Mills v Caravonica Pty Ltd; ex parte

[1992] QCA 429

IN THE COURT OF APPEAL

[1992] QCA 429

SUPREME COURT OF QUEENSLAND

Appeal No. 116 of 1992

NEIL MILLS

(Applicant)

v.

CARAVONICA PTY LTD (A.C.N. 008 178 587)

(Respondent)

Ex parte: NEIL MILLS

JUDGMENT - THE CHIEF JUSTICE AND McPHERSON J.A.

Delivered the 11th day of December, 1992.

The respondent company was charged by summons issued on the complaint of an officer of the Council of the Shire of Mulgrave alleging that it committed an offence pursuant to by-law 4(a) of chapter 55 of the Council's by-laws by failing to comply with by-law 1(c) of chapter 55 "by being the owner of land on which earthworks were carried out without the prior permission in writing of the Council".

The stipendiary magistrate who heard the matter below ordered that the complaint be dismissed with costs.

An appeal is brought against the order of dismissal and the only question which arises is one of construction of the provisions of chapter 55 of the by-laws.

Clause 4(a) of the by-laws states that the "owner of any land on which filling, excavation or removal takes place in contravention of (the) By-Laws ... shall be guilty of an offence".

Certain provisions in chapter 55 should be referred to.

The chapter has a heading "Filling and Excavation of Land". Clause 1 which immediately follows is in this form:

"1. (a) The intent of this By-Law is to control the undertaking of earthworks on land so as to ensure reasonable slope stability, control erosion and siltation, reduce risk of damage or nuisance to nearby lands, control flooding and inundation and maintain the landscape value and amenity of the area.

(b) For the purpose of this By-Law earthworks

(sic) means to:

(i)  deposit or place or cause or suffer to be deposited or placed or to fall upon any land any ballast, rock, stone, shingle, soil, gravel, sand, clay, earth, cinders, debris or other matter or thing; or

(ii) excavate or remove from any land any ballast, rock, stone, shingle, soil, gravel, sand, clay, earth or other material.

(c) Subject to this By-Law, a person shall not carry out earthworks unless with the prior permission in writing of the Council and in compliance in every respect with the requirements or conditions of such permission and this Chapter."

The remainder of the by-law contains extensive provisions excusing in various cases from the necessity of obtaining the relevant permission of the Council. These are contained in cl. 1(d) and it is sufficient to summarise portions of them.

Permission is not required in the case of certain lands where the earthworks are proposed for the purpose of cultivating sugar cane and are carried out to render the land more suitable for cropping or to enlarge the cropping area and the Shire Engineer determines that the earthworks will not cause damage or nuisance to surrounding lands or degrade the landscape value of the Shire when viewed from main roads or tourist locations; nor where the earthworks are carried out within the plan area of a proposed building or within five metres of its location preparatory to building or other work approved by the Council provided that the earthworks are limited to work necessary to prepare foundations and meet with other standards certified by a registered engineer as reasonably safe from the effects of soil movement or rock instability; nor where the earthworks are carried out in accordance with any permission or approval issued by the Crown or a statutory authority; nor where the earthworks are carried out for purposes of gardening, landscaping or beautification in association with an existing dwelling house on the land and the work involved does not extend more than ten metres from any part of the dwelling and does not constitute more than thirty per cent of the total area of the allotment on which the dwelling is constructed; nor where the Council is satisfied upon the report of the Shire Engineer that the earthworks would have no substantial effect on the contours or levels of the land.

Under cl. 2(b), unless the Shire Engineer decides prior to lodgment of the application for permission that the earthworks are of such a minor nature that they can adequately be described without reference to a plan, every application for permission is to be accompanied by a plan.

That plan must detail the boundaries and the contours of the land at intervals of not more than 0.5 of a metre and show the areas of potential slope and instability, eroded or erodible areas and contain notes on soil type, vegetation and drainage such as will assist in the assessment of the application.

By cl. 3(e) the Council may require as a condition of permission or, in specified cases where permission is not required under the by-laws, the Council may nevertheless still require that the owner provide a security to guarantee the performance of the earthworks and any drainage, structures or other devices or revegetation "necessary to ensure the work does not result in nuisance or damage to others or cause loss of amenity or landscape value" and to guarantee that the work will otherwise be carried out in conformity with applicable conditions.

The respondent was the owner of land in a sizeable parcel, at least partly in a natural state covered by rain forest. Its real property description is Lot 48 on R.P. 750072, County of Nares, Parish of Smithfield, zoned "Rural C". Certain activity had taken place upon the land in the period to which reference was made on the hearing of the complaint and there was no real dispute about the character of those activities. They involved extensive pushing of timber and moving of soil and rocks. What could be described as a rough road was pushed through the rain forest. The nature of the work involved, the clearing, the cutting and filling of and over the land contours, appears in the photographic exhibits and was described in the evidence.

The form of summons that was issued contained upon its

face a supplementary section headed "Further Particulars".
This set out not so much particulars but, in narrative form,
the nature of the allegations involved in the complainant's
case. Amongst other things it was there stated that a road
had been pushed through the property, a considerable amount
of fill had been pushed to form a causeway over a creek with
water dammed on the uphill side and substantial batter works
had been formed further along the road.

At the end of the complainant's case admissions were made on behalf of the respondent of a number of matters, including that the respondent was the owner of Lot 48, that no relevant prior permission had been obtained in respect of the works and that there was no applicable heading of exemption under the by-law.

The decision of the stipendiary magistrate in dismissing the complaint resulted from the view which he took of the effect of cl. 1(b) of the by-law. He noted that, in terms, the definition of "earthworks" in that sub- clause was not inclusive in form but was a limiting one. He reached the conclusion that within the meaning of the sub- clause, material could not be said to be deposited or placed upon land or, conversely, excavated or removed from land unless something which in the first case had not been a constituent part of the land was brought in and placed upon it or, in the second case, which had been a constituent part of the land and was extracted and taken away from it.

The by-law contains no definition of "land" and neither does the Local Government Act 1936. The meaning which the magistrate was apparently inclined to attribute to the word "land" in cl. 1(b) had the sense of "the parcel of land in question". This seems to have disposed him to think that to convict there had to be some movement of material across a boundary. In adopting the meaning which he favoured, he rejected the alternative which, on the face of cl. 1(b), was open, namely that the sub-clause was concerned with an act of placing upon the surface of land within the jurisdiction of the local authority any material in the nature of soil, etc. wherever that material originated and also digging out or shifting constituent material from land within the local authority's jurisdiction, however far it was moved once it was dug out or dislodged.

If it is thought that there is any ambiguity in cl. 1(b) when considered in isolation, that impression is dispelled when the chapter is read as a whole. The desirable approach when a question of construction arises requires this.

There is a general statement of intent in cl. 1(a) which declares concern for factors of slope stability, erosion, landscape value, and amenity, amongst others, and this points in the direction of a desire to regulate alteration of constituent parts of land within the local authority area. The terms then in which exemptions from the necessity of obtaining permission for earthworks are stated point even more strongly in that direction. To choose an example, cl. 1(d)(iv) displays an assumption that gardening, landscaping and works of beautification in association with a dwelling house will constitute earthworks, although, in an appropriate case, they may be exempted from the need for special permission. Clause 2(b) requires in cases where permission is sought that there be an accompanying plan showing details of the existing contours of "the land" and the final contours of "the land".

While no single part of chapter 55 considered alone might be thought to put the intended scope of the term "earthworks" beyond argument, a reading of the chapter as a whole does convey quite clearly that the term has the wider sense for which the appellant Council contends. Activity within the categories described in the two headings of sub- cl. 1(b) will be caught whether or not there is involved any importing or exporting of soil or other specified materials across the boundary extremities of parcels of land in particular ownerships.

The result is that the order to show cause should be made absolute and the decision below set aside.

The order of the Court is that the matter should be remitted to the magistrate to proceed according to law, enter any necessary conviction and make any necessary orders to give effect to the decision of this Court. The applicant should have an order against the respondent for the payment of the taxed costs of the appeal.

The magistrate will deal with the costs of the proceedings below already incurred and the further costs of those proceedings.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 116 of

1992

BETWEEN:

NEIL MILLS Applicant

AND:

CARAVONICA PTY. LTD.

(A.C.N. 008 178 587) Respondent

EX PARTE: NEIL MILLS Applicant

JUDGMENT - PINCUS J.A.

Delivered the Eleventh day of December 1992

I have read the joint reasons of the Chief Justice and McPherson J.A. which relieve me of the necessity of explaining the nature of the case and setting out the text of the relevant provisions.

Leaving aside other possible foundations of a conviction, the magistrate was obliged to convict if the works shown in the photographs constituted "earthworks" within any part of the definition set out in cl.1(b). That definition includes "excavate ... any ballast, rock, stone, shingle, soil, gravel, sand, clay, earth or other material".

Subject to three arguments I shall mention, it is clear that there was excavation within that definition - indeed, quite substantial excavation. Not only that, but the excavation which took place was within the general intention of the clause, as is seen from cl.1(a).

The first argument is that which appealed to the learned magistrate. It was, as I understand his Worship's reasons, that the provision should be read down so that there should be deemed to be no excavation unless the excavated material was removed beyond the boundaries of the lot on which it took place. That view is incorrect as was, in effect, conceded by counsel for the respondent.

The second argument, which was raised at the hearing of the appeal, is that the notion of excavation should be read down so as to cover only making a "hole or something of the sort". The notion of excavation is capable of including digging, scraping and the like to take out earth leaving behind land which is flat, or in the shape of a trench, or in any shape whatever. Here, it is plain from a reading of the relevant provisions, as a whole, that no such limitation as was submitted could have been intended.

The third argument, also raised in this Court, is that
only excavation producing material of commercial value -
mining, quarrying and the like - was intended to be caught.
There is no justification for reading the words used down
in this way, to reach a result clearly at variance with the
expressed intention of the provisions, set out in cl.1(a)

quoted in the reasons of the Chief Justice and McPherson

J.A.

With all respect to the magistrate, the point argued before him had no substance and he should have convicted. I agree with the orders proposed by the Chief Justice and McPherson J.A.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 116 of

1992

Before the Court of Appeal
The Chief Justice
Mr. Justice Pincus

Mr. Justice McPherson

BETWEEN:

NEIL MILLS

AND:

CARAVONICA PTY. LTD. (A.C.N. 008 178 587)

EX PARTE: NEIL MILLS

JUDGMENT - PINCUS J.A.

Delivered the Eleventh day of December 1992

CATCHWORDS:	STATUTES - INTERPRETATION - Appeal from dismissal of charge of being owner of land on which earthworks conducted without permission - whether "earthworks" and "excavation" within by-laws - whether excavated material must be moved beyond boundary of land from which obtained - whether chapter to be read as a whole.
WORDS AND PHRASES - "EARTHWORKS" - Appeal from dismissal of charge of being owner of land on which earthworks conducted without permission - whether "earthworks" and "excavation" within by-laws - whether excavated material must be moved beyond boundary of land from which obtained - whether chapter to be read as a whole.
WORDS AND PHRASES - "EXCAVATION" - Appeal from dismissal of charge of being owner of land on which earthworks conducted without permission - whether "earthworks" and "excavation" within by-laws - whether excavated material must be moved beyond boundary of land from which obtained - whether chapter to be read as a whole.
Counsel:	P. Lyons Q.C., with him S. Ure for the Applicant N.M. Cooke Q.C., with him T. Trotter for the Respondent
Solicitors:	Clayton Utz t/a for MacDonnells for the Applicant Williams Graham and Carman for the Respondent
Hearing Date(s):	19 November 1992