Kingston City Council v Mobius Materials Recovery Pty Ltd
[2024] VSC 134
•26 March 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
VALUATION, COMPENSATION AND PLANNING LIST
S ECI 2023 02733
| KINGSTON CITY COUNCIL | Appellant |
| V | |
| MOBIUS MATERIALS RECOVERY PTY LTD (ACN 147 437 876) | Respondent |
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JUDGE: | Watson J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 March 2024 |
DATE OF JUDGMENT: | 26 March 2024 |
CASE MAY BE CITED AS: | Kingston City Council v Mobius Materials Recovery Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2024] VSC 134 |
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PLANNING – Appeal from Victorian Civil and Administrative Tribunal – Interpretation of Kingston Planning Scheme – Characterisation of proposed use of land – Whether processing coarse timber mulch constitutes ‘Materials recycling’ – Whether ‘Materials recycling’ in conjunction with ‘Transfer station’ – Tribunal provided sufficient reasons – Appeal dismissed – s 148 Victorian Civil and Administrative Tribunal Act1998.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr I Munt | Russell Kennedy |
| For the Respondent | No appearance |
HIS HONOUR:
This is a case about the use of land at 2-16 Pine Lane, Heatherton (‘the land’).
The respondent, Mobius Materials Recovery Pty Ltd (‘Mobius’) operates a waste processing site in Dandenong. At the Dandenong site it produces, amongst other things, coarse timber mulch. Some customers are content to take the coarse timber mulch as is, others prefer a finer grade mulch. Mobius transports the coarse grade mulch to the land, stores it there temporarily and then, using a portable tub grinder, produces a finer grade mulch which is then distributed to customers.
On 24 May 2023, the Victorian Civil and Administrative Tribunal (‘VCAT’ or ‘Tribunal’) decided that Mobius’ activities on the land fell within the definition of ‘Materials recycling’ in the Kingston planning scheme (‘the planning scheme’) and made the following order (‘the order’):
The storage of vehicles and the re-processing of mulch for use in agriculture on the subject land is a defined use, namely ‘Materials recycling’ in the zone. A permit is required for such use under the Green Wedge Zone in the Kingston Planning Scheme.
Kingston City Council, the appellant (‘the Council’), seeks leave to appeal from the order.[1] Pursuant to s 148(2A) of the Victorian Civil and Administrative Tribunal Act1998, I am required to grant leave only if I am satisfied that the appeal has a real prospect of success. I am satisfied that the appeal’s prospects are real in that the grounds are not fanciful so I would grant leave to appeal. However, for the reasons which follow I dismiss the appeal.
[1]The Council also seeks leave to appeal from a consequential order made 24 May 2023 regarding the further listing of the matter before VCAT. The fate of that consequential order is entirely dependent on the appeal against the order.
History
The question of how the use of the land by Mobius is to be characterised under the planning scheme has now been considered twice by VCAT and this is the second time that question has come to this Court.
On 11 November 2019, Mobius lodged an application for planning permission with the Council in relation to use of the land. Mobius lodged an amended application for planning permission on 14 February 2020. On 4 March 2021 the Council issued a notice refusing to grant the planning permit.
Mobius filed an application for review of the Council’s refusal of the planning permit with VCAT on 30 March 2021.
At a preliminary hearing on 30 June 2021 Mobius contended that the use of the land for processing the coarse timber mulch was an ‘innominate use’ and in the alternative ‘Materials recycling’. The Council contended that the use of the land was prohibited because the coarse timber mulch fell within the definition of ‘waste material’.
Under the planning scheme activities which fall within the definition of Materials recycling are prohibited in a Green Wedge Zone unless two other conditions are met being that the Materials recycling:
(a) must be used in conjunction with refuse disposal or transfer station (‘Transfer station condition’); and
(b) must not include the collecting, dismantling, storing, recycling or selling of used scrap construction and demolition materials (‘Not construction materials condition’).[2]
[2]Court Book (‘CB’) 95.
On 22 July 2021 VCAT:
(a) rejected the Council’s argument that the coarse timber mulch was waste;
(b) found that the activities ‘could’ be Materials recycling but did not in terms find that they were or were not;
(c) found that the Not construction materials condition had been satisfied;
(d) said that Mobius’ argument regarding the Transfer station condition was ‘an attempt to squeeze the proposed use into a definition within the planning scheme which is unnecessary’; and
(e) found that the preferable description of the use of the land was an innominate use and made the following order:
The proposed use of re-processing mulch for use in agriculture on the subject land is an innominate discretionary use. A permit is required for such use under the Green Wedge Zone in the Kingston Planning Scheme.[3]
[3]Mobius Materials Recovery Pty Ltd v Kingston CC [2021] VCAT 788.
The Council appealed that order to this Court. The Council focussed its appeal on two matters. First, it argued that the Tribunal should have found that the coarse timber mulch was waste. Niall JA, who heard the appeal, rejected this argument and upheld the Tribunal’s finding. Secondly, the Council argued that the Tribunal had erred in its approach to determining whether the activities did in fact fall within the definition of Materials recycling. Niall JA accepted that this error had been made, set aside the above order and remitted the matter to the Tribunal to the same Senior Member.
On remittal, Mobius maintained that the use of the land was ‘innominate’ – that is, it did not fit into any of the defined categories in the planning scheme. In the alternative, Mobius argued its use was Materials recycling and that both the Transfer station condition and the Not construction materials condition were met.
The Council contended that Mobius’ use of the land was prohibited under the scheme. Much of the Council’s argument before VCAT on remittal was again focussed on the proposition that the coarse timber mulch was ‘waste’ and therefore the use of the land was prohibited under the scheme. The Council appears to have believed it was entitled to adopt this course because, the Supreme Court having set aside the original order of the Tribunal, the hearing on remittal was a hearing de novo. Having regard to the reasons of Niall JA,[4] it seems to me there was an issue estoppel in relation to the question of whether the coarse timber mulch was waste. In any event, having heard the argument afresh, the Tribunal determined that coarse timber mulch was not waste material.[5] No point is taken on this appeal regarding that finding.
[4]Kingston City Council v Mobius Materials Recovery Pty Ltd & Anor [2022] VSC 588, [80]–[85].
[5]Mobius Materials Recovery Pty Ltd v Kingston CC [2023] VCAT 575, [46].
The Council also contended that the land use fell within the definition of Materials recycling under the scheme but that it could not meet the Transfer station condition and the Not construction materials condition. Its argument that the Transfer station condition was not met amounted to no more than a bare assertion.
In its decision on remittal, the Tribunal found that:
(a) the land use fell within the definition of ‘Materials recycling’ under the scheme;
(b) the Transfer station condition had been met;
(c) the Not construction materials condition had been met; and
(d) vehicle storage on the land was ancillary to the use of ‘Materials recycling’ but if it was considered a separate use, it fell within ‘any use in sections 1 or 3’ of the scheme and a permit was therefore required.
In its appeal, the Council only seeks to challenge the Tribunal’s finding that the Transfer station condition is met. No challenge is made to the findings that the land use fell within the definition of Materials recycling, that the Not construction materials condition was met or that the storage of vehicles was ancillary to the use of Materials recycling.
On the evidence before it, the Tribunal finding that the use of the land met the Transfer station condition shows no error of law and for this reason, the appeal should be dismissed.
The planning scheme
The land is in a Green Wedge Zone.
Under the planning scheme there are three categories of use for Green Wedge Zones set out in clause 35.04-1:
(a) in section 1 are those uses for which a permit is not required;
(b) in section 2 are those uses for which a permit is required; and
(c) in section 3 are those uses which are prohibited.
In sections 1 and 2 (that is allowed uses either with or without a permit) clause 35.04-1 also provides any conditions which must also be satisfied in order for the activity to be permitted.
Materials recycling is in section 2 of clause 35.04-1. If the Transfer station condition and the Not construction materials condition are both satisfied then Materials recycling may be conducted in a Green Wedge Zone provided a permit is granted.
Clause 64.02 of the planning scheme defines the term ‘in conjunction with’. It provides:
If a provision of this scheme provides that a use of land must be used ‘in conjunction with’ another use of the land:
·there must be an essential association between the two uses; and
·the use must have a genuine, close and continuing functional relationship in its operation with the other use.
Clause 73.03 defines land use terms used in the planning scheme. The introductory section of that clause is as follows:
The table to this clause lists terms which may be used in this planning scheme in relation to the use of land. A term describing a use or activity in relation to land which is not listed in the table must not be characterised as a separate use of land if the term is obviously or commonly included within one or more of the terms listed in the table.
Meaning of terms
A term listed in the first column, under the heading "Land use term", has the meaning set out beside that term in the second column, under the heading "Definition".
No definition of listed term indicates ordinary meaning
A term listed in the first column, under the heading "Land use term", which does not have a meaning set out beside that term in the second column, under the heading "Definition", has its ordinary meaning.
Terms which specifically include other listed terms
A term listed in the first column, under the heading "Land use term", which has other terms listed beside it in the third column, under the heading "Includes", includes any term so listed in the third column and any term included within that term in the third column, but does not include any other term listed in the first column.
A term listed in the first column which has other terms listed beside it in the third column may also include other terms which are not listed in the first column.
All terms listed in the third column are also listed in the first column.
Terms which do not specifically include other listed terms
If a term listed in the first column, under the heading "Land use term", does not have any term listed beside it in the third column, under the heading "Includes", that term does not include any term listed in the first column.
However, a term listed in the first column which does not have any term listed beside it in the third column may include other terms which are not listed in the first column.
Terms which are included within other listed terms
A term listed in the first column, under the heading "Land use term", which has a term listed beside it in the fourth column, under the heading "Included in", is included within the term so listed in the fourth column and any term which includes that term in the fourth column.
All terms listed in the fourth column are also listed in the first column.
Terms which are not included within other listed terms
If a term listed in the first column, under the heading "Land use term", does not have a term listed beside it in the fourth column, under the heading "Included in", that term is not included within any other term listed in the first column.
Only two land use terms in the table in clause 73.03 are relevant to the determination of this appeal:
Land use term
Definition
Includes
Included in
Materials recycling
Land used to dismantle, treat, process, store, recycle, or sell refuse, used or surplus materials.
Industry
Transfer station
Land used to collect, consolidate, temporarily store, sort or recover refuse, used or surplus materials before transfer for disposal, recycling or use elsewhere.
Automated collection point
Industry
The Tribunal decision
The Tribunal found that the use of the land fell within the definition of ‘Materials recycling’ in the planning scheme because:
(a) The reprocessing of the coarse mulch into a finer grade mulch was a ‘process’;[6] and
(b) Adopting the submissions of both the Council and Mobius it was appropriate to describe the coarse timber mulch as ‘surplus materials’.[7]
No point is taken on appeal in relation to either of those findings.
[6]Mobius Materials Recovery Pty Ltd v Kingston CC [2023] VCAT 575, [56].
[7]Ibid [57] and [58].
The Tribunal also considered whether the use of the land met the Transfer station condition and the Not construction materials condition and determined that both conditions were met. As I have indicated, no point is taken on appeal regarding the Tribunal’s finding that the Not construction materials condition was met.
Relevant portions of the Tribunal’s reasons regarding the Transfer station condition are:
62To meet the first condition the ‘Materials recycling’ use must be conducted in ‘conjunction with Refuse disposal or Transfer station’.
63Mobius submitted it could meet the definition of ‘Transfer station’ in clause 73.03 and highlighted in the definition how it considered it met the requirements of a ‘Transfer station’ by using the land to temporarily store surplus materials (coarse mulch to fine mulch) before transferring for recycling or use elsewhere:
‘Land used to collect, consolidate, temporarily store, sort or recover refuse, used or surplus materials before transfer for disposal, recycling or use elsewhere.’
64Mobius submitted, ‘Transfer station’ does not seek to confine what surplus materials may refer to provided, they are not building materials. Previous processed timber mulch that has not yet been sold could readily be described as ‘surplus materials, on the basis that it requires further processing prior to sale and distribution’.
65The Council stated the conditions cannot be met although provided no analysis of this view although the Council has maintained the view that the ‘surplus materials’ are composed of scrap construction or demolition materials.
66I accept that Mobius, on the above analysis, would meet the conditional requirements. An assessment as to whether a planning permit is appropriate can in my view be considered.
(emphasis in original)
Council’s argument
On appeal Council sought to impugn the finding that the Transfer station condition had been met on the following bases:
(a) the Tribunal had given insufficient reasons for its determination that the transfer station condition had been met;[8]
[8]Trial Transcript 1 March 2024 (‘Trial Transcript’), 29-30.
(b) the coarse timber mulch was not ‘surplus materials’ for the purposes of the Transfer station definition because as a valuable product it ceased to be surplus;[9]
[9]Appellant’s Written Submissions dated 3 November 2023 (‘Appellant’s Written Submissions’), [32].
(c) the temporary storage of coarse timber mulch was a part of the process of Materials recycling use and therefore could not be a separate use ‘in conjunction with’ the Materials recycling use;[10]
(d) the coarse timber mulch was not ‘recycled or used elsewhere’ for the purposes of the definition of Transfer station because it was on the land for the purposes of processing;[11] and
(e) the finer grade mulch was an end product and could not be described as ‘surplus materials’ and so neither its temporary storage or ‘use elsewhere’ could be relied upon to meet the definition of Transfer station.[12]
[10]Appellant’s Written Submissions [25]–[27].
[11]Trial Transcript 20/16-19.
[12]Appellant’s Written Submissions [32].
In light of the conclusion I have reached I do not need to deal with the Council’s argument in (e) above regarding the characterisation of the finer grade mulch. Before turning to a consideration of those arguments in (a) to (d) above, it is worth noting a few features of the Council’s position.
The Tribunal accurately characterised the Council as not providing any supporting analysis for its position that the Transfer station condition could not be met (other than its contention that the coarse timber mulch was composed of construction or demolition material). This is, of course, not determinative of any of the issues on appeal but it does provide critical context for a consideration of the submission that the Tribunal has given insufficient reasons for its conclusion on this issue.
The Council accepted that the coarse timber mulch is properly characterised as a surplus material for the definition of Materials recycling.
The Council accepts that the coarse timber mulch is in fact temporarily stored on the land prior to processing.[13]
[13]Trial Transcript 20/1-3.
Finally in this regard, I note that the Council said I should ignore the possibility that the use of the land was ‘in conjunction with’ a transfer station being Mobius’ operations at the Dandenong South site. In light of the conclusion I have reached I do not need to consider the correctness of this view, but it must be said that the Council’s submissions in this regard sit somewhat at odds with its submissions to VCAT which were that the storage and grinding of the coarse timber mulch could not properly be severed from the operations at the Dandenong South site.
The reasons are adequate
The Tribunal found that the Transfer station condition was met adopting the analysis of Mobius in its submissions.
In considering the adequacy of the reasons it is therefore necessary to have regard firstly to the discussion of Mobius’ submissions and secondly to the nature of the Council’s submissions before the Tribunal.
In paragraph 63 of the Tribunal’s decision the Tribunal sets out the portions of the definition of Transfer station on which Mobius relies. It was not in contest that the coarse timber mulch was temporarily stored on the land. It was not in contest that the coarse timber mulch was ‘surplus materials’. As noted by the Tribunal, the Council maintained that the mulch contained construction or demolition materials. Elsewhere in its reasons the Tribunal had provided its reasons for determining that the Not construction materials condition was met. The Council advanced no specific argument on whether the coarse timber mulch was recycled or for use elsewhere.
In its written and oral submissions the Council took me to paragraph 80 of the reasons of the Tribunal as demonstrating that it had failed to make a specific finding that the Transfer station condition was satisfied and/or that it had not given reasons for that conclusion. The reference to paragraph 80 of the reasons is not apposite. The Tribunal did make a specific finding at paragraph 66 of the reasons and its reasons for that finding are set out in the passage of the reasons quoted above.
In the circumstances, albeit briefly stated, I do not regard the reasons as inadequate. They deal with the specific contentions which were before the Tribunal. In any event, on the evidence before the Tribunal for the reasons discussed below, the Transfer station condition was met.
Surplus Materials
There is no reason to construe the phrase ‘surplus materials’ differently in the Materials recycling definition and the Transfer station definition. If the coarse timber mulch is ‘surplus materials’ when it is being processed, as the Council accepts it is, then it simply makes no sense to suggest that it is not ‘surplus materials’ because its temporary storage is for the purpose of processing. If proximity to processing were somehow a factor in determining whether materials were surplus, it would be a perverse result that at a less proximate stage they were surplus, whilst at a more proximate stage they were not.
The Council’s argument in this regard should be rejected.
One use or two
It is plain that there is an ‘essential association’ between temporarily storing the coarse timber mulch on the one hand and the processing of the coarse timber mulch on the other. It is equally plain that there is ‘a genuine, close and continuing functional relationship’ between temporarily storing the coarse timber mulch and processing it. If there are two separate uses then one is in conjunction with the other within the meaning of clause 64 of the planning scheme.
However, the Council contends that the temporary storage of the coarse timber mulch on the land cannot be relied upon to meet the Transfer station condition because that storage falls within the definition of Materials recycling or is ancillary to it. Thus the Council says there is no possibility of establishing a separate use of the land as a Transfer station in conjunction with the use of the land for Materials recycling because there is relevantly only one use.
The Council’s characterisation of the temporary storage of the coarse timber mulch as ancillary does not assist in the resolution of the question of whether one use is ‘in conjunction with’ another.
In Boucher and Anor v Dandenong Ranges Steiner School Inc and Ors,[14] Osborn J said:
In my opinion the requirement that proposed uses be conducted in conjunction with each other does not fall to be determined by reference to the notion of ancillary use.
…
Clause 57 does not require the application of the concept of ancillary use. It simply requires the ascertainment of separate uses upon the land which are undertaken in conjunction with each other. Such uses may or may not involve an ancillary use. The requirement for a functional nexus between the uses raises the real possibility that one or other use may be ancillary to another use but this question is not determinative of their lawfulness. What is required is separate identifiable uses carried on in conjunction with each other.[15]
[14](2005) 145 LGERA, [23].
[15]Ibid [29].
The same reasoning applies here in relation to clause 64 of the planning scheme. It does not matter whether the temporary storage of the coarse timber mulch is ancillary to the processing of that mulch (indeed it almost certainly is) for the purposes of determining whether the two activities can be described as ‘in conjunction with’ one another.
In oral argument counsel for the Council said that the two definitions of Materials recycling and Transfer station were almost entirely coincident.[16] I understood him to mean that where surplus materials are collected, consolidated, sorted or recovered on a site where there is Materials recycling that those activities are inextricably linked with the process of Materials recycling and so cannot form a separate use. I do not accept that submission – its acceptance would render it impossible or nearly impossible to satisfy both the Materials recycling condition and the Transfer station condition, something which is inherently unlikely to have been the intention of those drafting the planning scheme. The requirement for uses to be ‘in conjunction’ with one another is, at its essence, something which requires some relatively close form of association or nexus. It cannot have been intended that the very connection which is required for uses to be in conjunction then creates the circumstances where those uses cease to be regarded as separate.
[16]Trial Transcript 27/8-18.
The Council submits that because the definition of Materials recycling includes land used to ‘store’ surplus materials any temporary storage of the coarse timber mulch falls within that definition and therefore cannot constitute a separate use for the purposes of the Transfer station definition.
If the Council is right and the activity of temporary storage can be described as falling into both Materials recycling and Transfer station definitions there seems no reason in principle why that activity cannot be relied upon for the purpose of meeting the Transfer station condition. It could not then also be relied upon for the purpose of meeting the Materials recycling definition, but provided there are other activities that could (and in this case there are), then both the Materials recycling definition and the Transfer station condition would be satisfied. Such an approach to circumstances where elements of the two definitions overlap would be more consistent with the evident intent of the scheme that for uses to be in conjunction requires an essential association and a genuine, close and continuing functional relationship.
In any event, I am not persuaded that ‘temporarily store’ in the definition of Transfer station describes the same activity as ‘store’ in the definition of Materials recycling:
(a) Each of ‘collect, consolidate, temporarily store, sort or recover’ in the definition of Transfer station are preparatory activities ‘before transfer’ for disposal, recycling or use. In the case of ‘store’ this is emphasised by the use of the adverb ‘temporarily’;
(b) By way of contrast ‘dismantle, treat, process, store, recycle, or sell’ are in effect forms of ‘disposal, recycling or use’; and
(c) Thus properly construed ‘store’ in the definition of Materials recycling does not include ‘temporary storage’ prior to transfer for use but connotes something more permanent.
Understood in this way the temporary storage of the coarse timber mulch may (provided other elements of the definition are satisfied) constitute a Transfer station use and does not constitute a part of the Materials recycling use.
I am fortified in this conclusion by the terms of clause 73.03 which demonstrate that:
(a) Those drafting the scheme have paid careful attention to circumstances where one use might fall within the definition of another;
(b) If a term listed in column 1 is not listed in column 3 of another term, it is not included in that term;
(c) Transfer station is not listed in column 3 of the definition of Materials recycling;
(d) Materials recycling is not listed in column 3 of the definition of Transfer station; and
(e) As a result, Materials recycling is not included in Transfer station and vice versa.
I accept that the analysis in the previous paragraph is not decisive of the question of overlap as distinct from inclusion but it is indicative of a careful approach to the definitional structure of the planning scheme which has sought to carefully carve out distinct uses and make manifest those instances where one use includes another.
The Tribunal was right to hold that the temporary storage of the coarse timber mulch was an activity falling within the definition of Transfer station.
The Tribunal did not rely on Mobius ‘collecting’ the coarse timber mulch and I was not addressed on it, but it is evident from the description of its activities and from the ordinary usage of that word that Mobius collects the coarse timber mulch as well as temporarily storing it. I do not need to decide the question but it seems that in the circumstances, the collection of the coarse timber mulch is also to be regarded as capable of falling within the definition of Transfer station and separate and distinct from Materials recycling.
Recycling or use elsewhere
The Council argued that the coarse timber mulch was not being temporarily stored for recycling or use elsewhere because it was being temporarily stored for processing.
This argument seemed to be a version of the arguments rejected above. That is, there was no use distinct from Materials recycling. For the reasons I have rejected that argument above I reject it again here. To the extent that it represents a standalone proposition I deal with it below.
First, the processing of the coarse timber mulch into finer grade timber mulch aptly meets the definition of recycling, being ‘to prepare (something) for a second use, often with some adaptation or reconstruction’.[17] Secondly and in any event that processing is aptly described as a ‘use’.
[17]Macquarie Dictionary (online at 13 March 2023) ‘recycle’ (def 2).
Implicit in the Council’s submissions seemed to be the proposition that ‘transfer … elsewhere’ meant transfer to other land. In the context of the definition and the planning scheme as a whole, the word ‘elsewhere’ does not mean other than on the land but rather simply means other than where the surplus materials are collected, consolidated, temporarily stored, sorted or recovered. The planning scheme specifically contemplates Materials recycling being in conjunction with a Transfer station and the definition of ‘in conjunction with’ is referrable to two uses on the same land. If ‘elsewhere’ meant other than on the land then arguably a Materials recycling facility could never be in conjunction with a Transfer station.
Conclusion
In those circumstances, I can see no error in the Tribunal’s conclusion that the Transfer station condition was met.
The appeal is dismissed.
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