Plaintiff v Defendants

"The fundamental object of statutory construction in every case is to ascertain the legislative intention by reference to the language of the instrument viewed as a whole. But in performing that task the courts look to the operation of the statute according to its terms and to legitimate aids to construction.

The rules [of construction], as DC Pearce says in his Statutory Interpretation p.14, are no more than rules of common sense, designed to achieve this object. They are not rules of law. If the judge applies the literal rule it is because it gives emphasis to the factor which in the particular case he thinks is decisive. When he considers that the statute admits of no reasonable alternative construction it is because (a) the language is intractable or (b) although the language is not intractable, the operation of the statute, read literally, is not such as to indicate that it could not have been intended by the Legislature.

On the other hand, when the judge labels the operation of the statute as 'absurd', 'extraordinary', 'capricious', 'irrational' or 'obscure' he assigns a ground for concluding that the Legislature could not have intended such an operation and that an alternative interpretation must be preferred. But the propriety of departing from the literal interpretation is not confined to situations described by these labels. It extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions.

Quite obviously questions of degree arise. If the choice is between two strongly competing interpretations, as we have said, the advantage may lie with that which produces the fairer and more convenient operation so long as it conforms to the legislative intention. If, however, one interpretation has a powerful advantage in ordinary meaning and grammatical sense, it will only be displaced if its operation is perceived to be unintended."

8 In CIC Insurance Ltd v Bankstown Football Club Ltd[2], Brennan CJ, Dawson, Toohey and Gummow JJ said:

"Moreover, the modern approach to statutory interpretation

(a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and

(b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy. Examples of general words in a statute being so constrained by their context are numerous ... [I]f the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance. Further, inconvenience or improbability of result may assist the court in preferring to the literal meaning an alternative construction which, by the steps identified above, is reasonably open and more closely conforms to the legislative intent."

9 Section 35 of the Interpretation of Legislation Act 1984 further makes clear that the Court should strive to give effect to the purpose of a subordinate instrument, in this case the planning scheme.

Clause 52.10 of the Whittlesea Planning Scheme

10 The Whittlesea Planning Scheme is in a standard form known as the Victoria Planning Provisions. The primary control of land use is effected by the application of zones.

11 Within these zones uses may be placed within sections 1, 2 or 3 of the relevant schedule of uses. A section 1 use is as of right and does not require a permit.[3] A section 2 use requires a permit.[4] A section 3 use is prohibited.[5] The table of uses may further state conditions opposite both section 1 and 2 uses. If a condition opposite a section 1 use is not met, the use becomes a section 2 use and requires a permit unless the use that does not meet the section 1 condition is specifically included in section 3.[6] A condition opposite a section 2 use must be met and if it is not met the use is prohibited.[7]

12 Clause 52.10 is ancillary to the zone controls provided within this framework.[8]

13 Clause 52.10 is headed "Uses with adverse amenity potential".

14 Its stated purpose is:

"To define those types of industries and warehouses which if not appropriately designed and located may cause offence or unacceptable risk to the neighbourhood."

15 Consistently with such purpose the clause itself imposes no land use controls. It provides definitions capable of use in such controls located elsewhere in the planning scheme.

16 It proceeds immediately after the statement of purpose set out above under the heading "Definition". Such heading picks up the purpose of definition from the statement of purpose.

17 The definition is effected by a table containing three columns and preceded by the following statement:

"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, Business 5 Zone, Capital City Zone or Docklands Zone, land used for a hospital or an education centre or land in a Public Acquisition Overlay to be acquired for a hospital or an education centre.

NOTE 1 of the table: The threshold distance is variable, dependent on the processes to be used and the materials to be processed or stored.

NOTE 2 of the table: An assessment of risk to the safety of people located off the land may be required."

18 The table then sets out three columns under respective headings:

• Type of production, use or storage (purpose)

• Threshold distance (metres)

• Notes.

19 The entries in the first column are divided into groups preceded by sub-headings. One of those sub-headings is "Non-metallic Mineral Products".

20 Beneath this sub-heading the use "Concrete Batching Plant" is listed.

21 Next to that use the threshold distance in metres listed in column 2 is 300.

22 There is no entry in the third column headed "notes" relevant to this use.

23 The effect of cl.52.10 is thus to define concrete batching plant as a use which "may cause offence or unacceptable risk to the neighbourhood" unless located on land a minimum threshold distance of 300 metres from stipulated sensitive zones and land uses.

24 This definition is capable of utilisation within a planning scheme which states that it is State planning policy with respect to industry as follows:[9]

17.03-1 Objective

To ensure availability of land for industry and to facilitate the sustainable development and operation of industry and research and development activity.

17.03-2 General implementation

Industrial activity in industrial zones should be protected from the encroachment of unplanned commercial, residential and other sensitive uses which would adversely affect industry viability.

Planning authorities should zone land for industrial development in urban growth areas where good access for employees and freight transport is available and where appropriate buffer areas can be provided between the proposed industrial land and nearby sensitive land uses.

Planning authorities should protect the quantum of large areas of industrial land of state significance to ensure availability of land for major industrial development, particularly for industries and storage facilities that require significant threshold distances from sensitive uses. Industrial areas of state significance include but are not limited to:

 Dandenong South in the City of Greater Dandenong;

 Campbellfield and Somerton in the City of Hume and Thomastown in the City of Whittlesea; and

 Laverton North in the City of Wyndham and Derrimut in the City of Brimbank.

Existing industrial areas that include key manufacturing or processing industries; a major clustering of allied industries; key industrial infrastructure should be protected and carefully planned where possible to facilitate further industrial development.

Responsible authorities should not approve non-industrial land uses which will prejudice the availability of land for future industrial requirements in industrial zones.

Adequate separation and buffer areas must be provided between sensitive uses and offensive or dangerous industries and quarries to ensure that residents are not affected by adverse environmental effects, nuisance or exposure to hazards. Planning and responsible authorities must have regard to Recommended Buffer Distances for Industrial Residual Air Emissions (EPA 1990) and promote best practice risk and environmental management.

Responsible authorities should ensure that industrial activities requiring substantial threshold distances are located in the core of suitably zoned industrial areas and encourage activities with minimal threshold requirements to locate towards the perimeter of the zone.

Responsible authorities should, where possible, minimise inter-industry conflict and encourage like industries to locate within the same area.

Planning and responsible authorities should consult with the Victorian WorkCover

Authority on requirements for industrial land use or development under the Dangerous Goods Act 1985 and associated legislation and the Occupational Health and Safety (Major Hazard Facilities) Regulations 2000.

Industrial uses that meet appropriate standards of safety and amenity should be encouraged to locate within activity centres.

25 It can be seen that such policy expressly contemplates:

(a) appropriate buffer areas between proposed industrial land and nearby sensitive uses; and

(b) adequate separation and buffer areas between sensitive uses and offensive or dangerous industries and quarries, to ensure that residents are not affected by adverse environmental effects, nuisance or exposure to hazards.

26 The introduction of cl.52.10 was preceded by the Report of the Advisory Committee on the Victorian Planning Provisions, August 1997, which stated in part:

"The buffer distances set out in the Table to clause 52.10 are an integral element in the functioning of the industrial zones. Their use represents an attempt to introduce performance criteria applicable to the location of industry in order to make its siting more flexible and less subject to the need to obtain a permit within a zone whose primary purpose is for industry. The use of performance criteria represents a major shift in planning thinking. It is one which will need to be matched by a greater onus of responsibility on the part of operators to ensure that proposals are soundly based and environmentally acceptable, and that adherence to criteria is maintained."[10]

27 The committee recommended that the term "threshold distances" be substituted for "buffer distances" in the clause, as subsequently occurred.

28 Nevertheless, although (as the committee stated) the original intention may have been to facilitate more flexible controls within industrial zones, cl.52.10 does not itself do more than provide a definition of uses which may then be called in aid by the zone provisions.

29 The critical feature of such definition is on its face the specification of threshold or minimum separation distances. These create the potential for a control which is not based upon variable performance characteristics.[11]

30 Clause 52.10 is referred to and utilised in the zone controls contained in the planning scheme in two different ways:

(a) it provides a criterion by reference to which a section 1 (as of right) use may be required to obtain a permit; and

(b) it provides a criterion by reference to which a section 2 (permissible use) may become prohibited.

(a) The industrial 1 zone (cl.33.01) and Business 3 and 4 zones (cll.34.03 and 34.04) utilise cl.52.10 to provide criteria by reference to which a condition is imposed upon the otherwise section 1 as of right use of land for the purpose of industry.

(b) The Mixed Use (cl.32.04), Township (cl.32.05), Business 1 and 2 zones (cl.34.01 and cl.34.02) utilise cl.52.10 to provide a criterion by reference to which a prohibition is imposed upon the potentially permissible (section 2) use of land for the purposes of industry.

32 Thus, the condition set out in the table of section 1 uses in the Business 3 zone relating to industry states as follows:

"Must not be a purpose shown with a Note 1 or Note 2 in the table to cl.52.10.

The land must be at least the following distances from land (not a road) which is in a residential zone, Business 5 Zone, Capital City Zone or Docklands Zone, land used for a hospital or an education centre or land in a Public Acquisition Overlay to be acquired for a hospital or an education centre;

• The threshold distance, for a purpose listed in the table to cl.52.10.

• 30 metres, for a purpose not listed in the table to cl.52.10."[12]

33 Conversely the condition set out in the table of section 2 uses relating to industry in the Business 2 zone states:

"Must not be a purpose listed in the table to cl.52.10."[13]

Clause 37.01

34 Clause 37.01 of the planning scheme provides for special use zones which facilitate the use and development of land for specific purposes as identified in schedules to the zone.

35 The zone table of uses (cl.37.01-1) accordingly provides that section 1 and 2 uses must comply with any conditions in section 1 and 2 respectively of the schedule to the zone. It further provides that section 3 prohibited uses are constituted by any use in section 3 of the schedule to the zone.

36 Schedule 4 to the Special Use zone provides controls facilitating extractive industry. It is a standard form of schedule utilised Statewide. The purpose of the schedule is:

"To recognise or provide for the use and development of land for extractive industry.

To encourage interim use of the land compatible with the use and development of nearby land.

To encourage land management practice and rehabilitation that minimises adverse impact on the use and development of nearby land."

37 The table of uses relevantly provides for industry as a section 2 (permissible) use in the following terms:

Industry (other than Materials Recycling, Refuse Disposal and Refuse Transfer Station)

Must not be a purpose listed in the table to cl.52.10.

38 The appellant contends that concrete batching plant is a purpose listed in the table to cl.52.10 and hence is prohibited.

39 The first respondent contends that the purpose listed is defined both by the description "concrete batching plant" and the specified threshold distance relating to such use. Accordingly, if the use is not proposed to be within the threshold distance it is not listed in the table.

40 There are three matters arising from the terms of the section 2 table in schedule 4 to the Special Use Zone (cl.37.01), to which attention was directed in submission:

(a) The bracketed uses following the reference to "Industry", namely "other than Materials Recycling, Refuse Disposal and Refuse Transfer Station", are themselves uses then specifically nominated without condition as section 2 uses in the table. This reflects the fact that quarry holes are commonly utilised for waste disposal activities, as or after extractive industry proceeds on land. The treatment of these activities in this way does not in my view assist in clarifying the issue in this case. It would be sensible to so provide whichever meaning is attributed to the words "purpose listed in the table", in the general condition attaching to industry.

(b) The use of the words "purpose listed" in the condition contained in the section 2 table, is echoed in the heading of column 1 of the table to cl.52.10, which refers to "Type of production, use or storage (purpose)." I accept the appellant's submission that this favours the view that the schedule 4 section 2 use table condition relates to the list contained in column 1 of the table to cl.52.10.

(c) The terms of the condition refer to the purpose "listed in the table", not the "purpose listed in column 1 of the table". This favours the first respondent's construction.

41 Mr Peake submits on behalf of the appellant that comparison with the terms in which reference is made to cl.52.10 in the provisions which utilise it as a criterion determining whether a use is a section 1 or section 2 use in the zone provisions, supports the view that the reference to "a purpose listed in the table to cl.52.10" is a reference to the first column of the table only where it appears in those provisions (such as that presently in issue) which make it the criterion defining whether a use is a section 2 use or a prohibited section 3 use.

42 It is submitted that it can be inferred that it is intended in the second category of cases to refer to the first column of the table only, from the fact that the first category of condition refers expressly to all the elements of the table, i.e. use, threshold distance and notes. Conversely, the second category of condition simply refers to the purpose listed in the table.

43 As I have said, the first category of condition is exemplified by the Business 3 condition which I have quoted above.

44 In my view this form of condition does not lead to any clear conclusion as to the proper interpretation of the other category of condition. Its purpose is different and it is materially different in form because it provides an additional threshold criterion of 30 metres for purposes not listed in the table to cl.52.10. It is this latter attribute which leads to the repetition in part of the wording of cl.52.10 relating to threshold distances and to the explicit disaggregation of the elements of the cl.52.10 table components.

45 It follows that in my view the construction of the condition to the relevant provision of the section 2 table to schedule 4 of cl.37.01 is not materially assisted by other conditions in other tables of uses, taking a different form and having a different purpose.

46 The appellant also submits that the inclusion of the condition "must not be a purpose listed in the table to cl.52.10" opposite the use "Industry" in the table of section 2 uses to the Mixed Use and Township zones, supports the view that a condition in this form intends reference to the list of uses in the first column of the table to cl.52.10 only.

47 This it is submitted is so, because both these zones are classified as residential zones.[14] In turn threshold distances pursuant to cl.52.10 are measured in part from residential zones. It follows, it is said, that it would be tautologous or nonsensical to read the reference to listing in the table as extending beyond the first column.

48 I do not accept that this is so. It seems to me the same conclusion will flow under the relevant condition whichever construction is adopted of the condition. If the reference to the table extends to the list of threshold distances then, it will always be the case within residential zones that the proposal does not comply. It does not follow, however, that the same result will follow in other zones, or that the meaning of the phrase should be controlled by consideration of its operation in residential zones alone.

The Tribunal's Decision

49 The Tribunal took the view that the appellant's construction should be rejected because it would produce an absurd result.

50 In so finding it followed the decision of another division of the Tribunal in an earlier case of Hy-Tec Industries (Vic) Pty Ltd v Kingston City Council.[15]

51 An examination of the Hy-Tec decision shows that the Tribunal characterised the appellant's construction as giving rise to absurd consequences for two reasons, stating:[16]

"[20] As Concrete Batching Plant is listed as a purpose in that table, the responsible authority says, simplistically, it is a prohibited use, even though it seems remarkable, absurd and against common sense for that to be an outcome:

(iv) in this SU 2 (Extractive Industry) zone, and

(v) where the purpose of cl.52.10 is to require a permit for a use that falls inside the threshold distance, rather than to prohibit any use outright, whether or not it breaches the desired threshold distance.

[21] The responsible authority also agrees that the above interpretation would mean that if the land (which lies in the Kingston sand belt) would be used not just to extract sand, but also to manufacture concrete there from, the latter would also be prohibited."

52 I accept Mr Chiappi's submission that both the Tribunal in the present case and in the Hy-Tec case accepted that whatever the potential offsite effects arising from the operation of concrete batching plants may be, they are likely to be subsumed within the likely offsite effects arising from the operation of extractive industry. There is an obvious "fit" for a concrete batching plant within an extractive industry zone, where the minimum threshold from sensitive uses is met because of this fact and the fact concrete utilises quarry products.

53 The Tribunal in the Hy-Tec case further took the view that because the original purpose of cl.52.10 as stated in the Report of the Advisory Committee on the Victoria Planning Provisions, August 1997, was to limit the requirement for permits for industrial uses in industrial zones to a situation where appropriate buffer distances were not provided, this favours the view that the provision currently under consideration is not intended to prohibit the listed uses outright.

54 The first reason advanced for absurdity, is essentially one of planning opinion and I would not reject it unless it could be demonstrated that it was plainly flawed in some manner, which is not the present case. I do not accept the submission made on behalf of the appellant, that because planning schemes can and do prohibit uses in particular zones, it could never be concluded by an expert tribunal that the prohibition of a particular use in a particular zone purportedly on amenity grounds is absurd.

55 The second reason given by the Tribunal in the Hy-Tec case with respect to absurdity, is more problematic. As I have said, the fact is that the provisions of cl.52.10 are being utilised in the present case for a purpose other than that identified by the advisory committee as the underlying rationale for the clause. In these circumstances it is difficult to extrapolate conclusions from the identification of the original purpose.

56 It follows that the Tribunal's decision as to absurdity should be regarded as relevantly founded upon its view of the underlying planning permits only.

57 It also follows that to some degree I accept that the reasoning of the Tribunal in Hy-Tec, applied in the present case, is open to question.

The Proper Construction

58 The proper course is to construe both the condition in the section 2 use table of the schedule to the cl.37.01 zone, and the words of the table to cl.52.10 in context.

59 In my view it is plain that the table in clause 52.10 is the mechanism by which cl.52.10 achieves its stated purpose, namely the definition of types of industries and warehouses which, if not appropriately designed and located, may cause offence or unacceptable risk to the neighbourhood.

60 The definition is cumulative. It is constituted first by the list of uses in the first column of the table, second by the specification of threshold distances, and third (where relevant) by the application of additional more flexible requirements by way of notes.

61 The listing of a purpose in the table is thus effected not only by the initial description of the use, but also by the qualifications imposed by the further columns contained in the table and in particular non-compliance with the relevant threshold distance from sensitive uses. The condition in the section 2 use table of the schedule to the Cl 37.01 zone should be construed accordingly.

62 It follows that in my view the appellant's construction should be rejected. I do not accept the central contention made on his behalf, namely that the contrary meaning of the condition contained in the schedule is plain as a matter of language. It is not plain because the phrase "purpose listed in the table" is not "purpose listed in column 1 of the table". Further, it is necessary to read the table as a whole to discover the purposes listed in it.

63 I do not find it necessary to base my conclusion as to the proper construction of the condition upon the principle that an absurd construction should be avoided where possible. I am, however, fortified in the view I have formed by the Tribunal's expert opinion that as a matter of land use planning, the result of the appellant's construction would be absurd.

64 Accordingly, the appeal should be dismissed.

[1] [1981] HCA 26; (1981) 35 ALR 151 at 169-70.

[2] (1997) 187 CLR 834 at 408

[3] Cl.31.01

[4] Cl.31.02

[5] Cl.31.03

[6] Cl.31.01

[7] Cl.31.02

[8] See Appendix 1 for the full terms of Cl. 52.10

[9] Whittlesea Planning Scheme cl.17.03-1 - 17.03-2

[10] Quoted by the Tribunal in Hy-Tec Industries (Vic) Pty Ltd v Kingston City Council [2004] VCAT 2353 at para 17, a decision relied upon in turn by the Tribunal in the present case.

[11] Compare the long standing definition of light industry in the former Melbourne Metropolitan Planning Scheme which included the requirement:

"In which the building or works thereby occupied or employed, the processes carried on, the material used or stored, machinery employed, and the transportation of material goods and commodities to and from the premises will not cause injury to or prejudicially affect the amenity of the locality by reason of the appearance of such building, works or materials or by reason of the omission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste paper, waste products, grit, oil or of the presence of vermin or otherwise."

[12] Cl.34.03-1.

[13] Cl.34.02-1 s2.

[14] Such characterisation is by way of the heading to portion 32 of the planning scheme in which the relevant zones are contained.

[15] [2004] VCAT 2353

[16] at paras 20 - 21