Court of Appeal (Qld)|1996-07-26|Before: Before Macrossan CJ, McPherson JA, Davies JA

Boral Resources v Cairns City Council [1996] QCA 249 (26 July 1996)

This appeal is brought against the decision of a judge of the Planning and Environment Court at Cairns dismissing claims for declarations sought by the appellant, Boral Resources (Qld) Pty Ltd.

The appellant had asked for declarations that it was entitled to use for the purpose of gravel crushing and screening, certain land in respect of which it held a permit from the respondent Council's predecessor, the Council of the Shire of Mulgrave, to carry on an "extractive industry".

The permit which was dated 22 January 1991 was made subject to a number of terms and conditions. The permission granted by the document was in this form:

"To carry on an Extractive Industry namely the stockpiling, treatment and cartage of sand, gravel and loam ... on and from that part of the land described as Lot 2 on Registered Plan 721611 ... as is shown coloured red on the Sketch Plan annexed ..."

The permit had issued following a consent order made by a judge of the Local Government Court on 19 June 1990 in an appeal from a decision of the local authority on an application made by the present appellant. That application had been made on 4 May 1989 for consent to make use of Lot 2 on RP721611 in a manner described thus:

"Extractive Industry - sand and gravel. Balance of land not used for Extractive Purposes - Used for Cane Farming."

No reference was made in connection with that application to any operation of gravel crushing or to the installation or use of crushing machinery. A report prepared on the appellant's behalf to support its application had outlined the intended processing operation in this way:

"Processing will be carried out on higher ground at the central eastern section of the site ... the plant will be a standard washing and screening plant ..."

After conducting its operations for a period, the appellant desired to install a crushing and screening plant as an addition to the plant on the site. This would include a primary and a secondary crusher and certain associated equipment. This appears from an affidavit dated 22 June 1995 sworn by Mr Palethorpe, the manager of one of the operating divisions of the appellant. At the time the affidavit was filed, the original Lot 2 on RP721611 had acquired a new description - Lot 5 on RP837731. As a result of an order made in the Planning and Environment Court on 28 April 1994, part of the appellant's land was rezoned by excluding it from its original Rural C Zone under the relevant Planning Scheme and including it in a Special Facilities (Concrete Batching Plant) Zone. This was gazetted on 7 December 1993. The appellant then carried on a concrete batching operation on the part of the land so zoned.

In its application for declarations unsuccessfully sought below, the claim had been made on two bases.

By the first, it was suggested that on a proper construction of the terms of the permit issued on 22 January 1991, screening and crushing had become a lawful use of the land. It was said to be so as being included within the scope of "treatment" of gravel which was a process nominated as expressly permitted.

The second basis advanced below was that screening and crushing of gravel was a permitted use because it was "incidental to and necessarily associated with the lawful use", the last reference being to the use specified in the permit of 22 January 1991. The quoted phrase derives from the definition of "use" in s.1.4, the definition section of the Local Government (Planning and Environment) Act 1990. The definition fully stated is in these terms:

" 'Use' in relation to land, includes the carrying out of excavation work in or under land and the placing on land of any material or thing which is not a building or structure and any use which is incidental to and necessarily associated with the lawful use of the relevant land."

On this second aspect the appellant's argument in essence was that in the circumstances of this case the authorised extraction of material on the site under the terms of the permit embraced an operation of screening and crushing gravel because that was incidental to and necessarily associated with the process of extraction.

Although the two bases of the claims for declaration which have been referred to could be regarded as closely related, the first of them supporting the claim as a matter of construction of the terms in which the permit was issued, was expressly abandoned on the hearing of this appeal. The "incidental and necessarily associated use" argument was the only one relied upon in this court.

The circumstances relevant to the argument based on incidental and associated use appear in the affidavit of Mr Palethorpe. In the main they are incorporated in findings made by the judge below. Reference can now be made to them.

The initial extraction process on the site involves a suction dredge. It operates to extract material at a minimum rate of 83 tonnes per working hour. The appellant's site is rich in deposits of sand and gravel. It was accepted that gravel of different sizes is inevitably collected as part of the process of winning sand. All of the extracted material is pumped to the processing plant where screens separate the sand which is then transferred to a stockpile. The separated gravel is dissected by screening for transfer to three further stockpiles graded according to size. The smallest, consisting of aggregate of less than 10 millimetres in cross section, needs no further processing for use by the appellant, but the two larger sized collections of aggregate need to be crushed at least if they are to be used in the concrete batching plant which is now built and operating on the part of the appellant's land mentioned above zoned as Special Facilities. The gravel of the two largest sizes constitutes on one estimate seventeen percent of the total material extracted in the dredging process. Additional machinery consisting of a screen, primary and secondary crushers and conveyors would be required to deal with the larger gravel aggregate and thirty to forty tonnes per hour could be processed during periods of operation.

The judge below noted that the permit of 22 January 1991 for "extractive industry" sanctioned a use which, amongst other things, included "treatment ... of ... gravel". He thought that this might, prima facie, have allowed the appellant's intended gravel crushing operation, but that there was a background which led to a different conclusion. At the time the permit was granted, provisions made under the Town Planning Scheme in the form in which they then stood included a definition of "Extractive Industry" as follows:

"Includes dredging, excavating, mining, quarrying, sluicing and any other mode of winning materials or substances from the earth whether or not submerged underwater and whether or not conducted for fee or reward, and including when carried out on the land from which any such materials or substances are extracted or on land adjacent thereto, the treatment or stockpiling of such materials or substances and the manufacture of products from such materials or substances: the term does not include excavating solely to erect a structure or solely to change the level of the ground to facilitate the construction of any structure."

For the relevant Rural C Zone, the Table of Zones showed "Extractive Industries" as a purpose for which use might be made with the consent of the Council (hence the appellant's application of 4 May 1989) but "noxious or hazardous industry" which was prohibited, was defined as a use specified by a number of headings including "Stone Crushers and Screeners". The distribution of purposes in the Table of Zones was in a form commonly encountered with headings indicating permitted (as of right), permissible (with consent) and prohibited uses.

The judge saw a conflict between, on the one hand, a prima facie effect which could be attributed to the words of the permit, and on the other, the fact that the zoning tables, while listing "extractive industry" as a consent use, ordained that "stone screening and crushing" should be prohibited. He considered that the conflict which he detected should be resolved by applying the decision of the Full Court in Logan v. Woongarra Shire Council [1983] 2 Qd.R 689. This he saw as a decision binding on him in this case. He concluded that the first declaration sought, relying on a construction alleged to be attributable to the terms of the permit, should be refused.

The judge then turned to consider the appellant's "incidental and associated use" argument. He regarded the debate as affected by the view expressed by Ryan J. in Southside Action Group Against the Proposed Dump at Rochedale Inc. v. Brisbane City Council (1992) 76 L.G.R.A. 402 (citing amongst other authorities, Gibbs C.J. in Lizzio v. Ryde Municipal Council (1983) 155 C.L.R. 211 at 216-217 and similar views elsewhere expressed) but again decided that Logan (supra) precluded his regarding stone crushing and screening as being available as an adjunct use when it was, in fact, a use which was expressly prohibited. For this reason he refused to grant the declaration sought on the second basis.

Although his conclusions disposed of the matter before him, the judge proceeded to make a number of findings, on what he described as "issues of fact", in case they should subsequently be needed. He drew from the reasoning of Gibbs C.J. the proposition that the decision whether the use of screening and crushing was one "incidental to and necessarily associated with" the use of extractive industry was one raising a question "of fact and degree". He referred to certain matters as undisputed: the larger gravel sizes were inevitably extracted in the dredging process covered by the permit; the percentage of the larger gravel in the overall bulk was small (he mentioned the broad figure of twenty per cent); the concrete batching was a use now permitted on part of the land especially zoned and adjoining that on which the extractive process was carried on and the screening and crushing was proposed. These matters he considered he could take into account together with the extent of the operation proposed and the safeguards against causing undue disturbance in operation intended to be implemented. He concluded that the disputed use "could properly be regarded as a matter of fact" as a use incidental to and necessarily associated with "the lawfully permitted use". His process of reasoning, while not fully explicit, undoubtedly involved his making what he regarded as an appropriate assessment based upon the various factors listed.

The judge's conclusion is entitled to weight but it is one which depends in this case on legal considerations as well as mere matters of fact and it lies in an area where he did not enjoy an identifiable advantage over this Court. The appellant, for its part, argued that the judge reached an erroneous conclusion of law by regarding Logan (supra) as determining the question for him and hence, the appellant says, the decision is subject to review on appeal brought under the provisions of s.7.4(3) of the Act. That provision allows correction on appeal in the case of "error or mistake in law". In so submitting, the appellant sought to retain the advantage of the so-called findings of fact referred to above.

It has to be observed that so far as appears, the judge was strongly influenced in his conclusions by the relative percentage volume of larger gravel as part of the overall volume of material extracted. However, he does not appear to have given weight to the fact that the appellant, in dealing with the larger sized gravel by the process that it proposes will include crushing, will not be acting under a compulsion arising from the extraction process itself. To include an additional process of crushing which goes beyond mere extraction, involves a voluntary extension of what the operation would otherwise involve. Alternatives available would be no crushing at all, or removal to crush elsewhere perhaps on some site where gravel crushing may be specifically authorised. There was no evidence that the additional process constituted a use which was unavoidably involved in the authorised operation, or that the operation became uneconomic unless the crushing process was included within it.

The present case should be distinguished from one where a challenged process could be regarded as inevitably involved in a permitted use. Also, there could be a case of a different kind where there exists only one significant use and a further use only arguably and insignificantly present so that it might be regarded as no more than merely technically in existence. The process of screening and crushing which the appellant voluntarily proposes to conduct as an additional process here, has a character quite different from those just described. It would be a process difficult to place within the ambit of use embraced within the definition in s.1.4 as one "necessarily associated" with another use of extraction even if it can properly be described as "incidental" to it. With due respect to the conclusion reached by Ryan J. in Southside (supra) the reasoning there favoured does not give sufficient effect to the word "necessarily" in the definition. In the context which Ryan J. was addressing, it might be thought that he too readily transposed reasoning from different contexts considered in Lizzio (supra) and the further case of Foodbarn Pty Ltd v. Solicitor-General (1975) 32 L.G.R.A. 157 which was referred to in it.

The fact that at the time the permit in question here was granted, extraction and, with it, "treatment" of gravel was a use which was permitted with the consent of the local authority, but "crushing and screening" of gravel was prohibited, is a matter which stands in the way of any over-ready conclusion that the latter process can be regarded as simply incidental and it emphasises the importance of a decision on the question whether a further process of crushing and screening is necessarily associated with the process of extraction. It is easy to see why a potentially much more disturbing process of gravel crushing should be prohibited even though extraction and (some forms of) treatment of gravel are permitted. The critical difficulty for the appellant is that what it argues to be a mere ancillary use which can be included in association with the permitted use cannot in fact be gathered within the extended definition of "use" unless it meets a cumulative test, being both "incidental to and necessarily associated with" an indisputably lawful use. For the reasons set out above the proposed crushing and screening should not be regarded as conforming with this requirement. The decision of the judge below rejecting the claims for declaration should thus be supported for reasons which are different from those which the judge expresses.

Some observations should be added upon the cases cited above and referred to by the judge.

Logan (supra) was decided on the basis that general words under a heading of permissible use could not prevail against a more specifically stated prohibited use in the table of uses. In that case the first mentioned table of permissible uses was arrived at after excluding all uses specified as being permitted as of right or prohibited. For this reason the general reference to "treatment" of excavated materials considered in that case could not limit the effect of a prohibition on stone crushing and screening. The case thus considered only the tension between a permissible general use and a prohibited specific one. It did not consider at all the question arising here of the effect of the statutory inclusion of what might be called an ancillary use subject to its meeting the cumulative requirements referred to above.

The decision in Lizzio (supra) gave attention to a general proposition that in searching for a broad purpose for which it can be said land is being used, it can be legitimate to look for the dominant purpose and ignore as merely incidental or subservient some other purpose. This, it was said, can involve a question of fact and degree. The principle there adumbrated did not have to deal with the effect of a statutory definition such as s.1.4.

The decision of Ryan J. in Southside (supra) might be regarded as one on its facts where the conclusion was reached that land was being used for the disposal of refuse but not being used for the independent purpose of gas production. The judge there decided that the use of gas production was necessarily associated with the disposal of refuse although in adding and conceding that it was not "absolutely" necessarily associated, he seems, with respect, to have added a gloss to the statute which finds no obvious justification in the words found in s.1.4.

The result is that the present appeal should accordingly be dismissed for the reasons already discussed, but some further matters should be mentioned before finally disposing of the case.

Clause 5 in Part 2 of Division 1 of the Town Planning Scheme under which the permit of 22 January 1991 was obtained read as follows:

"Where any building or other structure or any land is used or intended for use for more than one purpose, it shall be deemed, for the purpose of this Town Planning Scheme, to be used or intended for use for each of those purposes."

The present respondent, Cairns City Council, is in fact the successor local authority of the Council of the Shire of Mulgrave, under whose scheme that permit was granted and the respondent now operates with a new Town Planning Scheme in place. Under the new scheme a number of changes have been effected. There is now a different definition of "extractive industry" which, after reference to "sand, gravel, turf, rock, stone or similar material" goes on, it may be noted, to include "crushing (and) screening, ... of any such material" when carried out on the land where the material is extracted or on land adjacent thereto. Further, a different definition of "hazardous or offensive industry" is adopted, treating purposes under generalised headings and departing in this respect from the more specifically nominated processes formerly declared and, in particular, not listing gravel crushing and screening. As well as this, a change is made to the table of uses with the result that, for the Rural Zone, consent approval for extractive industry, which can now include screening and crushing of gravel, may be obtained. Of course, conditions may be imposed if any consent for a use for extractive industry is to be granted.

The appellant has not chosen to apply under the new Town Planning Scheme for any consent use for extractive industry and in these proceedings has simply argued that, on the basis outlined above, it needs no consent in the circumstances applicable to its proposed operation taken in conjunction with the form of the permit which it already holds under the scheme formerly in operation. The appellant has not chosen to argue that its rights have been in any way expanded by the coming into operation of the new scheme. It is thus not necessary for the disposal of the appeal to investigate any effect which might arguably have been attributed to the operation of the new scheme but some matters should be recorded even though they were not considered in depth in these proceedings.

Subsections (3) and (8) of s.8.10 of the Act of 1990 contain certain saving and transitional provisions, the effect of which may, for present purposes, be stated briefly in this fashion. Planning schemes in force immediately before the commencement of the Act of 1990 continue in force to the extent that they conform with the Act. Approvals and consents granted prior to the commencement of the Act continue in force as if made under the Act with attached conditions applicable as if the Act had not commenced.

The former Town Planning Scheme applicable under the administration of the Council of the Shire of Mulgrave, the respondent's predecessor, contained a provision, clause 5 of Part 2 Division 1, as follows:

"Where any building or other structure or any land is used or intended for use for more than one purpose, it shall be deemed, for the purpose of this Town-Planning Scheme, to be used or intended for use for each of those purposes."

This provision directs attention to the uses into which any operation or undertaking might be dissectible and, taken by itself, would require a close and relatively elaborate conformity between all aspects of that operation and any planning scheme which, in the usual form, prescribes permitted, permissible and prohibited uses. All ancillary and associated uses and purposes which are part of a larger and perhaps complex undertaking might, in all their aspects, require to be matched against the provisions of the planning scheme. It seems obvious that the strictness of such a regime was intended to be modified by the effect of the provisions contained in the quoted definition in s. 1.4 of the Act. It is thus possible that what might, when considered alone, be regarded as a separate prohibited use could now, if it meets the conditions prescribed in s.1.4, be assimilated into an encompassing use which is permitted. However, there will remain the definite restrictions upon the extent to which, on this view of a use as being merely ancillary, it can be acted upon. A use claimed to be no more than ancillary and effectively included within the sanction afforded to some other use to which it is "incidental to and necessarily associated" will need to conform with that description. This nevertheless is an area where s.1.4 has some potential to override or limit the effect of a planning provision like clause 5. However, because of the way in which the present appeal was argued, there is no need to say more or to express any final opinion on this aspect.

CATCHWORDS: LOCAL GOVERNMENT - TOWN PLANNING - Planning schemes - construction and interpretation - "extractive industry" - gravel extraction operation - whether crushing and screening is "incidental to and necessarily associated with" - relationship between Planning Scheme and Local Government (Planning and Environment) Act 1990 s.1.4 considered.

Local Government (Planning and Environment) Act 1990 s.1.4

Logan v. Woongarra Shire Council [1983] 2 Qd.R. 689

Southside Action Group Against the Proposed Dump at Rochedale Inc. v. Brisbane City Council (1992) 76 LGRA 402.

Lizzio v. Ryde Municipal Council (1983) 155 CLR 211.

Solicitors: Neil O'Sullivan Rowell for the appellant.

MacDonnells Solicitors by Clayton Utz as town agents for the respondent.

Local Government (Planning and Environment) Act 1990

Planning Scheme and Local Government (Planning and Environment) Act 1990

Government (Planning and Environment) Act 1990

Boral Resources v Cairns City Council [1996] QCA 249

At a glance

Court

Decision date

Before

Source

Judgment (48 paragraphs)

Boral Resources v Cairns City Council [1996] QCA 249 (26 July 1996)

Parties

Legislation Cited (3)

Cases Cited (1)