Evangelista v Development Assessment Commission - [2004] SASC 324

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
EVANGELISTA v DEVELOPMENT ASSESSMENT COMMISSION
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Duggan and The Honourable Justice Gray)
15 October 2004
ENVIRONMENT AND PLANNING - BUILDING CONTROL - COUNCIL CONSENT AND APPROVAL - MATTERS FOR CONSIDERATION BY COUNCIL
Appeal against classification of development within Hills Face Zone as non-complying - proposed development involves deposit of unwanted material from building and demolition sites to fill in gullies on the subject land to enable formation of access tracks and benches - whether Development Assessment Commission and Environmental Resources and Development Court correct in classification of development - whether the development involves landfill that constitutes solid waste disposal required to be licensed as a "waste depot" under the Environment Protection Act 1993.
Appeal dismissed.
Development Act 1983 ss 4, s 35(3)(b), s 35(4)(a); Development Regulations 1993 Regulation 6, Schedule 2 (clause 1); Environment Protection Act 1993 ss 3, s 25, s 36 Schedule 1 (clause 3), referred to.
City of Mitcham v Heathhill Nominees Pty Ltd (2000) 76 SASR 133, discussed.

EVANGELISTA v DEVELOPMENT ASSESSMENT COMMISSION
[2004] SASC 324
Full Court: Doyle CJ, Duggan and Gray JJ

DOYLE CJ. I would dismiss the appeal. I agree with the reasons of Duggan J. There is nothing that I wish to add.
DUGGAN J. The appellant has appealed to this court against the decision of a judge of the Environment, Resources & Development Court (“the ERD Court”). The ERD Court judge dismissed the appellant’s appeal against a determination of the Development Assessment Commission (“the DAC”) to treat a proposal put forward by the appellant in relation to his land as a non-complying development.
The matter arose in the following way. The appellant is the registered proprietor of vacant land situated at 537 Kensington Road, Wattle Park. The land is located in the Hills Face Zone (“HFZ”) in the area of the City of Burnside and the relevant authority for the purpose of assessing this development proposal within that zone is the DAC.
The land slopes from north to south and there is a steep gully which runs across the centre of the property. The appellant’s proposal is to transport unwanted material from building or demolition sites to the subject land for use as fill. The appellant’s stated intention is to deposit the fill in the gully so as to provide landscaping and to form a series of terraces to enable better access to the centre of the property to facilitate weed control, property management and fire fighting. The appellant stated in his application for approval that the fill will not be stockpiled on the site, but will be dispersed immediately in the proposed fill area.
It is not in dispute that the proposal is “development” as defined in the Development Act 1983 (“Development Act”) s 4. Included in the definition is –
“(h) an act or activity in relation to land (other than an act or activity that constitutes the continuation of an existing use of land) declared by regulation to constitute development”.
Regulation 6 of the Development Regulations 1993 provides that an act or activity in relation to land specified in Schedule 2 of the Regulations is to constitute development. Schedule 2 cl 1 provides that any filling of land within the HFZ involving filling exceeding nine cubic metres constitutes development. It is clear that the proposal in the present case would involve more than this volume of filling.
The issue in dispute is whether development of this kind is a non-complying development in the HFZ. If it is, then the proposal cannot be granted a provisional development plan consent unless the DAC concurs in the granting of the consent (Development Act s 35(3)(b)). No appeal lies against a refusal of concurrence (Development Act s 35(4)(a)).
Principle of Development Control 30 (“Principle 30”) for the HFZ prescribes the kinds of development which are non-complying in the HFZ. Included as development which is non-complying is –
“Landfill that constitutes solid waste disposal required to be licensed as a waste depot under the Environment Protection Act 1993.”
There are exceptions to this provision, but none are applicable in the present case. In the view of the DAC the appellant’s proposal comes within this description so as to render it a non-complying development. As has been pointed out, the learned ERD Court judge agreed with this determination.
The Environment Protection Act 1993 (“the EPA”) s 36 provides that a person must not undertake a prescribed activity of environmental significance without a licence. The prescribed activities are set out in Schedule 1 to the EPA. The activity which is relevant for present purposes is described in Schedule 1 cl 3 as follows:
“(3) Waste or Recycling Depots
the conduct of a depot for the reception, storage, treatment or disposal of waste …”.
There follow a number of exceptions, none of which are relevant in the present case.
The appellant has argued that the proposed activity cannot be viewed as the conduct of a depot for the purpose referred to in cl 3.
It is necessary to say something further about the activity involved in the proposal. Details of the material to be used for the filling operation are described in a letter from the appellant’s solicitor to the DAC dated 31 October 2003:
“The materials used to construct the benches will include broken pieces of concrete (from house foundations), bricks (and broken pieces of brick walls from demolished houses) and earth excavated from house construction sites. This material has also been used for the ‘new bench’ and ‘new vehicle track’ areas shown on the enclosed plan. The material will be used by depositing the larger pieces of concrete and brick to bind with the existing slope, which will be overlain with smaller portions of broken brick and sand/rubble from building demolition and clean soil. No general waste material will be deposited on the land. Any waste or debris in the nature of plastic, piping, wood, etc (if any has been deposited on the land) will be removed before any further filling takes place. The proposal will not involve the deposition of ‘hard refuse’ in the sense that the term is generally understood. Only the materials set out above will be deposited on the land. The material will generally be obtained from building and demolition sites in the eastern portion of the Metropolitan Area.”
A landscape architect retained by the appellant has estimated that the total amount of fill required is 7,600 cubic metres. The filling would take place over a period of two years. If 20 tonne trucks carrying 14 tonne loads were employed the approximate number of truck movements would be 800. A front-end loader would be used to spread and grade the material.
It was not seriously disputed on the hearing of the appeal that the proposal would involve “landfill that constitutes solid waste disposal”, the first part of the requirement in Principle 30. The ERD Court judge noted that “landfill” is defined in the Macquarie Dictionary (Revised 3^rd ed.) as:
“Material as garbage, building refuse, etc., deposited under layers of earth to raise the level of the site”.
There is no definition of the term in the relevant legislation and no reason why the ordinary meaning of the word should not apply.
“Waste” is defined in the EPA s 3 to include:
“Any solid, liquid or gas (or combination thereof) that is left over, surplus or an unwanted by-product from any business or domestic activity, whether of value or not”.
In my view, the transporting of large quantities of unwanted building materials and soil to the appellant’s property and its subsequent use for the purpose of filling in part of a gully on the property is activity which answers the description of “landfill that constitutes solid waste disposal” in Principle 30.
The next question is whether this activity is required to be licensed as a waste depot under the EPA. This, in turn, depends upon whether the proposed activity involves “the conduct of a depot for the reception, storage, treatment or disposal of waste” within the meaning of that description in Schedule 1 of the EPA.
I have already referred to the wide definition of “waste” in the EPA and the fact that the filling to be used comes within that description. The use of the material in accordance with the proposal would involve its reception and storage. The operation could also be described as disposal of the waste material.
The question remains whether the proposed activity can be viewed as “the conduct of a depot” for these purposes. The word “depot” is used throughout the EPA in its ordinary meaning of a place where objects or material are deposited. The context provided by Schedule 1 cl 3 indicates that its meaning is not confined to a place to which objects are taken and removed subsequently. This is illustrated by the reference to the conduct of a depot for “disposal of waste”. “Conduct” in this context does not necessarily involve an indefinite and continuous operation. Although the activity envisaged in the present proposal is for a limited time, it is also of an ongoing nature until completion of the task. The EPA does not stipulate that only a commercial operation need be licensed.
It is true, as Mr Hayes pointed out, that the nature of the activity described in the schedule must be determined by reference to the totality of the description and not by a consideration of the meaning of the individual words which are used. However, it is my view that the contemplated activity comes within the description of an activity of environmental significance in schedule 1 which requires authorisation in the form of a licence. The activity comes within the ordinary meaning of the words used in the schedule and there is no reason why the words used in this part of the schedule should be read down.
The EPA puts into place a large number of measures designed to achieve the purpose of the Act in protecting, restoring and enhancing the quality of the environment. Section 25 imposes a general environmental duty on all persons and, as has been pointed out, the undertaking of prescribed activities of environmental significance requires authorisation in the form of a licence. The licensing system provides a means of controlling and supervising a wide range of activities which have the potential to impact on the environment. The treatment and disposal of waste features prominently in the activities controlled through the licensing system.
Control of the activity contemplated by the present proposal would seem to come within the purpose and aim of the EPA. I do not accept the appellant’s argument that development control would be sufficient to meet the environmental considerations involved in an activity of this type. The fact that in prescribing this category of non-complying development Principle 30 goes outside the area of planning legislation and has resort to the controls over solid waste disposal which reside in the EPA is significant in this respect. Those controls would appear to have ready application to the type of activity involved in the appellant’s proposal and its ongoing nature.
Mr Hayes also put forward an argument based on the distinction between the use of land and the conduct of an activity on the land. He argued that Principle 30 is concerned only with land use and that the relevant question to ask is whether the proposal involves a change in the use of land or building work. In this case there is no building work involved; nor is there to be any change in the use of the land. At the present time the property has gullies, access tracks and some fill which has been placed there previously. After the proposal is executed, there will be more fill and new access tracks. It followed, so it was argued, that the DAC should have taken into account when assessing the proposal that it would not involve any change in the use of the land.
I do not agree that Principle 30 is to be read in this narrow sense. The opening words of the Principle state that it is concerned with certain kinds of development which are non-complying in the HFZ. The definition of “development” in the Development Act s 4 includes acts or activities which are not necessarily associated with building work or changes in the use of land. There is no reason, therefore, why an activity which is not related to building work or a change in the use of land should not be included in the list of developments which are classified as non-complying in Principle 30. The non-complying development consisting of landfill which is required to be licensed under the EPA is more appropriately categorised as an activity and not a use of land. The conduct of waste depots is dealt with in Schedule 1 of the EPA as one of a number of “prescribed activities of environmental significance”.
I would reject the argument that the activity of landfill referred to in Principal 30 is to be regarded as a use of land with the consequence that the proposal falls to be assessed by having regard to whether it involves a change in the use of land.
For the sake of completeness, I mention an argument which Mr Hayes raised based on some comments by Bleby J in City of Mitcham v Heathhill Nominees Pty Ltd (2000) 76 SASR 133. In that case the Full Court was required to consider whether a development was a non-complying development. If it was so classified, there would be no right of appeal against a refusal of the application for development before the court. In a judgment in which his Honour dissented on the substantive issue, he expressed the view at [47] that “the Court should be slow to construe the principles of development control contained in the Development Plan as removing that right of appeal where the principles admit of an interpretation which preserves it”.
It is unnecessary to decide whether this is an appropriate consideration to take into account in the circumstances referred to by his Honour. It is sufficient to say that, in the present case, the construction of the legislation and Principle 30 is not assisted by that approach.
It follows that the DAC and the ERD Court were correct in determining that the proposal involves a non-complying development.
I would dismiss the appeal.
GRAY J. I would dismiss the appeal. I agree with the reasons of Duggan J.