Brisbane City Council v Bemcove Pty. Ltd.
[1998] QCA 278
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- Brisbane City Council v Bemcove Pty. Ltd.[1998] QCA 278
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Brisbane City Council v Bemcove Pty. Ltd.[1998] QCA 278
Brisbane City Council v Bemcove Pty. Ltd.[1998] QCA 278
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 9991 of 1997
Brisbane
BRISBANE CITY COUNCIL
(Respondent/Applicant) Appellant
AND:
BEMCOVE PTY. LTD.
ACN 010 843 606
(Appellant/Respondent) Respondent
McPherson J.A.
Pincus J.A.
Helman J.
Judgment delivered 15 September 1998
Separate reasons for judgment of each member of the Court; each concurring as to the order made.
APPEALS DISMISSED WITH COSTS.
CATCHWORDS: | BUILDING CONTROL AND TOWN PLANNING – Existing use – Whether there was an existing non-conforming use pre-dating Town Planning Scheme – Whether character of site-filling activity had changed – Whether respondent had ulterior purpose. WORDS AND PHRASES – “incidental to and necessarily associated with” – Whether filling and rehabilitation of land was “incidental to and necessarily associated with” the lawful use of excavation. ADMINISTRATIVE LAW – Error of law. Local Government (Planning and Environment) Act 1990 ss. 1.4, 7.4(3); Boral Resources (Qld.) Pty. Ltd. v. Cairns City Council [1997] 2 Qd.R. 31; Norman v. Gosford Shire Council (1975) 132 C.L.R. 83; Shire of Perth v. O'Keefe (1964) 110 C.L.R. 529. |
Counsel: | Mr M. Hinson for the appellant Mr C.L. Hughes for the respondent |
Solicitors: | Brisbane City Legal Practice for the appellant Nicholsons for the respondent |
Hearing date: | 31July1998 |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 9991 of 1997
Brisbane
Before McPherson J.A.
Pincus J.A.
Helman J.
[B.C.C. v. Bemcove P/L]
BRISBANE CITY COUNCIL
(Respondent/Applicant) Appellant
AND:
BEMCOVE PTY. LTD.
ACN 010 843 606
(Appellant/Respondent) Respondent
REASONS FOR JUDGMENT - McPHERSON J.A.
Judgment delivered 15 September 1998
- These are two appeals by Brisbane City Council brought to this Court from decisions of the Planning and Environment Court in planning and environment matters numbered Application no. 2 of 1995 and Appeal no. 22 of 1995 to that Court, where they were heard together. Application no. 2 by the Council sought declarations and an injunction to restrain the carrying on of land-filling activities at Acacia Ridge on land described as the Watson Road parcel and the Gregory Street parcel. There is a third parcel known as Bowhill Road, but it is no longer the subject of dispute. Appeal no. 22 was brought to that Court by the respondent Bemcove Pty. Ltd. It sought and obtained an order for registration in the Council’s register of existing non-conforming uses, of an entry recording the existence of a right to use the land for extractive industry purposes, “including the placing of material on the land to rehabilitate the land”, provided it involved no more than general restoration of pre-existing land levels, etc. Effectively, it claimed relief that was the converse of that sought by the Council.
- Both parcels of land were acquired by the respondent alone or with an associate Goldperk Pty. Ltd., and the respondent has been in charge of operations on it since its acquisition from the Monier Group in about July 1992. The land, which adjoins Oxley Creek, has a lengthy history going back to the 1940s of being used for purposes of extractive industry in the form of removing alluvial sand and gravel from the Oxley Creek flood plain, in which much of the land lies. Before it came under the control of the respondent, it was owned by a sequence of different proprietors, all of whom used it for sand extraction.
- 3Essentially the present dispute arises from the fact that the respondent has for some time past been engaged in introducing and placing materials on the land to fill in holes and hollows in places where it had previously been excavated by the respondent or its predecessors in title, and it has been revegetating the areas so filled. The Council wishes to control this activity and accordingly applied (application no. 2 of 1995) for declarations that it was contrary to the Town Planning Scheme and illegal, together with consequential injunctions. The respondent retaliated with an appeal of its own (no. 22 of 1995) directed to entering on the register the record of the non-conforming use in the terms already indicated. It was the successful party in both proceedings, and this appeal by the Council is the result.
- It is not contested by the Council that the respondent is entitled to use the land for extractive industry purposes. What is disputed is the claim by the respondent to be entitled to fill the land which has been excavated. To make good that claim, the respondent set out to show that, although not a specifically authorised use, the filling and rehabilitation of the land was “incidental to and necessarily associated with” the lawful use of the land for extractive industry purposes, within the extended meaning of the word “use” in s. 1.4 of the Act. So far as material, it is there defined to include, in relation to land:
“the carrying out of excavation work in or under land ... and any use which is incidental to and necessarily associated with the lawful use of the relevant land.”
- It is not difficult to regard the process of filling and rehabilitating the land as being “incidental to” the process of excavating or extracting sand from it. It may also be correct to regard the process of filling the land as “associated” with the process of extraction. It is another matter to go the further step of holding that filling is “necessarily associated with” earlier or even current excavation. It is, of course, true that ordinarily filling is effected in consequence of prior excavation of some kind, although that is not always or necessarily the case. The decision of this Court in Boral Resources (Qld.) Pty. Ltd. v. Cairns City Council [1997] 2 Qd.R. 31, 35, suggests that, for the associated activity to be “necessarily associated with” the authorised principal activity, it must be “unavoidably” or “inevitably” involved in the latter. That might well be difficult to predicate of the process of filling and rehabilitation in the present case because it would, at least in theory, have been possible for the respondent not to have done anything in the way of filling or rehabilitating the land, but simply to have left it as it was without attempting to restore it to its former condition.
- If the fate of this appeal rested on the conclusion that the two activities of excavation and filling were, in the abstract, “necessarily associated”, it might be difficult to support the decision below. On behalf of the respondent, it was submitted, however, that his Honour’s conclusion was, to use counsel’s description, “site-specific”, meaning by that that the question to be determined was whether filling and rehabilitation of that land was something that was incidental to and necessarily associated with the excavation of the particular land in question. That is the approach which one might expect would have been adopted. It is not often that the question whether the incidental use or activity is “necessarily associated with” a principal authorised use or activity would be capable of being determined as an abstract proposition without reference to the demands or character of the land itself or the activity or the consequences of the use being carried out.
- As to that, the learned primary judge said he was satisfied that, in this particular matter, the rehabilitation was a direct and necessary consequence of the disturbance of the land which occurred in the “extractive industry activity”. His Honour then went on to conclude that, so long as the rehabilitation involved no more than a general restoration of the pre-existing land profile, and revegetation measures, it was incidental to and necessarily associated with the extractive industry, and therefore lawful.
- It is not entirely clear to what extent this conclusion involved a finding of fact, or was, as I am inclined to think, one of mixed fact and law. The relevance of this consideration is that in matters of this kind appeals to this Court may, under s. 7.4(3) of the Local Government (Planning and Environment) Act 1990, be entertained only on the ground of error or mistake of law or want or excess of jurisdiction. The problem for the appellant is that the findings which led the judge to his conclusion were not made in sufficiently specific terms to enable it to be said with confidence that any error he made was one of law rather than fact. A finding that is deficient on that account is on occasion itself capable of involving a mistake of law appealable to this Court, although it was not relied on as such by the appellant in this instance. Instead, Mr Hinson of counsel for the appellant submitted that there was simply no evidence on which the learned judge could have based his conclusion that the filling and rehabilitation being carried out by the respondent was “necessarily associated with” the process of excavation at the site.
- The result was that the parties on either side proceeded to make extensive reference to passages in the evidence in the record in order to demonstrate either that there was, or was not, evidence on which the judge’s factual findings might have been based. After studying those and some other parts of the material at the hearing, I am left with the firm impression that his Honour had before him at the hearing evidence capable of supporting findings that, before 1987, predecessors in title of the respondent, and in particular the Monier Group, had engaged extensively in bringing on to the land and placing there various forms of solid filling material, as well as sometimes allowing others to do so.
- As to this, the evidence of a Mr West was particularly cogent. A written statement prepared by him was admitted at the hearing. It was to the effect that he had worked at the site for Monier, later Rocla Pty. Ltd., between 1976 and 1987. He had done so in various capacities, at one time as site manager, and later as a contractor operating a drag-line. During that time his duties had included arranging for quantities of reject tiles from the Monier tile factory at Darra to be delivered to the site at regular intervals. Waste concrete from Monier batching plants was also deposited there from time to time, as were waste tiles from Besser. On occasions, other contractors were also given permission to deposit demolition materials on the land. The process was, Mr West said, one that was going on “continually” while he worked there. About 600 cu.m. of tiles were deposited there “regularly”, he said.
- Mr West also gave oral evidence and was cross-examined. He and other witnesses, notably a Mr Liddiott, who had been an operations manager at the site in the days of Monier or Rocla, confirmed that the object in placing this material was threefold. It was done in order to construct access roads to, on and through the site to reach the sand that was being extracted at the time, and to bring it out; also to repair those roads as they needed it, which they frequently did; and, further, to stabilise stockpiles of excavated material by stopping it from slumping or settling. In addition, there were problems with the character of the land being excavated in the area. Being close to Oxley Creek, the surface level tended through excavation to be lowered down to the water table, with the result that, at the water’s edge and particularly during flood times, the banks gave way. Efforts were therefore directed to depositing material to stabilise the creek banks and prevent them from eroding into the stream, into which they carried silt and clay which polluted the water. This was, it was also said, one reason why the respondent was now spending time, effort and expense in filling and rehabilitating the area. If it did not do so, but simply “walked away” from the site, it risked incurring liability to downstream riparian proprietors for polluting the water and perhaps altering the flow of the creek.
- The evidence of these witnesses was not contradicted, and was accepted by the judge below. Indeed, he made findings to that effect, observing in doing so that the extent of the rehabilitation had been increasing in recent times and noting the reasons for that. These reasons, his Honour said, included the need to stabilise areas left standing; to backfill to recover machinery that had moved forward in the excavation process; to provide safe access over areas which had been mined; and to shore up areas of which the integrity was important, for example in places where electricity pylons were located on the land. Among the factors which had brought about an increase in rehabilitative efforts recently was that it had become more difficult and expensive to dispose of demolition materials than before, so that it was now more cost-effective to rehabilitate the area in that way. Obvious economies were involved in using trucks to bring in waste material as fill, and then leave the site with loads of excavated sand on their outward journey.
- There plainly was evidence on which the learned judge was entitled to conclude as he did that there was an existing non-conforming use, pre-dating the introduction of the new Town Planning Scheme in 1987, that involved the placing of material on the land to fill and rehabilitate it, so long as it involved no more than a general restoration of the pre-existing land profile. Although at one point in his reasons, the learned judge said that it was not necessary to decide the second question raised at the hearing (which was whether any existing use rights in respect of filling, as a distinct use, had been acquired), his Honour nevertheless went on to do so. One can be confident of this because, in the end, he ordered that the Council make an entry to that effect in its register of non-conforming uses. That order is one of the targets of the appeal now before this Court, which seeks to set aside the judgment given in the P & E Appeal no. 22 of 1995, and to have that appeal dismissed. What is a matter for concern is that his Honour’s reasons for reaching his conclusions do not at some points clearly distinguish between the two issues being litigated before him, one of which was whether or not the filling activity was “necessarily associated with” the continuing use of the land for extraction purposes, and the other whether or not use of filling or rehabilitation in fact existed before the introduction of the new Town Plan in 1987, which had restricted that activity. What can be said is that his Honour made an order for entry of the use on the register, and also that there was evidence on which he was justified in making findings of fact that were capable of supporting an order to the effect of that ultimately made in that appeal.
- On that footing, the appellant proceeded to challenge the findings underlying what has here been called the second point (the non-conforming use issue). It was accepted by Mr Hinson of counsel for the appellant Council that the fact that there has been an increase (and perhaps a considerable increase) in the volume of fill being placed did not preclude the respondent from relying on the earlier filling activity carried out by its predecessors in order to justify what it was now doing in the character as it claimed of an existing non-conforming use. The authority, which, as Mr Hinson accepted, establishes that proposition is Norman v. Gosford Shire Council (1975) 132 C.L.R. 83, 86, where Mason J., with the concurrence of Barwick C.J. and Jacobs J., said that the nature of the use was not altered because there was an expansion in production by reason of increased demand, or because efficient machines were employed in production in place of manual labour, or because excavations made in the course of removal assumed the appearance of “quarry faces” whereas before they wore a different aspect. It was a particularly striking instance, where topsoil and filling being removed from the site had risen in volume and value from $46 in 1958, to $3,514 in 1972, and then to $30,057 in 1973. The increase in production was nevertheless held not to have altered the original intention, which was held to have remained throughout as it always had been, which was to use the land for the purpose of removing topsoil and filling. See also Paramatta City Council v. V.V. & P. Martelli & Co. Pty. Ltd. [1977] 2 N.S.W.L.R. 818.
- That, however, Mr Hinson submitted, was not the case here. In this instance, the site-filling activity had started as a measure designed to provide or maintain access to various parts of the site where extraction was taking place. Recently, it had changed to become one of site rehabilitation, and in doing so it had been converted into a different use. While, however, it is true that a change of purpose in the existing use of land may have the consequence of effecting a change in the use itself; a conclusion to that effect is not to be reached by any narrow classification or categorisation of the purposes which have gone before. In the judgment of Kitto J. in Shire of Perth v. O'Keefe (1964) 110 C.L.R. 529, 535, which has always been considered the classic statement on the subject, his Honour said it was:
“necessary to observe that the ‘existing use’ by-laws take two steps which should be kept distinct from one another. First it is required that a purpose be identified as the end for which it can be seen that the premises are being used at the date of gazettal of the by-laws. Then the provision is made that the land may continue to be used for that purpose: not that the precise manner of use for that purpose may alone continue but that use generally for that purpose may continue. The application of the by-law in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date. This question being answered, it remains only to inquire, when a use that is being made of the premises at a later date is challenged as not being authorized by by-law-372, whether that use is really and substantially a use for the designated purpose. That will often be a question of fact and degree: cf. Marshall v. Nottingham Corporation [1960] 1 W.L.R. 707, at p. 171; and for that reason border-line cases will inevitably arise in which opinions will differ.”
- In the present case, it may well be that there has, in the course of the lengthy time since sand extraction began to be carried out on this land, been a change of degree in the purpose of the filling being carried out there. From being a measure designed primarily to ensure access, it has progressively changed its emphasis to one of “rehabilitation”. The two purposes are, however, by no means mutually inconsistent and, at a certain point in the operation, they tend to converge. Filling is necessary in order to maintain access for extraction purposes, and maintaining or restoring access is one method of, or at least a first step toward, rehabilitating the land for the purpose of carrying out further processes of extraction.
- The concern of the Council in this matter appears, so far as one can discern it, to be that the respondent has as its underlying or ultimate purpose the reinstatement of the land with a view to its use for residential or some other such purpose of future occupation of which the Council does not approve. Mr Hughes for the respondent was perhaps inclined to dispute that this was the purpose; but, in any event, it is not possible for the Council to point to a finding to the effect that some such ulterior or ultimate further purpose has now come to dominate the intention of the respondent in place of the earlier intention of using the land for extractive industry purposes. Without a finding of such a purpose, it is not, on the basis on which an appeal like this comes before us, legitimate for this Court to make the requisite further finding that the respondent has now formed the intention of using the land for future occupation. If that was the contention, then a finding to the effect should have been sought and obtained at the primary hearing in the court below.
- There is, in my opinion, and despite some actual or potential infirmities in the reasons or the inferences adopted in the court below, no proper basis on which the decision of the court in this case can be set aside as being founded on an error or mistake of law. At least that is so in relation to appeal no. 22 of 1995. To the extent that it depends on a finding of the existence of a prior non-conforming use of the kind described in the judgment in that matter, there is on the proved facts no proper basis in law for disturbing the decision of the primary judge in that appeal. The position as regards the other matter (application no. 2 of 1995) is less clear. It is possible that, in concluding that the process of filling or rehabilitation was “necessarily associated with” use of the land for the extractive industry purposes, the learned judge made a mistake of law. Because of the way in which his findings were expressed, it is not altogether possible to be confident that he applied Boral Resources (Qld.) Pty. Ltd. v. Cairns City Council [1997] 2 Qd.R. 31 in all its rigour. On one view, it may not appear to matter very much whether in the end the respondent succeeds on one basis rather than the other. The difference is, however, that, if it were to refrain for a sufficiently long time from carrying on the existing use, it might forfeit the right to resume doing so. In that event, the respondent would, unless the declaration that land-filling is a necessarily associated use were also set aside, possibly have an order in its favour to which it was not legally entitled.
- The problem is however not of this Court’s making, and it is not one that we were asked to rectify by remitting that appeal to the court below with a view to its making further or more specific findings in the matter. The parties appear throughout to have been content to accept a decision favourable to the respondent in appeal no. 22 of 1995 as concurrently determining the fate of application no. 2 of 1995. In practice, that is likely to prove to be the case, unless the respondent discontinues its present filling activities, which does not seem to be likely. The result is, as a matter of theory, not a particularly satisfactory outcome; but it represents the footing on which the parties chose to conduct the appeals in this Court. They may not have wished to incur the further cost of an additional hearing, possibly from the beginning, before a different judge. We were not asked by either party to order that to be done.
- I would accordingly dismiss both appeals with costs.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 9991 of 1997
Brisbane
Before McPherson J.A.
Pincus J.A.
Helman J.
[B.C.C. v. Bemcove P/L]
BRISBANE CITY COUNCIL
(Respondent/Applicant) Appellant
AND:
BEMCOVE PTY. LTD.
ACN 010 843 606
(Appellant/Respondent) Respondent
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 15 September 1998
- I have read the reasons of McPherson J.A. I agree with those reasons and with the orders he proposes.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 9991 of 1997
Brisbane
Before McPherson J.A.
Pincus J.A.
Helman J.
[B.C.C. v. Bemcove P/L]
BRISBANE CITY COUNCIL
(Respondent/Applicant) Appellant
AND:
BEMCOVE PTY. LTD.
ACN 010 843 606
(Appellant/Respondent) Respondent
REASONS FOR JUDGMENT - HELMAN J.
Judgment delivered 15 September 1998
- I agree with the orders proposed by McPherson J.A. and with his reasons.