Could the proposed pipeline be a "minor utility installation"?

1. In my opinion, the proposed pipeline is a "sewerage main". The concept of a "main", when used in relation to water, gas, electricity or sewage, will usually involve a conduit that serves more than one property and has a public or communal element to it. The proposed pipeline will serve a large number of properties. It will be a communal pipeline. The pipeline might also be regarded as a "main" because of its size.

1. The planning scheme contains definitions of the various land use terms which are used in the scheme. One of these land use terms is "utility installation". This is defined to mean, relevantly, "land used ... to collect, treat or dispose of ... sewage ...". Another land use term is "minor utility installation". This is relevantly defined as:

Land used for a utility installation comprising any of the following:

The drafting of this land use term is inelegant. This is because if one inserts the definition of a "utility installation" into the definition of "minor utility installation" the outcome is "land used for land used for ...". However, in my opinion, the meaning is clear. The land use term "minor utility installation" should be understood to mean "a utility installation comprising any of the following" such as a sewerage main. It follows that a sewerage main - used to collect, treat or dispose of sewage - will be a "minor utility installation" if it can be said that land is "used" for this purpose.

1. Assuming that the subject land will be "used" for the purpose of a sewerage main, in my opinion a permit is required pursuant to clause 36.02-1 of the scheme to use the land. The land use term "minor utility installation" is not included as a specified use within section 1 of the relevant table of uses in the Public Park and Recreation Zone. Further, it is not a specified land use term included in section 3 of the table. It follows that such a use is a section 1 use only if it can satisfy certain specified conditions; and, otherwise, is a section 2 use. The specified conditions are that the use must be either of the following:
   • A use conducted by or on behalf of a public land manager or Parks Victoria under the relevant provisions of the Local Government Act 1989, the Reference Areas Act 1978, the National Parks Act 1975, the Fisheries Act 1995, the Wildlife Act 1975, the Forest Act 1958, the Water Industry Act 1994, the Water Act 1989, the Marine Act 1988, the Port of Melbourne Authority Act 1958 or the Crown Land (Reserves) Act 1978.
   • A use specified in an incorporated plan in a schedule to this zone.

There is no relevant specification in the schedule to the zone. However the authority contended that the sewerage main was to be developed and used by a "public land manager" under the Water Act 1989.

1. The expression "public land manager" is defined in clause 72 of the scheme as follows:

The Minister, government department, public authority or municipal council having responsibility for the care or management of public land. In relation to Crown land reserved under an Act and managed or controlled by a committee of management, other than Parks Victoria or a municipal council, it means the Minister administering that Act and does not include the Committee of Management.

1. The expression "a public land manager" means any public land manager. There can be, at one and the same time, more than one public land manager that is responsible for the care and management of land. The City of Ballarat is a public land manager in respect of the land; and may be described as the primary carer and manager of the land; but this does not mean that there cannot be another public land manager. The planning scheme contemplates the possibility that more than one authority might be a public land manager in respect of the same land. There are several reasons for such a conclusion. First, the use of the word "a" rather than the word "the" in clause 36.02-1 is significant. Second, the context of the expression indicates that the activities of more than one authority may be embraced. Third, various Acts are referred to clause 36.02-1: this indicates that different responsibilities may arise in relation to public land, many of which will be concurrent.
2. Central Highlands Water is a public authority. In constructing and using the sewerage main, the authority will be acting pursuant to powers contained in the Water Act 1989. However I am not satisfied that the authority has responsibility for the care or management of the land (which is public land) upon which the sewerage main is to be constructed. A key function of the authority is to provide, manage and operate systems for the conveyance, treatment and disposal of sewage. This is a different species of power or responsibility to the power or responsibility of caring or managing public land. Section 131 of the Water Act does create a circumstance where an authority may be given the responsibility to manage public land. In such circumstances the authority would have that additional responsibility, separate from its responsibility to provide for the conveyance of sewage. However section 131 does not vest in an authority the power to manage public land unless the Governor in Council makes such a declaration. No evidence was provided to the tribunal that the Governor in Council had made such a declaration in the present case.

Is the land to be "used" for a minor utility installation?

1. Not every activity that occurs on land will constitute the "use" of land for the purpose of a planning scheme. This is so even if the activity falls within a defined land use term. Thus the fact that a sewerage main is embraced in the land use term "minor utility installation" does not mean that all land containing a sewerage main is to be regarded as being "used" as a minor utility installation.
2. When the planning scheme talks about the use of land it is to be taken as referring to the use of land for a purpose.[1] In general, planning schemes are concerned with the physical use of land for a purpose.[2] Thus the holding of land for the purpose of future development is not a "use" of land as such.[3]
3. The physical activity on the land may be transient; or of trifling significance; or ancillary to another use; or overshadowed by another use. This is so even if the development of the land for the activity might be substantial. Hence a question that will need to be determined is whether, following the laying of the proposed sewerage main, it ought be found that the subject land will be "used" for the purpose of a sewerage main (or, perhaps more accurately, a "minor utility installation"). This is, I think, a question of fact. Hence it is not appropriate that I determine the matter. However it is appropriate that I set forth certain legal principles that might apply in determining whether or not the existence and operation of the sewerage main will result in the land being used for the purpose of a minor utility installation.
4. In characterising the purpose for which land is used it is possible to adopt different levels of abstraction.[4] The key is to find the appropriate level of abstraction. Although this may depend on the planning controls in question, the general guidance provided in relation to existing uses by McHugh JA in Royal Agricultural Association of NSW v Sydney City Council is helpful:

Because "existing use" provisions are incompatible with the main objects of the legislation of which they form part, the courts have had to develop principles which reconcile the right of owners to have the full benefit of the existing use of land with the right of the local authority to enforce the conflicting objectives of town planning legislation. The courts have done so by refusing to categorise an "existing use" so narrowly that natural changes in the method of using the land or carrying on a business or industry will render an existing use right valueless. At the same time, the courts have been concerned not to categorise the purpose of an existing use so widely that the land or premises could be used for a prohibited purpose which was not part of its use at the commencement of the legislation. Accordingly, a test has been devised which requires the purpose of the use of land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. Thus the test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. But it is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc as a class have made of the land.[5]

1. As Ashley J observed in Cascone v City of Whittlesea, whilst the intended use of premises, in the sense of activities, processes or transactions to be undertaken, will be useful in casting light upon the purpose of the proposed use, it is wrong to determine the relevant purpose simply by identifying activities, processes or transactions and then fitting them to some one or more uses as defined in a scheme. Further, as Ashley J observed, in resolving the problems of characterisation the adjectival phrase "real and substantial" qualifies the word "use": and this will serve to emphasise the distinction between "purpose of use" and "use" (in the sense of activities, processes or transactions).[6]
2. It may be useful to provide an example, by reference to the activities that might occur on a typical road. These activities might include the carriage of vehicles and pedestrians, the transmission of power, the transmission of gas, the transmission of water, the transmission of sewage, the transmission of data, landscaping and vehicle parking. Notwithstanding the range of activities that occur on such land, in giving effect to planning controls the purpose of the use would ordinarily be characterised as a "road", rather than "car parking" or "landscaping" or a "minor utility installation".[7]
3. In order to determine whether a particular activity which is to occur on land will constitute the purpose for which land is used, the key consideration is likely to be the nature, extent and duration of that activity in the context of other activities that will occur on the land. It will also be relevant to consider whether that activity would ordinarily be regarded as the purpose for which land is used, or whether it is simply something that happens or is to happen on the land.

1. A particular control which applies to land in the Public Park and Recreation Zone is that a permit is required to construct a building or construct or carry out works: see clause 36.02-2. Hence, on its face, a development permit is required for the proposed sewerage main.
2. Clause 36.02-2 provides that the general requirement that a permit be obtained for the construction of works does not apply to, inter alia, "irrigation, drainage or underground infrastructure". It is a question of fact whether the proposed sewerage main is "underground infrastructure". Hence, if this matter needed to be determined, it would be a matter for Mr Cimino. However I would observe that a sewerage main need not be completely underground to be regarded as "underground infrastructure". Rather it would be necessary to consider all relevant facts about the proposed sewerage main and then to reach a conclusion whether the character of the works is such that it should be regarded as "underground infrastructure": see the comparable analysis in relation to storeys in a building in Poci Bros Pty Ltd v Bayside City Council.[8]
3. In any event it is also relevant to consider clause 62.02 of the scheme. This provides that any requirement in the scheme relating to the construction of a building, or the construction or carrying out of works, does not apply to, inter alia, buildings and works associated with a minor utility installation. The sewerage main, and the works required to construct the sewerage main, are "associated" with a minor utility installation. It follows that the requirement in clause 36.02-2 is inapplicable. This is so whether or not the proposed sewerage main is to be characterised as "underground infrastructure".

Validity of specific conditions under native vegetation control

1. Assuming that the subject land is not to be regarded as being "used" as a minor utility installation, I am then asked to give my opinion as to the validity of certain conditions. This issue arises in the context that there is but one reason why a permit is required before the proposed development and use may take place, namely the provisions of clause 52.17 of the scheme which relate to native vegetation. Thus it is necessary to say something about this control.

A permit is required to remove, destroy or lop native vegetation.

There are a number of exceptions to this provision. However I was informed that none of the exceptions applies in the present context.

1. The term "native vegetation" is defined to mean:

Plants that are indigenous to Victoria, including trees, shrubs, herbs and grasses.

The verbs "remove" and "destroy" apply to all species of native vegetation. However, in my opinion, the verb "lop" is mainly used in relation to a tree. I say more about this term subsequently.

1. The notion of removing a plant carries the connotation of a physical act which results in the plant no longer being in the location it occupied before that act. Plants may be removed by hand or by machine (whether an excavator or the like, or a saw, or an axe). The notion of "destroying" a plant is somewhat different. A plant might be thought to be destroyed if it is removed, but it could also be destroyed without being removed: for example, by poisoning[9] or by the severing of critical elements of the plant, such as major roots.

1. The concept of "lopping" is usually apposite to a tree, and not to grasses or shrubs. The semantic meaning of the verb "lop" is variously defined. The Macquarie Dictionary suggests "to cut off the branches, twigs, etc of (a tree or other plant)" and "to cut off (branches, twigs, etc) from a tree or other plant". The Shorter Oxford Dictionary suggests two subtly different meanings:

Cut off the branches, twigs, etc from (a tree); cut away the superfluous growth of, trim; occasionally, cut the top off (a tree).

The free access Wiktionary defines the verb to mean:

1. In my opinion, it is unlikely that the concept of "lopping" a tree extends to the severing of roots. Certainly the severing of roots would not ordinarily be described as lopping a tree. Hence I think that the severing of roots must be considered in the context of whether a tree is removed or destroyed.
2. Although the lopping of a tree involves the cutting off of branches, it does not follow that a tree will be "lopped" simply because a twig or branch is removed. Good pruning practice often involves the removal of branches - this practice is often necessary to improve the health, life or appearance of trees. It would be odd if a permit was required for such an activity.
3. There is an additional reason why it is unlikely that the permit requirement is intended to embrace the pruning of trees. This is because the provisions of the Heritage Overlay, contained in clause 43.01 of the scheme, specifically provide that a permit is required to "remove, destroy, prune or lop a tree" in certain circumstances. It is unlikely that the addition of the reference to the pruning of a tree was merely intended to duplicate the word "lop".
4. Thus it is likely that where the word "lop" is used in the context of a permit requirement in respect of a tree it is intended to refer to the removal of the upper portion of a tree or a major portion of a tree (even though not the upper portion). I suspect that the key ingredient is whether the outcome of the "lopping" is that the shape of the tree is radically changed. It is unlikely that conduct which is consistent with the pruning of a tree would not be regarded as the lopping of a tree. An example of the distinction between the pruning of a tree and the lopping of a tree is given on the website of the Willoughby City Council: where the word "lop" is used in the sense of taking out of the top of a tree or the removal of substantial branches that form a substantial part of the tree.

1. Against this background, I give the following specific opinions about the draft conditions which were raised before me.

No "storage areas" on Crown land, unless specifically approved by the Department of Sustainability and Environment;

Central Highlands Water argued that if the storage areas do not interfere with any areas of native vegetation then there is no need for the approval by DSE of such areas. The responsible authority sought the inclusion of the condition so as to prevent foreseeable damage to native vegetation. The resolution of this question depends upon whether or not the storage areas have the potential to impact upon native vegetation. As the condition proposes to identify that potential, and deal with it, it is a valid condition. It is quite legitimate to impose a condition to ensure that measures be taken so that no more than identified native vegetation be destroyed.

1. There was some discussion concerning draft condition 1)b). However Central Highlands Water informed the tribunal that the issue had been addressed to the satisfaction of DSE. Thus there is no need for the tribunal to give its opinion on this draft condition.

1. In order to comprehend the intent of draft condition 2)b) it is best that I set out its preamble:

An Environmental Management section which specifies how construction activity will be managed so as to minimise impacts on the environment, including native flora and fauna. This section must include the following:

Draft condition 2)b) then includes a comprehensive list of requirements that are necessary prior to the commencement of works. The tribunal was asked to give its opinion on six requirements of this draft condition.

In order to minimise impacts on waterways, the works must not be carried out during winter months, or during other periods when wet ground conditions may result in unacceptable levels of waterway damage, erosion, or soil compaction.

The responsible authority argued that this condition is valid because the period in which works can be carried out is reasonably related to a permit to remove native vegetation. It explained that the condition is designed to mitigate the impact of the works on remaining native vegetation. Central Highlands Water informed the tribunal that works are not ordinarily undertaken in wet weather conditions. The tribunal is of the opinion that this condition can be validly imposed if it is modified to refer more generally to environmental damage to native vegetation rather than be focussed upon damage to waterways. It is a matter for Mr Cimino whether he choses to delete the reference to the winter months or adopt a reference to wet ground conditions.

1. Central Highlands Water contended that draft condition 2)b)ix) is not a valid condition because it does not relate to the removal of native vegetation. Draft condition 2)b)ix) reads:

To prevent the spread of weeds and pathogens, all vehicles and equipment must be made free of soil, seed and other plant material prior to entering or leaving the project site, and wash down points, which shall be located immediately after any significant weed infestations or before entering clean areas. All wash down points must be located at least 100m from creek banks, drainage lines and surface waters.

In my opinion, this draft condition can be validly imposed because it is related to construction activity involved the removal of native vegetation; and it is designed to protect native vegetation which is not identified for removal.

1. In my opinion, that draft condition 2)b)x) can be validly imposed because it relates to the manner in which native vegetation is to be removed. The draft condition reads:

Site works must be carried out in accordance with the guidelines and recommendations included in Environment Protection Authority publication No. 275 "Construction Techniques for Sediment Pollution control (May 1991)".

1. Before discussing draft conditions 2)b)xiii) and 2)b)xiv) I will set them out:
   1. Particular care must be exercised, so as not to cut through critical roots within the drip line of indigenous trees with a trunk diameter of 10cm or greater at breast height (ie. measured at 1.3m above the ground).
   2. Where the proposed pipeline passes within the drip line of significant indigenous trees (ie. trees with a trunk diameter of 45cm or greater at breast height), the pipe must be bored.

In some circumstances trees may be destroyed by cutting critical roots or a significant body of the root system. In my opinion, in the grant of a permit to remove or destroy native vegetation it is thus lawful to specify how the activity is to take place so as to avoid that consequence in relation to trees not the subject of the permission. This specification may be by way of a condition that helps to amplify the content of the permission. Put another way, where a permit is granted to remove native vegetation it is valid to impose a condition to protect native vegetation that is not being removed so that the difference between what is permitted and what is not permitted is sharpened. Hence the tribunal has the power to impose these two conditions. In this context, it may need to give consideration to individual trees, as opposed to the site in total.

1. Draft condition 2)b)xv) imposes a requirement to remove, retain and respread topsoil to its original location. The council argued that this condition reasonably related to the grant of a permit for the removal of native vegetation, because its intent is to assist in the rehabilitation of the site where the (sewerage) works have been carried out. In my opinion this draft condition cannot be validly imposed as it is not reasonably related to the act of removing native vegetation. However this does not mean that it is an undesirable thing to do.

1. Draft condition 6) imposes an obligation on Central Highlands Water to obtain relevant approvals, prior to the commencement of any works, from the Corangamite Catchment Management Authority. Ms Black contended that this was a relevant condition because the Corangamite Catchment Management Authority is responsible for the management of the floodplain, creek, creek beds and creek banks; as such they should approve any works that is to occur in the area. But, in my opinion, this draft condition cannot be validly imposed as it seeks to unlawfully delegate to the Corangamite Catchment Management Authority powers expressed in the Planning and Environment Act 1987as powers to be exercised by the City of Ballarat.

That DSE co-operate with local residents in the development of an environmental action plan.

This condition cannot be validly imposed. It is precatory in nature. The responsible authority is entitled to think that co-operation is a desirable outcome; but the tribunal cannot (and should not) impose such a condition on a permit for the removal of native vegetation.

[1] Cascone v City of Whittlesea (1993) 11 AATR 175, at 190.

[2] It may be that land held as a buffer is an exception; although, in one sense, even this use involves the physical use of such land. In relation to the use of buffer land, see Newcastle City Council v Royal Newcastle Hospital (1959) 100 CLR 1.

[3] See Australian Football League v Commissioner for Sate Revenue [2004] VCAT 1882 at [34] to [36]; and the cases cited therein.

[4] Hutchison 3G Australia Pty Ltd v Director of Housing [2004] VSCA 99 at [39]; Hutchison 3G Australia Pty Ltd v City of Mitcham [2006] HCA 12.

[5] (1987) 61 LGRA 305, at 309-310.

[6] (1993) 11 AATR 175, at 190.

[7] A similar situation arose in the recent case of Ratliff v Stonnington City Council [2006] VCAT 1218, where it was held that a provision requiring a permit to be obtained to construct a dwelling did not require a permit to be obtained to construct a driveway to an existing dwelling.

[8] [2003] VCAT 1884.

[9] Compare Greater Shepparton City Council v Buckley Sawmills Pty Ltd [2005] VCAT 2502.