Pioneer Concrete (Q) Pty Ltd v Brisbane City Council - [1980] HCA 1 - HCA 1980 case summary — Zoe

CTHHCA

Pioneer Concrete (Q) Pty Ltd v Brisbane City Council

[1980] HCA 1

High Court of Australia|1980-07-01|Before: Wilson JJ, Gibbs J

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Source facts

Court

High Court of Australia

Decision date

1980-07-01

Before

Wilson JJ, Gibbs J

Source

Original judgment source is linked above.

Judgment (141 paragraphs)

[1]

High Court of Australia Gibbs, Stephen, Murphy, Aickin and Wilson JJ. Pioneer Concrete (Q) Pty Ltd v Brisbane City Council [1980] HCA 1

[2]

On 14th December 1977, the appellant, Pioneer Concrete (Qld.) Pty. Ltd., made application to Brisbane City Council (one of the respondents) for permission to use the land therein described, and to erect a building on that land, "for the purpose of extraction of rock and stone and crushing and screening thereof to be carried out on the land". The application was made under the Town Plan for the City of Brisbane, under which the land the subject of the application was zoned non-urban, and could only be used, and upon which buildings could only be erected, for the purpose mentioned with the consent of the Council or its delegate. The land in respect of which the application was made ("the subject land") is an area of about 25½ hectares (about 64 acres) on the outskirts of the City of Brisbane, about 25 kilometres by road from the G.P.O. It is on a spur of the D'Aguilar Range, in timbered country which is sparsely populated and somewhat difficult of access. The subject land was an unsubdivided area forming part of lot 2 on registered plan 114273 and part of lot 1 on registered plan 119333, Parish of Moggill, County of Stanley, and was described in the application by metes and bounds and was marked in blue on a plan attached to the application. Lots 1 and 2 were both owned by Pioneer Gravels (Qld.) Pty. Ltd., a company associated with the appellant.

[35]

Section 28 (3) of the Act provides as follows: "If the Council or any person feels aggrieved by a decision of the Court" [that is, the Local Government Court] "on the ground of error or mistake in law on the part of the Court or that the Court had no jurisdiction to make the decision or exceeded its jurisdiction in making the decision, the Council or such person may, in accordance with the rules of court, appeal from the decision to the Full Court of the Supreme Court of Queensland." The present respondents appealed from the decision of the Local Government Court to the Full Court of the Supreme Court. The learned judges who constituted the Full Court (Douglas, Matthews and Sheahan JJ.) held that an application for consent to use land or erect buildings for a purpose for which they may be used or erected only with the consent of the council can be made only in respect of land "which is an entity bearing a real property description under the Real Property Acts " and that such an application cannot be made in respect of an unsubdivided portion of a parcel of land. They accordingly held that the "land to which the application relates or applies" within the meaning of s. 22 (2) was, in the present case, the whole of lots 1 and 2, and that notice should therefore have been served on the owners of the lands abutting on those lots. A second reason given by Douglas J. was that the application, in stating the "use desired to be made of the land", should have included any use incidental to, and necessarily associated with, the lawful use of the land and should in the present case have shown that part of lot 1 which was not within the subject land would be used for the purpose of carrying away the extracted minerals. He held further that the use of part of lot 1, other than the subject land, to transport the quarried material over it, provided an additional reason why the owners of lands abutting on lot 1 were entitled to notice. Matthews and Sheahan JJ. did not find it necessary to decide whether it was necessary, in the application or advertisement, to describe incidental uses, but held that the omission to state that the appellant intended to transport quarried material over one part of its land which was not included in the subject land meant that there had been an incorrect description in the application and in the advertisement. In the event the Full Court allowed the appeal and set aside the decision of the Local Government Court [1] . 1. [1979] Qd R. 358.

[45]

The question of greatest difficulty in the case is whether the "land to which the application relates or applies" comprises the whole of the land in a subdivision when the application made is for consent to use part only of that land. Although this is not the same question as whether an application for consent may be made in respect of part only of the land in a subdivision, the two questions are very closely related. The word "land" is not defined for the purposes of the Act and although "allotment" is defined in s. 3 that definition cannot be applied to any of the words in question. There is no express provision of the Act, or of the Town Plan, that requires the boundary of a zone to correspond with the boundaries of a subdivision. Indeed, there are some provisions which indicate that such correspondence is unnecessary. Section 12 provides that the Council shall, within seven days of the receipt of an application in that behalf, accompanied by the fee if any is fixed, give a certificate, called a town planning certificate, setting forth in respect of the land specified in the application (inter alia) - "(a) the zone or zones in which such land is situated." This suggests that land the subject of such an application may be in more than one zone, but since such land may comprise several subdivisions, this provision is inconclusive. A clearer indication is provided by s. 22 (1AA). Under that sub-section, an application for approval (inter alia) to subdivide any land is exempted from the operation of s. 22 if (inter alia) - "(c) no part of the land to be subdivided is within an Existing Open Space Zone or a Proposed Open Space Zone at the date of the passing of the City of Brisbane Town Planning Act Amendment Act 1975." This clearly implies that part of the land in one area of subdivision may be in one of those zones whereas part may be in a different zone. Finally the Town Plan itself, in cl. 3 (3) (b) provides that where a part of the City is a proposed road, then until that part has been otherwise zoned it shall be deemed to be zoned in the following manner (inter alia) - "(ii) Where such part comprises portion of an allotment, the remaining portion or portions of which under the Plan is or are included in more than one Zone, the part in question shall be deemed to be included in such one of those Zones as comprises the largest portion in area of the allotment in question." This is an express recognition of the fact that one allotment may be in more than one zone. If one allotment, or subdivided area, may be in two different zones, it appears obviously necessary that it should be possible to make an application for consent to use part only of the land within the allotment or subdivision.

[97]

I am however satisfied that the Act neither requires nor authorizes the consideration of the use of the land, or the "entirety of the use" before ascertaining the land to which the application relates. The Act appears to me to concern itself with particular parcels of land and with the proposed use of that land. The use of other land for purposes related to the proposed use may in some cases be relevant to the grant of the permit applied for in the application. Here the proposed use of the subject land was "Extractive industry, namely the extraction of rock and stone and crushing and screening thereof to be carried out on the land". The facts make it clear that only that activity was to be carried out on the land in question. It is not "extractive industry" generally, which might be regarded as including transport to the customer or to the place of use, but that part of extractive industry which comprises extraction, crushing and screening. An endeavour to foresee all that will ultimately be associated with a commercial activity when in full operation and where it will be carried out appears to me likely to involve in most cases an extensive and ill defined enquiry, a consideration which might be material if the statutory provisions were ambiguous, but it is not necessary to rely on it as I see no such ambiguity. However I am satisfied for the reasons given by Gibbs J. that the Act does not require or authorize the ascertainment of the totality of uses of land involved in all aspects of a commercial proposal and therefore an application in respect of all parcels of land which may conceivably be involved in the project as it may ultimately develop. If it were contemplated that extensions would be required at some later stage, or that, if the initial project were successful, "downstream" activities would be undertaken, the scope of the inquiry and the extent of the land relevant to the contemplated use would be incapable of reasonable ascertainment. In my opinion this is a kind of inquiry outside the scope and intendment of the Act.