Carbone Bros Pty Ltd v Shire of Harvey
[2014] WASC 284
•8 AUGUST 2014
CARBONE BROS PTY LTD -v- SHIRE OF HARVEY [2014] WASC 284
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 284 | |
| Case No: | CIV:2601/2012 | 14 FEBRUARY 2014 | |
| Coram: | JENKINS J | 8/08/14 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | CARBONE BROS PTY LTD SHIRE OF HARVEY |
Catchwords: | Administrative law Certiorari Local government's power to impose conditions requiring payment of road levies in extractive industry licences and planning consents Delay |
Legislation: | Extractive Industries Local Law 2007 (WA), cl 3 Land Administration Act 1997 (WA), s 55 Local Government Act 1995 (WA), s 3, s 6 Planning and Development Act 2005 (WA) Road Districts Rates Act 1924 (WA) Road Traffic Act 1974 (WA), s 85 Town Planning and Development Act 1928 (WA) |
Case References: | Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] HCA 39; (1984) 54 LGRA 110 Doma Pty Ltd v City of Hobart [1983] Tas R 132; (1983) 52 LGRA 339 Duckworth v Western Australian Planning Commission [2005] WASAT 337 Empire Securities Pty Ltd v Western Australian Planning Commission [2005] WASAT 98 Gudgeon v Black; Ex parte Gudgeon (1994) 14 WAR 158 Hoey v Shire of Serpentine-Jarrahdale [2009] WASAT 155; (2009) 66 SR (WA) 148 Ironbridge Holdings Pty Ltd v Western Australian Planning Commission [2007] WASAT 305 Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142 Marsh v Shire of Serpentine-Jarrahdale [1966] HCA 77; (1966) 120 CLR 572 Newbury District Council v Secretary of State for the Environment [1981] AC 578 Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181 Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
SHIRE OF HARVEY
Respondent
Catchwords:
Administrative law - Certiorari - Local government's power to impose conditions requiring payment of road levies in extractive industry licences and planning consents - Delay
Legislation:
Extractive Industries Local Law 2007 (WA), cl 3
Land Administration Act 1997 (WA), s 55
Local Government Act 1995 (WA), s 3, s 6
Planning and Development Act 2005 (WA)
Road Districts Rates Act 1924 (WA)
Road Traffic Act 1974 (WA), s 85
Town Planning and Development Act 1928 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Mr P G McGowan & Mr T Houweling
Respondent : Mr P L Wittkuhn
Solicitors:
Applicant : Cornerstone Legal
Respondent : McLeods
Case(s) referred to in judgment(s):
Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] HCA 39; (1984) 54 LGRA 110
Doma Pty Ltd v City of Hobart [1983] Tas R 132; (1983) 52 LGRA 339
Duckworth v Western Australian Planning Commission [2005] WASAT 337
Empire Securities Pty Ltd v Western Australian Planning Commission [2005] WASAT 98
Gudgeon v Black; Ex parte Gudgeon (1994) 14 WAR 158
Hoey v Shire of Serpentine-Jarrahdale [2009] WASAT 155; (2009) 66 SR (WA) 148
Ironbridge Holdings Pty Ltd v Western Australian Planning Commission [2007] WASAT 305
Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142
Marsh v Shire of Serpentine-Jarrahdale [1966] HCA 77; (1966) 120 CLR 572
Newbury District Council v Secretary of State for the Environment [1981] AC 578
Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181
Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30
1 JENKINS J: Carbone Bros Pty Ltd (Carbone) applies for a writ of certiorari to quash the decisions of the Shire of Harvey (the Shire) to include conditions, which require Carbone to pay road maintenance and upgrade levies, in extractive industry licences and planning consents.
Carbone's grounds
2 Carbone's application was commenced by originating motion filed on 19 September 2012, which was before the order nisi procedure was abolished. It was directed that the application for an order nisi and an order absolute be heard together. Subsequent to filing the originating motion, Carbone was given leave to amend the originating motion in terms that now appear in the amended notice of originating motion dated 20 February 2014.
3 Carbone alleges that the Shire erred in law by including the road maintenance and upgrade levies in the extractive industry licences and the planning consents because:
(1) the levies are calculated solely by reference to the volume of material extracted, despite such levies not being authorised by the Local Government Act 1995 (WA) (the LGA), the Shire's Extractive Industries Local Law 2007 (the EI Local Law), the Planning and Development Act 2005 (WA) (the PDA) or any other law; or, in the alternative;
(2) if the levies are purportedly authorised by the EI Local Law, by enacting a local law which is invalid and ultra vires.
4 It is important to note that Carbone does not assert that the levies do not have a nexus to the extractive industries carried on under the challenged licences and planning consents.
Factual background
5 From at least 2000 to date Carbone has carried on the business of quarrying gravel, sand and limestone from various sites within the Shire. The Shire has granted planning consents and extractive industry licences for Carbone's quarries (Carbone's Planning Consents and Carbone's EI Licences, respectively).
6 Each of Carbone's EI Licences contains a condition, either in the licence itself or by reference to a condition in the associated planning consent, to pay a levy for the maintenance and/or upgrade of various roads (Road Levies). The Road Levies are calculated solely by reference to the volume of material extracted by Carbone from the relevant quarry.
7 Schedule 1 to these reasons is a table which identifies each of Carbone's EI Licences the subject of this application, the licence period, the Road Levies' condition which Carbone says should be quashed, the amount of Road Levies paid by Carbone and the provision of the local law under which the condition was allegedly authorised.
8 Schedule 2 to these reasons is a table which identifies Carbone's Planning Consents the subject of the application and the same information in respect to each of them.
9 Carbone's application does not single out the wording of Carbone's EI Licence for Lot 11 Runnymede Road, Myalup and suggest that it is to be interpreted as imposing different Road Levies to those imposed in other EI Licences. Thus, I will assume that is of the same effect.
10 Apart from Carbone's 2011 Planning Consent and EI Licence for Lot 5 Wellesley Road, each of Carbone's Planning Consents and EI Licences state that the Road Levies are payable to assist the Shire to maintain and upgrade a named road or roads. The Shire has the care, control and management of each of the named roads in accordance with the Land Administration Act 1997 (WA) s 55(2), although pursuant to the Land Administration Act s 55(1), the absolute property in the land comprising each of the roads is vested in the Crown. It is not in dispute that trucks use each of the named roads to access and to leave the relevant quarry, as well as to access other roads to deliver the extracted materials.
11 The 2011 Planning Consent and EI Licence for Lot 5 Wellesley Road refer simply to 'gazetted roads used for access to the pit'. It is not in dispute that the gazetted roads used for immediate access to Lot 5 Wellesley Road quarry are also Shire roads, in the sense described above.
Delay
12 The Shire submits that Carbone's delay in making this application is a reason by itself to refuse relief. It points out that the first EI Licence and Planning Consent for Lot 5 Wellesley Road were granted in June 2000 or 12 years and three months before proceedings were commenced and that the EI Licence and Planning Consent for Lot 11 Robinson Road were granted in May 2007 or five years and four months before proceedings were commenced. The other EI Licences and Planning Consents were granted more recently. Although, the latest one was still made a year and three months before proceedings were commenced.
13 Carbone's explanation for the delay in commencing proceedings is that it (through its director, Armando Carbone) was unaware that the Shire did not have the power to impose the Road Levies until it sought legal advice on an unrelated matter in or around 2012. When its solicitors advised that the Shire may have acted without power in imposing the Road Levies, it gave instructions to commence these proceedings. This explanation was only provided in an affidavit sworn two days before the hearing of the application and after the Shire had relied on delay as a matter warranting dismissal of the application.
14 If there has been undue delay in bringing an application for certiorari, the court has a discretion to refuse to grant a writ, even where the applicant has made out its case: Gudgeon v Black; Ex parte Gudgeon (1994) 14 WAR 158, 178 - 179 (Malcolm CJ).
15 In assessing the significance of delay, I take into account that a different statutory regime related to the 2000 Lot 5 Wellesley Road and Lot 11 Robinson Road Road Levies and that statutory scheme does not have any continuing effect. It is also relevant that Carbone had statutory rights of review which it did not use. Lastly, I take into account that the reason for the delay was only belatedly and inadequately explained. A failure by a commercial entity to seek relevant legal advice is not, in my opinion, an adequate explanation for such a gross delay.
16 Thus, I have decided that even if Carbone made out a case for relief in respect to the 2000 Lot 5 Wellesley Road and the Lot 11 Robinson Road Road Levies, I would decline to grant a writ of certiorari in relation to them on the grounds of gross delay. Therefore, I will not consider the merits of the application so far as it relates to those Road Levies.
17 I am not prepared to decide whether I would exercise my discretion to refuse relief for Carbone's more recent EI Licences and Planning Consents without considering the merits of the substantive application made by Carbone. However, as I am satisfied for the following reasons that the application has no merits, I dismiss it in its entirety.
The legislative framework
18 The Shire's District Planning Scheme No 1 (the Scheme) which came into effect on 12 November 1996, cl 9.13 states that a person shall not carry out an extractive industry within the Shire without first having obtained:
(1) an Extractive Industry Licence; and
(2) Planning Approval.
19 It is not clear why cl 9.13 uses the term Planning Approval, as opposed to Planning Consent, as it is clear from the other provisions of the Scheme that a proponent must apply for, and obtain, planning consent before carrying out an extractive industry or any development. This is, in part, because the Scheme cl 2.1 states that no development, which includes Carbone's quarrying activities, shall be carried on within the Shire without planning consent.
20 The Scheme cl 2.4.2 relevantly provides that in determining an application for planning consent the Shire may have regard to, amongst other things, the orderly and proper planning of the locality and the preservation of the amenities of the locality. It says that the Shire may refuse to approve any application for planning consent or may grant its approval unconditionally or subject to such conditions as it thinks fit.
21 The Scheme was made under the Town Planning and Development Act 1928 (WA) which has since been repealed and replaced by the PDA. The Scheme remains in effect under the PDA; PDA s 68(1). As Carbone does not assert that the Scheme is invalid, there is no need for me to detail its legislative basis. However, it is relevant that the PDA s 69 and sch 7 state that a local planning scheme, including the Scheme, may be made with the general objects of making suitable provision for the 'improvement, development and use of land' in the Scheme area and making provision for 'approval subject to conditions' of any kind of development by a consideration of any matter to which the PDA relates, including the public interest.
22 The current local law relating to extractive industry licensing came into effect on 9 November 2007 when the EI Local Law was published in the Government Gazette. The EI Local Law repealed the EI Local Law 1996. The EI Local Law states that it is made under the powers conferred by the LGA and by all other powers enabling it. The EI Local Law cl 2.1 provides:
A person must not carry on an extractive industry -
(a) unless the person is the holder of a valid and current licence; and
(b) otherwise than in accordance with any terms and conditions set out in, or applying in respect of, the licence.
23 The EI Local Law cl 3.1(2) provides:
The Local Government may, in respect of an application for a licence -
(a) refuse the application; or
(b) approve the application -
(i) over the whole or part of the land in respect of which the application is made; and
(ii) on such terms and conditions, if any, as it sees fit.
Without limiting subclause (2), the local government may impose conditions in respect of the following matters -
…
(q) requiring the licensee to enter into an agreement with the local government by which it agrees to pay any extraordinary expenses incurred by the local government in repairing damage caused to thoroughfares in the district by heavy or extraordinary traffic conducted by or on behalf of the licensee under the licence;
(r) requiring the licensee to enter into an agreement with the local government in respect of any condition or conditions imposed under this Local Law; and
(s) any other matter for properly regulating the carrying on of an extractive industry.
25 The respondent says that the reference to 'extraordinary expenses' in cl 3.1(5)(q) ties in with the Road Traffic Act 1974 (WA) s 85 which states:
85. Damage to road by heavy traffic, local government may recover extraordinary expenses of repairing
(1) Where it appears to a local government which is liable or authorised or has undertaken to repair any road that, having regard to the average expense of repairing roads in the neighbourhood, extraordinary expenses have been incurred by such local government in repairing such road by reason of the damage caused by heavy traffic passing along the same, or extraordinary traffic thereon, such local government may recover in any court of competent jurisdiction from any person by or in consequence of whose order such traffic has been conducted, the amount of such expenses as may be proved to the satisfaction of the court having cognisance of the case to have been incurred by such local government by reason of the damage arising from such traffic as aforesaid.
(2) Any person against whom expenses are or may be recoverable under this section may enter into an agreement with such local government as is mentioned in this section for the payment to it of a composition in respect of such traffic, and thereupon the person so paying the same shall not be subject to any proceedings under this section.
27 The validity of the EI Local Law depends on the legislative provisions which are said to enable it. Primarily, those provisions are contained in the LGA. The general function of a local government such as the Shire is stated in the LGA s 3.1. It says:
3.1. General function
(1) The general function of a local government is to provide for the good government of persons in its district.
(2) The scope of the general function of a local government is to be construed in the context of its other functions under this Act or any other written law and any constraints imposed by this Act or any other written law on the performance of its functions.
(3) A liberal approach is to be taken to the construction of the scope of the general function of a local government.
3.5. Legislative power of local governments
(1) A local government may make local laws under this Act prescribing all matters that are required or permitted to be prescribed by a local law, or are necessary or convenient to be so prescribed, for it to perform any of its functions under this Act.
3.18. Performing executive functions
(1) A local government is to administer its local laws and may do all other things that are necessary or convenient to be done for, or in connection with, performing its functions under this Act.
(2) In performing its executive functions, a local government may provide services and facilities.
6.15. Local government's ability to receive revenue and income
(1) A local government may receive revenue or income -
(a) from -
...
(ii) service charges; or
(iii) fees and charges; or
...
(vi) any other source,
- authorised by or under this Act or another written law; or
...
(2) Nothing in subsection (1)(a) authorises the making by a local government of a local law providing for the receipt of revenue or income by the local government from a source not contemplated by or under this Act.
32 The LGA s 6.16 also provides that a local government may impose and recover a fee or charge for any service it provides or proposes to provide, other than a service for which a service charge is imposed. Section 6.16(2) specifies that a fee or charge may be imposed for a number of specified services including 'receiving an application for approval, granting an approval, making an inspection and issuing a licence, permit, authorising or certificate': s 6.16(2)(d). This section also provides that a fee or charge may be imposed for 'such other service as may be prescribed'. It is not suggested that the Shire's work in maintaining and upgrading the relevant roads was a service that was prescribed under this section. Thus, the payment of Road Levies to the Shire is a payment from 'any other source' and must be authorised by the LGA or another written law.
The case law
33 Carbone submits that the Road Levies are a tax and therefore special rules of statutory interpretation apply. However, there is no doubt about the meaning of the conditions imposing the Road Levies. Therefore, the cases which set out the principles applicable to the interpretation of legislation where it is in issue whether the legislature intended to impose a tax or fiscal impost or not, are not relevant to those conditions. What is in issue is whether the conditions requiring the payment of the Road Levies, which are clearly an impost, are authorised by legislation which is within the power of the Shire.
34 As this is not a merits review of the Shire's decision to impose the Road Levies and as Carbone does not deny that there is a nexus between the Road Levies, Carbone's quarrying activities and the upkeep of the Shire's road, the issue for me is simply whether the Shire acted within its powers in imposing the Road Levies. It is not my role to review the way in which the Shire exercised a valid power. The onus is on Carbone to prove that the conditions imposing the Road Levies are beyond the Shire's power.
35 There are a number of cases in which courts have considered similar conditions imposed on subdivision approvals or other types of development approvals. These cases include Lloyd v Robinson [1962] HCA 36; (1962) 107 CLR 142, Marsh v Shire of Serpentine-Jarrahdale [1966] HCA 77; (1966) 120 CLR 572, Cardwell Shire Council v King Ranch Australia Pty Ltd [1984] HCA 39; (1984) 54 LGRA 110, Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 221 CLR 30 and Doma Pty Ltd v City of Hobart [1983] Tas R 132; (1983) 52 LGRA 339 and the other cases cited therein.
36 In Doma the majority of the Full Court of the Supreme Court of Tasmania (Green CJ and Cosgrove J, Nettlefold J dissenting) upheld the validity of a building permit which required a developer to pay the local government an amount of money for every parking space which was not provided in the development but which the local government thought was necessary.
37 The point was made in Doma (Green CJ at 139 and Cosgrove J at 153) that there is no relevant distinction between a condition requiring the ceding of land and a condition requiring the payment of money.
38 In Temwood Holdings the issue was the validity of a condition in a planning approval for subdivision of land which required the respondent to cede land free of cost to, and without payment of compensation by, the Crown. In upholding the validity of the condition McHugh J endorsed the test for the validity of a condition of planning approval articulated by the House of Lords in Newbury District Council v Secretary of State for the Environment [1981] AC 578 in the following terms:
A condition attached to a grant of planning permission will not be valid therefore unless:
1. The condition is for a planning purpose and not for any ulterior purpose.
2. The condition reasonably and fairly relates to the development permitted.
3. The condition is not so unreasonable that no reasonable planning authority could have imposed it (55). (footnote omitted)
39 In a joint judgment in Temwood Holdings, Gummow and Hayne JJ also upheld the validity of the condition on the basis that the condition was founded on a planning purpose.
40 In Lloyd v Robinson the High Court held that a condition on a subdivision approval requiring the developers to cede a parcel of land free of cost to, and without payment of compensation by, the Crown for park and recreation purposes was valid (and, incidentally, was not a form of taxation). The High Court said:
The Act at its commencement took away the proprietary right to sub-divide without approval, and it gave no compensation for the loss. But it enabled landowners to obtain approval by complying with any conditions which might be imposed, that is to say which might be imposed bona fide within limits which, though not specified in the Act, were indicated by the nature of the purposes for which the Board was entrusted with the relevant discretion: see Swan Hill Corporation v Bradbury (1937) 56 CLR 746, at pp 757, 758; Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492. If approval is obtained for the subdivision of one area of land by complying with a condition which requires the giving up of another area of land for purposes relevant to the subdivision of the first, it is a misuse of terms to say that there has been a confiscation of the second. For the giving up of the second a quid pro quo is received, namely the restored right to subdivide the first. It may be that the quid pro quo is inadequate, and that the landowner, though under no legal compulsion to give up the second area of land if he chooses to forego the idea of subdividing the first, is nevertheless under some real compulsion, in a practical sense, to submit to the loss of it because of the importance to him of obtaining the approval. But there is no room for reading the Act down in some fashion by appealing to a principle of construction that has to do with confiscation. If the Board has performed its statutory duty by giving approval to the subdivision subject only to conditions imposed in good faith and not with a view of achieving ends or objects extraneous to the purposes for which the discretion exists, the inescapable effect of the Act is that the landowner must decide for himself whether the right to subdivide will be bought too dearly at the price of complying with the conditions (154).
41 Cardwell Shire Council is not directly relevant because of the Queensland statutory regime which applied and required the decision-maker to apply conditions on a subdivision approval only 'if they were reasonably required by ... the subdivision of land'.
42 Nevertheless, it is relevant to note that the High Court in Cardwell Shire Council said that it was difficult to reconcile a finding that the wear and tear on a bridge would be increased by a subdivision of land, with the statement that there was no requisite nexus, identification or relationship between the subdivision and the purpose to which the contribution required by a condition was to be put. The relevant condition required the developer to contribute $25,000 towards the future costs involved in the bridge replacement. Gibbs CJ said:
There seems to be an obvious connection between the effect of a subdivision which causes an increased use of roads and bridges and a condition that the subdivider should, by making a reasonable contribution, assist in defraying the costs incurred in meeting the consequences of the extra wear and tear that is expected. Notwithstanding his Honour's earlier reference to the principles laid down in the authorities, and his later citation of cases, his remarks support the view that when he said that the conditions were not within power, he meant exactly what he said. It does appear that he considered that the conditions could be imposed only if they were necessary to provide access or drainage to the land or if they provided a benefit to the land which would be enjoyed exclusively by persons connected with the land. This is a test more stringent than the law allows and in applying it his Honour erred in law (113 - 114).
43 Although, it does not have the same authority, the former Town Planning Appeal Tribunal in Perrymead Investments Pty Ltd v Western Australian Planning Commission (1996) 16 SR (WA) 181 stated that:
For a condition to be valid and efficacious, it must be shown to have some nexus with the subdivision ... The test is that the condition fairly and reasonably relates to the subdivision not that it springs directly from the needs produced by the development ... It is sufficient if the condition can be said to reasonably arise from the fact of the subdivision (186).
44 This approach has been followed by the State Administrative Tribunal in Empire Securities Pty Ltd v Western Australian Planning Commission [2005] WASAT 98; Duckworth v Western Australian Planning Commission [2005] WASAT 337; Ironbridge Holdings Pty Ltd vWestern Australian Planning Commission [2007] WASAT 305; and Hoey v Shire of Serpentine-Jarrahdale [2009] WASAT 155; (2009) 66 SR (WA) 148. The parties agree that the approach in Perrymead Investments is applicable.
Application of the law
45 Applying the above principles to the facts of this case I am satisfied that it was and is within the power of the Shire to impose on Carbone as a condition, of Carbone's Planning Consents, a direct financial contribution towards the maintenance and upgrade of roads for which the Shire has responsibility for care, control and management and over which trucks will travel to access and egress the relevant quarry, as well as to access other roads to deliver the extracted material. This is because:
(1) Carbone does not dispute that the Scheme is valid;
(2) the Scheme cl 2.1 requires Carbone to obtain planning consent for its quarrying operations within the Shire;
(3) the Shire may grant planning consent subject to such conditions as it thinks fit;
(4) conditions which require a financial contribution to 'assist in the maintenance and upgrade' of, to 'the maintenance costs of', 'towards the upgrade and maintenance of' or 'to assist in the maintenance of' named Shire roads (the words used in the Road Levies conditions) which are used in connection with Carbone's quarrying activities are for a planning purpose. This is because the maintenance and upgrade of the roads is reasonably capable of being regarded as related to the care, control and management of roads for which the Shire has responsibility. Further, the care, control and management of the roads is affected by the developments the subject of Carbone's Planning Consents;
(5) for the same reasons, such conditions reasonably and fairly relate to Carbone's quarrying operations which are the developments permitted by the Carbone's Planning Consents;
(6) such conditions are not so unreasonable that no reasonable planning authority could have imposed them. It is reasonable for a local government to seek to obtain a financial contribution towards the maintenance and upgrade of roads directly affected by applications for planning consent for developments; and
(7) by analogy to what Gibbs CJ said in Cardwell Shire Council, there is an obvious connection between quarrying activities which affect the use of roads and conditions on related planning consents which require Carbone to make a reasonable contribution to assist in defraying the costs incurred in remediating that affect.
46 I am further satisfied that it was and is within the power of the Shire to impose on Carbone, as conditions on its EI Licences, a direct financial contribution towards the upgrade and maintenance of roads for which the Shire has responsibility for care, control and management and over which trucks will travel to access and egress the relevant quarry, as well as to access other roads to deliver the extracted material. This is because:
(1) such conditions are valid conditions of the Carbone's Planning Consents;
(2) the Scheme, which it is not disputed is valid, requires Carbone to obtain an EI Licence in respect of each quarry;
(3) the EI Local Law requires Carbone to obtain an EI Licence and to comply with its conditions;
(4) the EI Local Law cl 3.1(2) provides that the Shire can approve an application for a licence on such conditions as it thinks fit;
(5) the EI Local Law cl 3.1(5) states that the conditions on a licence may be in respect of any other matter (that is, a matter not otherwise specified in cl 3.1(5)) for properly regulating the carrying out of an extractive industry;
(6) for the reasons stated above which support the validity of the Road Levies as conditions on Carbone's Planning Consents, the requirement for Carbone to comply with the conditions of its Planning Consents and/or make a financial contribution towards the maintenance and upgrade of Shire roads affected by its quarrying operations as conditions of Carbone's EI Licences are a requirement which properly regulates the carrying out of Carbone's quarrying operations;
(7) the EI Local Law is validly made under the LGA s 3.5 in that the EI Local Law is necessary or convenient for the Shire to perform its function of caring for, controlling and managing its roads (see the LGA s 3.1 read with the Land Administration Act s 55(2)) and providing for the good government of persons in the Shire; and
(8) the receipt by the Shire of such a financial contribution is permitted by the LGA s 6.15(1).
47 The above findings leave only one issue. That is, Carbone's contention that despite whatever general power the Shire may have to impose a financial contribution for the maintenance and upgrade of roads affected by its quarrying operations, the Shire has exceeded those powers by setting the contribution at a fixed rate per m3 of material extracted. Carbone submits that in this form the financial contribution is a tax and the Shire has no power to impose such a tax.
48 To make good its submission, Carbone relies heavily on the High Court's decision in Marsh.
49 In that case the validity of a by-law purportedly made under the Road Districts Rates Act 1924 (WA) requiring the payment of a 'fee' for a licence to quarry in the district was in issue. By-law 7 described the fee in the following terms:
The fee payable to the Board for any such license shall be the sum calculated at the rate of 3d.per cubic yard of the total area in respect of which any such license may be granted (576).
50 The reference to the 'total area' was a reference to the area to be excavated rather than to what was in fact quarried from that area.
51 The High Court made the following observations:
Here the land from which material may not be taken is private land. It is not in the ownership of the Crown or of the Board or Shire. The power to regulate quarrying is not incident to the ownership of the land or of the material which could be removed therefrom. It was as part of the Board's function as a local government body that the power was given to make by-laws to regulate and control the removal of material from land by quarrying, a power to be exercised in the public interest of the neighbourhood. … The grant or refusal of a licence is a mechanism by which such regulation and control of the quarrying activity may be effected … to require the payment of a sum of money rated to the volume of material capable of extraction is not, in my opinion, in furtherance of any purpose or policy discoverable in the Act nor is it a contemplated method of regulating or controlling the activity of quarrying in the public interest (580).
52 Carbone submits that there is no function of the Shire in the LGA or anything incidental to its functions, unambiguously authorising the imposition of a tax or payment such as the Road Levies. It says that it follows that on its proper construction, the provisions of the LGA do not authorise the Shire to empower itself under the provisions of the EI Local Law to impose the Road Levies.
53 Carbone also relies on the LGA s 6.17 which relevantly states:
(1) In determining the amount of a fee or charge for a service or for goods a local government is required to take into consideration the following factors -
(a) the cost to the local government of providing the service or goods; and
(b) the importance of the service or goods to the community; and
(c) the price at which the service or goods could be provided by an alternative provider.
...
(3) The basis for determining a fee or charge is not to be limited to the cost of providing the service or goods other than a service -
(a) under section 5.96; or
(b) under section 6.16(2)(d); or
(c) prescribed under section 6.16(2)(f), where the regulation prescribing the service also specifies that such a limit is to apply to the fee or charge for the service.
55 In Marsh the High Court found that the legislative power for the local government to recoup its administrative costs did not extend to imposing a licence fee which bore no relation to the costs of administering a licensing system. That reasoning is not applicable to this case because the Road Levies are not licence fees and it is not suggested that they are authorised by a power to recoup the Shire's administrative costs of administering the licensing system.
56 In Marsh the High Court also found that the impugned licence fee was nothing more than a means of increasing the local government's funds or of participating financially in the licensee's quarrying operations. That is, the licence fee based on the volume of material that could be quarried was not in furtherance of any policy disclosed by the legislative framework nor was it 'a contemplated method of regulating or controlling the activity of quarrying in the public interest'.
57 Whereas, in this case, a fee based on the volume of material actually quarried, which Carbone does not dispute has a nexus to the maintenance and upgrade of Shire roads affected by Carbone's quarrying operations, has a planning purpose and reasonably and fairly relates to the development permitted.
58 It also seems to me to be for the good government of people within the Shire that quarry operators who operate on land within the Shire and affect the Shire roads should financially contribute to the maintenance and upgrade of those roads and that they do so to a greater extent than the ratepayers of the district.
59 As a consequence of these points of distinction, the decision in Marsh does not cause me to find that either the conditions imposing the Road Levies or the EI Local Law are invalid. There are other points of distinction, such as the broader legislative framework now authorising the conditions, but it is unnecessary for me to detail them.
60 For these reasons the application is dismissed.
Schedule 1
Carbone's Extractive Industry Licences
| Extractive Industry licence | Extractive Industry licence period | Conditions imposed on the extractive industry licence | Amount paid to the Shire pursuant to the condition | Provision allegedly authorising levy |
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'Compliance with Planning Consent granted by Shire of Harvey on 14 September 2010'. |
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Schedule 2
Carbone's Planning Consents
No | Site | Date of Planning consent condition | Planning Consent conditions | Provisions under which planning consent was required |
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1 Made under the Local (Miscellaneous Provisions) Act 1960 (WA) s 235.
2 Made under the Local Government Act 1995 (WA) s 3.5.
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