Land and Environment Court (NSW)|1991-12-03|Before: Bignold J

B and D Kelly v Shoalhaven City Council [1991] NSWLEC 119 (3 December 1991)

Bignold J.: This is a Class 4 proceeding in which the Applicants seek to restrain the Council from using a parcel of land (comprising 2 lots) owned by the Council and situate at Berry ("the subject land") which adjoins their residence, for the purpose of extracting shale.

The aforesaid use commenced in the 1970s at a time when development of all land within the Shire of Shoalhaven (including the subject land) was controlled by Interim Development Order No. 1 - Shire of Shoalhaven ("the IDO") made on 28th February, 1964 under the provisions of Division 7 of Part XIIA of the Local Government Act 1919 ("Part XIIA"). Although Part XIIA was repealed when the ("the ") and cognate legislation came into force on 1st September, 1980, under the transitional arrangements, the IDO continued to operate as a deemed environmental planning instrument. It is common ground that the subject land was zoned Non-Urban "A" under the IDO in which zone development for the purpose of "extractive industry" could be carried out only with the consent of the Council. It is common ground that the Council never granted itself development consent under the IDO for use of the subject land for the purpose of extractive industry (or any other similar purpose).

The IDO was repealed pro tanto by City of Shoalhaven Local Environmental Plan 1985 ("the LEP") which came into force on 17th May, 1985. Thereupon development of the subject land was governed by the EPA Act and the provisions of the LEP. In terms of the LEP the subject land is zoned Rural 1(a) in which zone development for the purposes of extractive industry may be carried out only with the consent of the Council.

According to the pleadings the issues raised by the proceeding include the question whether the Council's aforesaid use is relevantly the "continuance of a use of land for a lawful purpose" within the meaning of s.109(1) of the EPA Act and , if so, whether that use has, since February, 1986, been enlarged, expanded or intensified within the meaning of s.109(2).

The parties very sensibly have isolated as a preliminary question of law, susceptible of early determination the question whether s.524(1)(f) of the Local Government Act 1919 upon which the Council relies to authorise its extraction of shale from the subject land, (at least until the commencement of the EPA Act) has the additional effect of rendering the Council's use of the subject land "for a lawful purpose" within the meaning of s.109(1) of the EPA Act.

Since it is conceded that no relevant permission under the IDO was granted the Council's argument for an affirmative answer to this question is exclusively founded on the proposition that there is a conflict between the operation of s.524(1)(f) of the Local Government Act 1919 and the provisions of the IDO, in as much as the section grants full authority for the Council's extraction of shale from the subject land (it is not in dispute that the shale extracted is used by the Council for the purpose of improving or maintaining public roads under the Council's control) whereas the IDO (read with s.342U(4) of Part XIIA) purports to control or regulate that extraction. Faced with the suggested conflict the Council's argument is that the conflict is to be resolved by the application of the maxim generalia specialibus non derogant - see Pearce and Geddes, "Statutory Interpretation In Australia" 3rd ed. para.4.24 - to the effect that the IDO did not regulate or control the Council's use of the subject land in exercise of its right or power conferred by s.524(1)(f).

However as Pearce and Geddes point out in the cited passage "the generalia specialibus approach should only be called in aid where there are two inconsistent provisions which cannot be reconciled as a matter of ordinary interpretation": Purcell v. Electricity Commission of New South Wales [1985] HCA 54; (1985) 60 ALR 652 at 657; where "contrariety is manifest: Reseck v. Federal Commissioner of Taxation [1975] HCA 38; (1975) 133 CLR 45 at 53".

What then is the irreconcilable conflict in the present case? The Council principally relies upon the fact that what s.524(1)(f) specifically authorises (ie extraction of shale for the purpose of improving or maintaining public roads vested in the Council) the IDO generally controls or regulates within the ambit of power conferred by s.342U(1) of Part XIIA. In my judgment this is not to assert or demonstrate an irreconcilable conflict: cf. Associated Minerals Consolidated Limited v. Wyong Shire Council (1974) 29 LGRA 323 at 328/330 (incl) where the Privy Council rejected the argument that Part XIIA did not apply to mining land which was said to be governed exclusively and comprehensively by its own code as stated in the mining legislation (328) holding that the two Acts can and did co-exist in their application to a given piece of land (p.329).

Having regard to the language, purpose and legislative history of s.524(1)(f) and Part XIIA (including the IDO made thereuder) there is, in my judgment, no justification in the present case for the Council's suggested application of the maxim generalia specialibus non derogant to oust the operation of Part XIIA. It cannot, in my opinion, be reasonably concluded that the legislative intention in the enactment of Part XIIA (or Division 7 thereof) which provided this State's original planning legislation, capable of applying to all land within the State and designed to regulate in the public interest, various competing land uses -cf. Associated Minerals at 329 - was to leave untouched by that legislation the right conferred by s.524(1)(f) created many years prior to the enactment of that planning legislation. It may be accepted that the right conferred by s.524(1)(f) has ancient legislative antecedents - see Bilambil-Terranora Pty Ltd. v. Tweed Shire Council (1977) 1 NSWLR 724. However, significantly the legislative history of the section predates the advent of planning legislation in this State and having regard to the broad and beneficent nature and purpose of that legislation it is most improbable that it was intended to exclude from planning control, activities of councils undertaken pursuant to the right conferred by s.524(1)(f) which though substantive is nonetheless clearly an ancillary power, being ancillary to councils' obligations under Part IX of the Local Government Act 1919 to maintain and improve public roads vested in councils.

In illustration of the suggested irreconcilable conflict between the section and the IDO the Council submitted that the right conferred upon councils by s.524(1)(f) could be exercised without the consent of the owner of the land concerned whereas under the IDO an "interim development application" (defined by s.342T(1) of Part XIIA) could only be made with the consent of the land owner as required by cl.3(d) of the set or standard of model provisions made under s.342U(3) of Part XIIA which were adopted by cl.2(2) of the IDO. Thus the Council's argument was that in certain cases (of which notably the present case is not an example because the Council at all material times owned the subject land), it is possible that if the Council sought to comply with the requirements of the IDO (making an interim development application and obtaining permission to use land for the purpose of extracting shale) in the exercise of the right conferred by s.524(1)(f) it could be frustrated and foiled simply by the land-owner withholding his consent to the making of the interim development application.

It should be emphasised that this illustration has no application whatsoever to the facts of the present case because at all relevant times the Council was the owner of the subject land. Thus any notion of conflict in the Council, as land owner, withholding consent from itself in seeking to exercise its rights under s.524(1)(f) is absurd. There is simply no scope for genuine conflict. Moreover properly interpreted the right conferred by s.524(1)(f) does not apply to land owned by the council which exercises the right and accordingly in the present case, where the Council owns the subject land, again no conflict arises, simply because the right conferred by s.524(1)(f) does not apply to the subject land.

However in any event, this illustration, in my judgment, does not assert or demonstrate any relevant irreconcilable conflict between the section and the IDO. There are a number of reasons for so concluding, namely:-

(i) Firstly it is not correct to say that the right conferred by s.524(1)(f) is exercisable "without regard to the interest or consent" of the land-owner concerned. Subsection (2)(e) expressly confines the exercise of the right by requiring (i) the owner's agreement to the location of the pits or holes from which materials may be taken by the Council (or failing that agreement, the approval of the Minister) or (ii) the owner's consent (or in default, the Minister's approval) to the taking of materials from the land otherwise than from pits or holes therein. It has not been demonstrated, nor is it to be assumed, that where the land-owner withholds consent councils may obtain Ministerial approval as a mere formality or as a foregone conclusion.

(ii) Secondly the requirement of the model provisions that the owner of the land concerned consent to an interim development application is not a necessary or indispensable element of an "interim development application" which is defined by s.342T(1) as "(an) application for the permission of the Council for the interim development of land" cf. Randwick Municipal Council v. Total Oil Refineries (Australia) Ltd. (1980) 42 LGRA 184 at 182.

(iii) Thirdly, even assuming there is a conflict between the operation of s.524(1)(f) and the operation of the IDO concerning the necessity for obtaining the land-owner's consent that conflict is not relevantly an irreconcilable conflict because the provisions are directed to different subjects and ends and hence there is no mutual inconsistency cf. Airlines of New South Wales Pty Ltd. v. The State of New South Wales (No.2) [1965] HCA 3; (1965) 113 CLR 54.

(iv) Fourthly, even assuming that there is conflict between the operation of s.524(1)(f) and the operation of the IDO concerning the necessity for obtaining the land owner's consent that conflict has not yet arisen and indeed may never arise. Accordingly no inevitable irreconcilable inconsistency has yet manifested itself cf. Goodwin v. Phillips [1908] HCA 55; (1908) 7 CLR 1; Parramatta City Council v. Stauffer Chemical Co (Australia) Pty Ltd. (1971) 2 NSWLR 500; Australian Oil Refining Pty Ltd. v. Cooper (1987) 11 NSWLR 277; and Aquatic Airways Pty Ltd. v. Warringah Shire Council (1990) 71 LGRA 10.

For the foregoing reasons I conclude that s.524(1)(f) does not oust the operation of Part XIIA (or the IDO) in relation to the subject land and to the Council's use of it for the purpose of extracting shale. Nor does the section prevail in any relevant sense over Part XIIA or the IDO.

I should briefly mention another matter raised by the Council which in my respectful opinion cannot, and does not, assist the Council's case. It was submitted that the use being made of the subject land in ostensible reliance on s.524(1)(f) was not relevantly the carrying out of an "extractivie industry" within the meaning of the IDO. I need not determine whether the extraction of shale simpliciter (as opposed to its extraction and treatment or processing on the subject land) constitutes the carrying out of development for the purpose of an "extractive industry" because however the use be categorised (and I am not to be taken as doubting that "extractive industry" is the appropriate characterisation of the use) it is nonetheless "development" within the meaning of the IDO and Part XIIA which, if carried out, in the absence of the requisite interim development permission, contravenes s.342U(4) of Part XIIA.

Finally I should mention the Council's concession that its use of the subject land for shale extraction was governed by the EPA Act and that s.524(1)(f) did not prevail over that Act. In my opinion this concession was correctly made. However in the present case, I am unable to distinguish between the conceded application of the EPA Act and the suggested excluded application of Part XIIA. It would appear that the concession that the EPA Act applies, substantially derives from the existence of s.77(2A) of that Act which dispenses with the requirement otherwise made by s.77(1)(b) for the owner's consent to be given to a development application made by a public authority (defined to include a local council) not being the owner. However there is, in my opinion, no statutory counterpart in Part XIIA to s.77 of the EPA Act since for the reasons already given the land owner's consent is not a essential ingredient of an interim development application made under Part XIIA. Apart from s.77 there appears to be no material difference, for present purposes, between the planning regime previously provided by Part XIIA and that now provided by the EPA Act.

It follows from my conclusion that s.524(1)(f) does not oust the operation of Part XIIA and the IDO that (i) the Council's commencement in the 1970s of the use of the subject land for the purpose of extracting shale and (ii) its continuance of that use, in each case without obtaining the requisite interim development permission under s.342V of Part XIIA, contravened the express prohibition contained in s.342U(4) of Part XIIA.

If further follows that that continuing use, as at the date that the LEP came into force in 1985, was not relevantly "a use of land for a lawful purpose" within the meaning of s.109(1) of the EPA Act. Accordingly the Council's use of the subject land is not authorised in terms of the EPA Act.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 7 PAGES

ARE A TRUE AND ACCURATE COPY OF THE REASONS FOR JUDGMENT

Local Government Act 1919

B and D Kelly v Shoalhaven City Council [1991] NSWLEC 119

At a glance

Court

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Before

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Judgment (24 paragraphs)

B and D Kelly v Shoalhaven City Council [1991] NSWLEC 119 (3 December 1991)

Parties

Legislation Cited (1)

Cases Cited (7)