Dorrestijn v South Australian Planning Commission

[1984] HCA 76

HIGH COURT OF AUSTRALIA

Mason A.C.J., Murphy, Brennan, Deane and Dawson JJ.

C.R. DORRESTIJN &ANOTHER v. SOUTH AUSTRALIAN PLANNING COMMISSION

29 November 1984

Decisions

MASON A.C.J., DEANE and DAWSON JJ. This appeal from the Full Court of the Supreme Court of South Australia raises questions of construction of certain provisions in the Planning Act 1982 (S.A.) ("the Act") and of the Development Control Regulations 1982 made under the Act.

2. The second appellant, a company owned and controlled by the first appellant, is the lessee from the Crown of certain land on Kangaroo Island, which it uses or intends to use for farming purposes. The first appellant is the managing director of the second appellant. The appellants engaged in clearing operations on the land in connexion with their use of it for farming purposes. The respondent Commission, a body established by the Act, with responsibilities for enforcing its provisions, considered that the clearing operations constituted development of the land which the appellants were prohibited by s.47 of the Act from undertaking without the consent of the relevant planning authority. No such consent had been given. The Commission accordingly made application to the District Court under s.36 for an order restraining the appellants from clearing the land. Section 36(1) provides that where a person contravenes or fails to comply with a provision of the Act the Commission or a council may apply for an order under the section. Section 36(3)(c) authorizes the making by the Court of an order requiring the respondent to refrain from the act, or course of action, that constitutes the contravention of, or failure to comply with, the Act.

3. The learned District Court judge held that the appellants' clearing operations on the land constituted development within the meaning of s.47 on the footing that the relevant activities were brought within the statutory definition of "development" in s.4(1) by the provisions of the Development Control Regulations. However, his Honour held that the clearing of the land was undertaken so as to enable it to continue to be used for farming purposes and that, that being so, the appellants' activities did not constitute a breach of the Act for the reason that they were protected by s.56(1)(a) which refers to "continued use". He discharged an interim order which had been made and dismissed the action.

4. On appeal the Full Court of the Supreme Court by majority (King C.J. and Cox J., Legoe J. dissenting) took a different view, holding that s.56 did not protect the appellants' activities. The majority considered that the section does not confer a right to continue to use land for existing purposes and to develop it for that use, but merely makes provision for the interpretation of the Development Plan, the existence of which is provided for by the Act. They allowed the appeal and made orders that the appellants be restrained from clearing indigenous vegetation on the land and refrain from performing any act which would hinder the natural revegetation of parts of the land already cleared by them in contravention of the Act. In the appeal to this Court the appellants challenge these orders on the grounds (1) that their activities did not constitute development, and (2) that they are protected by s.56.

5. It is convenient in the first instance to state as succinctly as may be what the appellants were doing on the land and then to proceed to an examination of the question whether the appellants' operations constituted "development" for the purposes of s.47. If they did, it will be necessary to consider the argument based on s.56.

6. The second appellant acquired a lease of the land in 1980. The sole purpose of the acquisition, as the primary judge found, was for use by way of farming. The land comprises some 1,435 acres of which 835 acres approximately are arable and had apparently been cleared previously. According to the evidence of the first appellant, accepted by the primary judge, the land had been "let go" and some regrowth was evident in the cleared portions. The first appellant's intention was to remove that regrowth and to clear another 350 acres approximately.

7. In the course of removing regrowth in April or May 1981, the first appellant lit a fire near a portion of the land which had not been cleared previously. The fire escaped into the uncleared portion. The first appellant, believing it to be to his advantage as part of the clearing process, encouraged it to burn until it had covered virtually all that portion of the land. The effect of the fire was to temporarily destroy the undergrowth, leaving the tall growth defoliated but intact. He intended to proceed with the clearing operations which would have involved chaining, burning and ripping in 1982, but he was prevented from doing so at that time due to financial constraints.

8. In June 1983 the second appellant made a development application for the clearing of the portion of the land already mentioned. By this time the undergrowth, which had been destroyed by the fire, had regrown. Although consent was not given to the application, between 19 September and 23 September 1983 the appellants chained 350 acres approximately of the land destroying the larger trees. Of this area 70 acres were also ripped, destroying the undergrowth. It was at this stage that the respondent commenced the proceedings in the District Court.

9. Section 46(1) of the Act, which is the first provision in Div. 1 of Pt V dealing with "Development Control", provides that a person shall not undertake development contrary to that division. Section 47(1) provides that, subject to the Act, no development shall be undertaken without the consent of the relevant planning authority, in this case the respondent. The term "development" in relation to land is defined in s.4(1), subject to the existence of a contrary intention, as including:

"(a) the erection, construction, conversion, alteration of or addition to a building on the land;

(b) a change in the use of land;

.....

or

(g) an act or activity in relation to land declared by regulation to constitute development,

but does not include an act or activity in relation to land that is excluded by regulation from the ambit of this definition."

10. Regulation 8 of the regulations declares that the acts and activities in relation to land in the areas or parts of the State prescribed in the Third Schedule to the regulations constitute development. It is common ground that the subject land is within the areas prescribed. The Third Schedule, which was introduced by an amendment to the regulations promulgated on 12 May 1983, then relevantly provided:

"The following acts and activities in the areas or parts of the State described herein shall constitute development:- The clearance of any tree, shrub or plant of a species indigenous to South Australia, but excluding any tree, shrub or plant established by planting or tillage whether it is indigenous or not to South Australia ...

'Clearance' shall mean any manner of destruction of tree, shrub or plant and shall include cutting, felling, chaining, rolling, ring-barking, poisoning or burning of trees, shrubs or plants, but shall not include:

.....

(7) the clearance of any regrowth of indigenous trees, shrubs or plants within a period of five years immediately following previous clearance where such act of clearance has been previously approved in pursuance of these regulations or has been carried out prior to the day on which the provisions of the Third Schedule have taken effect;

.....".

11. The activities of the appellants in September 1983 in chaining and ripping the land fell within the definition of clearance in that the vegetation cleared consisted of trees, shrubs and plants not established on the land by planting or tillage. These activities were therefore brought within the inclusory provisions of the Third Schedule. However, the appellants argue that the activities fell within the exclusion created by sub-par.(7) in that they amounted to the clearance of "regrowth" following a "previous clearance". The argument is that the previous clearance by the appellant was carried out in 1981 prior to the date on which the provisions of the Third Schedule took effect.

12. The answer to the argument is that the definition of "clearance" in the Third Schedule looks to an act or activity which causes the destruction, or which in the natural and ordinary course of events would cause the destruction, of a tree, shrub or plant. The scrub fire in 1981, while destroying the undergrowth, left the tall vegetation defoliated but intact. The tall vegetation, consisting of indigenous trees, was not susceptible to destruction by the fire. On the other hand, the clearing activities in 1983 involved the destruction of not only the regenerated undergrowth but the taller vegetation as well. The activities in 1983 therefore went beyond the clearance of regrowth and fell outside the ambit of sub-par.(7).

13. We turn now to s.56 on which the appellants' primary argument is based. The section relevantly provides:

"(1) Notwithstanding any other provision of this Act, no provision of the Development Plan shall -

(a) prevent the continued use, subject to and in accordance with the conditions (if any) attached to that use of land for the purposes for which that land was lawfully being used at the time the provision took effect;

or

(b) prevent the carrying out or completion of a development, subject to and in accordance with the conditions (if any) affecting the development, for which every consent, approval or authorization required under any act authorizing or permitting the development had been obtained and was current when the provision took effect.

(2) For the purposes of subsection (1), conditions imposed by planning regulations under the repealed Act shall be deemed to remain in force."

14. The marginal note to s.56 is "Saving provisions". This description indicates that the role of the section is to provide a link with the earlier planning regime in force under the Planning and Development Act 1966-1981 (S.A.) which was repealed by s.5(1) of the Act. The Development Plan mentioned in s.56 is the Development Plan for which provision is made by Pt IV of the Act - see the definition of the term in s.4(1). Section 40, as amended, provides that the Development Plan is, subject to amendment under Pt IV, "the document approved by resolution of both Houses of Parliament as the Development Plan."

The Development Plan may be amended by supplementary

development plans prepared and prescribed in accordance with procedures set out in s.41. The Development Plan embodies "the principles of development control" - see the definition of this expression in s.4(1). They are the principles, prescriptions and criteria: (a) under which development is prohibited or permitted absolutely or conditionally; (b) which relate to the conditions upon which development is or may be permitted or the conditions that may be attached to a planning authorization; or (c) which are otherwise relevant to the regulation, restriction or prohibition of development.

15. The Development Plan provides the general planning framework regulating development. In particular the Plan regulates the exercise by planning authorities of their powers and discretions under the Act. This is made clear by certain key subsections in s.47 which, by reason of their importance, should be set out:

"(1) Subject to this Act, no development shall be undertaken without the consent of the relevant planning authority.

.....

(3) Where development of a particular kind is permitted absolutely or conditionally by the principles of development control in a particular area, zone or locality without the consent of a planning authority, then, subject to subsection (4), that development may be undertaken without the consent of a planning authority, but subject to the conditions (if any) under which it is permitted by the principles of development control.

.....

(5) Where development of a particular kind is prohibited by the principles of development control in a particular area, zone or locality, then, subject to subsection (6), such development is prohibited within that area, zone or locality.

(6) Where a development is proposed that would, apart from this subsection, be prohibited under subsection (5), the relevant planning authority may consent to that development if -

(a) where the relevant planning authority is a council - the Commission concurs in the granting of the consent;

or

(b) where the relevant planning authority is the Commission - the Minister and, if the development is to be undertaken in the area of a council, the council concur in the granting of the consent.

.....

(9) In deciding whether to consent to a proposed development under this section, a planning authority shall have regard to the provisions of the Development Plan so far as they are relevant to that decision."

16. The foregoing summary of the statutory provisions is sufficient to demonstrate that the reference in the opening words of s.56(1) to "no provision of the Development Plan" was deliberate. The regime of regulation for which s.47 provides is hinged upon "the principles of development control" and "the provisions of the Development Plan". The expression "the provisions of the Development Plan" is no doubt wider than "the principles of development control". The expression "no provision of the Development Plan" appears to be used in a wide sense so as to signify that nothing in the Plan shall prevent the matters described in pars.(a) and (b).

17. The combined operation of s.56(1) and s.47 can be well illustrated by reference to s.56(1)(b). If a provision is incorporated in the Plan which is inconsistent with a particular development which was consented to, approved or authorized at the time when the provision took effect, the provision shall not prevent the carrying out or completion of the development, so long as the consent, approval or authorization was then current. The consequence is that the carrying out or completion of the development may be undertaken under s.47(3) without the consent of the planning authority, conditionally or unconditionally, as the case may be, depending on the nature of the consent, approval or authorization given before the relevant provision took effect. The operation which we have attributed to s.47(3) is unusual in the sense that it applies to both new developments (those not affected by s.56(1)(b)) and old developments (those affected by that paragraph). It is more usual to find an express provision dealing specifically with the right to carry out or complete a development authorized by or under earlier planning provisions. However, apart from s.56(1), the Act contains no provisions which could be classified as transitional in the sense already discussed. And the terms of s.47(3) are appropriate to the operation which we have accorded to the subsection. There is accordingly no need, so far as s.56(1)(b) is concerned, to take the drastic step suggested by the appellant of reading the opening words of s.56(1) as referring to "provision of the Act".

18. Paragraph (1)(a) of s.56 presents a greater difficulty. The Act contains no prohibition, corresponding to that contained in s.47(1), against the continuing use of land for purposes which do not accord with the principles of development or the provisions of the Development Plan. This is understandable where the continuing use was authorized by or under the earlier planning provisions, but it is less understandable in relation to a continuing use which was not authorized by or under such provisions. The problem is to identify the area of operation which s.56(1)(a) was intended to have. On the respondent's argument it appears to have no practical operation at all. This is because the respondent submits that by virtue of the statutory definition of "development", development and continued use are two mutually exclusive concepts - development includes change of use, but not continuing use - with the result that s.56(1)(a) has nothing to say on the topic of development in the statutory sense of that term and is left without any role to play.

19. The competing interpretation is that "continued use" in s.56(1)(a) and "development" in s.56(1)(b) are not mutually exclusive concepts and that the content of "continued use" includes such developments as would necessarily, if not ordinarily, be involved in the use of land for the particular purpose for which it continues to be used. This interpretation is to be preferred. It gives s.56(1)(a) a role to play which is appropriate to its position in the subsection in association with s.56(1)(b) as a transitional provision which is designed to protect a continuing use in the broad sense. It gives primacy to the protection of a continuing use on the footing that it is necessary to invoke the protection given by par.(b) to development in the defined statutory sense only in the event that the development is not one which is embraced by the concept of continuing use. And it conforms to the principle of construction that statutory provisions designed to protect and preserve existing rights should be as liberally construed as the language in its context allows (Parramatta City Council v. Brickworks Ltd. (1972) 128 CLR 1, at p 25; Woollahra Municipal Council v. Banool Developments Pty. Ltd. (1973) 129 CLR 138, at p 144).

20. It has been expressly conceded by the respondent Planning Commission that, in the circumstances of the present case, the appellants' clearing operations constituted a continuing use for farming purposes. It is not suggested that the relevant use at any material time was otherwise than for such purposes. It then follows that the protection given by s.56(1)(a) comprehended the clearing of the land, notwithstanding that the clearing of the land fell within par.(g) of the definition of "development" by reason of the Development Control Regulations.

21. In deference to the members of the Full Court, it should be mentioned that the view of s.56(1)(a) and s.47(3) which should, in our view, prevail was not advanced before them. The appellants have at all times, however, relied upon the provisions of s.56(1) and, as has been said, their success at first instance was founded upon the primary judge's view of the operation of that subsection.

22. In the result we would allow the appeal, set aside the orders made by the Full Court and restore the orders of the District Court.

MURPHY J. I agree with Mr Justice Brennan's conclusions and reasons. The appeal should be dismissed.

BRENNAN J. An area of approximately 350 acres of scrub, part of the appellants' farm, was being cleared when the respondent was granted an interim restraining order by the District Court of South Australia exercising its jurisdiction under the Planning Act 1982 (S.A.) ("the Act"). When the matter was heard, the learned trial judge in the District Court discharged the interim order and dismissed the respondent's application for a permanent restraining order. The question is whether the appellants were, in the absence of planning consent, free to clear the scrub. The District Court affirmed, and the Full Court denied, that s.56(1)(a) of the Act protected the freedom of the appellants to clear the scrub. Both Courts held that clearing the scrub was an act or activity constituting development (see par.(g) of the definition of development in s.4(1) and the Third Schedule to the Development Control Regulations 1982 (S.A.)). To determine the scope and operation of s.56(1)(a), it should be seen in its immediate context and construed in the light of the planning regime created by the Act.

2. Section 56 provides, inter alia, as follows:

" (1) Notwithstanding any other provision of this Act, no provision of the Development Plan shall -

(a) prevent the continued use, subject to and in accordance with the conditions (if any) attached to that use of land for the purposes for which that land was lawfully being used at the time the provision took effect;

or

(b) prevent the carrying out or completion of a development, subject to and in accordance with the conditions (if any) affecting the development, for which every consent, approval or authorization required under any act authorizing or permitting the development had been obtained and was current when the provision took effect.

(2) For the purposes of subsection (1), conditions imposed by planning regulations under
the repealed Act shall be deemed to remain in force."

3. The "repealed Act" is the Planning and Development Act 1966-1981 (S.A.). That Act was repealed by s.5(1) of the Act.

4. Section 56(1) relates not only to the effect of the Development Plan when it is introduced; it relates also to the effect of any subsequent amendment. It is concerned to protect the continued use of land (par.(a)) and the carrying out and completion of approved developments (par.(b)) in cases where either the introduction of the Development Plan or its subsequent amendment might otherwise have been thought to affect that use of land or the right to carry out and complete the development. The sidenote to s.56 describes it as "saving provisions". The primary provision governing the transition from the planning regime under the repealed Act to the planning regime under the Act is s.5(2), par.(a) of which provides that, notwithstanding the repeal of the repealed Act -

" the repeal ... does not affect any rights accrued under the repealed Act, or the validity of any decision or planning authorization made or granted under the repealed Act, or of a condition attached to any such decision or planning authorization."

5. The scope and operation of the saving and transition provisions of the Act depend, of course, upon the planning prohibitions and regulations imposed by the Act or by instruments made under the Act. The key provision of the Act is s.47(1) which provides:

" Subject to this Act, no development shall be undertaken without the consent of the relevant planning authority."

The dictionary of the words used in s.47(1) is to be found in other provisions of the Act. Other provisions specify the exceptions to the prohibition in s.47(1) and thereby give content to the words "(s)ubject to this Act", or define what is meant by undertaking a development, or identify "the relevant planning authority" or regulate the procedure for obtaining consent, or prescribe the effect of consent when given. Section 47(1) does not, in terms, prohibit or regulate the use of land, but s.4(1) of the Act defines "development" to mean, inter alia, "a change in the use of the land". As a development is "undertaken" when it is commenced or proceeded with (s.4(1)), s.47(1) prohibits "(s)ubject to this Act" commencing or proceeding with a change in the use of land "without the consent of the relevant planning authority". But s.47(1) does not prohibit continuing a use of land.

6. Section 47(2) identifies the relevant planning authority which is authorized to consent to the undertaking of development. In deciding whether to consent, the relevant planning authority is bound to have regard to the relevant provisions of the Development Plan (s.47(9)). The Development Plan is an instrument in a form approved by resolution of both Houses of Parliament based, in the first instance, upon the provisions of authorized development plans and planning regulations that were in force on the date fixed by the Minister for the purposes of s.40 of the Act. Section 41 provides for the amendment of the Development Plan by a supplementary development plan.

7. The Development Plan embodies principles of development control (s.4(1)). Apart from the effect which the principles of development control have on the decisions of a planning authority, the Act gives an immediate statutory operation to those principles in certain circumstances. Where the principles of development control permit development of a particular kind, absolutely or conditionally, without the consent of the planning authority, s.47(3) permits, absolutely or conditionally, the undertaking of development of that kind without consent of the planning authority. Cases falling within s.47(3) are thus exceptions to the general prohibition in s.47(1). Where the principles of development control prohibit development of a particular kind, s.47(5) prohibits development of that kind unless a planning authority consents, pursuant to s.47(6), to the particular development and the grant of consent is concurred in by certain other authorities specified in that subsection. Where a proposed development is of a kind that does not attract the operation of either s.47(3) or s.47(5), the principles of control development have no immediate statutory effect, though they affect the giving of consent under s.47(1) by the relevant planning authority.

8. As a mere continuing use of land is not development, none of sub-ss.(1), (3) and (5) of s.47 applies to that use. No provision of the Development Plan, as originally drawn or as amended from time to time, can prevent that use. A prohibition contained in the Development Plan has no greater scope or operation than s.47 attributes to it. As s.47 prohibits only development, or the undertaking of development, no provision of the Development Plan prevents the continued use of land. If that be so, what meaning and operation can be given to s.56(1)(a)? The draftsman of the Act had not forgotten that development was not defined to include a continuing use of land for sub-ss.(3) to (7) of s.56 provide for the making by a planning authority of conclusive declarations that a use of land has been discontinued. When such a declaration is made, presumably subsequent use of land in the way specified in the declaration would amount to a change of use of that land and thus to an undertaking of development for the purposes of s.47.

9. The difficulty in construing s.56(1) arises from the attempt to give that provision some operation having regard to the preservation by s.5(2)(a) of accrued rights to develop land under the repealed Act and to the absence of a prohibition in s.47 on the continued use of land. In the present case, it is unnecessary to decide whether s.56(1) has any operation in limiting the other provisions of the Act that prohibit or regulate land use and development. It suffices to note that s.56(1) purports to protect some rights which do not need protection or which are already protected by s.5(2)(a). At least in part, s.56(1) must be regarded as a provision inserted ex abundanti cautela to ensure that there should be no erroneous belief, especially on the part of planning authorities, that the Development Plan or any amendment of it, either authorizes or requires any consent to the continued use of land in accordance with par.(a) or any consent to the carrying out or completion of a development in accordance with par.(b). The desirability of inserting a provision may be readily understood. If a principle of planning control prohibited the use of land for a specified purpose, or permitted that use subject to specified conditions, or directed that certain criteria should be met before consent to use the land for that purpose is given, it might be thought that that principle prevented the continued use of land for that purpose, or prevented its use subject to different conditions from those specified, or prevented its use if the stated criteria were not met. Section 56(1)(a) ensures that the introduction of a principle of planning control, whether embodied in the original Development Plan or in a supplementary development plan, leaves the continuity of the antecedent use of the land unaffected.

10. Whether or not s.56(1) has a wider operation, in my opinion it cannot be construed to protect any act or activity of development which is involved in the continued use of land for the same purpose. An attempt is made in the present case to convert the negative words in s.56(1)(a) ("no provision of the Development Plan shall ... prevent the continued use ... of land") into a positive permission to do, absolutely or conditionally, what s.47(1) prohibits. If s.56(1)(a) were so construed, it would authorize the division of land into allotments, the demolition of an item of State heritage or the erection of buildings - to mention some of the acts defined as "development" - provided that the act in question was involved in using the land for an unchanged purpose. Such a construction would emasculate the planning regime which the Act creates. In my opinion, the commencing or carrying out of acts or activities that constitute "development" are not protected by s.56(1)(a), even though the act or activity in question is an act or activity involved in using the land for the purpose for which the land was lawfully being used when the Development Plan took effect. If an act or activity constituting development is involved in using the land for such a purpose and the undertaking of that act or activity would be prohibited by s.47(1) or (5), the undertaking of that act or activity must find whatever protection s.56(1) gives in par.(b). In the circumstances of the present case, par.(b) could give no protection for there was no consent to the clearance of the scrub when the Development Plan took effect. Clearance was an act or activity declared by regulation to constitute development and the carrying out or completion of that development without consent was therefore prohibited by s.47(1). It was conceded that clearing the scrub was a use of the land for farming purposes, for farming may encompass the clearance of vegetation. But the relevant question is not whether clearing the scrub was a use of the land for farming purposes but whether it also constituted "development".

11. The appellants argued that the clearing of the scrub did not constitute development as described in the Third Schedule to the Regulations. It was submitted that there was merely a clearance of regrowth within five years of an earlier fire and that that fire was a "previous clearance" within the exception contained in cl.7 of the Third Schedule. The earlier fire had not destroyed the larger trees in the scrub; those trees had not been cleared previously. The clearance undertaken by the appellants was a clearance of the larger trees as well as the undergrowth and it was right to regard that clearance as constituting development. No consent had been given to the undertaking of that development, and it was prohibited by s.47(1).

12. In my opinion, the appellants were entitled to continue to use the whole of their land for farming, but that entitlement gave them no permission absolutely or conditionally to undertake any development on their land without the consent of the relevant planning authority unless the development was permitted by s.47(3). As no consent to the clearing of the scrub had been obtained and as the clearing of the scrub was not permitted by s.47(3), the trial judge in the District Court ought not to have discharged the interim restraining order. The Full Court restored the interim order and remitted the matter to the trial judge to determine what further orders should be made in the light of the judgment of that Court. The majority view of that Court was that s.56(1) was merely a "reading down provision". Further experience may show that that is not the only effect of s.56(1), but that consideration is of no present relevance. As s.56(1) has no protective role to play in this case, the appropriate order to be made by this Court is to dismiss the appeal.

Orders

Appeal allowed.

Orders of the Supreme Court of South Australia set

aside.

Restore orders of the District Court.

Order that the respondent pay the costs of the

appellants in this Court and in the Supreme Court of South Australia.