Brisbane City Council v Boral Resources Pty Ltd

[1998] QCA 92

IN THE COURT OF APPEAL	[1998] QCA 092
SUPREME COURT OF QUEENSLAND
Brisbane

Appeal No. 3075 of 1997

[B.C.C. v Boral Resources (Qld) P/L]

BETWEEN:

BRISBANE CITY COUNCIL

(Respondent) Appellant

AND:

BORAL RESOURCES (QLD) PTY LTD (ACN 009 671 809)

(Applicant) Respondent

Fitzgerald P.
McPherson J.A.

Dowsett J.

Judgment delivered 15 May 1998

Separate reasons for judgment of each member of the Court, each concurring as to the orders made.

APPEAL ALLOWED.
THE SECOND DECLARATION MADE BELOW IS SET ASIDE.
THE RESPONDENT IS ORDERED TO PAY THE APPELLANT’S COSTS OF APPEAL

CATCHWORDS: LOCAL GOVERNMENT - town planning - existing lawful use - demolition and re-building of existing structures and buildings - whether consent of Brisbane City Council required for re-building - interpretation of s. 33(1A) of Local Government Act 1936 - interpretation of statutory definition of “use” in relation to land - whether the erection or use of a building or other structure on land is a “use” of that land.

Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1980) 145

CLR 485

Counsel:	Mr P.J. Lyons for the respondent/appellant Mr C.L. Hughes for the applicant/respondent
Solicitors:	Brisbane City Council Legal Service for the respondent/appellant Mr I.R. Pepper (Solicitor) for the applicant /respondent
Hearing Date:	2 April 1998

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 3075 of 1997

Brisbane

Before Fitzgerald P.
McPherson J.A.
Dowsett J.

[B.C.C. v. Boral Resources (Qld) P/L]

BETWEEN:

BRISBANE CITY COUNCIL

(Respondent) Appellant

AND:

BORAL RESOURCES (QLD) PTY LIMITED

(A.C.N. 009 671 809)

(Applicant) Respondent

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 15 May 1998

The circumstances giving rise to this appeal are detailed in the reasons for judgment of Dowsett J. I

propose to confine my observations to the principal matter in dispute, namely, the correctness of the

second of the two declarations contained in the order which is the subject of this appeal.[1] Those

[1]             Although the notice of appeal states that the appeal is brought from the whole of the material judgment of the Planning and Environment Court, the grounds of appeal and the appellant’s argument related substantially, if not entirely, to the second declaration. No reason to question the correctness of the first declaration was identified.

declarations are set out in Dowsett J.’s reasons for judgment.
The matters on which the appeal depends are not in dispute. The only issues are concerned with the

construction of sub-s. 33 (1A) of the Local Government Act 1936,[2] which is set out in Dowsett J.’s

[2]             Because of the nature of the parties’ arguments, I have not considered later legislation such as the Local Government (Planning and Environment) Act 1990 and the Integrated Planning Act 1997.

reasons for judgment. It is agreed that:

(i)          The respondent, Boral Resources (Qld) Pty Ltd, operates a concrete batching plant on land

situate at 11-13 Horace Street, Windsor and has done so for many years.

(ii)         The land is zoned General Industry.

(iii)        The use of land, buildings and other structures for the purpose of a concrete batching plant in

that zone requires the consent of the appellant, Brisbane City Council, under the Planning

Scheme for the City of Brisbane.

(iv)        The Planning Scheme also requires the Council’s consent to the erection of a building or other

structure for the purpose of a concrete batching plant on land in the General Industry zone.

(v)         Boral’s use of its land and the existing buildings and other structures for the purpose of a

concrete batching plant is lawful by virtue of sub-s. 33(1A) of the Local Government Act and

s. 20 of the Acts Interpretation Act 1954.

(vi)        The Council has granted Boral a conditional approval under the Environmental Protection Act

1990 which requires that some of the existing buildings and other structures be refurbished and

upgraded. It is not suggested that that approval constitutes a consent by the Council for the
purpose of the Planning Scheme.

(vii)       The work proposed by Boral will involve both the demolition of all or part of some of the

existing buildings and other structures, and the erection of new buildings and other structures

or parts of buildings and other structures[3] for use as part of Boral’s concrete batching plant.

[3]             Boral did not submit that the position would be different if only parts of buildings or other structures, not whole buildings or structures, are to be demolished and/or erected.

(viii)      The erection of buildings and other structures on Boral’s land would require the Council’s

consent under the Planning Scheme but for sub-s. 33(1A) of the Local Government Act and

s. 20 of the Acts Interpretation Act.

(ix)        The Planning and Environment Court held that Boral’s proposed erection of buildings and other

structures for use as part of its concrete batching plant is a use of its land which is incidental to

and necessarily associated with Boral’s use of the “premises” for that purpose, and accordingly

may be “constructed” without the Council’s consent under the Planning Scheme. (It clarifies

the dispute to substitute “land” for “premises” and “erected” for “constructed”.)

(x)         For the second declaration made by the Planning and Environment Court to be sustained, the

proposed erection of buildings and other structures must:

(a)	satisfy sub-s. 33(1A)(a) of the Local Government Act; and
(b)	fall outside the operation of sub-s. 33(1A)(b)(ii) of the Act.[4]

[4]             I have found it unnecessary to consider this issue.

It was not disputed that sub-s. 33(1A)(a), which commences with the words “Except as hereinafter provided”, is subordinate to sub-s. 33(1A)(b).

The Planning Scheme deals separately with the “use” of land, buildings and other structures for specified

purposes and the erection of buildings and other structures for use for those purposes. Sub-section

33(1A) contains the word “erect” or a derivative only twice, in both instances in sub-s. 33(1A)(b).[5]

[5]             Sub-s. 33 (1A)(b)(i) refers to “erected” and sub-s. 33(1A)(b)(iii) refers to “erect”.

Neither of those references provides adequate support for an argument that sub-s. 33(1A) is intended

to make lawful not only the use of land, buildings and other structures, but also the erection of buildings

and other structures. If sub-s. 33(1A)(a) makes the erection of a building or other structure lawful, it

must do so because the erection of the building or other structure is a lawful use of the land on which

the building or other structure is erected. No alternative argument was advanced by Boral.

By sub-s. 33(1A)(a), Boral’s use of its land and existing buildings and other structures is “... a lawful

use of the land, building or other structures for as long as the land, building or other structure continues

... to be ... used” as a concrete batching plant.[6] The distinction drawn between land on the one hand

[6]             Subject to sub-s. 33(1A)(b) of the Local Government Act,

and, on the other, buildings and other structures provides little basis for a conclusion that the reference

to the “use” of “land” in sub-s. 33(1A)(a) is intended to encompass the “erection” of “buildings and

other structures” for “use” for the purpose for which the land may be lawfully used. Support for that

view is further diminished by the consideration that the entire legislative scheme, both the Act and the

Planning Scheme, draws distinction between land and buildings and other structures and between use

and erection. The solution found by the Planning and Environment Court, and the sole argument by Boral in this Court, is founded on the definition of “Use” in sub-s. 33(1) of the Local Government Act.

That definition is in the following terms:

“‘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.”

As was pointed out by the Court in Boral Resources (Qld.) Pty Ltd v. Cairns City Council,[7] the second

[7] (1996) 91 L.G.E.R.A. 323, at pp. 327, 329.

sentence imposes cumulative requirements. It is not obvious that Boral’s proposed works would meet

those requirements, at least in advance of the proposed demolition work. However, that need not be

further considered.

The first sentence of the definition plainly indicates that the “placing” of a building or other structure on

land is not a “use” of the land for the purpose of the definition. The concept of “placing” must, it seems

to me, includes a permanent “placing” by erection. The two sentences of the definition are plainly

intended to be read consistently, and the second sentence cannot be intended to partially contradict the

first sentence by permitting buildings and other structures to be erected or otherwise placed on land

provided that such placement is “incidental to and necessarily associated with the lawful use of the land

...”.[8] If necessary, it would be appropriate to import the limitation included in the first paragraph of the

[8]             Cf. Pioneer Concrete (Qld.) Pty Ltd v. Brisbane City Council (1980) 145 C.L.R. 485, at pp. 514.

definition into the word “use” where it first appears in the second sentence in the definition. In any event, both the history of the legislation[9] and the established dichotomies which it contains between land

[9]             Which is discussed in the reasons for judgment of Dowsett J.

and buildings and other structures and between use and erection are against the construction of the

definition of “Use - In relation to land”[10] which is essential for Boral’s purposes. The second

[10]         Local Government Act, sub-s. 33(1).

declaration, if correct, would effectively deprive the limitation in the first sentence in the definition of

“‘Use’ - In relation to land” of much of its operation since, in practice, buildings and other structures

erected on land would commonly be “incidental to and necessarily associated with its ... use”.
Finally, it should be noted that the construction of sub-s. 33(1A)(a) for which Boral contends would

lead to the anomaly that the buildings and other structures proposed could be erected but not used

without the Council’s consent. Sub-section 33(1A)(a) provides that the use of a building or other

structure is lawful only for as long as the building or other structure continues to be used for its original

purpose. That seems to have no application to a new building or other structure erected after the

demolition of an existing building or other structure.

In summary, in my opinion, the second declaration made by the Planning and Environment Court

involved error or mistake in law and the appeal should be allowed.

I agree with the orders proposed by Dowsett J.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 3075 of 1997

Brisbane

Before Fitzgerald P.
McPherson J.A.
Dowsett J.

[Brisbane City Council v. Boral Resources (Qld.) P/L.]

BETWEEN:

BRISBANE CITY COUNCIL

(Respondent) Appellant

AND:

BORAL RESOURCES (QLD.) PTY. LTD.
ACN 009 671 809

(Applicant) Respondent

REASONS FOR JUDGMENT - McPHERSON J.A.

Judgment delivered 15 May 1998

I agree with the reasons of Dowsett J. for allowing this appeal, and with the orders he

proposes.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

Appeal No. 3075 of 1997

Before Fitzgerald P.

McPherson J.A.

Dowsett J.

[B.C.C. v. Boral Resources (Qld.) P/L]

BETWEEN:

BRISBANE CITY COUNCIL

(Respondent) Appellant

AND:

BORAL RESOURCES (QLD) PTY LTD (ACN 009 671 809)

(Applicant) Respondent

REASONS FOR JUDGMENT - DOWSETT J.

Judgment delivered 15 May 1998

Preliminary

On 30 March 1998, s.6.2.1 of the Integrated Planning Act 1997 came into force, repealing

the Local Government (Planning and Environment) Act 1990 and replacing it with an entirely new

planning regime. This appeal was argued on 2 April 1998. Judgment at first instance was delivered on

14 March 1997 and of course, it reflected the current state of the law at that time. Neither party

suggested that any aspect of the new statutory structure was relevant for present purposes. These

reasons proceed on that basis. However, there is one respect in which the statutory changes may be

relevant. I will return to that matter at a later stage.

The Facts

The respondent operates a concrete batching plant on land situated at 3-11 Horace Street,

Windsor. The land has been used for this purpose since at least 1946. In 1965 the first Brisbane Town

Plan came into effect. The subject land was included in the General Industry Zone in which the existing

use was lawful. In 1971, the plan was amended, but the zoning of this land and the lawfulness of the use

remained unchanged. A new plan was introduced in 1978. The land remained in the same zone, but

the use became permissible only with the appellant’s consent, although provision was made for the

continuation of existing uses. Under the current plan, introduced in 1987, that position remains

unchanged.

The operation of a concrete batching plant is an “environmentally relevant activity” under the

Environmental Protection Act 1990. Such an activity cannot be conducted without the approval of

the administering authority, in this case, the appellant. Under s.46(4) of the Act, an approval may be

subject to conditions, including conditions which require the approval-holder to take measures to

minimize the likelihood of environmental harm. On 27 February 1996, the appellant granted such an

approval subject to certain conditions. In order to comply with those conditions, the respondent

proposes to carry out substantial re-furbishment of its existing facilities. The proposed works are

conveniently described as follows:-

“The three areas depicted on Boral’s demolition plan that are to undergo any changes are the waste water and storm water catchment and treatment area, the truck wash- down area and a number of connecting drainage areas. ... The existing infra-structure for the waste-water and storm water catchment and treatment area consists of four waste-water holding tanks, namely a first flush tank, two truck washout water tanks and a re-use water tank. The modifications to this area will constitute the following:-

(i)          demolition of the two truck washout tanks, the re-use water tank and the solids storage area.

(ii)         construction of one new drying bay (aboveground), one new truck washout bay (above ground), one new secondary tank (aboveground) and one new slurry stirrer (in ground).The proposed orientation of the bays and tanks will alter from the existing. ... The new drying bay, the new truck washout tank and the new secondary tank will be higher in elevation than existing structures to reduce spillage.

(iii)        alteration of the first flush tank by removal of the partition in the centre of the tank and possible raising of the height of the walls. This tank is essentially an in-ground tank and it is expected that its form will not change significantly.

The truck washdown area which is in the north-east corner of the site currently is a large open-paved truck manoeuvring and washing area which drains via an open spoon drain to a solids collection sump then via a pipe to an open drain along the southern boundary of the site and ultimately to the first flush tank... The modifications to this area will be the removal and replacement of a large portion of the existing pavement and the installation of a new in-ground tank with a capacity of 84 cubic metres. The new pavement will be contoured to drain to the new in-ground tank. A gravel collection and removal access point will be provided to this tank. ... The existing open spoon drain which currently drain along the eastern portion of the site will be modified to a new covered drain which will act as an overflow drain from the new inground tank. This new drain will connect to the existing solids collection sump. There is some existing in- ground inter-connecting pipework and electrical wiring which runs diagonally from the batching area in the centre of the site to the wastewater and stormwater catchment and treatment area in the south-west corner of the site. ... Boral (intends) to provide interconnecting pipework from the new in-ground tank in the north-east corner of the site to the new secondary tank in the south-west corner of the site. Wastewaters and stormwaters will be collected from the pavement in the north-east corner of the site and drained to the new in-ground tank. These wastewaters will then be pumped via inground pipework to the secondary tank in the south-west corner and drain to the slurry stirrer. From the slurry stirrer wastewaters will then be pumped back to, and re- used in, the batching process via the in-ground pipe work”.

The appellant asserts that, because of the zoning of the land, the proposed works may be

performed only with its consent. The respondent submits that such consent is not necessary. At first

instance it was declared as follows:-

“... that the applicant’s use of the said premises for the purpose of a concrete batching plant is an existing lawful use pursuant to the sub-section 33(1A) of the Local Government Act 1936.” (the “first declaration”)

and

“... that the refurbished washout bay, drying bay, secondary tank and sediment pools and slurry stirrer proposed to be constructed by the applicant on the subject premises (and depicted in Exhibit A in the affidavit of Brian Burke Gaffney filed herein on 13 November 1996) are both incidental to and necessarily associated with the applicant’s said lawful use of the premises and may be constructed without the consent or approval of the respondent under the Town Plan for the City of Brisbane.” (the “second declaration”)

The appellant challenges the correctness of these declarations.

At first instance, there was a dispute about whether some of the existing structures were in place

in 1946. The matter was left on the basis that if the learned trial Judge concluded that it was important

to his determination of the application, the respondent would be given an opportunity to lead further

evidence. Nothing more has been done about that issue, and it was not suggested in argument in this

court that anything depended upon it. In effect, the question for determination is whether or not the

respondent’s proposal to demolish part of its facility and rebuild may be lawfully carried out without the

consent of the appellant. Under the present town plan, demolition of a building or other structure is a

“development” and presumably controlled by that plan. However I do not understand that to be the

source of the present dispute. It is the proposal to rebuild which is the subject of contention.

The Legislation

Section 3.1 of the Local Government (Planning and Environment) Act 1990 provides:

“A lawful use made of premises, immediately prior to the day when a planning scheme or an amendment of a planning scheme commences to apply to the premises, is to continue to be a lawful use of the premises for so long as the premises are so used ...”

The learned Judge at first instance concluded that this section had no retrospective effect,

applying only to the future commencement of plans or amendments to plans. This seems to be correct,

and neither party submitted to the contrary. It was accepted that such protection as the respondent

enjoys in respect of its continued use of the site must be found in s.33(1A) of the Local Government Act 1936. I will return to the wording of that section in a moment. As that Act has now been repealed,

reliance was also placed upon s. 20 (2) of the Acts Interpretation Act 1954 which provides :

“The repeal or amendment of an Act does not -

(c)         affect a right, privilege or liability acquired, accrued or incurred under the Act ...”

As I understand it, both sides accept that the combined operation of s.33(1A) of the Local

Government Act and s.20(2) of the Acts Interpretation Act confers upon the respondent a right to

continue operating a concrete batching plant on the subject site. There was no suggestion that this

section of the Local Government Act did not apply to the City of Brisbane at any material time.

Section 33(1A)provides:-

“(a) Except as hereinafter provided, a lawful use made of land or of a building

or other structure -

(i)          immediately before the date when a town planning scheme or an amendment of such a scheme becomes applicable to such land, building or other structure shall; or

(ii)         immediately before the date when a town planning scheme or an amendment of such a scheme became applicable to such land, building or other structure (where the scheme or amendment came into operation before the commencement of the Local Government Act Amendment Act 1977) always did, continue to be a lawful use of the land, building or other structure for as long as the land, building or other structure continues or continued to be so used notwithstanding any provision of the scheme or amended scheme to the contrary.

(b)	(i)	The provisions of this paragraph (b) apply to a lawful use made of land or of a building or other structure such that if it had not been in existence -
(A)	immediately before the date when a town planning scheme or an amendment of such a scheme becomes applicable to such land, building or other structure; or
(B)	immediately before the date when a town planning scheme or an amendment of such a scheme became applicable to such land, building or other structure (where the scheme or amendment came into operation before the commencement of the Local Government Act Amendment Act 1977);

would, having regard to the zone under the scheme or amended scheme in which the use is or as the case may be, was carried on, be a use for which the land so used may not or could not be used or the building or other structure so used may not, or as the case may be, could not be erected or used under the provisions of the scheme or amended scheme.

(ii)

if a lawful use to which this paragraph (b) applies is discontinued for a period of at least six months or for such longer period as is prescribed in the scheme applicable to the site of such use or, where the use is of a building or structure, if the building or structure is demolished or destroyed or suffers damage that, in the opinion of the local authority having jurisdiction, is so substantial as to preclude the continuance of such use, that use of the land, building or structure in question shall cease to be a lawful use unless the local authority consents to that use.”

(iii)

the provisions of this section that apply to an application to use land or to erect or use a building or structure for a purpose that under a relevant town planning scheme is permitted only with the consent of the local authority concerned applies to an application for consent made by reason of the preceding provision (ii).

(c)         The provisions of this subsection apply, with necessary adaptations, to Brisbane City Council and the Town Plan for the City of Brisbane in force for the time being pursuant to the City of Brisbane Town Planning Act 1964-1974 and, in relation thereto and without limiting the generality thereof, the term “Local Authority” includes Brisbane City Council, and the term “town planning scheme” or “scheme” includes the Town Plan for the City of Brisbane as aforesaid.”

Lawfulness of the Use

The first question is whether a lawful use was being made of the land or of a relevant building

or other structure at either of the times specified in paragraph (a) of sub-s. (1A). Sub-paragraph (i)

appears to have been intended to operate prospectively with respect to plans or amendments to be

adopted after its commencement in 1977, while sub-paragraph (ii) was intended to operate to give retrospective protection to uses which predated the commencement of plans or amendments prior to

such commencement. Thus, in the present case, sub-paragraph (i) authorizes the present use

notwithstanding the provisions of the 1978 and 1987 plans. It would otherwise have been necessary

for the respondent to obtain consent from the appellant to its continued use of the site, buildings and

other structures. As the land has been used as a concrete batching plant at all material times, I assume

that any buildings or structures on the land have been similarly used. The plan and amendments thereto

adopted prior to 1977 did not affect the lawfulness of the existing use. It is, therefore, not necessary to

rely upon sub-paragraph (ii).

In certain circumstances, paragraph (b) limits the continuation of a use pursuant to paragraph

(a). The appellant submitted that paragraph (b) has relevant application to the present case. Sub-

paragraph (i) prescribes the circumstances in which it operates, using a structure which is analogous to

that which appears in paragraph (a). It, in effect, provides that if, as a result of the subsequent or

previous commencement of a town plan or amendment thereto, a previously lawful use would, because

of its zoning, become or have become a use for which the land may not be, or could not have been

used, or for which a building or other structure may not, or could not have been erected or used, then

paragraph (b) applies. Sub-paragraph (ii) provides that in such circumstances, any discontinuation in

use for a period of six months or longer, or in the case of a building or other structure, demolition,

destruction or substantial damage to it, will render the continued use unlawful unless the local authority

consents to such use. Sub-paragraph (iii) provides that the process for obtaining such consent is to be

that which is provided elsewhere in the section for making applications for council consent.

The reference in sub-paragraph (i) to, “a use for which the land so used may not or could not be used”, seems to be a reference to uses which are prohibited in the relevant zone rather than to those which are permissible with consent. Where, elsewhere in s.33, reference is made to uses of the latter

kind they are so described. See for example sub-s. (15):

“Subject to this section any applicant for approval, consent or permission to use any land or to erect or use any building or other structure for a purpose permitted by a town planning scheme ...”

See also sub-s. (18):

“(a)

Where -

(i)	...
(ii)	under a town planning scheme any building or other structure may be erected or used for any purpose on land in a zone only with the consent of a local authority or land in a zone may be used for any purpose only with such consent ...”

If a particular use is permissible with consent, but consent has not been obtained or is refused,

it may not be permissible to so use the land, but it does not follow that such a use is a use for which the

land may not be used. It remains a use for which the land may be used with consent. From this

reasoning and from the other references in s. 33, I infer that paragraph (b) applies only to uses which

have continued to be lawful by virtue of paragraph (a) when they would otherwise have been

prohibited because of a change in zoning under a new or amended town plan.

The appellant submitted to the contrary, referring to some of the undoubtedly difficult language

used in paragraph (b). It argued that the paragraph applies both to previously lawful uses which have

become unlawful and to previously lawful uses which have become lawful only with consent. The

language in question is the rather difficult expression, “a use for which the land so used may not or could

not be used or the building or other structure so used may, or as the case may be, could not be erected

or used”. It was submitted that the dichotomic usage of “may” and “could” was intended to refer to a lawful use as of right on the one hand, and a use, lawful only with consent, on the other. The argument

appeared to owe something to the traditional distinction between the use of the words “may” and “shall”

in statutes, the former indicating a permissive empowerment and the latter, a mandatory direction. I see

no support in that analogy for the present argument. The structures of paragraphs (a) and (b) are

designed to provide for both prospective and retrospective operation. Inelegant as it may be, the use

of the auxiliary verbs to which I have referred is intended to describe the separate application of each

paragraph to existing lawful uses as at the commencement dates of previous and subsequent plans and

amendments. I consider that paragraph (b) does not apply for present purposes. It applies only where

the use in question has become a prohibited use in the relevant zone. That is not the present case.

Ambit of Protection

It is now necessary to consider the ambit of the protection extended by paragraph (a) of

s.33(1A). It purports to authorize continued use only for so long as the land, building or other structure

continues to be so used. In the present case, the land has continued, and will continue to be so used,

but upon demolition, those buildings or other structures (whichever they be) will cease to be so used.

Their protection will lapse. Paragraph (a), by itself, would not seem to permit erection of a new building

or other structure unless such erection can be described as part of the protected continuing lawful use

of the land. As a question of language, I see little difficulty in describing the erection of a building or

other structure on land as a “use” of that land, but the definition of “use” in s. 33(1) poses some

problems. It is 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 definition is concerned only with the word “use” to the extent that it is used “in relation to

land”. There are numerous references in s.33 to the use or erection of buildings and other structures.

Sub-section (1A) is an example of this. It seems that the definition is not primarily intended to apply to

those matters. A further difficulty is the attempt to include excavation work and the “placing on land”

of material or things other than buildings or other structures. This implies that “use” would not normally

include such activities. I doubt whether this is so. Those words may also imply that it was intended to

exclude from the meaning of the word “use”, when used in relation to land, the “placing” of a building

or other structure upon that land. An associated difficulty arises from the second paragraph of the

definition. It is necessary to decide whether the words, “any use which is incidental to and necessarily

associated with”, refer only to any other use of the land in question, or include any use of buildings or

other structures on that land and/or other land, buildings and structures.

The very considerable difficulties inherent in the interpretation of this definition have caused me

to refer to its history. It appears to have been introduced into the Local Government Act for the first

time in 1966. At that time, s.33 was amended to a form which is identifiable as a predecessor of the

present section. It was a substantial departure from that which had preceded it. It was said by the

relevant Minister in his second reading speech that the “new town planning section” was based upon

corresponding provisions already in force in the City of Brisbane. (See Parliamentary Debates for 6

December 1966 at p. 2226.) The definition appears in s. 3 of the “City of Brisbane Town Planning

Act 1964". The bill for that Act was initiated in committee on 24 November 1964, at which time the

relevant Minister referred to the fact that it had been introduced at the previous session but had not

proceeded beyond the first reading stage, the government having decided that interested parties should

have an opportunity to make appropriate submissions. (See Parliamentary Debates for 24 November 1964 at p. 1779.) The earlier bill was introduced on 18 March 1964. At that time, the relevant

Minister gave a detailed history of the circumstances in which it had been prepared. (See Parliamentary

Debates for 18 March 1964 at pp. 2616-2620.) He indicated that a town plan had been prepared

pursuant to interim legislation introduced in 1959 and had been submitted to the government, which now

proposed that the plan be accepted and adopted. The proposed legislation was designed to have that

effect. Section 4 of the 1964 Act reflects something of this history. That section adopted the plan and

gave it the force of law.

I have given this rather lengthy history because I consider that there are some aspects of s.33

which are rather difficult to understand in isolation from it. The section appears to assume many things.

It assumes the use of zones in town planning schemes, but nowhere prescribes their use. It assumes that

some uses will be prohibited by relevant plans, that other uses will be permissible with consent and that

the erection of buildings and other structures will be similarly regulated. Again, none of these things is

expressly provided for in the section. What appears to have happened is that the 1964 Act was

designed to give effect to a plan which was already in existence. That plan contained a table of zones

prescribing, for each zone, “Purposes for which buildings or other structures may be erected or used

or for which land may be used without consent of the Council or its delegate”, “Purposes for which

buildings or other structures may be erected or used or for which land may be used only with consent

of the Council or its delegate” and “Purposes for which buildings or other structures may not be erected

or used or for which land may not be used.”

It seems likely

therefore, that the apparent distinction in the definition of “use” between use of land and use

or erection of buildings and other structures was intended to reflect the form of the plan. I assume that

this is the basis of the observation by Professor Fogg in his book, “Land Development Law in Queensland” (Law Book Company Ltd., 1987) at p. 668, that this definition of “use”, “recognizes a

formal demarcation which permeates Queensland planning legislation.” The dichotomy is preserved in

the current town plan, although in a slightly different form. For example, in prescribing activities in the

various zones, distinctions are drawn between “permitted development”, “permissible development”,

and “prohibited development”. Definitions of those terms reflect the “as of right” uses, “consent” uses

and “prohibited” uses found in the first Brisbane plan. The term “development” is defined to mean -

“(a)

In relation to land -

(i)	the erection of a building or other structure on that land;
(ii)	the use of that land;
(iii)	the use of a building or other structure on that land; or
(iv)	the demolition or removal of a building or other structure on that land;

(b)

Otherwise -

(i)	the erection of a building or other structure on land;
(ii)	the use of land;
(iii)	the use of a building or other structure on land; or
(iv)	the demolition or removal of a building or other structure on land ...”

Although the definition is more exhaustive than that of “use” in the “Local Government Act”,

distinctions between the meanings of the term in relation to land and otherwise, between the use of land

and the erection of a building or other structure on land and between the latter and the use of a building

or other structure on land all reflect the distinctions found in s. 33. It is, I think, correct to say that such

distinctions have been a common feature of town planning schemes in Queensland for many years.

Whether that be so or not, it is, in my view, permissible to construe the definition of the term “use” in

s.33 in the context of the specific historical matters to which I have referred. This leads me to conclude

that the erection or use of a building or other structure on land is not a use of that land for the purposes of the Local Government Act unless the second paragraph of the definition of “use” has a contrary

effect. I will return to that question.

For most practical purposes these distinctions may be of little importance. As is explained by

Stephen J. in Pioneer Concrete (Qld) Pty Ltd v Brisbane City Council (1979-1980) 145 C.L.R.

485 at pp. 500-501:-

“The customary Australian scheme of town planning ... 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.”

Once land is included in an appropriate zone, according to the formula in use in Brisbane in

1964 and presently, its use and the erection and use of buildings and other structures on it are governed

by the prescribed uses for that zone. One would assume that for most town planning purposes, it will

not matter whether a proposed development involves use of land, use of a building or other structure

or erection thereof. If the proposed development is permitted by the plan without consent, no planning

application will be necessary, at least in connection with zoning. If the proposal involves a consent use,

the relevant application will presumably include all uses of land, buildings or other structures and any

proposals to erect buildings or other structures. As I will later demonstrate, the decision in Pioneer

Concrete (supra) would suggest, if not dictate that course.

If, for the purposes of s.33(1A)(a), one must distinguish between the use of land and the

erection or use of a building or other structure on that land, then significant difficulties arise for the

respondent. As I have demonstrated, the protection offered by paragraph (a) extends only to the use

of land, a building or other structure for so long as it continues to be so used. A new building or other structure erected after demolition of an earlier building or other structure will not have the protection

afforded by paragraph (a) to the latter, nor does paragraph (a) purport to permit such re-building. Re-

building could only be justified pursuant to paragraph (a) if it is within the expression “a lawful use of the

land” for the purpose of sub-paragraph (ii) so that the continuation of such use as a lawful use of the

land could be said to imply the right to rebuild on the land. Given the clear distinction drawn in s.

33(1A) between the use of land and the use of buildings or other structures, it is difficult to accept this

proposition. Further, the express reference to erection of a building or other structure in paragraph

(b) suggests that the absence of such a reference in paragraph (a) was not inadvertent. No doubt, as

his Honour found, the use of the existing buildings and/or other structures is factually incidental and

necessary to the operation of the land, and no doubt the proposed use of any new building or other

structure will be similarly incidental and relevant. At least implicitly, it was argued that this is sufficient

to permit such erection and use without consent.

The proper construction of the definition is not a matter of evidence. Parliament chose to

distinguish for zoning purposes between the use of land and the erection or use of buildings or other

structures on that land. Counsel have referred us to a number of cases in which the provisions of this

definition (which appears in other planning legislation and in town plans) were considered. Curiously,

those cases do not appear to offer much assistance for present purposes.

Quite recently, this court considered such a provision in Boral Resources (Qld) Pty Ltd v

Cairns City Council (1996) 91 L.G.E.R.A. 323. The court was there concerned with an application

by a land-user for a declaration that it was entitled to use its land for the purpose of gravel crushing and

screening. It already enjoyed the benefit of a permit to carry on extractive industries, “namely the

stockpiling, treatment and cartage of sand, gravel and loam” on the land in question. It asserted that the proposed additional uses were incidental to and necessarily associated with the existing lawful use. The

appeal was disposed of upon a factual basis. The court found that crushing and screening were not

necessary to the extraction process. The problem of construction to which I have referred did not arise

for consideration.

W. Love & Son (Carrying) Pty. Ltd. v. Brisbane City Council [1982] Q.P.L.R. 103 was

an appeal to the Local Government Court against the decision of a local authority refusing an

application for permission to replace certain underground fuel tanks with others. Part of the land in

question had been, for many years, used, and continued to be used for a carrying business. Row D.C.J.

said at p.109:-

“As the subject land is included within that land which has a lawful non-conforming use for the purposes of a carrier’s depot there is by virtue of such the right to use the subject land for the purpose of storage of motor spirits. Such use would be within the lawful non-conforming use which attaches to that land.”

His Honour concluded, without giving further reasons for so doing, that there was no obligation upon

the appellant to apply for the council’s approval of the installation of the underground tanks. His

Honour did not address any of the issues with which I am concerned.

In Shire of Perth v. O’Keefe (1963) 110 C.L.R. 529, Kitto J. said of legislation of this kind

at pp. 534-5:-

“But at the outset it is 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 is 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 enquire, when a use that is being made of the premises at a later date is challenged as not been 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 ... and for that reason borderline cases will inevitably arise in which opinions will differ. But to seek more precise guidance from the by-laws is vain. The general considerations that have been mentioned will suffice for most cases.”

His Honour was not there concerned with the rather more complex problems presently under

consideration.

Finally, we were referred to the decision of the High Court in Pioneer Concrete (supra). That

case involved an application by the appellant to the respondent council for permission to use land for,

“the purpose of extraction of rocks and stone and crushing and screening thereof to be carried out on

the land”. The appellant contemplated access to the land being provided by a road over adjoining land

but made no mention of that in the application. The majority (Stephen, Murphy and Wilson JJ.) were

of the view that this was fatal to the success of the application. The decision of the majority was

primarily based upon the fact that the application did not relate to all of the land to which “the

application relates or applies” as required by s.22(1A)(c), of the City of Brisbane Town Planning Act

as it then was. At p. 502, Stephen J. (Murphy J. concurring) said of the definition of “use” with which

I am presently concerned:-

“What (the definition) 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 connection between the use of land and access to it requires little elaboration.”

This passage appears to imply that the incidental and necessary use of land to support a

principal use carried out on other land is part of the use of the latter land. However that is not precisely

what his Honour meant. In the context of the case, his Honour was saying only that for the purposes of

s.22 (1A)(c), an application for consent to the principal use relates or applies to the land upon which

the incidental use is to be performed. Wilson J., at p. 514, observed that the Judge at first instance may

have been correct in construing the second paragraph of the definition as relating only to incidental uses

of the land in question. The minority (Gibbs and Aickin JJ) expressed no relevant views for present

purposes.

My own preference is for the view tentatively adopted by Wilson J., that the second paragraph

relates only to other uses of the land referred to in the first paragraph. The second paragraph establishes

only that an incidental and necessary use may be carried on in conjunction with the principal lawful use.

Any other construction would create serious conceptual difficulties. If the second paragraph is taken to

refer to uses other than use of the land in question in the first paragraph, it will be necessary to identify

the land or thing to be so used. If it be a building on the land in question, then the exclusion of the use

or erection of buildings or other structures from the first paragraph of the definition has little point. In

almost all cases, the use of land and the use and/or erection of buildings or other structures on the land

will be part of one operation. Even if the reference to “use” in the second paragraph includes use of

a building or other structure on the subject land, that would not help the respondent. The principal use

of the land would include the incidental use of a building or other structure on the land, but “use” of a

building or structure does not include “erection” thereof. That distinction appears in the 1964 town plan,

in s.33 of the Local Government Act and in the current plan.

On the other hand, if the contemplated additional use is of other land or of buildings and/or

other structures on other land, then it would follow that when an undertaking was conducted at more

than one address, an address used for incidental, but necessary activities would be part of the use of

the site of the principal activity. It is easy to imagine numerous examples of such a situation involving the

use of land, buildings or other structures geographically remote from the principal site, in different local

government areas, and therefore subject to different town plans. It is difficult to see how such situations

could be excluded from the operation of the second paragraph if it is given such a wide interpretation.

The better view is that the second paragraph relates to incidental and necessary uses of the same land

as is referred to in the first paragraph. If that is so, then the extended definition offers no assistance to

the respondent. I am of the view that in the event of demolition of any building or structure on the

subject land, the respondent will not be entitled to rebuild without consent.

This outcome is not as significant as might be thought. It leads only to the result that the

respondent must seek permission pursuant to the existing town plan to erect a new building or other

structure to take the place of one which is demolished or destroyed. The imposition of that requirement

is not onerous. If there were no such requirement, there would be no effective way of regulating the

extent to which such a use might be rendered more intense by the upgrading of facilities. The appellant’s

discretion will, for all practical purposes, be severely limited by the existence of the principal use. It

would not, for example, be a justifiable exercise of the discretion, in my view, to refuse any reasonable

proposal to improve the efficiency of the operation where the proposal will not create a significant

decrease in the amenity of the area. The necessary consent is, of course, that required for such a

development under the current plan, and not that contemplated by s.33(1A)(b).

Orders

In those circumstances, the appeal should be allowed. The first declaration establishes the

lawfulness of the current use of the premises as at the date of the order. Section 1.4.6 of the Integrated

Planning Act protects uses of premises which were lawful under the Local Government (Planning

and Environment) Act immediately prior to 30 March 1998. As we have not heard argument on the

matter, it would not be appropriate for us to consider the effect of this section upon the current status

of the respondent’s use of the site. Nevertheless, the section appears to adopt a new approach to such

problems. In the circumstances, it is as well to point out that the first declaration establishes the

respondent’s rights only as at the date thereof, 14 March, 1997. The validity of that declaration is not

affected by the appeal. The second declaration should be set aside. No good purpose will be served

by making any further declaration. The respondent should pay the appellant’s costs of the appeal.