1 More than fifty years ago Dixon J observed that the word "works" is "not a word of fixed connotation and besides being elastic it is somewhat indefinite".[1] Yet the word plays a vital role in all planning schemes in Victoria, as it often regulates the circumstances in which a permit is required. The extent of the concept of "works" is raised in these proceedings in the context of timber production. I am asked to make a declaration that certain activities involved in timber production do not involve the carrying out of works and, as a consequence, do not require a permit under the Colac-Otway Planning Scheme ("the scheme").

2 Before dealing with the issues, it is desirable that I set out certain background matters, starting with the planning scheme provisions and then questions of fact.

3 These proceedings involve two lots which are included in the Rural Zone pursuant to the scheme. Within the Rural Zone land may be used for timber production, without a permit, provided certain conditions are met. One of these conditions is that the timber production comply with the Code of Forest Practices for Timber Production - Revision No 2, November 1996 ("the Code"). The applicant states that it proposes to use the land for timber production in accordance with the Code. Various other conditions also apply. It is common ground that the use of the land for timber production complies with these conditions.

4 Each lot is also affected by a Land Subject to Inundation Overlay ("the overlay"). In the case of one of the lots only a small portion of the land is so affected. This proceeding only concerns the portion of the lots which are affected by the overlay.

5 The principal purpose of the overlay is to identify land that is subject to flooding and to ensure that development on such land is appropriate having regard to that purpose. Clause 44.04-1 of the scheme provides:

A permit is required to construct a building or to construct or carry out works, including a fence and roadworks.

• If a schedule to this overlay specifically states that a permit is not required.

• To flood mitigation works carried out by the responsible authority or floodplain management authority.

• To the following works in accordance with plans to the satisfaction of the responsible authority:

. The laying of underground sewerage, water and gas mains, oil pipelines, underground telephone lines and underground power lines provided they do not alter the topography of the land.

. The erection of telephone or power lines provided they do not involve the construction of towers or poles.

The schedule to the overlay does not specify that a permit is not required for any particular matter.

6 The proposed activities involved in using the land for timber production were common ground. The applicant wishes to establish a bluegum timber plantation on each lot with a view to harvesting the trees in about ten years for use as pulp. At present the land is cleared farmland which has been used for grazing. As the plantation is to be implemented in accordance with the Code, there will be setbacks from boundaries, drainage lines and other site constraints.

7 The process for implementing the plantation involves the following steps:

• The external boundaries of the plantation are pegged and sprayed to kill weeds and bracken.

• Designated fire breaks are sprayed to kill vegetation.

• The area to be planted is cultivated by ploughing or ripping the earth. This is done using a machine which rips the soil, to a depth of approximately 500 millimetres, in strips having a width of about 2 metres. The centre lines of each ripped strip are about 5 metres apart. Hence, between each ripped strip there is a strip of grass having a width of about 3 metres.

• The ploughing or ripping of the ground aerates the soil, with the result that this strip sits proud of the grassed areas. Further, the ripped soil is slightly mounded towards the centre of the strip so as to have a height of about 150 to 200 millimetres above the grassed areas.

• Ripping is not undertaken in dry areas. However most of the relevant land, being land which is subject to the overlay, will need to be ripped.

• Once the topsoil has been ripped, the ripped strips are sprayed with herbicide to control weeds.

• The next step is to apply fertiliser to the ripped strips, following which seedlings are planted, by hand, generally 2 metres apart. A typical seedling would have a height of 200 millimetres above the ground.

8 Following the establishment of the plantation, there is an ongoing monitoring program. This may result in insecticides or herbicides being applied. This is more likely in the first two years of the life of the plantation.

9 The responsible authority advised the applicant that a permit was required to create the ripped strips as this involved the carrying out of works. The council also maintains that the planting of the trees involves the carrying out of works. These contentions were supported by local citizens who are concerned about the bluegum plantation.

10 By contrast, the applicant contends that the proposed operations do not require a permit under the scheme. First, it said that the operations involved the use of the land for timber production, which does not require a permit; and, by reason of the Code, this use will be carried out responsibly. Second, it said that no aspect of the operations could reasonably be regarded as the carrying out of works.

11 Clause 71 of the scheme provides that a term used in the scheme has its ordinary meaning unless that term is defined in the planning scheme or in the Planning and Environment Act 1987 ("the Act"). Where a term is defined in the Act, clause 71 provides that the term has the meaning given to it in the Act unless it is defined differently in the scheme.

12 The word "works" is not defined in the scheme; but it is defined in section 3 of the Act as follows:

"works" includes any change to the natural or existing condition or topography of land including the removal, destruction or lopping of trees and the removal of vegetation or topsoil.

13 This is to be contrasted with the equivalent definition in the former governing Act, the Town and Country Planning Act 1961, which was as follows:

"Works" or "work" means any construction other than a building and includes -

(a) fences walls channels roads and pavings not appurtenant to a building and lighting heating power waster supply drainage and sewerage installations not so appurtenant; and

(b) any alteration of the natural condition or topography of land.

The key differences are the absence of the words "any construction" and the presence of the reference to removing trees, vegetation and topsoil, in the current version. There are other, more subtle, differences: such as the inclusion of the word "existing" in the current version.

14 It is to be observed that the current definition of the term "works" has three arms. First, the word has its natural meaning. Second, it has the extended meaning of "any change to the natural or existing condition or topography of land". And third, it has its further extended meaning of "the removal, destruction or lopping of trees and the removal of vegetation or topsoil."

Clause 62 of the scheme limits the scope of "works"

15 There are many provisions in the planning scheme which require a permit to be obtained to construct a building or to construct or carry out works. Indeed, the concept of carrying out works is a building block upon which all planning schemes are constructed. However, having regard to the broad operation of the concept, the author of the scheme has seen a need to constrain its operation. Hence clause 62 of the scheme 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 a long list of specified things, unless there is a contrary provision. Examples of things that do not require a permit are a fence, roadworks[2], gardening, repairs and routine maintenance to an existing building or works and, significantly, the removal, destruction or lopping of trees and the removal of vegetation. Another thing that is specified as not requiring a permit is any works necessary to prevent soil erosion, or to ensure soil conservation or reclamation. It seems clear enough that neither the proposed ploughing (or mounding) nor the planting of trees is included in any of the exemptions in clause 62.

16 It is convenient to consider the various arms of the definition out of order. In relation to the third arm, the proposed activities do not involve the removal of topsoil: all topsoil will remain on the land. Further, to the extent that the activities may involve the removal of trees in the future, this does not require a permit by reason of the exemption in clause 62 of the scheme. The removal of vegetation is part of the extended meaning of "works". In my opinion, this is intended to embrace the physical act of displacing vegetation; it is not apt to include the application of chemicals to destroy vegetation. This conclusion is underscored by a comparison of the language used in the definition in relation to trees and that used in relation to vegetation: that is "the removal, destruction or lopping of trees" compared with "the removal of vegetation". However, if I am wrong about this, the exemption in clause 62 would operate such that a permit would not be required for the removal of vegetation. Hence it is unnecessary to further consider the third arm of the definition of "works".

17 The natural meaning of "works", although elastic and indefinite, would embrace an engineering structure such as a bridge, a dock, a trench or a dam. It is clear enough that a quarry also involves "works". The Shorter Oxford English Dictionary says that work, in its plural, means "architectural or engineering operations"; although, with so many different meanings of the word "work", there will always be scope to argue about the precise meaning of the word in its plural form. The natural meaning of words in a statute depend on context and purpose.[3] In my opinion, the Parliament intended that the natural meaning of the word "works" to be some form of architectural or engineering structure or excavation. In my opinion, the Parliament did not intend that "works", standing alone, would embrace activities such as the ploughing of a field, the application of herbicide or the planting of a tree.

18 I now turn to consider the first extended meaning of the definition of "works", whereby the concept includes "any change to the natural or existing condition or topography of land". The word "natural" may impose some constraint[4], but the word "existing" will usually render any debate about this to be academic. Similarly the word "topography" might be thought to apply to the land form generally, rather than every nook or cranny in the land form; but again, the use of the word "condition" tends to render this academic. The word "condition" is very broad, meaning "state or circumstance" and could include such things as the form, appearance, shape, chemical composition, moisture content or productive capacity of land. I will return to consider the implication of this later.

19 At this stage one further observation should be made: for an activity to be "works" under the first extended definition the change must be to the condition of "land", whatever that means in its context. Notwithstanding that the word is defined in the Act to include "any estate, interest, easement, servitude, privilege or right in or over land" I cannot accept that this extended meaning of the word is intended to operate in the context of the definition of "works". Further, I doubt that another extended form of the word "land", namely that it includes "buildings and other structures permanently fixed to land", is intended to operate in the context of the definition of "works". In my opinion, the definitions contained in section 3 of the Act are not intended to apply if there are sufficient indications to the contrary; and this is so notwithstanding that the introduction to section 3 does not state this explicitly, the Act being written in a plain English style.[5]

20 In Logan v Miller[6] Marks J touched on the meaning of the word "works" in the context of the Town and Country Planning Act 1961. At that time the definition provided, relevantly:

"Works" ... includes ... any alteration of the natural condition or topography of land.

Marks J observed that his inclination was that the words "natural condition" and the word "topography" relate to land, and not what was growing on the land. Hence he would not have regarded the removal of native trees as works, as the condition of the land - as opposed to what was growing on the land - was not changed by the tree removal.

21 In my opinion, if tree removal is not an alteration to the natural condition of land, then tree planting cannot be regarded as an alteration to the natural (or existing) condition of land. In both cases the act changes what is growing on the land, rather than the land itself.

22 That brings me to the ploughing, or ripping, of the ground before tree planting. Is this to be characterised as an alteration to the condition of land? As I have observed, a change in the existing condition of land could be brought about by a change in the form, appearance, shape, chemical composition, moisture content or productive capacity of land. One can contemplate extreme examples that would make a nonsense of the concept if these words were to be taken literally. During argument, I suggested that to spit on land could involve carrying out works because it would change the moisture content of land. Mr Finanzio, for the responsible authority, countered by suggesting the change had to affect the unit of land under consideration, not just some part of the land. But does this mean that a rain seeding operation, causing rain to fall over the whole of a unit of land would be carrying out works? Other extreme examples are easily contemplated. Would a farmer be carrying out works by spreading fertiliser on land? Would a homeowner be carrying out works by laying a gravel path? Would a landowner be carrying out works by burying a dead animal?

23 In my opinion, the scheme should be read so as to give effect to the intent of its authors; and this requires an interpretation that avoids absurdities. Thus there is a need to read down the extended meaning of "works", where this extends to a change to the existing condition of land, in order to properly express the legal meaning of the concept. But how does one go about this task? And where is the line to be drawn? Before I seek to deal with these questions it is desirable that I outline two circumstances where it will not be necessary to struggle with the question of what is insufficient to be regarded as "works".

Existing use rights may override a works requirement

24 When the Act or the scheme expressly authorises the use of land, and the carrying out of works is inherent in the use, the question needs to be asked whether a requirement to obtain a permit to carry out works is intended to apply to the works inherent in the use. For example, if the Act or the scheme expressly authorises the use of land for a quarry, would a general requirement that a permit is required to carry out works apply to the winning of stone from the quarry? I think the answer to this question is to be found in ascertaining the provision that the author of the scheme intended to be the master.

25 In the case of a use the subject of existing use rights, the answer is relatively straight forward. This is because such rights are intended to apply notwithstanding any other provision to the contrary.[7] This is illustrated by the decision of the High Court in Dorrestijn v South Australian Planning Commission.[8] The landowner had acquired an interest in land in 1980, for the purpose of using the land for farming. The land comprised 1,435 acres, of which 835 acres had been cleared. The owner wished to clear remaining areas of the land for farming. However in May 1983 regulations were introduced which defined the clearance of native vegetation to be development for the purpose of the applicable legislation. Development was only permitted with a permit. The landowner claimed he had existing use rights, a claim which was upheld by a majority of the High Court. The court said:

The respondent submits that by virtue of the statutory definition of "development", development and continued use are two mutually exclusive concepts - development includes change of use, but not continuing use - with the result that s 56(1)(a) has nothing to say on the topic of development in the statutory sense of that term and is left without any role to play.

The competing interpretation is that "continued use" in s 56(1)(a) and "development" in s 56(1)(b) are not mutually exclusive concepts and that the content of "continued use" includes such developments as would necessarily, if not ordinarily, be involved in the use of land for the particular purpose for which it continues to be used. This interpretation is to be preferred.[9]

26 Another circumstance is where there is an as-of-right use provision and a requirement to obtain a permit to carry out works that are part of the same zonal, areal or overlay requirements. The scheme of the VPP controls appears to be that provisions regulating development are to be considered separately from, and in addition to, provisions regulating use, even when part of the same control.[10] When it comes to overlay controls, the scheme makes it even clearer. Clause 41 of the scheme provides:

If an overlay is shown on the planning scheme map, the provisions of the overlay apply in addition to the provisions of the zone and any other provision of this scheme.

Further the very name "overlay" reinforces this. Moreover the areal coverage of an overlay control will usually be dissimilar to a zonal control.

27 It is thus necessary to return to the question of the meaning of "works" and the circumstances where a change to the condition of land is so insubstantial to be disregarded. Ultimately, I think this question must be answered by reference to the Act and the scheme, perhaps after applying a relish of common sense. But before engaging in that exercise, it is useful to consider the decision of Street J in Parramatta City Council v Shell Co of Australia Limited.[11]

28 Street J was faced with the question of characterising the deposit of 1,200 cubic yards (917 cubic metres) of fill which had been dumped on land having an area of 12,000 square feet (1,115 square metres). The issue was whether the deposition of this fill constituted "development" within the meaning of the relevant provisions of the New South Wales Local Government Act. This definition included the concept of "work". Street J observed:

The first question involves, ultimately, considerations of degree. "Development" in s.342T is defined as including "the erection of any building, and the carrying out of any work ...". In Parramatta City Council v. Brickworks Ltd. the High Court gave some consideration to the meaning of the word "work" in a context related, but not identical, to the context relevant to the present dispute. In the course of his judgment, Gibbs J. said at p.263: "It may be doubted whether 'work', in its strict dictionary meaning, would nowadays include a quarry, but like the word 'works' considered in Merri Creek Quarry Pty. Ltd. v. Foletta, 'work' is not of fixed connotation, but elastic or indefinite, and its meaning must depend on the actual language and context of the statutory provision in question (see per Dixon J. at p.353). It is apparent from the context of cl.33 and the definition of 'existing work' contained in cl.3 that the connotation of the word in cl.33 must include something which has been carried out on land, and is situated on land, but is not a building or structure. Having regard to the wide meaning of the word 'structure' it is impossible to resist the conclusion that 'work' must be intended to refer to something done to the land itself, and that it therefore includes a quarry or mine." ...

As was pointed out during the course of argument, the depositing of filling on land may or may not be of such significance as to be regarded as a "work", and thus a "development", within the relevant legislation. The building-up of a large sports ground or oval could readily and properly be regarded as a "work". At the other end of the scale, the construction in a private garden of a small earth pocket in which to plant a shrub would not seem to be of such significance as to justify description as a "work". In selecting where, between these two extremes, the present case falls, I am of the view that both the quantity of the filling as well as its significance in relation to the site is of importance. The spreading of 1,200 cubic yards of filling or topsoil over a very large area might well not be of such significance as to amount to a "work". But the depositing of that quantity in a suburban allotment, having the effect of building up the height of that allotment at one corner to a point eight feet six inches above its natural level, and the creation of a relatively level surface extending over most of a block of land such as this is, in my view, a "work" within the meaning of the Act. I am accordingly of the view that the depositing of this filling amounted to "development.[12]

29 In my opinion, the tribunal can draw from this case the conclusion that the significance of the activity, in the context of the scheme, is a relevant factor in determining whether the activity is within the legal meaning of "works".

30 A starting point is the provisions of the overlay in issue in this case. The exclusions would suggest that the following are to be regarded as "works": flood mitigation works, the laying of underground sewerage, water and gas mains, oil pipelines, telephone or power lines, and fencing. However none of these provisions assists with some of the extreme examples identified above. Nor do these provisions assist in relation to the ploughing, or ripping, of the land before the bluegum seedlings are to be planted.

31 Assistance might be derived from the terms of the Significant Landscape Overlay. These terms are set out in clause 42.03-2, which includes the following:

• Construct a building or construct or carry out works. This does not apply:

∙

If a schedule to this overlay specifically states that a permit is not required.

∙

To the conduct of agricultural activities including ploughing and fencing (but not the construction of dams) unless a specific requirement for that activity is specified in a schedule to this overlay.

These provisions might be thought to suggest that, at least in some contexts, ploughing is intended to be "works". On the other hand, the reference to ploughing might have been to put the matter beyond doubt.

32 The word "plough" or "ploughing" is found in a number of other planning schemes in Victoria. Because all planning schemes must be approved by the Minister, it is permissible to look beyond the Colac Otway scheme in order to ascertain the meaning of that scheme. The most relevant provisions I have been able to ascertain are the schedules to the Land Subject to Inundation Overlay in the Bass Coast Planning Scheme and in the South Gippsland Planning Scheme. In each case the schedule provides that a permit is not required to carry out works for certain farming, or agricultural, activities "including ... ploughing". This would suggest that the authors of these schemes (which includes the Minister) thought that ploughing was, or at least might be, included within the concept of carrying out works.

33 Another reference point may be whether the ploughing of land may have relevance to achieving the purposes of the overlay. Mr Smith contended that as the overlay fulfilled the function of carrying overland flows, the proposed ploughing (and mounding) could affect such flows. Hence he said there was a purpose in ensuring that ploughing was regulated in some way. Although I am sceptical about whether the proposed works would in fact affect overland flows, this possibility cannot be dismissed.

34 Further, the purposes of the overlay go beyond flood storage, flood safety and the protection of overland flows; the overlay also protects environmental values associated with land that floods.[13] Given this, it is easier to see how the scheme might intend to regulate ploughing.

35 The proposed activities involve significant ploughing. Thus if this is to be regarded as insufficient to be regarded as works - using a test similar to that discussed by Street J in the Parramatta case - I would need to find that the scheme does not intend ploughing generally to involve the carrying out of works. In my opinion, the scheme - and other schemes approved by the Minister - do not permit this conclusion. It follows that the ploughing (or ripping or mounding) proposed in this case does constitute works.[14]

36 Tempting though it is, I do not propose to identify the line which separates activities that are insufficient in significance to constitute the carrying out of works. Or, perhaps on second thoughts, it is not so tempting: it is such a difficult question that it may need to be resolved on a case by case basis.

37 Because most agriculture in Victoria has existing use rights, this decision may not have wide ramifications. However I recommend that the implications of this decision be considered by the Minister, with a view to considering whether the exemptions in clause 62 of Victorian schemes needs to be supplemented.

38 I would also stress that the decision as to whether to grant a permit will be confined to considerations that arise under the Land Subject to Inundation Overlay.[15]

[1] Merri Creek Quarry Pty Ltd v Foletta [1951] HCA 12; (1950) 82 CLR 347, at 353.

[2] The fact that a fence and roadworks are exempt under clause 62 explains why these have been specifically identified in the overlay works requirement.

[3] Project Blue Sky Pty Inc v Australian Broadcasting Authority (1998) 194 CLR 355, at 384, per McHugh, Gummow, Kirby and Hayne JJ.

[4] See City of Mitcham v Mol Pty Ltd [2003] SASC 166; (2003) 127 LGERA 145; but compare Shire of Gisborne v King [1994] VicRp 23; [1994] 1 VR 364.

[5] See East Melbourne Group Inc v Minister for Planning [2005] VSC 242 at [91] and Halwood Corporation Ltd v Roads Corporation [1998] 2 VR 439.

[6] (1982) 62 LGRA 241.

[7] See section 6(3) of the Act.

[8] [1984] HCA 76; (1984) 56 ALR 259; 59 ALJR 105.

[9] Dorrestijn v South Australian Planning Commission [1984] HCA 76; (1984) 56 ALR 295 at page 300.

[10] In this respect, see clause 4 of the VPP user guide.

[11] (1972) 1 NSWLR 483.

[12] (1972) 1 NSWLR 483, at pages 488-9.

[13] White Ash Pty Ltd v Frankston City Council [2004] VCAT 2170.

[14] This conclusion is consistent with the decision of Senior Member Horsfall in Favero v Corangamite Shire Council [2005] VCAT 1113, at [11].

[15] See National Trust of Australia (Victoria) v Australian Temperance and General Mutual Life Assurance Society [1976] VicRp 60; [1976] VR 592; Shalit v Jackson Clement Burrows Architects Pty Ltd [2002] VSC 528; Victorian National Parks Association Inc. v Southern Grampians Shire Council [2004] VCAT 20.