Victorian Civil and Administrative Tribunal|2017-04-27

The applicant argued that the lack of time limits in permits of this nature is linked to the nature of the use and the fact that this particular use is not constantly active. Mr Gobbo QC made reference to the fact that clause 52.09 of the planning scheme, which currently applies to stone extraction and extractive industry interest areas, provides, at 52.09-6, that a permit for the use and development of land for stone extraction must not include conditions which require the use to cease by a specified date except in certain listed circumstances. He submitted, in part, that this is because the nature of such extraction is that there are times when material is being extracted and other times when there is no active use of the land for extraction. It was otherwise submitted that the reason for this provision is because there may be many decades of extraction and rehabilitation involved in a permit for stone extraction and it is not appropriate to place an end date on such a use.
During the hearing, I referred the parties to the recent Tribunal decision of Iluka Resources Limited v Horsham Rural CC (Amended) [2017] VCAT 107 (27 January 2017). In determining what conditions to apply to a permit for use and development of land for the disposal of waste by-products associated with or sourced through mineral sands processing, the Tribunal considered a request from the applicant to provide an ability within the conditions to extend a period of non-activity from two to five years. The Tribunal responded as follows[31]:

This is not inconsistent with the case law referred to earlier in this decision. If a use of land can be shown to be continuous, whether passive or active, a permit will not expire. However, if there is no use carried out pursuant to a permit for more than two years, the use will be considered to have been discontinued and the permit will expire, unless an extension of time is requested.
The absence of time limits in a permit does not give a permit holder an indefinite period in which to commence or continue use pursuant to that permit.
If this had been an application to extend the time within which to act on the permit, I would refer to the accepted principles of the Kantor[32] decision in determining whether or not an extension of time was appropriate. One of these principles is whether the whether the landowner is seeking to 'warehouse' the permit, simply keeping it available for a later time when it becomes more attractive to act on the permit, whether for financial or other reasons.
It was explained by the applicant that its ownership of another quarry in Dromana and nature of the industry being 'demand driven' and 'resource driven' means that for commercial and financial reasons, it had not been financially viable or necessary to extract from the land, and the applicant has been waiting for an opportune time to restart.
Mr Gobbo QC submitted that once you have a resource in place, you should be able to continue to extract from that resource until it has been exhausted. This may be and is a principle recognised in clause 52.09 of the planning scheme. However, this depends on the continuing validity of any relevant planning permit. It does not mean that a planning permit for extractive industry may never expire due to discontinuance of use. If extraction and its ancillary activities are discontinued for more than two years, it will be appropriate to reapply for permission to do so, and enable a review and consideration of any changes that have occurred during the period of non-use. This principle applies with even more force if the period of discontinuance is 15 years or more.

For the reasons given above, I find that there has been no passive or active use of the land for extractive industry pursuant to the permit within two years of the issue of the permit. The permit has therefore expired.
In the alternative, if I am wrong in this finding and use of the land for extractive industry did start within two years of the issue of the permit, I find that the use has been discontinued for more than two years and the permit has therefore expired.
My orders include declarations to that effect.
As a consequence of this finding, the Tribunal has no power to amend the permit as requested. As a result, the application for amendment must be refused. I therefore affirm the decision of Council[33] and order that the permit must not be amended.
It follows that there is no requirement to maintain the compulsory conference and hearing dates and they have been vacated.

[1] The submissions and evidence of the parties, any supporting exhibits given at the hearing and the statements of grounds filed have all been considered in the determination of the proceeding. In accordance with the practice of the Tribunal, not all of this material will be cited or referred to in these reasons.

[2] For the purposes of this decision, I will refer to Hillview as the owner of the land. In the affidavit of Mr Paul Nitas, he clarified that Hillview is a subsidiary of R.E Ross Nominees Pty Ltd, the trustee of R.E Ross Trust and that Hillview operates the quarry on land owned by the Trust. The certificates of title confirm that R.E. Ross Nominees Pty Ltd is the registered proprietor.

[3] Endorsed 'Amended Works Plan' to Permit P1322/93, dated 9 December 1997, attached to the affidavit of Mr Nitas at PN-9.

[5] As referred to in the affidavit of Mr Nitas.

[6] This is clear from the plan attached to the variation of work authority dated 26 July 2000, attached to the affidavit of Mr Nitas at PN-3(d).

[7] For example, the uses permitted within the WORKS AREA are described as 'QUARRYING; stockpiling materials; loading of vehicles; water storage; water treatment; RECLAMATION'.

[8] Affidavit of Mr Paul Nitas, at paragraph 14.

[11] Affidavit of Mr Brett Smith, at paragraph 3.

[12] Outline of submissions on behalf of the applicant for review, at paragraph 15.

[13] Seers v Macedon Ranges SC (Red Dot) [2016] VCAT 1198 (16 August 2016).

[14] City of Nunawading v Harrington [1985] VicRp 64; [1985] VR 641 (29 March 1985)

[16] Rosenblum v Brisbane City Council [1957] HCA 98; (1957) 98 CLR 35.

[18] Eaton and Sons v Council of the Shire of Warringah [1972] HCA 33; (1972) 129 CLR 270 at pages 285-286.

[19] R v City of Oakleigh; ex parte New Gamble Brickworks Pty Ltd [1963] VicRp 92; [1963] VR 679.

[20] In Schwerzerhof v Wilkins [1898] 1 QB 640, the Court held that premises were used on the material date as a bakehouse, as even though they had been empty for four months, the owner was trying to re-let them as a bakehouse and had not abandoned the use.

[21] Eaton and Sons v Council of the Shire of Warringah [1972] HCA 33; (1972) 129 CLR 270

[22] Parramatta City Council v Brickworks Ltd [1972] HCA 21; (1972) 128 CLR 1;

[25] Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493; (1959) 100 CLR 1.

[26] Council of the City of Newcastle v Royal Newcastle Hospital [1957] HCA 15; (1957) 96 CLR 493 at page 515.

[27] Council of the City of Newcastle v Royal Newcastle Hospital (1959) 100 CLR 1, at page 4.

[28] Parramatta City Council v Brickworks Ltd [1972] HCA 21; (1972) 128 CLR 1 at page 21.

[29] Eaton and Sons v Council of the Shire of Warringah [1972] HCA 33; (1972) 129 CLR 270 at pages 273-274.

[30] Section 53V Audit Report of EPA Works Approval, Peninsula Landfill, 115-121 Boundary Road, Dromana by Mr Paul Fridell of Environmental Resources Management Australia Pty Ltd (ERM) dated May 2013.

[31] Iluka Resources Limited v Horsham Rural CC (Amended) [2017] VCAT 107 (27 January 2017) at [299].

[32] Kantor v Murrindindi Shire Council (1997) 18 AATR 285

[33] On the basis of section 4(2)(d) of the Victorian Civil and Administrative Tribunal Act 1998 which states that a failure to make a decision is deemed to be a decision to refuse to make the decision.

Civil and Administrative Tribunal Act 1998

Hillview Quarries Pty Ltd v Mornington Peninsula SC [2017] VCAT 573 (27 April 2017)

The holding of unused land for future business use, whether because no business has yet been commenced or because the existing business has not yet been commenced or because the existing business has not yet increased sufficiently to justify expansion onto an extended site, is not "use" for the purposes of cl. 30. Two cases illustrate the operation of this principle. In Rosenblum v. Brisbane City Council [1957] HCA 98; (1957) 98 CLR 35 , a case concerned with existing use in the context of a planning scheme ordinance, the appellant Rosenblum had paid three months' rent in advance in respect of premises once used as a social club but which had subsequently remained empty for some time, was planning to use them as a catering lounge and had, with that in view, consulted an architect and was proposing the incorporation of a company; nevertheless he was held not to have used the building in any sense. The Court said at pp 46-47:

Hillview Quarries Pty Ltd v Mornington Peninsula SC [2017] VCAT 573

At a glance

Court

Decision date

Source

Judgment (30 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (7)

Hillview Quarries Pty Ltd v Mornington Peninsula SC [2017] VCAT 573 (27 April 2017)