Plaintiff v Defendant

Planning and Environment Regulations 2005 (Vic), reg 15 - application for a permit to indicate the land affected by the application.

Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148(8) - Tribunal to be differently constituted.

1 This is an appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 ("VCAT Act") from certain paragraphs of an order made on 18 December 2007 by the Victorian Civil and Administrative Tribunal ("Tribunal") in connection with an application for review by Able Demolitions & Excavations Pty Ltd ("Able") of a decision of the Yarra Ranges Shire Council ("Council") to reject a development permit application for the construction of a refuse transfer station on part of the land located at 65 Quarry Road, Lilydale.

2 Able has appealed against the Tribunal's finding that a use permit is required under cl 33.01-1 of the Yarra Ranges Planning Scheme ("Scheme") because the land upon which the refuse transfer station is to be built is within 30 metres of land in a residential zone. The Council has filed a notice of contention alleging that the Tribunal erred in finding that the proposed refuse transfer station will not engage in the "treatment" of refuse and that, consequently, the required threshold distance from land in a residential zone is 30 metres rather than 300 metres.

3 There are two key issues in this appeal. The first is: what is the land in respect of which Able sought a development permit for the construction of a refuse transfer station, and is that land within the threshold distance? This issue involves a consideration of the concept of the "planning unit" that was applied by the Tribunal. The second issue is: what does "treatment" mean in the context of the item "Sanitary and garbage storage and treatment in transfer station" in the table to cl 52.10 of the Scheme, and will Able's proposed refuse transfer station "treat" refuse? This issue will determine whether the required threshold distance is 30 or 300 metres.

4 For the reasons set out in this judgment, I have concluded that the Tribunal erred in law in determining whether the proposed refuse transfer station was located within the required threshold distance of 30 metres, and that the appeal should be allowed.

5 Lilydale Meadows Pty Ltd ("Lilydale Meadows"), which is controlled by Mr Paul Rossignoli, is the owner of the land located at 65 Quarry Road, Lilydale and more particularly described in certificate of title volume 07132 folio 363 ("total land"). That land is vacant and has a total area of approximately 5.2 hectares. Mr Rossignoli also controls Able and a third company, Rossi Recycling Pty Ltd ("Rossi"). Able conducts a large demolition business and Rossi is the operator of the Ringwood Transfer Station.

6 By lease dated 1 December 2004, Lilydale Meadows leased part of the total land to Able for a term of five years, commencing on 1 February 2005, at a rent of $48,000 per annum, adjusted annually ("leased land"). The leased land consists of the whole of the total land, except for a small area of land located in the south-east corner of the total land ("excised land"). The excised land has a total area of 170 square metres. By sub-lease also dated 1 December 2004, Able sub-leased part of the leased land to Rossi on similar terms to the head lease, with an annual rent of $30,000.

7 The total land is an almost triangular parcel located at the northern end of Quarry Road, Lilydale. It is orientated more or less north-south. Its southern boundary runs more or less east-west and its northern boundary is a blunted point that faces due north. Quarry Road forms the total land's eastern boundary. To the west of the total land is the Yarra Valley Tourist Railway, beyond which is the Lilydale Water Purification Plant. To the east, beyond Quarry Road, is vacant land, zoned to facilitate quarrying activities. On the eastern side of Quarry Road and to the south of the total land is a small housing estate, one road of which (Trafalgar Crescent) joins Quarry Road to the south of the total land. Residential blocks fronting Trafalgar Crescent are the closest allotments to the total land. On the western side of Quarry Road and to the south of the total land are sports fields associated with Mt Lilydale Mercy College.

8 On or about 26 July 2004, Able applied to the Council for a development permit for "construction of buildings and works" associated with a proposed "refuse transfer station". This would have allowed trucks to deposit various refuse materials in different locations inside the building. In relation to each type of refuse (such as wood, paper, metals or garden refuse), the refuse would be piled up within the building and, within a week or so, sorted and removed to landfill or sold to recyclers. No putrescibles or food waste, liquid paints, industrial waste, chemicals, fuels or asbestos materials would be accepted.[1] Able did not apply for a use permit because it was of the view that it was not required by the Scheme.

9 The proposed refuse transfer station would be situated on the south-eastern part of the total land (and of the leased land). I will refer to the area on which the proposed refuse transfer station would be situated as the "subject land". The distance between the closest title boundary of the total land and the nearest residential zone land, which is to the south-east of the total land, is approximately 22 metres. However, as the excised land is at the south-east corner of the total land, the distance between the closest boundary of the subject land and the nearest residential zone land is approximately 30.2 metres. These distances were not in dispute before me.

10 On 4 January 2007, the Council refused Able's application for a development permit. The refusal form describes what has been refused as "Use and development of a Refuse transfer station". The reasons given by the Council related to the effects of the proposed use on the amenity of the neighbourhood. On 12 February 2007, Able lodged an application for review of the Council's decision with the Tribunal.

11 The plan that was before the Tribunal during the first day of its hearing, on 2 July 2007, showed the excised land being used for vehicle access between the proposed refuse transfer station (that is, the subject land) and Quarry Road, and for some landscaping. During the hearing, there was some discussion about the effect of this on Able's argument that a use permit was not required for the proposed refuse transfer station. Able was granted an adjournment in order to prepare revised plans. Those revised plans, which were before the Tribunal when it resumed hearing the matter on 15 October 2007, did not contain any access to the subject land through the excised land, and showed no landscaping within the excised land. Instead, they showed a 3.6 metre high Colorbond fence separating the excised land and the subject land.

12 It was common ground before the Tribunal that the total land, including the subject land, is located in an Industrial 1 zone within the meaning of cl 33.01 of the Scheme and that there are no overlay controls. One of the purposes stated in cl 33.01 is: "To provide for manufacturing industry, the storage and distribution of goods and associated uses in a manner which does not affect the safety and amenity of local communities". It was also common ground that the proposed refuse transfer station satisfied the definition of "refuse transfer station" in cl 74 of the Scheme, namely: "Land used to collect, temporarily store, and process refuse, or used or scrap materials, for disposal or use elsewhere", and did not constitute "materials recycling".

13 Clause 33.01-1 of the Scheme contains a "Table of uses", section 1 of which sets out a number of uses which do not require a use permit if the conditions of the relevant use are satisfied.[2] If one of the conditions is not satisfied, the use becomes a section 2 use requiring a permit.[3] The parties agreed that the relevant use in section 1 of the table of uses is "Industry (other than Materials recycling)", which I will refer to as "the relevant use in cl 33.01-1". The table of uses prescribes three conditions that must be satisfied in order for this use not to require a planning permit.

14 The first condition is that the proposed purpose must not be a purpose shown with a note 1 or note 2 in the table to cl 52.10. The second condition is that:

The land must be at least the following distances from land (not a road) which is in a residential zone ... :

● The threshold distance, for a purpose listed in the table to Clause 52.10.

● 30 metres, for a purpose not listed in the table to Clause 52.10.

The third condition is that the proposed purpose "[m]ust not adversely affect the amenity of the neighbourhood".

15 It was common ground before the Tribunal that the first condition was satisfied. Accordingly, the Tribunal focused on the second condition. This condition turns on whether the proposed purpose is one that is listed in the table to cl 52.10. Clause 52.10 is headed "Uses with adverse amenity potential" and its stated purpose is "[t]o define those types of industries and warehouses which if not appropriately designed and located may cause offence or unacceptable risk to the neighbourhood". Clause 52.10 contains the following definition: "The threshold distance referred to in the table to this clause is the minimum distance from any part of the land of the proposed use or buildings and works to land (not a road) in a residential zone".

16 It was common ground before the Tribunal that unless the proposed use fell within the item "Sanitary and garbage storage and treatment in transfer station" in the table to cl 52.10 ("the relevant item in cl 52.10"), which prescribes a threshold distance of 300 metres, the proposed refuse transfer station would be outside the table to cl 52.10 and therefore the threshold distance would be 30 metres. It was common ground before the Tribunal that the expression "storage and treatment" is a composite expression requiring both storage and treatment, and that "garbage" was synonymous with "refuse". Given that it was also common ground that some storage (albeit temporary) would take place, the hearing before the Tribunal focused on the question of whether the operations of the proposed refuse transfer station included "treatment" of refuse.

17 For reasons that will be discussed shortly, the Tribunal concluded that the proposed refuse transfer station would not involve the treatment of refuse and therefore the required threshold distance was 30 metres. The Tribunal then considered whether this threshold distance was met by reference to the concept of the "planning unit". The Tribunal found that, for practical purposes, the "planning unit" for the proposed refuse transfer station was comprised of both the subject land and the excised land[4] and that the proposed use was less than 30 metres from land in a residential zone.[5] Based on this finding, the Tribunal determined that the second condition in the relevant use in cl 33.01-1 was not satisfied and therefore a use permit was required. It decided that it was unnecessary for it to consider whether the third condition in the table of uses, relating to adverse effects on the amenity of the neighbourhood, was satisfied.

18 The substantive orders of the Tribunal are in paragraph 2 of its order dated 18 December 2007, and are as follows:

(a) The proposed use of the land at 65 Quarry Road Lilydale is properly characterised as a 'refuse transfer station';

(b) To the extent the proposed use does not comprise any treatment of refuse on the land, it is not a use for a purpose listed in [Clause] 52.10 of the Yarra Ranges Planning Scheme;

(c) For the purpose of the conditions applicable to 'Industry (other than Materials recycling' in Section 1 of the Table of Uses in clause 33.01-1 of the Yarra Ranges Planning Scheme, the land relating to the proposed use must be at least 30 metres from land (not a road) which is in a residential zone;

(d) The land at 65 Quarry Road, Lilydale relating to the proposed use, having regard to what properly constitutes the 'planning unit' for such use, is less than 30 metres from land in a residential zone;

(e) The proposed use of the land as a 'refuse transfer station' does not therefore meet a relevant Section 1 condition in clause 33.01-1 of the Yarra Ranges Planning Scheme, and the use requires a planning permit by reason of clause 31.02 of the planning scheme;

(f) Given these findings, it is unnecessary to decide as a preliminary matter whether the use may adversely affect the amenity of the neighbourhood, including through the transport of materials or the emission of noise.

19 Able has appealed to this Court against paragraphs 2(d), (e) and (f) of the Tribunal's order. The notice of appeal sets out 16 questions of law. In summary, the issues raised by the notice of appeal are as follows:

(a) whether the Tribunal erred in characterising the relevant land for the purpose of determining whether this was less than 30 metres from the nearest residential zone land; and

(b) whether the Tribunal erred in applying the concept of the "planning unit" in this case and in making certain adverse findings about the lease arrangements.

20 The Council filed a notice of contention which, in essence, alleges that the Tribunal erred in its findings that the proposed refuse transfer station did not involve "treatment" of refuse within the meaning of the relevant item in cl 52.10.

21 Before me, the parties agreed that, as the Tribunal had not made any findings on neighbourhood amenity, amenity issues were not the subject of this appeal.

Characterising the land the subject of the proposed use

22 The proper characterisation of a planning permit application, which is constituted by the application form and any supporting plans, is a question of law.[6] The applicant's subjective intention is irrelevant; what is relevant is the applicant's intention disclosed by the application.[7] Title boundaries, lot boundaries and lease boundaries can be used in identifying the land that is the subject of the application but are not determinative.[8] This is recognised by reg 15 of the Planning and Environment Regulations 2005 (Vic) ("PE Regulations") which requires an application for a permit to "indicate clearly the land affected by the application" and allows this to be done by reference to an address, title particulars, "a plan showing the land" or any combination of the above. Where there is evidence (including inferences to be drawn from the application) that adjoining land is to be used for purposes that are incidental or ancillary to, or necessarily associated with, the principal purpose set out in the application, the adjoining land is capable of being characterised as land to be used for that principal purpose.[9] Examples of incidental, ancillary or necessarily associated purposes may include vehicle access and parking. The question of whether, on the evidence, particular adjoining land is land to be used for the principal purpose, is a question of fact.[10]

23 The Tribunal did not, in terms, apply the above principles. It said that whether the required threshold distance of 30 metres was satisfied "depends entirely on what constitutes the 'planning unit' for the proposed use".[11] It considered what was said in two previous Tribunal decisions, C Fulton Pty Ltd v Boroondara City Council[12] and Rossi Recycling Pty Ltd v Maroondah City Council[13] about the point, and preferred to follow what it said was the more sophisticated approach set out in Fulton.[14] In doing so, the Tribunal held that "[f]or the leased area to be treated as the planning unit, it must be created at arms length and give effect to something practical in planning terms"[15] and noted that:[16]

the Tribunal needs to be careful to avoid a situation where permit applicants are tempted to put in place opportunistic lease arrangements that are not bona fide, but rather aim to circumvent the legitimate threshold distance requirements of the planning scheme to thwart third party notice and review rights and the Tribunal's jurisdiction.

24 The Tribunal found that the lease arrangement was not "an arms length transaction" because the lessor and lessee had the same directors and registered address,[17] that there was "no common sense or practical basis for the lease boundaries ... to be treated as defining the 'planning unit'"[18] and that "the lease ... is artificial and opportunistic".[19] It also found that the excised land was so small and in such an isolated location that it was not capable of forming a separate planning unit and, in turn, was not capable of being separately used or developed for practical planning purposes.[20] It found that "[t]he excised area is clearly a device intended to avoid the section 1 condition and purport to comply [with] the 30 metre threshold distance".[21]

25 Mr Garde, who appeared with Mr Jackson for Able, submitted that, in this case, Able applied for a development permit on the basis that all of the conditions in the relevant use in cl 33.01-1 were satisfied and therefore a use permit was not required. He submitted that the application form and the accompanying revised plans made it clear that the proposed refuse transfer station was located more than 30 metres from land in a residential zone and that the Tribunal erred in law in finding that the excised land would be used for the same purpose as the subject land upon which the proposed refuse transfer station would be constructed. He submitted that the Tribunal erred in importing extraneous requirements into the relevant use in cl 33.01-1, such as that the lease had to be at arm's length, and in making findings that the lease arrangements were "not bona fide", "opportunistic" and "artificial" without any evidence. Finally, Mr Garde submitted that Able excluded the excised land from its application in order to comply with the threshold distance requirement rather than to circumvent it.

26 Mr Finanzio, who appeared for the Council, accepted that there was no evidence before the Tribunal that the lease was not bona fide, although it would be possible to infer a lack of bona fides from the lease itself in an appropriate case. He informed me that, before the Tribunal, the Council had submitted that the arrangement (including the lease) was a contrivance but had not submitted that it was not bona fide. He did not contend that there is a requirement in the description of the relevant use in cl 33.01-1 for lease arrangements to be at arm's length. However, Mr Finanzio submitted that, while the Tribunal's reasons were not very elegant, it was entitled to conclude on the facts that the excised land would be used for the same purpose as the subject land.

27 I accept Mr Garde's submissions. There was no evidence before the Tribunal that warranted its conclusions that the lease arrangements were opportunistic and artificial, and, by implication, that the arrangements were not bona fide. It made an error of law in relying on those conclusions to support its finding that the second condition in the relevant use in cl 33.01-1 was not satisfied. The Tribunal also made an error of law in importing into the relevant use in cl 33.01-1, a requirement that any lease arrangements that define the land for that use must be at arm's length and that any land excluded from the arrangements must be capable of being separately used or developed for practical planning purposes. The Tribunal also erred in law in characterising Able's setting back of the subject land from the title boundary and exclusion of the excised land from the subject land as a device to avoid the threshold distance condition and in relying on that characterisation to support its finding that the second condition in the relevant use in cl 33.01-1 was not satisfied. Able was entitled to nominate any part of the total land it chose for the particular use and to exclude from that use any part of the total land for the purpose of ensuring compliance with the required threshold distance, provided that it could demonstrate that the proposed use could be practically confined to the nominated area. There was no evidence that the lease that underpinned these arrangements was not legally effective in achieving its purposes. The lease was not a sham, misleading or tainted by any dishonesty or impropriety. It defined a part of the total land to which the proposed use would not extend.

28 The Tribunal also took into account an irrelevant consideration, namely the effect of Able's conduct on the Tribunal's jurisdiction. If the proposed refuse transfer station did not, on the proper interpretation of the Scheme, require a use permit and Able's application for a development permit was thereby exempt from certain notice requirements, decision requirements and review rights in accordance with cl 33.01-4 of the Scheme, the adverse effect on the Tribunal's jurisdiction cannot be relied on as a basis for interpreting the relevant provisions of the Scheme in a way that avoids that effect.

29 It follows that the Tribunal erred in law in reaching its decision to aggregate the subject land and the excised land for the purpose of determining whether the land to be used for the purpose of the proposed refuse transfer station was within the 30 metre threshold distance.

30 Both Mr Garde and Mr Finanzio made detailed submissions on the historical development and current use of the concept of the planning unit. It was common ground that the concept was developed in the context of existing use of land and that it is used extensively in that context by responsible authorities and the Tribunal. It has also been applied in that context by the New South Wales Land and Environment Court.[22] The Queensland Court of Appeal has described "planning unit" as a "useful term" and applied the concept,[23] again in the context of an existing use case. It was common ground that the concept of the planning unit had never been referred to or applied in terms by the Supreme Court of Victoria or the High Court in either the context of an existing use or a proposed use and that it does not appear in the Planning and Environment Act 1987 (Vic), the PE Regulations or the Scheme.

31 Without necessarily endorsing the use of the concept of the planning unit in existing use cases, Mr Garde submitted that it was understandable that the concept has been found to be useful in that context. He said the task in existing use cases is to ascertain on the facts what land is actually being used for the relevant purpose and whether any neighbouring land is being used in a manner that is incidental or ancillary to such purpose. He submitted that the concept of the planning unit is inappropriate in the context of proposed use for a greenfields site, as there is no existing use to assess at a particular point in time. The task in a proposed use case is to identify the land to be used by construing the application form and the supporting plans. He submitted that clear tests had not been articulated for determining the planning unit in a proposed use case and that some of the principles that apply to existing use cases (such as the principle that statutory provisions designed to protect and preserve existing rights should be as liberally construed as the language in its context allows[24]), are inappropriate in the context of proposed use cases.

32 Mr Garde submitted that the inappropriateness of the concept of the planning unit for a proposed use of land is well illustrated by the present case, where the Tribunal asked itself the wrong question. Instead of asking itself what is the land to be used for the purpose of the proposed refuse transfer station and is the excised land to be used in a manner that is incidental or ancillary to such use, it asked itself the irrelevant question of whether the excised land was capable of constituting a planning unit in its own right. He submitted that there was no legal basis for the Tribunal to aggregate the excised land with the subject land because there was no finding by it that the excised land would be used in a manner that was incidental or ancillary to the proposed refuse transfer station. He submitted that there was no evidence in support of any such conclusion in any event, as the excised land would be separated from the subject land by a 3.6 metre high fence. He noted in this regard that any future use by Able of the excised land for the purpose of the proposed refuse transfer station would, in the absence of a permit, be unlawful and capable of restraint by enforcement proceedings.

33 Mr Finanzio submitted that the concept of the planning unit was well known within the planning profession and was a convenient label for assessing permit applications, including in relation to proposed use cases. He submitted that, while the Tribunal did not express itself eloquently, it found as a fact that the excised land formed part of the subject land, that it was open to the Tribunal to do so, and that the Tribunal did not make any error of law.

34 Labels such as "planning unit" can sometimes assist in encapsulating in a shorthand manner the issue that a responsible authority or review body is called upon to decide. However, there are dangers in using labels as a substitute for the words of a statutory provision or legal principle, that sometimes outweigh their utility. I have not found the expression "planning unit" useful in determining this appeal. It is just as easy, and more accurate, to ask "what is 'the land of the proposed use'?" in the words of the definition in cl 52.10 of the Scheme, as it is to ask "what is 'the planning unit'?". However, use of the label "planning unit" will not result in an error of law if the Tribunal or a primary decision-maker correctly applies the relevant statutory provision or legal principle. An error of law will only be made if the use of the label "planning unit" causes the Tribunal or primary decision-maker to ask itself the wrong question or to otherwise fail to properly apply the relevant statutory provision or legal principle.

35 I agree with Mr Garde that, for the reasons set out in paragraph 32 of this judgment, the present case is a good example of the Tribunal's use of the label "planning unit" leading the Tribunal into legal error because the label deflected the Tribunal's attention away from the issue of what is the land to be used for the purpose of the proposed refuse transfer station.

36 In answering the question of whether the operations of the proposed refuse transfer station included "treatment" of refuse, the Tribunal considered Fulton and Rossi, both of which dealt with the meaning of "treatment" of refuse in the relevant item in cl 52.10, with Fulton adopting a broader interpretation than Rossi. The Tribunal also considered the appellate court decisions in Federal Commissioner of Taxation v Hamersley Iron Pty Ltd[25] and Environment Protection Authority v Daracon Engineering Pty Ltd,[26] which also dealt with the meaning of "treatment", albeit in the different contexts of mining operations and roadworks respectively.

37 The Tribunal applied Hamersley[27] in holding that the word "treatment", whilst not necessarily requiring a chemical change in a product, requires a physical alteration in the form, nature or condition of the product designed to make it more marketable. In concluding that there was no "treatment" and therefore the required threshold distance was 30 metres, the Tribunal said:[28]

The 'processing' at the proposed refuse transfer station at Quarry Road is simply the process of handling, separation and sorting of the refuse without any 'treatment' by means of physical alteration through a change in the form, nature or condition of the refuse. ...

... in our view an ordinary person would regard the term 'treatment', in the context of refuse, as involving some physical alteration to the condition or character of the refuse. By way of example, this might comprise the composting of green waste, significant cleaning activities, active handling of industrial wastes, melting plastic/metal refuse, or the stripping of paint or removing nails from wood. No such activities are proposed for the refuse transfer station at Quarry Road.

38 The Tribunal declined to follow Fulton[29] which held that the handling or processing of refuse constitutes "treatment". It held that "processing" is a potentially broader term than "treatment" and that processing may not always include treatment. The Tribunal also distinguished Daracon,[30] which held that "filtering" via a sediment pond was a form of treatment, because in that case the filtering reduced the quantity of pollutants or changed their nature, whereas the separation and sorting of refuse in the current case would not involve any such changes.

39 Mr Garde submitted that the Tribunal applied the correct legal principles and its finding of fact that there was no treatment cannot be the subject of appeal to this Court. Mr Finanzio submitted that because the expression "treatment" was uncertain, its interpretation involves a question of law.[31] He submitted that the Tribunal had made an error of law because "treatment" can, depending on the context, include sifting,[32] sorting, handling and separating, that the Tribunal misdirected itself as to the proper context in which the interpretation was required, and that the sorting of refuse is equivalent to filtering and other activities which have been found to be "treatment" in contexts considered in previous cases including Hamersley and Daracon. He also submitted that "treatment" was synonymous with "processing" and, in this regard, referred to the fact that the purposes listed in the table to cl 52.10 were derived from EPA Victoria's Recommended Buffer Zones for Industrial Residual Air Emissions as amended in 1979 ("1979 EPA document").

40 I agree with Mr Finanzio that there is uncertainty about the meaning of "treatment" in the context of the relevant item in cl 52.10 and therefore its interpretation may raise a question of law.[33] What is capable of constituting "treatment" within the meaning of the relevant item is a question of law, but whether a particular activity actually constitutes treatment is a question of fact. In this case, the Tribunal applied the correct legal principles in determining the meaning of "treatment". In particular, the Tribunal was correct in not interpreting "treatment" as being synonymous with "processing" because the table to cl 52.10 and the definitions in cl 74 draw a distinction between them. Also, while the definition of "refuse transfer station" repeats the word "storage" which appears in the relevant item to cl 52.10, it uses "process" instead of "treat", which again indicates that the two expressions are not being used synonymously. Furthermore, the Tribunal's factual conclusion that the proposed activity did not constitute "treatment" was supported by the evidence before it. Finally, the wording of the equivalent item in the 1979 EPA document is materially different and does not indicate that the Tribunal's conclusion was wrong.

41 It follows that the Tribunal did not err in law in concluding that the proposed refuse transfer station fell outside the purposes listed in the table to cl 52.10 and that, accordingly, the required threshold distance is 30 metres. In reaching this conclusion, I am not to be taken as expressing any view on whether all of the examples used by the Tribunal in paragraph 34 of its reasons (which is extracted in paragraph 37 of this judgment), constitute "treatment".

42 Mr Finanzio sought to argue that the expression "storage and treatment" should be read disjunctively rather than conjunctively. In other words, if the proposed activity involved storage of refuse, then it fell within the relevant item in cl 52.10 and therefore the required threshold distance was 300 metres, even if there was no treatment of refuse. Mr Finanzio submitted that although this issue was not raised before the Tribunal, it is appropriate for this Court to determine it in order to give guidance for the future. He relied on cases such as Ovidio Carrideo Nominees Pty Ltd v Dog Depot Pty Ltd,[34] Lukauskas v Director of Consumer Affairs Victoria,[35] City of Greater Geelong v Herd,[36] Warehouse Group (Australia) Pty Ltd v Bevendale Pty Ltd[37] and Roads Corporation v Jolimont Heights Pty Ltd,[38] and on the principles which are summarised in Pizer's Annotated VCAT Act.[39] Having regard to the leading cases in the area, in general, an appellate court should not entertain a legal argument that was not raised at first instance unless a number of requirements are met, including that evidence could not have been given which by any possibility could have prevented the point from succeeding if the argument had been pursued at first instance.[40] Mr Garde submitted that these requirements are not satisfied because, among other reasons, it is possible that the evidence before the Tribunal may have been different (with more emphasis on the duration of the storage of the refuse at the proposed refuse transfer station) had Able been on notice that this issue would be relied on by the Council.

43 I agree with Mr Garde that the requirements in the cases referred to in the preceding paragraph are not satisfied and therefore the question of whether the expression "storage and treatment" should be read disjunctively cannot be entertained in this appeal. In case I am wrong about this, however, and since both parties argued the point in some detail, I will state my views briefly.

44 The Tribunal was correct to read the expression "storage and treatment" conjunctively. Ordinarily, the word "and" means "and" rather than "or". While cases such as Associated Newspapers Ltd v Wavish,[41] Re Licensing Ordinance,[42] Secretary, Department of Employment, Education, Training and Youth Affairs v Gray[43] and Melbourne CityLink Authority v Teford Pty Ltd,[44] which are discussed in Pearce and Geddes' Statutory Interpretation in Australia,[45] acknowledge that the word "and" can sometimes be read disjunctively, where this interpretation has been adopted, it has been governed by the context in which the word "and" appeared in the relevant statutory instrument.[46] In the present case, the context indicates that the drafters of the Scheme understood the distinction between "and" and "or" because a number of items in the table to cl 52.10 use "and" while others use "or". Moreover, the expression "storage" is used on its own in a number of items, which again indicates that the drafters have distinguished between situations where storage on its own is sufficient and situations where storage has to be accompanied by another activity. Likewise, the expression "treatment" is used on its own in a number of items.

45 Another important indication of the correct interpretation of the relevant item in cl 52.10 is the appearance of the words "in transfer station" immediately after the words "storage and treatment". The definition of "transfer station" in cl 74 of the Scheme emphasises that storage is temporary. This recognises that storage is not an end in itself, but a use connected with another activity. The context indicates that the relevant item requires that the storage be for the purpose of treating the refuse and subsequent "transfer" elsewhere. This means that both storage and treatment must exist in order for the activity to come within the relevant item in cl 52.10. There is nothing in the origin of the relevant item in the 1979 EPA document or the stated purpose of cl 52.10 that militates against this interpretation.

46 Although the words "Sanitary and" in the relevant item in cl 52.10 are confusing, not least because the word "sanitary" is usually an adjective, they support the above interpretation. The word "waste" was probably intended to follow the word "Sanitary", so that the item read "Sanitary waste and garbage storage and treatment in transfer station". The word "and" separating "Sanitary" and "garbage" is used disjunctively in accordance with the principles discussed in paragraph 44 of this judgment. The fact that, ordinarily, sanitary waste is treated rather than stored, supports a reading of the expression "storage and treatment" conjunctively.

47 It follows that the Tribunal did not err in law in construing the expression "treatment" or the broader expression "Sanitary and garbage storage and treatment in transfer station".

48 As I have found that the Tribunal erred in law in determining whether the subject land was located within 30 metres of land in a residential zone, the proceeding is to be remitted to the Tribunal.

49 Mr Garde submitted that, as the Tribunal had used strong language such as "not bona fide", "opportunistic" and "artificial", in its findings about Able's lease arrangements, it would be unfair for Able if the members of the Tribunal who made those findings were to continue to hear and determine the proceeding. Mr Finanzio did not dispute this. I agree with Mr Garde that fairness to Able requires that the Tribunal be differently constituted.[47]

50 Subject to the submissions of the parties, I propose to make the following order:

(a) The appeal against paragraphs 2(d), 2(e) and 2(f) of the order of the Victorian Civil and Administrative Tribunal ("Tribunal") dated 18 December 2007 in proceeding VCAT reference number P375/2007 ("VCAT proceeding") is allowed.

(b) Paragraphs 2(d), 2(e) and 2(f) of the order of the Tribunal dated 18 December 2007 in the VCAT proceeding are set aside.

(c) The VCAT proceeding is remitted to the Tribunal to be dealt with according to law and it is directed that the Tribunal is to be constituted other than by the members who made the order dated 18 December 2007.

51 I will hear the parties on the precise form of the order and on the question of costs.

[1] Able Demolitions & Excavations Pty Ltd v Yarra Ranges Shire Council [2007] VCAT 2394, [6] ("Tribunal's reasons").

[3] See cll 31.01 and 31.02 of the Scheme.

[4] Paragraph 45 of the Tribunal's reasons.

[5] Paragraph 46 of the Tribunal's reasons.

[6] Addicoat v Fox (No 2) [1979] VicRp 37; [1979] VR 347, 354, 358; Marock Pty Ltd v Billjoy Pty Ltd [1981] VicRp 41; [1981] VR 413, 417-19.

[7] Hersfield Developments Corporation Pty Ltd v Melbourne and Metropolitan Board of Works [1982] VicRp 63; [1982] VR 608, 615.

[8] Eaton & Sons Pty Ltd v Council of the Shire of Warringah [1972] HCA 33; (1972) 129 CLR 270, 274, 288 ("Eaton"); Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145 CLR 485, 509 ("Pioneer").

[9] Pioneer (1980) 145 CLR 485, 502, 507-8.

[10] Eaton [1972] HCA 33; (1972) 129 CLR 270, 278.

[11] Paragraph 37 of the Tribunal's reasons.

[12] [2005] VCAT 2416 ("Fulton").

[13] [2004] VCAT 687 ("Rossi").

[14] Paragraphs 38 to 42 of the Tribunal's reasons.

[15] Paragraph 41 of the Tribunal's reasons.

[16] Paragraph 42 of the Tribunal's reasons.

[17] Paragraph 43 of the Tribunal's reasons.

[18] Paragraph 43 of the Tribunal's reasons.

[19] Paragraph 45 of the Tribunal's reasons.

[20] Paragraph 44 of the Tribunal's reasons.

[21] Paragraph 38 of the Tribunal's reasons.

[22] South Sydney City Council v C Maloney Pty Ltd (1996) 89 LGERA 324, 328-9; [1996] NSWLEC 48.

[23] Woolworths Ltd v Maryborough City Council (No 2) [2006] 1 Qd R 273, 288-92 [31]-[41].

[24] City of Nunawading v Harrington [1985] VicRp 64; [1985] VR 641, 645.

[25] (1981) 37 ALR 595 ("Hamersley").

[26] (1998) 97 LGERA 415 ("Daracon").

[27] (1981) 37 ALR 595, 607.

[28] Paragraphs 33 and 34 of the Tribunal's reasons.

[29] [2005] VCAT 2416.

[30] (1998) 97 LGERA 415, 423.

[31] S v Crimes Compensation Tribunal [1998] 1 VR 83, 88.

[32] Daracon (1998) 97 LGERA 415.

[33] S v Crimes Compensation Tribunal [1998] 1 VR 83, 88.

[34] (2002) V ConvR 54-713; [2006] VSCA 6, [59], [80].

[35] [2006] VSC 388, [29].

[36] (1997) 94 LGERA 149, 169-70; (1997) 11 VAR 424, 445-7 ("Herd").

[37] (2002) 11 VPR 98; [2002] VSC 108, [21]-[23].

[38] (2002) 125 LGERA 160; (2002) 127 LGERA 258; (2003) V ConvR 54-669; [2002] VSC 500, [17]-[19].

[39] J Pizer, Pizer's Annotated VCAT Act (3rd ed, 2007) [5104].

[40] See Coulton v Holcombe [1986] HCA 33; (1986) 162 CLR 1, 7-9; Geelong Building Society (in liq) v Encel [1996] VicRp 44; [1996] 1 VR 594, 604-9 (Tadgell J), 609-13 (Ormiston J); Herd (1997) 94 LGERA 149, 167-9; (1997) 11 VAR 424, 445-7; Whisprun Pty Ltd v Dixon [2003] HCA 48; (2003) 200 ALR 447, 460-1 [50]-[53]; Transport Accident Commission v Billett (2004) 22 VAR 58; [2004] VSC 406, [28]-[32].

[41] [1956] HCA 69; (1956) 96 CLR 526, 528.

[42] (1968) 13 FLR 143, 146-7.

[43] (1999) 57 ALD 67; [1999] FCA 1150, [20]-[32].

[44] (2001) 113 LGERA 102; [2001] VSCA 54, 10.

[45] D C Pearce and R S Geddes, Statutory Interpretation in Australia (6th ed, 2006) [2.26].

[46] See also Gillespie v Ford (1978) 19 ALR 102, 107-8; Victims Compensation Fund Corporation v Brown [2003] HCA 54; (2003) 201 ALR 260; Re Peat Resources of Australia Pty Ltd; Ex parte Pollock [2004] WASCA 122; (2004) 181 FLR 454, 460-7 [20]-[54], 474-5 [98]-[101], 478 [112]-[115].

[47] The relevant principles for determining whether a court should order that a tribunal be reconstituted are discussed in Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39, 42-3; Kapoor v Monash University [2001] VSCA 247; (2001) 4 VR 483, 499 [51]; Davidson v Fish [2008] VSC 32, [14]-[21].