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High Court of Australia |
PIONEER CONCRETE (QLD.) PTY. LTD. v. BRISBANE CITY COUNCIL [1980] HCA 1; (1980) 145 CLR 485
Town and Country Planning (Q.)
High Court of Australia
Gibbs(1), Stephen(2), Murphy(3), Aickin(4) and Wilson(5) JJ.
CATCHWORDS
Town and Country Planning (Q.) - Application for planning permission - Extractive industry - Land to &which application relates or applies - Access roads for extractive areas not shown in application or plan - Use of land - Incidental use - Requirements for application - Advertisements - Notice to owners of land abutting on land to &which application relates or applies - Whether owners of land abutting on boundaries of land containing subject land to be notified - City of Brisbane Town Planning Act 1964-1976 (Q.), ss. 3, 22.
HEARING
Sydney, 1979, August 13, 14; 1980, February 6. 6:2:1980DECISION
1980, February 6.
2. The application set out the particulars required by Ordinance 2 of Pt 2 of
Ch. 8 of the City of Brisbane Ordinances, and contained,
amongst other
information, the following:
"6. The name of the occupier: - PIONEER CONCRETE (QLD.) PTY. LTD.CRUSHING AND SCREENING PLANT FOR THE TREATMENT OF SUBSTANCES EXTRACTED FROM THE LAND FOR USE AS AGGREGATES AND OFFICE BUILDING AND STOREROOMS.
7. The use desired to be made of the land: - EXTRACTIVE INDUSTRY.
10. Description of the proposed building to be erected on the site: -
15. The anticipated daily water consumption: - NIL.disposal: - TRADE WASTE TO BE DISPOSED OF BY INDUSTRIAL BIN SERVICE.
16. Brief particulars of industrial wastes involved and intended method of
17. The number of vehicles to be used in the business: - TWO.(a) Customers' Vehicles 6
18. The provision to be made for the parking (number only) of: -
3. On 15th December 1977, notice of the application was given by advertisement published in a newspaper circulating in Brisbane. The advertisement contained all the particulars of the application which it was required to include by s. 22 (1A)(c) of the City of Brisbane Town Planning Act 1964-1976 (Q.), as amended ("the Act"), the provisions of which are set out later in this judgment. The "nature of proposed use" was stated in the advertisement as: "Extractive industry, namely the extraction of rock and stone and crushing and screening thereof to be carried out on the land." The advertisement showed the length of road frontage - a detail which was not required to appear, and did not appear, in the application itself - and it is common ground that the length shown did not include the frontage of any land to Mount Crosby Road. It showed the number of motor vehicles for which parking provision was to be made on the land as seventeen. It did not include - and was not required to include - the particulars shown in the application in pars. 15, 16, 17 and 19 quoted above. (at p489)
4. The Council failed to make a decision on the application within forty days
and the appellant thereupon became entitled to appeal,
and did appeal, to the
Local Government Court under s.21 (3) of the Act. On the appeal a number of
objectors, who are respondents
to the present appeal, as well as the Council,
were represented. Objections were taken to the jurisdiction of the Local
Government
Court on three grounds. First, it was said that there had been a
failure to comply with the requirements of s. 22(2) of the Act which,
so far
as is relevant, provides as follows:
"Notice of the application shall be served by the applicant on the owner of
any land abutting on the land to which the application
relates or applies
forthwith upon the making of the application to the Council or its delegate.
It shall be sufficient compliance
with this subsection to give the notice by
prepaid registered post addressed to the owner at his address as shown in the
records
of the Council relating to the levying of rates."
The subject land forms part of a larger area, of about 1,200 acres, owned by
Pioneer Gravels (Qld.) Pty. Ltd., and is in effect surrounded
by land owned by
that company. The distance from the boundary of the subject land to the
boundaries of the lands owned by Pioneer
Gravels (Qld.) Pty. Ltd. varies from
about 7 chains to over a mile. Notice of the application was given by the
appellant to Pioneer
Gravels (Qld.) Pty. Ltd. but to no other person. The
submission on behalf of the respondents was that the "land to which the
application
relates or applies" comprised the whole of lots 1 and 2 and that
notice should have been given to the owners of a number of allotments
which
abut on those lots. (at p489)
5. The second ground of objection taken was that the advertisement of the
application was defective. Section 22 (1) of the Act provides
as follows:
"Where -(a) an application is made to the Council to exclude land from any zone and to include the land so excluded in another zone;
6. The third objection taken to the jurisdiction of the Local Government Court was that the use of the subject land for the extraction of rock would in fact involve the construction of roads not only within the subject land but also through lot 1 and through a forest reserve, the property of the Crown, so that the subject land would be given access to Mount Crosby Road. Moreover, it would involve the closure of one of the dedicated roads, and possibly the construction of wharfage facilities on the Brisbane River. It was submitted that the application was defective because it did not include an application for consent to those matters. (at p491)
7. His Honour Judge Given, who constituted the Local Government Court,
overruled these objections to jurisdiction and proceeded
to consider the
merits of the case. He allowed the appeal and ordered that consent be given
for the use and erection of buildings
and plant specified in the application
subject to the conditions set out in the schedule to the order. Of those
conditions it is
necessary to mention only the following:
"5. (b) The land shown marked in green on Annexure 'A' to the Conditions
shall be retained in its present state in order that it
may be a buffer area
for the quarry and ancillary operations on the subject land.
(c) Within the land shown in green on Annexure 'A' no clearing shall be done
(except for the access road referred to in Condition
10 (a) and to prevent the
commencement or spread of fire) and there shall be no quarrying or ancillary
operations carried on on such
land. Such land shall not be used to store
plant, vehicles or equipment, and buildings and structures shall not be
erected on such
land.
. . .
10. (a) Access to the subject land by all vehicles shall be by an access road
to be constructed to the subject land from Mount Crosby
Road through State
Forest 494 along the route shown in the plan which is Annexure 'C' hereto or
such other route to Mount Crosby
Road as may be agreed upon between the
authority having control of such State Forest and the appellant. Such road
shall connect to
the subject land through Lot 1 on R.P. 119333."
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
(1979) Qd R 358 . (at p492)
8. On the present appeal the respondents supported the decision not only for
the reasons given by the Full Court but also for additional
reasons which I
may briefly re-state as follows:
1. The appellant was not entitled to make separate applications for consent
to use the subject land for extraction purposes and
for consent to use other
lands to provide access to the subject land and to provide a buffer area; the
application was accordingly
incompetent.
2. The application and the advertisement were defective because they failed
to show the buffer area and any road frontage to Mount
Crosby Road.
3. The application was misleading in that it suggested that the extracted
minerals would be taken out by way of Grandview Road
and also because it
suggested (by its reference to such things as water consumption and the number
of vehicles to be used) that the
industry would be on a much smaller scale
than was in fact proposed.
4. The owners of the lands abutting on lots 1 and 2 were the owners of land
abutting on the "land to which the application relates
or applies" even if the
"land to which the application relates or applies" was the subject land. (at
p493)
9. I am unable to accept any of these additional submissions. The first submission should not be confused with the argument that the application should have been made in respect of the whole of lots 1 and 2; what was submitted was that an application should have been made for consent to use the land between lot 1 and Mount Crosby Road (i.e., the State forest) for the purpose of transporting material from the subject land. There are no doubt reasons of convenience for hearing together applications for consent which, although technically separate, are in fact closely connected. However, there was no legal requirement that the appellant should join with its application for consent to use the subject land for extractive purposes a further application to use a different parcel of land in different ownership for the purpose of constructing a road to provide access to the quarry. In deciding on the application actually made, the Local Government Court was entitled to consider the question of access, as Judge Given in fact did, but the fact that no application was made with regard to access through the State forest did not affect the Court's jurisdiction. In any case it may be observed that at the date of the application the appellant had not obtained any permission to use the State forest for the purpose of providing access. The question whether consent under the Town Plan was required to use the State forest for that purpose - a question similar to, but not the same as, that raised in Brisbane City Council v. Group Projects Pty. Ltd. [1979] HCA 54; (1979) 145 CLR 143 - was not argued. (at p493)
10. The second submission was that the application and advertisement were defective for reasons additional to those given by the Full Court. However, in my opinion there was no reason why either the application or the advertisement should have referred to a buffer area, even though it was to be situated in lots 1 and 2. The appellant did not seek consent to provide a buffer area; it was imposed as a condition by the Court. As to the suggestion that the frontage of land to Mount Crosby Road should have been included, it is enough to say that neither the subject land, nor lots 1 or 2, had any such frontage and it would have been erroneous to include it. (at p494)
11. The third of these submissions was developed by saying that although it is true that since the purpose of an advertisement is to enable concerned persons to object to the application, it may be expected that potential objectors will refer to the application before they lodge an objection. The object of the Act would, it was said, be defeated if the application were misleading and might for that reason deter prospective objectors from making an objection. There is no doubt that the Local Government Court, which is given a very wide discretion by the Act, would be entitled to take into account, if it considered it appropriate to do so, the fact that an application was misleading, but the Act does not make it a condition of the jurisdiction of that Court that there should be an application which was not misleading. The question whether an application was misleading is one of fact, and could only be decided after evidence had been heard on the question. Moreover it may involve questions of degree, since an application may on the one hand be seriously misleading and on the other inaccurate in matters of minor detail. It would create considerable difficulties if the jurisdiction of the Court were dependent on such an uncertain criterion. Even if the application was misleading - which I do not decide - that did not deprive the Court of jurisdiction. And Judge Given did not err in law in holding that if the advertisement in fact gave the specified particulars of the application that was enough to ground his jurisdiction. (at p494)
12. The final submission, that the allotments which abut on lots 1 and 2 might be held to be "land abutting on the land to which the application relates or applies", even if the application relates or applies only to the subject land, also cannot be accepted. The expression "any land abutting on the land" signifies that the two lands mentioned are contiguous, or have common boundaries. The land in question cannot be said to abut on allotments which are separated from it by distances of not less than about 7 chains and in some cases of more than a mile. (at p494)
13. 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 protion 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. (at p495)
14. The expression "land to which the application relates or applies", or a
similar expression, appears in a number of sections
of the Act. Section 6 (1)
enables the Council to apply to the Minister for amendment of the Town Plan,
and s. 6 (2a) provides that
before making any such application (inter alia) -
"(a) the Council or its delegate shall serve on the owner of the land to which
the application will relate or apply and the owner of any land abutting on
such land, where such owner is other than the Council,
notice of its intention
to make the application". By s. 7 (1), the Governor in Council, on the
recommendation of the Minister, may
amend the Plan, and s. 7 (2a) provides,
inter alia, that before making any such recommendation - "(a) the Minister
shall cause to
be served on the owner of the land to which the recommendation
will relate or apply, and on the owner of any land abutting on such
land,
notice of his intention to make the recommendation".
In both these sections these expressions appear to refer to the land which is
proposed to be rezoned, and this view is strengthened
by the requirement
contained in s. 6 (2a) (c) and s. 7 (2a) (c) that a notice is to be posted "on
the land to which" the application
or recommendation "will relate or apply".
If it were intended to rezone one part of a subdivision, it could hardly be
intended that
the notice should be placed on the other part. It may be
observed that in both sections the advertisement published is to contain
(inter alia) the "postal address and real property description of the land to
which" the application or recommendation "will relate
or apply". (Section 6
(2a) (b) (i); s. 7 (2a) (b) (i).) Section 8 refers to an application made by
an individual for the rezoning
of land and does not contain any provision for
notice, but provision for notice in such a case is made by s. 22 (1) (a).
Section
8 does not use the expression now in question; it refers simply to
"the land" (see particularly s. 8 (2) (d)). (at p496)
15. Against this background I turn to s. 22 itself. The expression in question appears in a number of places apart from s. 22 (2). As I have already indicated, a copy of the advertisement is to be posted "on the land to which the application relates or applies" (s. 22 (1)) and the advertisement is to contain particulars of "the postal address and real property description of the land to which the application relates or applies" (s. 22 (1a) (a) (i), (b) (i), (c) (i)). The applicant is required to lodge a copy of "the notice erected on the land to which the application relates or applies" (s. 22 (4) (ii)). However, s. 22 (3) departs from the language used in the other sub-sections. It provides as follows: "The copy of the advertisement on the land in question shall be not less than 600 millimetres in height, not less than 0.56 square metres in area, and all lettering thereof shall be not less than 25 millimetres in height, and the copy shall be posted not more than 1.5 metres from the road alignment of the land and so as to be clearly visible from the road and shall be kept so posted at all times during the period of fourteen days next preceding the date stated in the advertisement as the date on or before which objections may be lodged with the Town Clerk." Clearly "the land in question" in s. 22 (3) must mean the same thing as "the land to which the application relates or applies" in s. 22 (1) and s. 22 (4) and, therefore, the same as that expression when used in s. 22 (1a) and s. 22 (2). The provisions of this sub-section suggest that "the land to which the application relates or applies" in all these parts of s. 22 means simply the land the subject of the application which is in fact made. (at p497)
16. Three main reasons have been advanced in support of the view that the expression includes all the land within the boundaries of the subdivision within which the land sought to be used is contained. In the first place, it is said that the provisions of s. 22 (1a) indicate that the land must be such as to have "a real property description". However, those words themselves have no fixed or clear meaning, at least in relation to land not registered under the Real Property Acts. Not all land within the City of Brisbane is registered under the Real Property Acts, and an application for consent of the kinds referred to in s. 22 (1) may be made in respect of land held from the Crown for a leasehold estate (see Ordinance 2 (d) (ii) of Pt 2 of Ch. 8 of the City of Brisbane Ordinances). The phrase therefore does not appear to be intended to mean a description contained in a document which is, or could be, registered under the Real Property Acts. It would rather appear that the adjectival phrase "real property" was inserted to show that what is required is a description of the land as a piece of realty, that is, a description which identifies its position rather than a description of its topographical features. (at p497)
17. Secondly, it was said that if an application could be made in respect of part only of a subdivided parcel, the provisions of s. 22 (2) might be rendered quite inefficacious by an applicant who chose to confine his application to the whole of a block except a strip - perhaps only one link wide - inside all the boundaries of the land. However, apart from the fact that the Council, and the Court on appeal, could reject an application if the applicant had resorted to a mere device of that kind, I am by no means satisfied that the object of the section would be defeated if such a device were employed. If it appeared that an area around the boundary had been excluded from the application simply for the purpose of avoiding the necessity of giving notice to the owners of abutting lands, it would be open to the Council and the Court to hold that in truth the application related to the whole of the land within the subdivision. I am therefore not satisfied that it is necessary, in order to avoid inconvenience, or to ensure that the object of the section is not defeated, to give the words of s. 22 (2) the meaning attributed to them by the learned judges of the Full Court. (at p498)
18. Finally, reliance was placed on the ordinary meaning of the word "relates" - a word capable of wide meaning, and certainly wider than the word "applies". It was said that the natural meaning of the words of the expression would include any parcel of land part of which was the subject of the application, because if an application is made in respect of land which forms part of a larger parcel, it can rightly be said that the application relates to the parcel as a whole. The expression "relates or applies" is a curious one in this context, where obviously it is not intended to refer to two different classes of land, but perhaps it was chosen because it was thought that where the application was to erect a building, rather than to use land, a simpler expression, such as "the land in respect of which the application was made" would not suffice. However that may be, the relationship or connexion between an application and the land which is contained within the same boundaries as that which is the subject of the application, but which is not in itself the subject of the application, may be remote. To construe the expression as referring to the land the subject of the application does not involve any departure from the natural meaning of the words. (at p498)
19. In the end, the consideration that appears to me decisive is that land within one subdivision may fall into two different zones, so that an application of the kind referred to in s. 22 (1) may be made in respect of part only of the land within a subdivision. This strongly supports the view that the "land to which the application relates or applies" is the "land in question" - the land in respect of which the application is in fact made. (at p498)
20. This conclusion is consistent with the fact that planning legislation which speaks of "an existing use of land" "refers to land which from a practical point of view should be regarded as one piece of land, and not to land contained within the boundaries of one subdivision, or described in one certificate of title": see Parramatta City Council v. Brickworks Ltd. [1972] HCA 21; (1972) 128 CLR 1, at p23 ; Eaton and Sons Pty. Ltd. v. Warringah Shire Council [1972] HCA 33; (1972) 129 CLR 270, at pp 273, 278, 281-282 . If the question of use is to be decided by looking to the area actually used, it would seem to follow, in the absence of a statutory provision to the contrary, that an application for consent to use land may be made in respect of the land which from a practical point of view is intended to be used, even if it is only part of the land within a subdivision. (at p499)
21. The question then arises whether the fact that part of lot 1, which was not the subject of the application, was intended to be used to provide access to the subject land meant that that part of lot 1 was land to which the application related or applied. In my opinion once it is held that the words in question refer to the land the subject of the application, it follows that this question must be answered in the negative. Since the application was for consent to use only the subject land the result is that the appellant has received no consent to use the remaining part of lot 1 for the purpose of gaining access to the subject land. To obtain that consent, it must make a separate application and must then of course notify any owners of land abutting the land the subject of that application. The fact that a separate application has to be made in these circumstances may be inconvenient but it does not mead that the Local Government Court lacked jurisdiction to determine the application made to it. (at p499)
22. In my opinion it was not necessary for the appellant, in describing, in the application, "the use desired to be made of the land" or, in the advertisement, "the nature of the proposed use", to refer to the use of either the subject land, or of other land, as a route over which the extracted material was to be transported. It is true that "use" is defined in s. 3 to include "any use which is incidental to and necessarily associated with the lawful use of the land in question". However, it would be extremely inconvenient if it were necessary to give details of every incidental or ancillary use that might be made of the land the subject of the application. That is not in my opinion required; a general description is sufficient. There is no requirement to state, either in the application or in the advertisement, any use proposed to be made of land which is not itself the subject of the application; the provisions of Ordinance 2 (d) (iv) of Pt 2 of Ch. 8, and those of s. 22(1A) (c) (iv), refer only to the use of the land the subject of the application. (at p499)
23. For these reasons I hold that Judge Given was right in concluding that s. 22 (2) of the Act was complied with. In my opinion, his decision was within jurisdiction and it has not been shown that he made any error or mistake in law. (at p499)
24. I would allow the appeal and restore the decision of the Local Government Court. (at p500)
STEPHEN J. The full statement of facts which appears in the judgment of my brother Gibbs relieves me of any need either to recount those facts or to refer to the history of this case before reaching this Court. (at p500)
2. Underlying the rival contentions argued on this appeal is a question of quite general importance in the field of town planning: it is whether an applicant for consent to use land for a particular purpose may make application piecemeal, or must he, on the contrary, apply at the outset for the entirety of the use in question and, consequently, in respect of the whole of the land devoted to that use. (at p499)
3. The terms in which I have posed this question, my reference to "the entirety of the use" and to "the land devoted to that use", necessarily lack precision. It will be from the resolution of some at least of that imprecision that an answer to the question will emerge. I may, at this stage, foreshadow the answer to which I have come: it is that where, as here, the use proposed is a single use, no piecemeal series of applications is permissible, at least under the City of Brisbane's town planning measures; instead, that use must be stated in appropriate detail in one application and all the land involved in the use must be the subject of the application. When applied to the facts of the present appeal this means that the applicant ought to have applied, in the one application, for consent not only to extract and process quarry products but also to construct and use the access road along which those products were to be carried from the processing site to a public highway. It follows that the area of land the subject of the application should have included the route of that access road. (at p500)
4. In stating my reasons for these conclusions I should first establish that this is indeed a case in which only one use was proposed by the appellant, a use which included the construction and use of an access road. That done, and it being common ground that the application did not seek consent for use of any access road, it will then be necessary to make good the proposition that when consent is sought for a particular use it must be sought in the one application and not piecemeal. (at p500)
5. The customary Australian scheme of town planning, which derives from English pre-war models and to which Brisbane's town planning measures generally conform, involves the use, in combination, of two principal tools: a planning scheme map, by means of which the planned area is divided up into distinct zones, and a schedule specifying land uses in respect of each such zone, some uses being permitted as of right, others only with the planning authority's consent or, sometimes, subject to specified conditions, and others again being wholly prohibited. Where use for a particular purpose requires consent, application must be made for that consent and details of the proposed use must be furnished with the application. (at p501)
6. In any such scheme for the control of land use the two critical integers, land and use, each involves a question of definition, what land and what use? The intending user of land will, in his application for consent, have to specify these two integers but it will be one of them, the integer of use, that will dictate the precise identity and extent of the other integer, the land the subject of the application. This is a necessary consequence of the fact that the consent being sought is consent to use for a particular purpose. The land is merely the passive object which is being used; the active integer, use, will determine its extent. (at p501)
7. When it is the whole of a holding of land which is applied for as being intended to be devoted to a particular use this dominant role of the integer of use will be unlikely to be of significance: "Particularly in the case of suburban allotments, it will be a rare case, in my opinion, in which that part of an allotment not in actual physical use will not have the same existing use as the other part of the allotment used for the purposes of a business" (per Barwick C.J. in Eaton and Sons Pty. Ltd. v. Warringah Shire Council (1972) 129 CLR, at p 274 ). In any case it will be of little consequence if part only of the land being applied for is in fact to be used, the remainder being unused or used for a purpose for which no consent is necessary. But where, as here, the application is restricted to only a relatively small portion of a much larger holding a question may arise whether in truth the proposed use is to be confined to that portion. An examination of the integer of use will provide the answer and may reveal that the use, properly understood, involves more than the land the subject of the application. (at p501)
8. Again, in the great majority of cases where access from the highway to whatever activity is to be carried on on particular land is to be gained directly from the land's own road frontage, the question of access will be of little significance; the whole of the holding of land will be shown as subject to the particular use and access across part of it will be but a part of that total use. But where, as here, the proposed access is not to be by means of the subject land's own road frontage, but is to be gained by a quite different route, to be constructed over land adjoining the applicant's land, there immediately arises the question of the true extent of the subject land which is to be devoted to the proposed use, what the present legislation calls "the land to which the application relates or applies". (at p502)
9. Of some significance in this whole question is the particular meaning to
be given to the integer, "use". In Brisbane's system
of town planning its
meaning is elucidated by definition. Section 3 of the City of Brisbane Town
Planning Act 1964-1976 defines "Use"
as follows:
"'Use' - In relation to land, includes the carrying out of excavation work
in or under land and the placing on land of any material
or thing which is not
a building or other structure.
The term includes any use which is incidental to and necessarily associated
with the lawful use of the land in question;"
The Town Plan for the City of Brisbane contains an identical definition and
the Ordinances also incorporate this definition. (at
p502)
10. As will appear below, I do not regard this definition as in any way requiring that an applicant for consent should include in his application a description of all incidental and associated uses involved in devoting the land to the proposed use. What it does do, however, is to make it clear that, just as permission granted for a particular use will extend to permit of all incidental and necessarily associated uses, so too land devoted only to the latter will be as much land to which the application relates or applies as will be the land which is to be devoted to the principal use. Even without the aid of this definition I should have thought that the applicant's proposed use must have been regarded as necessarily extending to more than the extraction and processing of quarry products: it included the construction and use of an access road. The land the subject of the use accordingly included the route of that access road. Were there any room for doubt as to this, the extended meaning of "use" given by the latter portion of the definition removes it. The intimate connexion between the use of land and access to it requires little elaboration. Use of land in any active sense, as distinct from such passive use as was considered in Newcastle City Council v. Royal Newcastle Hospital (1957) 96 CLR 493 , requires that there be access to the land. Especially is this so in the case of a commercial or industrial use, where access for the free flow of raw materials, of finished goods and, perhaps, of customers will be essential. Since in this case access to and from the public highway is only to be gained by the traversing of other land in private ownership lying between the site and the public highway, this use of that other land appears to me to be an integral part of the use to which the site itself is to be put. (at p502)
11. The position is, then, that the use for which consent was applied for was one which included the construction and use of an access road over land beyond the boundaries of what the applicant described as the subject land. The land beyond those boundaries was land to which "the application relates or applies": City of Brisbane Town Planning Act, s. 22 (1A) (c). Yet the application was confined to the seeking of consent in respect of use only of what the applicant chose to regard as subject land. (at p503)
12. There were other features of the appellant's application for consent which rendered it singularly uninformative. Although the site of the quarry and processing area had an extensive frontage to what appeared, on paper, to be a public road, there was in fact no made road there, nor any prospect of its construction. The terrain over which plans showed this road as intended to run, steep hill country, made its route quite unsuitable, at all events for heavily loaded gravel trucks; hence the applicant's proposal to provide its site, for all practical purposes a land-locked site, with a new route of access. Neither the application for consent nor the advertisement of it made mention of this proposed new access route. This reticence, combined with explicit mention of the site's road frontage, destined to remain no more than surveyors' lines on plans, did little to convey to interested members of the public any clear picture of what effect the working of the quarry would have upon local amenity and traffic. The position was further obscured by the fact that the "road" to which the quarry site was shown as having an extensive frontage was shown on plans as connecting with existing public road systems to the north and east of the site whereas the proposed new access route would in fact carry quarry traffic off in a quite different direction, south through private land and a State Forest, to link up with quite different existing public road systems. (at p503)
13. I am not, however, directly concerned with such misleading features as the application, or the advertising of it, may have contained. They were very much a by-product of the failure of the application to seek consent in respect of the site of the access road, an important part of the proposed use. This failure necessarily involved the omission from the application of what was a significant part of the land which was in fact to be devoted to the proposed use. (at p503)
14. In the Local Government Court Judge Given in a sense recognized this when, as a condition of consent to use the quarry site, he stipulated that its use should not begin until the proposed access route had been constructed. What was, perhaps, not recognized was that the need for this condition arose because the applicant had failed to include in its application the whole of its intended use and instead proposed to make application piecemeal, first securing consent to quarrying and processing and only later applying for consent to use other land for its access road. (at p504)
15. To sever an application in this fashion is likely to impede its proper consideration. Only if it is presented as a whole and at the one time is there likely to be full opportunity for the tribunal and for objectors properly to assess it in all its aspects. The present case demonstrates the consequence of piecemeal application. Although the application before Judge Given was in terms confined to the quarry site, both the proposed access route to the south and the general topic of transportation of quarry products was necessarily much to the fore. His Honour's judgment in consequence gave careful consideration to all aspects of the quarry operation and, in the outcome, strict conditions were imposed concerning amounts of quarry products which might be transported from the site and the times of day during which this might be done. All this would tend to make it difficult for the council or, for that matter, the Local Government Court, to treat as other than somewhat of a formality any subsequent application for consent to the proposed access route. To a degree at least, the outcome of that subsequent application would have been pre-judged, and this despite the fact that the consent given to the first application was conditional upon consent being granted to the later access route application. (at p504)
16. Such piecemeal applications are likely to place planning authorities or review tribunals in somewhat of a dilemma. The first application may well require assessment of the entire proposal if it is properly to be disposed of; yet the second application will still remain to be dealt with on its merits as an independent matter. When it comes to be heard there will be strongly felt pressures to avoid what might seem to be conflicting outcomes if, the first application having been granted, the second were to be refused. Any detailed examination in the first application, whether by the tribunal or by objectors, of matters which will have to be dealt with in the second is likely to be met with the objection that they are more proper for consideration when the second application is heard; but when that second application is heard it is likely to be much dominated by the outcome of the first. (at p504)
17. Quite apart from such adverse practical consequences as may result from thus splitting into two or more applications the one proposal to use land for a particular purpose, I do not regard Brisbane's town planning measures as permitting such a course. (at p505)
18. Brisbane's Town Plan provides, by cl. 4 (b), that purposes set forth in column IV of the Table of Zones are purposes for which land may be used only with the consent of the Council. Clause 2 of Pt 2 of Ch. 8 of the City of Brisbane Ordinances provides for applications for such consent. The application must contain a statement of "the use desired to be made of the land" and of "the full description of the land". By s. 22 of the Act there must be public advertising of the application and it must, by sub-s. (1A) (c), contain a quite full description of "the land to which the application relates or applies" and must particularize the "nature of the proposed use". (at p505)
19. Neither of these provisions encourages the view that an application may be restricted to part only of a proposed entire use; they proceed rather on the footing that it is for "the use", that is, for an entire use, that application must be made. This is confirmed by other provisions: e.g., under s. 22 (1A) (c) (vii) particulars must be supplied of the number of employees proposed to be engaged on land to which the application relates or applies. Were piecemeal applications to be made, each in respect of part only of the total land to be devoted to the one proposed use, it would usually be impossible to comply with this requirement, the engagement of employees not being likely to be confined to any one particular portion of the total land devoted to the use. What is clearly enough contemplated is that there should be stated the total number of employees which the use as a whole will attract. So too in relation to pars. (vi) and (viii) of s. 22 (1A) (c), which enquire after numbers of vehicles for which parking provision is to be made and the nature of machinery which is to be used. Again, Pt 3 of Ch. 8 of the Ordinances, which deals in detail with proposed service station and shop and shopping centre sites, speaks in terms which necessarily contemplate that the entirety of any such proposed use be applied for at the one time. (at p505)
20. All this, of course, places no obstacle in the way of applications where consent becomes necessary for the extension of an existing use to adjoining land or where an applicant for consent to a proposed use contemplates that there will later be an extension of that use. It is only where land is proposed to be used for the one purpose at the one time that consent for its use must be applied for in the one application. (at p505)
21. The consequence of the applicant having failed, in its application, to specify the whole of the land to which that application related or applied, instead restricting its application to part only of the subject land, must be to have deprived the Local Government Court of jurisdiction to determine the application. Judge Given rejected such an objection to jurisdiction because he regarded the nomination by the applicant of the site of the quarry and processing plant as the subject land as, in effect, conclusive. What was proposed to be done off the subject land as thus identified was an "external activity" which could not, he thought, be caught by the extended definition of "use". However, once "use" is perceived as determinative of "land", rather than vice versa, the application may be seen to be defective and the Local Government Court to be without jurisdiction. The Full Court of the Supreme Court was correct in so holding. (at p506)
22. I share the hope expressed by Wilson J. in his reasons for judgment that, despite the setting aside of the judgment of Judge Given, the parties will be able to avoid an outcome which will render vain all of the very careful investigation of the merits undertaken by Judge Given. (at p506)
23. There remain three matters to which I should refer. The first concerns the nature and extent of the description which an applicant must give of the use proposed. I have already said that I do not regard the extended definition of "use" as requiring that either applications for consent or advertisements of such applications should include a description of all uses incidental to and necessarily associated with the proposed use. If it did require this, the result would be to tax the imagination of even the most ingenious applicant, who would be goaded into ever greater detail by the risk that relative brevity might result in the invalidity of his application. Nor would it assist those to whom applications and advertisements are directed, it would tend rather to overwhelm them in a mass of unnecessary detail. Those important objectives, which the due particularization of applications and the advertising of them are designed to attain and to which I referred in Scurr v. Brisbane City Council [1973] HCA 39; (1973) 133 CLR 242, at pp 251-252 , would be ill-served by such a course. (at p506)
24. The second paragraph of the definition of "use" does not operate to convert the simple direction to state the nature of the proposed use into a direction to state not only its nature but also the nature of every incidental and necessarily associated use. The definition of "use" is expressed to be subject to any context which "indicates or requires" a contrary intent and applications for consent to a proposed use of land provide just such a context. Were the definition intended to apply to the "use" of land so as to require those applying for consent to specify all subsidiary uses, there would be no occasion for the definition to describe, as it does, the principal use applied for as "the lawful use of the land". At the time of application that use will be an unlawful use, else there would be no need for any application for consent. The inappropriateness of the wording of the definition when sought to be applied to applications for consent to prospective uses may be contrasted with its entire appropriateness when applied to existing lawful uses. In the latter case it operates to extend the quality of lawfulness to existing subsidiary uses not in themselves lawful but which acquire that quality because they are subsidiary to an existing main use which is itself lawful. Such a context invites application of the definition; the context of applications for consent to prospective uses repels it. (at p507)
25. The function of the definition's second paragraph is, then, a quite limited one and occasions no difficulty in its operation. When an existing lawful use is actually being made of land, what may seem to be other uses incidental to and necessarily associated with it may emerge; as and when they do, the considerable difficulty of determining definitively whether they really are uses distinct from, although incidental to and necessarily associated with, the main and lawful use will not arise. But in the case of a prospective use the position will be quite otherwise. Because the use will still lie in the future, many of its facets will be unknown or unappreciated. Even were they all identifiable, there would remain the almost metaphysical task of distinguishing between what was no more than a facet of the main use and what constituted a distinct use in its own right, albeit both incidental to and necessarily associated with the main use. Yet if the definition of "use" were to be applied to the process of describing a proposed use in an application for consent, this task would be required of every applicant. (at p507)
26. If the definition of "use" plays no part in prescribing how an intended use is to be described, words of Kitto J., albeit in a somewhat different planning context, do, I think, assist in arriving at the correct view of the requirement that the proposed use of land be described in an application for consent. In Shire of Perth v. O'Keefe [1964] HCA 37; (1964) 110 CLR 529, at p535 his Honour, speaking of the lawful continuation of non-conforming prior uses, denied that there was involved any "meticulous examination of the details" of activities or any precise cataloguing of them but, rather, an inquiry as to what "according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date". His Honour called in aid the criterion of that which would appeal "to practical minds as appropriate in the application of town-planning legislation". A like approach should be adopted in the case of applications for consent; if this be done it becomes clear that not every subsidiary use need be described, although it will still be necessary to ensure that all land to which the application "relates or applies", whether devoted to the main use or only to a subsidiary use, is included in the application. (at p508)
27. The express requirements involving description of land uses are, respectively, that the application for consent should "truly set forth the following particulars:-... (iv) the use desired to be made of the land" (Ordinances, Ch. 8, Pt 2, cl. 2(d)), and that the advertisement should "contain particulars of the application as follows:-... (c) (iv) the nature of the proposed use" (Act, s. 22(1a)). Ordinarily these requirements will be met by a simple description which accords with common usage. For example "Drive-in theatre" will suffice without any reference to the usual associated snack-bars and toilets, "Service station" will be enough without specific reference to the usual small repair shop, to the provision of toilet facilities, or to the sale of accessories, tobacco and sweets. "Milk bar" is nowadays an acceptable description of small mixed businesses which sell few milk shakes but large quantities of sweets, tobacco, groceries, bread and so forth. (at p508)
28. The fact that the context is that of town planning will enter into the consideration of the appropriateness of any description. tion. Thus, uses which are likely to affect local amenity because, for example, of special characteristics involving noise, smell, the attraction of crowds or of heavy traffic must be so described as to reveal these qualities. Often their common description will do this, as in "Panel beating", "Tannery" or, to repeat an example already given, "Drive-in theatre". Where the common description is inadequate for the purpose, and may thus mislead, something more will be needed: a hotel which is to have a drive-in bottle department will not be adequately described by the word "hotel", the particular character of such a hotel, involving obvious town planning significance in relation to traffic flows, will call for additional words of description. Neighbours' sensitivities being what they are, a hostel in fact intended for the rehabilitation of juvenile offenders should be so described, simply to describe it as a youth hostel would mislead. The present case provides a further instance: if the access route had been included as part of the land the subject of the application, as it should have been, the description of use would have required some mention of the access road. This would have been needed not merely to explain the subject land's curious shape and the failure to make use of the normal means of access provided by what appeared to be an extensive road frontage, but primarily to draw attention to the effect which the unusual means of access would have in concentrating traffic flows along particular roads which, but for that road's particular route, would have been unaffected by the application. (at p509)
29. So varied are the circumstances of particular applications and so unspecific in meaning is the word "use" that no simple yet precise rule can be formulated in advance which will provide satisfactorily for every case: each must depend very substantially upon the nature and particular features of the use proposed. However it can, I think, be said that in the ordinary case the customary everyday description of a common use will be enough; and that the mere existence of subsidiary uses does not necessitate their being separately described. What is a sufficient description should be judged bearing in mind that it is in the context of town planning that the need for description arises and that exceptional cases will require more detailed description. (at p509)
30. The second matter to be disposed of is to express my entire agreement with Gibbs J. concerning a number of issues which he has discussed in his reasons for judgment. I agree that application may quite properly be made in respect of part of an allotment only (so long, I must of course add, as the intended use is truly to be restricted to that part): subject land need not conform to the artificial boundaries provided by real property descriptions. "The land to which the application relates or applies" means simply the land which is to be devoted to the proposed purpose of use and may be greater or less than a particular title holding or allotment, so long as it includes all land proposed to be so used. Again, I agree that, for the reasons stated by Gibbs J., there was no defect in the application and advertisement resulting from the failure to show the buffer area. Whether there is substance in the allied submission that failure to show any road frontage to Mount Crosby Road, the public road into which the road access led after traversing the State Forest, depends upon the special circumstances of the State Forest, to which I refer below. Finally I agree with the observations of Gibbs J. concerning the allegedly misleading character of the application and advertisement and concerning the meaning and effect of the expression "any land abutting on the land". (at p510)
31. There is a third matter to be mentioned: I have so far drawn no distinction between that part of the access road which runs through land in the same ownership as the quarry site and the remainder of it, running through a State Forest. If no such distinction is to be drawn the whole route of the access road will form part of the subject land and it will have a frontage to Mount Crosby Road, which frontage should have been referred to in the application and notice should have been given to the Crown as the owner of land abutting the subject land. However, the State Forest is Crown land and difficult questions may arise about the application of Brisbane's town planning measures to Crown land. Wilson J. refers to these and I am, with respect, content simply to adopt all that he says on this topic. (at p510)
32. I would dismiss the appeal. (at p510)
MURPHY J. I agree with Stephen J. The appeal should be dismissed. (at p510)
AICKIN J. The material facts and the legislative provisions upon which this appeal turns are set out in the reasons for judgment prepared by my brother Gibbs which I have had the advantage of reading. I agree with those reasons and there is little that I can usefully add. (at p510)
2. In the end the determinative consideration appears to be whether the starting point for the application of the Act and the various procedures thereunder is the identification of the land which is the subject matter of the application, or the ascertainment of the proposed use, independently of or at least separately from, the identification of the land. It was argued that if a project envisaged by a land holder involves for its commercial operation several separate stages, some of which will require activities in or on different areas of land, an application under the Act for planning consent cannot be entertained unless it incorporates all areas of land which may be used in the whole project when in operation. (at p510)
3. 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. (at p511)
Wilson J. I have had the benefit of reading the reasons for judgment of Gibbs J. (at p511)
2. I agree with Gibbs J. that the Full Court erred in holding that the phrase "the land to which the application relates or applies" in s. 22 of the City of Brisbane Town Planning Act 1964-1976 ("the Act") speaks only of "land" in terms of an entire allotment. An application for consent to use land in a zone will not be invalid merely because it is made in respect of a piece of land which does not correspond to the boundaries of an allotment. Provided that the application otherwise complies with the requirements of the Act and the Brisbane City Ordinances, and that the appropriate advertisement and notices have been made and given, I agree that the Local Government Court has jurisdiction to hear an appeal arising from such an application. However, the difficulty that I have with the appellant's case lies in the concept of "use" and in the application of that concept to the circumstances of this case. In relation to this matter I am unable to agree with Gibbs J. (at p512)
3. In December 1977 the appellant applied to the Brisbane City Council for consent to use an area of land, and to erect a building thereon, "for the purpose of Extraction of rock and stone and crushing and screening thereof to be carried out on the land". The land in question (the "subject land") was an unsubdivided area of about 64 acres which formed part of a much larger area, of approximately 1200 acres, owned by Pioneer Gravels (Qld.) Pty. Ltd., a company associated with the appellant. (at p512)
4. Under the City of Brisbane Ordinances, an application for consent to a
proposed use which requires the consent of the Brisbane
City Council must be
made to the Council Registration Board and must "truly set forth . . . the use
desired to be made of the land"
(Ch. 8, Pt 2, cll. 1 and 2 (d) (iv)). In s. 3
of the Act, "use" is defined as follows:
"'Use' - In relation to land, includes the carrying out of excavation work
in or under land and the placing on land of any material
or thing which is not
a building or other structure.
The term includes any use which is incidental to and necessarily associated
with the lawful use of the land in question" (at p512)
5. (Emphasis added). (at p512)
6. It was argued before the Local Government Court (Judge Given), as one of
three objections to jurisdiction, that the appellant's
application for consent
to use the subject land as a quarry was invalid because it failed to disclose
that adjoining land will be
used for the purpose of transporting metal from
the quarry. It was said that, by failing to disclose this incidental use, the
application
did not truly set forth the "use" desired to be made of the
subject land. His Honour rejected the objection to jurisdiction based
on this
ground, saying:
"Surely the definition (of 'use' in s. 3 of the Act) is contemplating the
doing of things in or under or on the land in question,
a use in or under or
on the land which is incidental to and necessarily associated with the lawful
use of the land with which it
is dealing.
I do not think it contemplates external activity being caught by the
definition although those external activities may be very
important to the
relevant use of the subject land, may indeed be practical prerequisites to the
possibility of using the subject
land and thus need consent from the council
before being commenced." (at p512)
7. The Full Court (Douglas, Matthews and Sheahan JJ.) upheld an appeal from
his Honour's judgment (1979) Qd R 358 . On this particular
issue Douglas J.
said (1979) Qd R, at p 367 :
"I may be over simplifying the matter but it seems to me that the Act
requires that, when one is identifying a use for the purposes
of an
application under the Act in respect of the use of land, it is necessary also
to show any use which is incidental to, and necessarily
associated with the
lawful use of the land. Otherwise the application could be a nonsense. It
should be added that in most cases
the incidental or associated use should be
reasonably proximate to the use proper. . . .
In the instant case it may be said that the words "extractive industry" in
themselves connote the fact that what is extracted will
be removed. This is
not necessarily so. Material could be stockpiled. However here the intention
was to remove it by a method of
which evidence was given. That this was so
should have been conveyed to the knowledge of the Brisbane City Council in the
application.
The transportation being over lot 1 entailed a use of that lot
quite irrespective of the use of the land delineated, and already
described.
This being so the owners of land abutting on lot 1 were entitled to notice
under s. 22 (2) of the Act.
. . . It was a matter that all persons concerned were entitled to have
litigated. I do not know if all persons concerned other
than the Brisbane City
Council did become objectors. It matters not." (at p513)
8. Matthews and Sheahan JJ. concurred generally with the reasons of Douglas
J. In the course of a short judgment Matthews J. expressed
the view that
(1979) Qd R, at pp 367-368 :
"Although by definition 'use' includes any incidental use I doubt, as at
present advised, whether it would be necessary to state
all uses, incidental
to or necessarily associated with the principal use; but, in my view, if, as
in this case, an incidental use
is to be made of an applicant's land that part
of his land where such use is to occur is necessarily a part of the land the
subject
of the application." (at p513)
9. On the hearing of the appeal in this Court, Mr. Jackson, counsel for the
appellant, strenuously challenged the reasoning of the
Full Court on this
point. He argued that Judge Given was right in confining the concept of
incidental use to ancillary uses of the
subject land. He argued that the
appellant had neither sought nor received any consent to use land beyond the
area described in the
application, and conceded that it would be necessary for
the appellant to make a further application before it could use any additional
part of lot 1 to carry metal from the quarry site to the boundary of lot 1,
and perhaps before it could carry metal through the State
Forest to Mount
Crosby Road. Consequently it was submitted that there was no need for the
appellant's application to disclose any
uses of land beyond the subject land.
The submission proceeded that, while it may be inconvenient to have a
succession of applications
in respect of a proposed development, the
jurisdiction of the Local Government Court is determined by the scope of the
application
before it. (at p514)
10. I note that Gibbs J. has adopted this view. However, with respect, I am unable to agree. Judge Given may have been correct in confining the concept of incidental uses to uses of the actual land in respect of which consent is sought. To this extent the appellant's submission may be accepted. However, in my opinion, it is not open to an applicant arbitrarily to nominate a limited area of land and thereby restrict the range of incidental uses which he must disclose in his application. Rather the converse is true. The extent of the land in respect of which an applicant must seek consent is dictated by the proposed use including all incidental uses necessarily associated with the primary use in respect of which consent is required. (at p514)
11. The crucial issue is whether the use of land adjoining the quarry site to carry metal from the proposed quarry should have been disclosed in the appellant's application. If it was, then the application related or applied to that adjoining land as well as to the proposed quarry site and, by failing to refer to that land, the application was defective. If so, Judge Given erred in law in dismissing the respondent's objection to the application. (at p514)
12. To this point, it will be observed that I have used the language of the extended definition of "use" in s. 3 of the Act. Both in the Local Government Court and in the Supreme Court its relevance seems to have been assumed. It may well be that the reference to "lawful use" in the concluding phrase of the definition confines its application to existing rather than proposed uses. Whether this be so or not, in any event I would conclude that the proper construction of the legislation requires that the word "use" in the phrase "the use desired to be made of the land" (Ordinances, Ch. 8, Pt 2, cl. 2 (d) (iv)) and in the phrase "the nature of the proposed use" (Act, s. 22 (1a) (c)) be understood to include any use which is incidental to and necessarily associated with the proposed use. The extent of the requirement of express disclosure of these incidental uses is a matter to which I shall refer later in these reasons, but the significance of the extended concept of "use" to the requirement that the application for consent must set out "a full description of the land" (Ordinances, Ch. 8, Pt 2, cl. 2(d) (i)) is the point of critical importance in the present case. (at p515)
13. The importance of transport in relation to a proposed quarry development
has been amply illustrated by this case. Much of the
evidence before the Local
Government Court was concerned with the question of how material was to be
transported from the subject
land if approval was given for the proposed use.
In his reasons for judgment Judge Given acknowledged that "the whole case
comes
down to traffic". In the course of those reasons he made an exhaustive
examination of the question of whether it was feasible for
quarried metal to
be carried from the proposed quarry by truck and, if so, the route the trucks
should follow and the restrictions,
if any, that should be imposed on the
number of loads and the weight of each load. As a result of this examination
his Honour attached
the following conditions to his order giving consent to
the use of the subject land for a quarry:
"10. (a) Access to the subject land by all vehicles shall be by an access road
to be constructed to the subject land from Mount Crosby
Road through State
Forest 494 along the route shown in the plan which is Annexure 'C' hereto or
such other route to Mount Crosby
Road as may be agreed upon between the
authority having control of such State Forest and the appellant. Such access
road shall connect
to the subject land through Lot 1 on R.P. 119333.
(b) The use of the subject land for the purpose the subject of this consent
shall not commence until all necessary consents or
approvals have been
obtained for the construction and use of such access road and such access road
has been constructed in accordance
with the terms of such consents or
approvals.
. . .
12. (a) Quarry products from the site shall not be transported from the quarry
on to public roads at a greater rate than 200,000
tonnes per annum. Not more
than 25,000 tonnes of such quarry products shall be transported from the
quarry on to public roads in
any given calendar month.
(b) The appellant shall keep and forward to the Council by the eighth day of
each month records of the number of tonnes of quarry
material removed from the
subject land during the preceding calendar month. Such records shall state the
number, type and weight
of loads transported from the quarry on to public
roads on each day of the month to which the record relates.
(c) The appellant shall provide at the Quarry Site suitable weighing
apparatus to enable the records hereinbefore referred to to
be accurately
compiled.
(d) All records required to be furnished to the Council as hereinbefore
referred to shall be verified by statutory declaration
made on behalf of the
appellant by a person duly authorised in that regard.
(e) Vehicles carrying quarry products from the site may leave the site only
between the hours of 7.00 a.m. to 6.00 p.m. Mondays
to Fridays (both days
inclusive) provided that quarry products may be removed from the quarry site
by vehicles at other particular
times if, in the opinion of the Chief Engineer
and Manager, Department of Works, the circumstances are such as to warrant
such removal.
13. Compliance with all relevant Council Ordinances.
14. Compliance with all relevant By-laws and Acts of other Government
Authorities." (at p516)
14. Mr. Jackson's submission that the appellant has neither sought nor
obtained any approval covering the removal of metal from
the subject land
sounds rather hollow when viewed against the background of the conditions
quoted above. Notwithstanding the provisions
of condition 10 (b), Judge Given
has, in fact, considered and purported to determine many of the issues which
would be relevant in
a future hearing of an application for consent to use
land for the removal of metal from the quarry. I fully appreciate why the
parties
and his Honour proceeded in this way. The question of transport could
not properly be ignored in considering the appellant's application
and this
illustrates the conclusion to which I have come, namely, that in the
circumstances of this case, access to and from the
quarry site for the purpose
of removing quarried material is a use of land which is incidental to and
necessarily associated with
the operation of the proposed quarry. (at p516)
15. It follows, therefore, that in the present case the application should have sought consent to use that part of lot 1 which will be required for the transport of metal from the subject land to the southern boundary, where lot 1 adjoins the State Forest. (at p516)
16. One may then ask whether the application should also have extended to that part of the State Forest which will be used to transport metal from the boundary of lot 1 to the first point of entry to a public road, namely, Mount Crosby Road. The appellant is currently negotiating for access through the Forest and the answer to this question may depend on the nature of the arrangements that are made. The application of the Brisbane City town planning legislation to Crown land has been argued recently before this Court (Brisbane City Council v. Group Projects Pty. Ltd. [1979] HCA 54; (1979) 145 CLR 143 ). However, this question was not fully canvassed in the argument and I make no comment upon it other than to say that if the legislation validly requires the consent of the Brisbane City Council to the proposed use of part of the State Forest, then, in my opinion, that use necessarily forms part of the subject of the primary application and should have formed part of that application. (at p517)
17. It follows from the matters that I have discussed that, in my opinion, the appellant's application for consent did not comply with the requirements of the Act and the City of Brisbane Ordinances. The application neglected to include in the description of the land the subject of the application that part of lot 1 over which it was proposed to transport metal from the quarry. This error was then carried into the advertisements of the application, which failed to comply with s. 22 (1A) of the Act, but the defect in the application was itself fatal to the proceedings. Consequently, Judge Given erred in law when he overruled an objection to jurisdiction based on the alleged invalidity of the application before him (cf. Scurr v. Brisbane City Council (1973) 133 CLR, at p 258 ). (at p517)
18. Whether there has also been a failure to comply with s. 22 (2) of the Act is less clear. That section required that notice of the appellant's application be given to the owner of any land abutting on the land to which the application related or applied. However, because a State Forest abuts onto the proposed exit route from lot 1, it would appear that the only relevant abutting land for the purpose of s. 22 (2) is owned by the Crown. "Owner" is defined in s. 3 of the Act in terms which exclude the Crown and, in these circumstances, there may have been no need for the appellant to give formal notice of its application to the Crown. However, as I have said, the effect of the legislation on Crown land was not fully canvassed in argument and I decline to express a concluded view on this issue. (at p517)
19. It remains for me to comment on the extent to which it is necessary to disclose incidental uses in the application for consent to the use of land. In my opinion, no definitive or exhaustive guidance can be given. It will be a question of degree, depending on what is significant in the particular circumstances of each case. What is significant in any particular case will be determined by reference to the town planning character of the legislation. The purpose of the application, in this respect, is to mark out the scope of the planning considerations which the council or its delegate or the court will have to take into account if the consent is to be informed and effective. and to alert potential objectors to the full range of the proposal. (at p517)
20. It may be helpful if I sum up my conclusions in the form of propositions
as follows:
1. The area of "the land to which the application relates or applies" will
be identified by reference to the proposed use, including
uses incidental to
and necessarily associated with the proposed use.
2. It is not essential that the boundaries of such an area correspond to the
boundaries of an allotment.
3. The application for consent prescribed by the City of Brisbane
Ordinances, Ch. 8, Pt 2, cl. 2 should include as part of the
description of
"the use desired to be made of the land" (cl. 2 (d) (iv) all significant
incidental uses which are necessarily associated
with the proposed use.
4. Substantial compliance with the Act and Ordinances is a condition
precedent to jurisdiction to grant consent in relation to
- the contents of
the application (Ordinance, Ch. 8, Pt 2, cl. 2); the advertisement of the
application (s. 22 (1)); and service
of notice of the application on abutting
owners (s. 22 (2)). (at p518)
21. It is with regret that I acknowledge that the result of my decision is to set aside the judgment of Judge Given. That judgment would appear to have proceeded on the basis of a thorough testing of the issues in a hearing in which all the relevant parties, including many objectors, participated. One may never know whether a proper application, and adequate advertisements, would have altered other citizens who would have exercised their right to participate as objectors. I venture to hope that, despite the effect of my decision, the hearing before Judge Given will not have been in vain. (at p518)
22. The imperative underlying my conclusion in this matter is the importance of a faithful adherence to the provisions of the Act and Ordinances so that the interests of all parties concerned with an application under that legislation are protected. Allegations were made in this case that the contents of the appellant's application and advertisements were likely to mislead the public as to the appellant's intentions with respect to the removal of metal from the quarry. There will be less room for ignorance or misunderstanding of an application once it is accepted that an applicant for consent to use land for a particular purpose must frame his application so that it reveals the extent and nature of those land uses which are matters of substance and are incidental to and necessarily associated with the primary use. Judge Given rightly judged the proper scope of the hearing before him, but unfortunately the failure of the appellant to frame its application in accordance with the Act and the Ordinances deprived his Honour of jurisdiction to hear the appeal. (at p519)
23. In my opinion, therefore, the Full Court was correct in its decision on this aspect of the case. That being so, I think the appeal should be dismissed. (at p519)
ORDER
Appeal dismissed with costs.
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