to Island Industries Pty Ltd ("Island Industries") by Mr Adams, the appellant, pursuant to s 81 of the Planning Act 2002 (NI). The compliance order stated that the appellant had formed the opinion that Island Industries was either carrying out, or had carried out, a development activity without development approval at Portion 49b2 Stockyard Road, Norfolk Island ("Portion 49b2"). The development activity in question was stated to be "install and operate a concrete batching plant".

Background 2 The Norfolk Island Plan 2002 ("the Plan"), which is prepared in accordance with the provisions of the Planning Act, is intended to be the framework for the future development and land management of Norfolk Island. Section 7(3) of the Planning Act provides that the Plan shall specify for each land use zone: (a) use and development which is permitted (as of right) use or development; (b) use and development which is permitted use or development; (c) use and development which is permissible (with consent) use or development; and (d) use and development which is prohibited use or development. 3 Portion 49b2, which is owned and occupied by Island Industries, is in a Rural Zone. Clause 14 of the Plan sets out the "Table of Use or Development - Rural Zone" which states that all uses or developments other than those specified in columns 1, 2 or 3 are prohibited. There is no reference, however, in columns 1, 2 or 3 to "concrete" or "concrete batching plant". 4 Island Industries has development approval, under planning approval 80/1999 (finalised on 4 April 2005), to "relocate, erect, enclose and operate a rock crushing plant" on Portion 49b2: see Grube v Minister for Lands and the Environment [2005] NFSC 4 for a discussion of the history of the planning approval. However, the planning approval makes no mention of "concrete batching". 5 As indicated above, on 22 August 2006 the appellant, who holds the position of Building Inspector and is an authorised person for the purposes of the Planning Act, served the compliance order upon Island Industries. The compliance order required Island Industries immediately to cease operating a concrete batching plant on Portion 49b2. 6 The decision to issue a compliance order is a reviewable decision pursuant to s 78(1)(c) of the Planning Act. On 23 August 2006 Island Industries lodged an application under s 22 of the Administrative Review Tribunal Act 1996 (NI) for review by the Tribunal of the appellant's decision to issue the compliance order.

The Tribunal's decision 7 On 25 September 2006 the Tribunal, constituted by Deputy President Zande, made the following orders: "1. That the Compliance Order and the decision on which such Compliance Order was founded be set aside in it's entirety resulting as a consequence thereof of in the cancellation of the Compliance Order. 2. That Planning Approval 80/99 be remitted to the responsible Executive Member for review of the Planning Approval Conditions contained therein as to the ongoing operation of the batching plant especially as to dust emissions monitoring and control and otherwise, having particular regard to the matters I have mentioned in the second last and last paragraphs appearing at page 10 of my REASONS FOR DECISION in this matter and which are dated 25th September 2006. 3. That (a) the bunch of photos as exhibited be returned to Mr Pitcher after the appeal period expires and (b) the bundle of documents comprising the Conditions of Approval No 80/99 and as handed up to me be returned to the Respondent's Counsel. 4. I grant to any party who might claim to have an interest pursuant to section 23(2) of the Act and where such interest flows from the implementation of part 2 of my Orders made today, liberty to apply to this Tribunal for such relief as may be sought at that time." 8 On that same day, the Tribunal provided what it described as an "abridged" version of its reasons for findings and orders. The parties were, however, given an opportunity to request more comprehensive and detailed reasons. Eventually on 12 October 2006 "Enlarged Reasons for Decision" were delivered. 9 The Tribunal found that "concrete" was not being produced at Portion 49b2. The evidence did not demonstrate that crushed rock aggregate, cement powder mix and water were being "thoroughly mixed" on Portion 49b2. 10 The Tribunal said that from a site inspection, and from evidence given by Mr Neville Christian, the site manager, the plant in question consisted of a yellow hopper into which was fed crushed rock aggregate. Attached thereto was a conveyor belt which moved the mix from the hopper to a discharge chute. At that point the crushed rock aggregate met with a cement powder which had been fed into that same discharge chute by way of an auger mounted to, and drawing from, a separate white hopper. Both the crushed rock aggregate mix and the cement powder then free fell through that one discharge chute to whatever was placed beneath it to collect what was by then a mixture of the two substances. Power to the plant came from an adjacent power plant enclosed in a shipping container. 11 The Tribunal said that the evidence was that from time to time during the plant's operation the mix of crushed rock aggregate and cement powder had been discharged into a concrete mixing truck, which was owned by Island Industries or its customers, parked beneath the discharge chute. Water had then been added to the mix which was at that point in the agitator bowl of the cement mix truck. The truck was then driven away. The Tribunal found, however, that apart from the evidence that water had been added to the mix inside the agitator bowl of the cement truck before being driven away, there was no evidence that mixing of the crushed rock aggregate and cement powder with water actually occurred on Portion 49b2. Although the process of mixing a batch of components to produce concrete might commence on the site, the cement truck was then driven away from the site and the end result was that the concrete mix was produced elsewhere. 12 In addition, the Tribunal found that the present operation of the fixed units of machinery and equipment on the site to which the compliance order related - being the crushed rock aggregate hopper and its conveyor belt, the cement powder hopper and its auger and the associated enclosed power plant - did not constitute a "concrete batching plant". In the Tribunal's view, to fit within the words and meaning of the specific definition of "concrete batching plant" in the Plan, it would require the plant as it currently stands to have an additional item that would provide a physical and mechanical process and means for the mixing of the ingredients discharged through the discharge chute with added water. Without that additional piece of mixing equipment, the Tribunal considered that there was a "batching plant" but not a "concrete batching plant". 13 The Tribunal also found that if, contrary to its earlier conclusions, there was a concrete batching plant on Portion 49b2, there was an "existing lawful use" within the meaning of cl 91 of the Plan, which was deemed to be a "development approval" pursuant to s 102 of the Planning Act. It found that batching operations had been carried on during the period 1997 to 1999 as a continuing use. Finally, it found that any existing lawful use of the batching plant on Portion 49b2 had not been abandoned by the respondent.

The appellant's grounds of appeal and contentions 14 The notice of appeal contains the following grounds: "(1) The Tribunal erred in law in finding that the definition of "concrete batching plant" in the Norfolk Plan required an essential element that ingredients were to be thoroughly mixed to produce "concrete" and that consequently "concrete" was not being made on Portion 49b2 within the meaning of the definition of "concrete batching plant". (2) The Tribunal erred in law in finding that the definition of "concrete batching plant" in the Norfolk Plan required as an additional item of permanent plant, equipment and/or machinery providing a physical and mechanical process and means for the mixing of the ingredients and that consequently "the present operation of the fixed units of machinery and equipment on the Island Industries site and to which the subject Compliance Order relates -- being the crushed rock aggregate hopper and its conveyor belt, the cement powder hopper and its auger and the associated enclosed power plant" did not constitute a "concrete batching plant". (3) The Tribunal erred in law in finding that there was a lawful existing use right as to the concrete batching plant on Portion 49b2 within the meaning of and for the purposes of the Planning Act 2002 and the Norfolk Island Plan. (4) The Tribunal erred in law in finding that the concrete batching plant is a lawful existing use forming part of Planning Approval 80/99. (5) The Tribunal erred in law in fining that any lawful existing use of concrete patching plant on Portion 49b2 had not been abandoned by the Respondent." 15 In his submissions, the appellant notes that the definition of "concrete batching plant" is set out in the Purpose Definitions in cl 121(2) of the Plan in the following terms: "CONCRETE BATCHING PLANT means the Use or Development of Land for the mixing of concrete for Use elsewhere." 16 He contends that the Tribunal misconstrued the meaning of the term "concrete batching plant" within the Plan. He draws attention to clause 121(1) which provides: "In this Plan, where a word is undefined, the meaning of the word is taken to be the meaning used in the Oxford Shorter English Dictionary." 17 It is worth noting at this stage that although cl 121(1) refers to the "Oxford Shorter English Dictionary", the correct title is the "Shorter Oxford English Dictionary". It is clear from the correct reference to the "Shorter Oxford English Dictionary" at cl 118 that that is the dictionary to which the Plan intended to refer. 18 For reasons that are not immediately apparent, the appellant's submissions refer to the definition of "concrete" not in the Shorter Oxford English Dictionary, as required, but rather in the Australian Concise Oxford Dictionary. According to the appellant's submissions that definition is as follows: "n. (often attrib.) a composition of gravel, sand, cement, and water used for building." 19 However, the definition of "concrete" in the Shorter Oxford English Dictionary, is the following terms: "A heavy-duty building material made from a mixture of broken stone or gravel, sand, cement, and water, which forms a stonelike mass on hardening, paving etc. made of this." 20 The appellant relies upon the absence of any reference to a "thorough mix" (or indeed any reference to a "mix" or "mixture") before concrete is made, in the Australian Concise Oxford Dictionary definition as the basis for a submission that the Tribunal erred in law. That submission ignores the fact that the term "mixture" is used in the Shorter Oxford English Dictionary definition. 21 The Tribunal took its definition of "concrete" from the Australian Building and Construction Definitions Handbook. That definition makes it clear that the addition of water is an essential element to be included in a combination of ingredients and that the combination must be "thoroughly mixed" so as to produce a product that can be described as "concrete". The Tribunal stated that it could not see from the evidence that a process resulting in the combined mix of crushed rock, aggregate, cement powder mix and water, such as occurred on Portion 49b2, met the requirements of the production of "concrete". 22 The appellant submits that the Tribunal's approach ignored the definition of "concrete batching plant" in cl 121(2) of the Plan which encompassed use of land for the mixing of concrete "for Use elsewhere". He further submits that if the Tribunal's reasoning is taken to its logical conclusion, the respondent must have breached different development restrictions under the Plan as its agitator drove along a road zone, and produced concrete while doing so.

The respondent's contentions 23 The notice of contention filed by the respondent is relatively brief. It relevantly states: "1. The appeal grounds set out by the appellant are in each instance challenges to findings of fact by the Tribunal and the appeal is accordingly not an appeal on questions of law as required by Section 34 of the Administrative Review Tribunal Act 1996 (Norfolk Island); and/or 2. The factual background relied upon by the Respondent is as found by the Tribunal; and/or 3. The Tribunal did not make any error of law in its decision and/or orders and in particular, did not err in law in regard to the following findings:- (a) the definition of "concrete batching plant" in the Norfolk Plan required an essential element that ingredients were to be thoroughly mixed to produce "concrete" and that consequently "concrete" was not being made on Portion 49b2 within the meaning of the definition of "concrete batching plant" (appeal ground 1 at 5.1); (b) the definition of "concrete batching plant" in the Norfolk Plan required as an additional item of permanent plant, equipment and/or machinery providing a physical and mechanical process and means for the mixing of the ingredients and that consequently "the present operation of the fixed units of machinery and equipment on the Island Industries site and to which the subject Compliance Order relates - being the crushed rock aggregate hopper and conveyor belt, the cement powder hopper and its auger and the associated enclosed plant" did not constitute a "concrete batching plant" (appeal ground 2 at 5.2); (c) there was a lawful existing use right as to the concrete batching plant on portion 49b2 within the meaning of and for the purposes of the Planning Act 2002 and the Norfolk Island Plan (appeal ground 3 at 5.3); (d) the concrete batching plant is a lawful existing use forming part of Planning Approval 80/99 (appeal ground 4 at 5.4); (e) any lawful existing use of concrete batching plant on portion 49b2 had not been abandoned by the Respondent; and or. 4. The grounds of appeal and submissions / contentions of the appellant require and invite the Supreme Court to make findings of fact inconsistent with the facts as found by the Tribunal such that the appeal becomes or may become an appeal on questions of fact instead of an appeal on questions of law alone contrary to the clear intent of Section 34 of the Administrative Review Tribunal Act."

Consideration 24 Before considering the appellant's contentions, there is a preliminary question that must be resolved. The jurisdiction of this Court to entertain an appeal from the Tribunal is a narrow one. Section 34(1) of the Administrative Review Tribunal Act provides an appeal by a party to a proceeding before the Tribunal will lie only "on a question of law": see generally Grube v Minister for Lands and the Environment. As Brennan J observed in Waterford v The Commonwealth (1987) 163 CLR 54 at 77 there is no error in law simply in making a wrong finding of fact. 25 It has been stated repeatedly that the magnification and inflation of questions of fact into questions of law to provide an avenue of appeal from decisions of an administrative tribunal "is to be deprecated": see, for example, Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (NSW) (1980) 47 FLR 131 at 143-145 per Fisher J; and Willcocks v Comcare (2001) 66 ALD 119 at 124 per Finn J. See also Neal v Secretary, Department of Transport (1980) 29 ALR 350 at 354-355 per Franki J. 26 In Politis v Federal Commissioner of Taxation (1988) 16 ALD 707 at 708 Lockhart J was critical of what he saw as a growing tendency for the Court "to be asked to construe the Tribunal's reasons for its decision minutely and finally and with an eye keenly attuned to the perception of error". It was that passage that formed the basis of the High Court's celebrated admonition against that very vice in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. 27 There is a distinction between an appeal "on a question of law", as required by s 34(1) of the Administrative Review Tribunal Act, and an appeal that merely involves a question of law. The former is a narrower expression. It involves what has been described as "a pure question of law". A mixed question of fact and law is not a question of law within the meaning of s 34(1). See generally Comcare v Etheridge (2006) 149 FCR 522 at [16]. See also Australian Securities and Investments Commission v Saxby Bridge Financial Planning Pty Ltd (2003) 133 FCR 290 at [47]-[48] per Branson J, and at [107]-[108] per Jacobson and Bennett JJ; and Brown v Repatriation Commission [2006] FCA 914 at [7] per Branson J. 28 The distinction between questions of fact and questions of law is one that bedevils many cases. It also causes problems throughout administrative law generally. There is a helpful discussion of the broader issues raised by this distinction in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 where the Full Court (Neaves, French and Cooper JJ) put forward five general propositions which it regarded as emerging from the cases: "1. The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical or other meaning is a question of law: Jedko Game Co Pty Ltd v Collector of Customs (NSW) (1987) 12 ALD 491; Brutus v Cozens [1973] AC 854. 2. The ordinary meaning of a word or its non-legal technical meaning is a question of fact: Jedko Game Co Pty Ltd v Collector of Customs (NSW) (supra); NSW Associated Blue-Metal Quarries Ltd v Commissioner of Taxation (Cth) (1956) 94 CLR 509 at 512; Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78; Neal v Department of Transport (1980) 3 ALD 97 at 107-108. 3. The meaning of a technical legal term is a question of law: Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 137-138; Lombardo v Commissioner of Taxation (Cth) (1979) 40 FLR 208 at 215. 4. The effect or construction of a term whose meaning or interpretation is established is a question of law: Life Insurance Co of Australia Ltd v Phillips (supra) at 79. 5. The question whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law: Hope v Bathurst City Council (1980) 144 CLR 1 at 7 per Mason J with whom Gibbs, Stephen, Murphy and Aickin JJ agreed; Australian National Railways Commission v Collector of Customs (SA) at 379 (Sheppard and Burchett JJ)." 29 The Full Court went on to state that the fifth proposition had been elaborated by reference to the remarks of Fullagar J in Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47 at 51 to the effect that where the "factum probandum" involves a term used in a statute, the question whether the accepted "facta probantia" establish that factum probandum will generally, if not inevitably, be a question of law. However, the Full Court then went on to observe that this principle was qualified when a statute used words according to their ordinary meaning and the question was whether the facts as found fall within those words. 30 Critically, the Full Court said (at 288): "Where it is reasonably open to hold that they do, then the question whether they do or not is one of fact: Hope v Bathurst City Council at 8. 31 The term "concrete", as part of the composite expression "concrete batching plant", is used in its ordinary sense in the Plan. That is borne out by the fact that cl 121(1) requires the meaning of any word which is undefined in the Plan to be taken to be the meaning used in the Shorter Oxford English Dictionary. 32 The definition in the Shorter Oxford English Dictionary refers to a "mixture", but does not stipulate the extent to which the process of mixing must be undertaken before concrete is produced. Likewise, the definition of "concrete batching plant" in cl 121(2) refers to "the mixing" of concrete, but says nothing about how extensive that process of mixing must be. 33 Notwithstanding the fact that the Tribunal did not refer to the definition of concrete in the Shorter Oxford English Dictionary, but chose instead to refer to the definition provided in the Australian Building and Construction Definitions Handbook, the Tribunal did not err in law in doing so. The adjective "thoroughly" is taken from that definition. It gives scope and content to the Dictionary definition and is entirely compatible with it. The Tribunal's view that there must be a "thorough" mixing before "concrete" is produced is one that is reasonably open, in the sense discussed by the Federal Court in Pozzolanic. See also Mason J in Hope v Bathurst City Council (1980) 144 CLR 1 at 7; and the observation of Kitto J in NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 512. 34 It follows that the appellant's challenge to the Tribunal's finding that concrete was not produced on Portion 49b2 is a challenge to a finding of fact. Whether or not that finding of fact is correct, it was plainly one that was reasonably open. That is sufficient to exclude any attack upon it from being characterised as an appeal "on a question of law". Accordingly, ground 1 is not made out. 35 The same may be said of ground 2. As previously indicated, the Tribunal concluded that the definition of "concrete batching plant" under the Plan required the plant to have, as an integral component, an item of machinery that provided for the mixing of the ingredients as discharged through the discharge chute with added water so as to produce concrete from the one complete, if not continuous, process. The Tribunal regarded the question whether the equipment on Portion 49b2 was a concrete batching plant for the purposes of the Plan as one to be determined "on and from the facts flowing from the evidence and material" before it. 36 The appellant, however, contends that the Tribunal erred in law by requiring that any "mixing component" be permanent (ie fixed or immobile) and located on Portion 49b2, rather than recognising that part of such a plant can be mobile, and that the mixing can take place after the ingredients have been assembled. 37 In my view, the question whether the activities actually carried out on site were those of a "concrete batching plant" (as well as the related question already dealt with as to whether "concrete" was produced on site), is not a question of law, but rather a question of fact. Pozzolanic makes that tolerably clear. It was reasonably open to the Tribunal to arrive at the conclusion that without an additional fixed component, the equipment on site was not a "concrete batching plant". 38 Whether this Court would have arrived at the same conclusion, on the basis of the evidence led below, is not to the point. It can be argued that in concluding that the equipment on site did not constitute a "concrete batching plant" the Tribunal took too narrow a view of what constitutes such a plant. It is also open, however, to conclude that the Tribunal was correct in its assessment of what was necessary to constitute such a plant. The Tribunal's conclusion that there was no concrete batching plant on site because there was only occasional and sporadic mixing of water, and no equipment permanently fixed to allow all key ingredients to be thoroughly mixed, cannot be said to have been so untenable as to give rise an error of law. 39 It follows that ground 2 does not give rise to an appeal "on a question of law". 40 I next turn to grounds 3, 4 and 5 (the "existing lawful use" grounds). As previously noted the Tribunal found that batching operations (which it did not regard as "concrete batching operations") had been carried on at the site between 1997 and 1999. It based that finding largely upon a memorandum dated 30 June 1999 which was written by the appellant and addressed to the Secretary of the Norfolk Island Planning Board. The Tribunal found that the memorandum set out clearly and precisely how the appellant, as the then Building Inspector, saw the position regarding Portion 49b2 at the time. 41 The memorandum relevantly stated: "I refer to the letter from Ray Grube addressed to The Secretary, NI Planning Board and which I was handed a copy of on Monday 28th June 1999. In this letter Mr Grube expressed concern about the apparent misuse of land zoned "rural residential", in particular Portion 49b2 Stockyard Road. I visited the site at approximately 2pm Tuesday 29th June 1999 and noted the following. Portion 49b2 has long been used as a stockpile area for raw feed material and crushed rock product for the current crushing operations on the adjoining portion 48c and as a parking area for a variety of heavy equipment. During yesterdays visit the following items of equipment were situated on this portion: 2 graders, 2 bulldozers, a low-loader, forklift, water delivery truck, bobcat, concrete mixer delivery truck, hopper and conveyor for loading aggregate, an amount of aggregate, and 2 private cars. The positioning on the site of the forklift, water delivery truck, bobcat, concrete mixer delivery truck, hopper and conveyor, and pile of aggregate suggest that the lower area of Portion 49b2 is being used as a batching area for the loading and mixing of aggregate and cement. It is my belief that this loading and mixing of aggregate and cement is entirely consistent with the present use of portion 49b2 and falls within their "existing rights". I do not believe that there has been any change of use of the land in a manner which substantially alters the scale, intensity and/or character of that present or existing use." 42 In addition, the Tribunal had before it evidence from Mr Christian to the effect that batching was already occurring on the site in 1997 when he first started work. Mr Christian said that even at that stage ready mixed concrete was being produced and sold. He said that prior to 1997 he had gone onto the site many times and seen the subject plant operating. 43 It seems that the appellant sought to resile from his 1999 memorandum, or at least qualify it. The Tribunal rejected his attempt to do so. 44 Ground 3 complains that the Tribunal erred in law in finding any concrete batching plant on portion 49b2 was an existing lawful use within the meaning of the Plan. The appellant's submissions in support of that ground complain that in arriving at that conclusion the Tribunal ignored or did not give credibility to the evidence of the Building Inspector, the Health and Building Surveyor and an adjoining land owner whose property looked directly onto Portion 49b2. They further complain that the Tribunal seemed to put the onus on the appellant and the intervenors when it stated that "[t]here was no evidence brought forward by [Mr Adams or the intervenors] firmly establishing that the subject plant did not ever operate at that site". They complain that the Tribunal did not explain how the activities of Mr Mark Robinson, a former owner of the land who had previously conducted what were arguably concrete batching operations on Portion 49b2, constituted an "existing lawful use" (emphasis added). They note that Mr Robinson was not called by Island Industries to give evidence and that there was no explanation for this. They complain that the Tribunal erred in failing to have regard to the absence of evidence from Mr Robinson. 45 Ground 3, as it was argued before me, is largely misconceived. The appellant's submissions in relation to this ground do not raise a question of law but merely attack a finding of fact. Yet there is one aspect of ground 3 as stated in the notice of appeal that may amount to a question of law, namely the Tribunal's conclusion that any past use was "lawful". However, whether or not it was appropriate for the Tribunal to treat the appellant's memorandum in 1999 as the basis for its conclusion that the earlier use was relevantly "lawful" need not be determined. Given the Tribunal's finding that the activities currently being undertaken on Portion 49b2 do not amount to the use of a "concrete batching plant", its further conclusion regarding existing lawful use is of no legal significance. Accordingly, ground 3, even if made out, does not affect the Tribunal's decision. The same may be said of ground 4. 46 Finally, ground 5 complains that the Tribunal erred in law in finding that any existing lawful use of a concrete batching plant had not been abandoned by the respondent. Each of the matters raised in support of that ground involves an attack upon the weight that the Tribunal gave to particular aspects of the evidence. In substance the ground challenges findings of fact made by the Tribunal, and does not involve any question of law. For this reason ground 5 is not made out. In any event, for the reasons set out in the preceding paragraphs that ground is of no legal significance to this appeal. 47 For the reasons outlined above, the appeal will be dismissed with costs. I certify that the preceding forty-seven (47) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Chief Justice Weinberg .

Associate: Dated: 7 June 2007 Counsel for the Appellant: Mr W.D Richards

Solicitor for the Appellant: Crown Counsel for Norfolk Island

Date of Hearing: 15 January 2007 and 27 February 2007

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