Pitcher v The Administration of Norfolk Island
[2004] NFSC 5
•17 DECEMBER 2004
SUPREME COURT OF NORFOLK ISLAND
Pitcher v The Administration of Norfolk Island [2004] NFSC 5
STATUTES – Validity of legislation enacted by Legislative Assembly of the Territory of Norfolk Island – Whether Deputy Administrator had power to assent to the legislation – The legislation permitted a Minister to authorise the sorting, crushing and other treatment of stone and rock at a place remote from the place of extraction – Whether it was open to the Deputy Administrator to form the opinion that the legislation approved by the Legislative Assembly was a proposed law which made provision only for or in relation to quarrying or public works – Validity of approvals granted by the Minister in reliance on the legislation.
Norfolk Island Act 1979 (Cth) ss 5, 6, 7, 9, 19, 21, Schedule 2
Quarrying and Related Public Works Act 2004 (NI) ss 3, 4
DAVID KENDALL PITCHER, MICHELLE JAN SAAL PITCHER, RAYMOND DAVID GRUBE, KIM VANESSA PARTRIDGE, ROBERT TERRY RYAN v THE ADMINISTRATION OF NORFOLK ISLAND
SC 14 of 2004
WILCOX J
17 DECEMBER 2004
SYDNEY
IN THE SUPREME COURT
OF NORFOLK ISLAND
SC 14 of 2004
BETWEEN:
DAVID KENDALL PITCHER
FIRST PLAINTIFFMICHELLE JAN SAAL PITCHER
SECOND PLAINTIFFRAYMOND DAVID GRUBE
THIRD PLAINTIFFKIM VANESSA PARTRIDGE
FOURTH PLAINTIFFROBERT TERRY RYAN
FIFTH PLAINTIFFAND:
THE ADMINISTRATION OF NORFOLK ISLAND
DEFENDANTJUDGE:
WILCOX J
DATE OF ORDER:
17 DECEMBER 2004
WHERE MADE:
SYDNEY
THE COURT DECLARES THAT:
1. The Quarrying and Related Public Works Act 2004 (NI) is null and void.
2.The approvals granted by the Minister for the Environment on 19 November 2004 in purported reliance upon the said Act are of no effect.
THE COURT ORDERS THAT:
3. The defendant pay the plaintiffs’ costs of this proceeding.
IN THE SUPREME COURT
OF NORFOLK ISLAND
SC 14 of 2004
BETWEEN:
DAVID KENDALL PITCHER
FIRST PLAINTIFFMICHELLE JAN SAAL PITCHER
SECOND PLAINTIFFRAYMOND DAVID GRUBE
THIRD PLAINTIFFKIM VANESSA PARTRIDGE
FOURTH PLAINTIFFROBERT TERRY RYAN
FIFTH PLAINTIFFAND:
THE ADMINISTRATION OF NORFOLK ISLAND
DEFENDANT
JUDGE:
WILCOX J
DATE:
17 DECEMBER 2004
PLACE:
SYDNEY
REASONS FOR JUDGMENT
WILCOX J:
The plaintiffs in this proceeding challenge the validity of legislation agreed to by the Norfolk Island Legislative Assembly on 10 November 2004 and assented to by the Deputy Administrator on 16 November 2004. The legislation is titled Quarrying and Related Public Works Act 2004 (NI). For convenience, and without prejudice to the issue of validity, I will refer to it as ‘the Act’.
The plaintiffs also challenge the validity of certain administrative decisions made in reliance on the Act.
Terms of the Act
The Act is relatively short. As its terms are critically important to the issues in this case, I will set out its relevant provisions in full, omitting headnotes and notes:
‘2. This Act commences on the day on which notification of assent is published in the Gazette.
3.In this Act –
“extractive industry” means the quarrying or other extraction of sand, clay, gravel, turf, soil, rock, stone or similar material from land and includes the sorting, crushing or other treatment of, or the manufacture of products from such materials whether on the land from which such materials are quarried or extracted, or on adjacent land, or on land to which the materials have, with approval, been removed for such purposes;
“extractive material” means material that has been quarried or otherwise extracted from land as part of an extractive industry.
4. (1) Subject to this section, the executive member may, upon application, grant approval for a person to sort, crush, or otherwise treat extractive material, or manufacture products therefrom at a place, being a place that is not situated in a Residential, Business, Mixed Use, Light Industry, or Conservation Zone.
(2) The executive member must not grant an approval under sub-section (1) unless the Legislative Assembly has approved the form of approval.
(3)An approval granted under this section may only be given if –
(a)the executive member and the Legislative Assembly are of the opinion that the work required to be done in accordance with such an approval is required in the public interest;
(b)the approval when granted is granted for work to be done over a period not exceeding a total of 7 working days;
(c)the approval expires upon completion of 7 working days or 60 days after the grant of approval whichever first occurs;
(d)work using the extractive material is prohibited before the hours of 7:30 am and after 5:00 pm on any day;
(e)when more than one person has sought approval under subsection (1), the executive member must ensure that each applicant is treated as equally as is reasonably possible in the circumstances, or as may be agreed between the applicants and the executive member, to the intent that neither is given greater preference than the other.
(4) An approval given under this section permits the loading and carriage of extractive material from one place to an approved place in order to treat the extractive material at the approved place and may include approval to load and take treated material from the approved place to another place.
5. If more than one approval is given under section 4 in respect of a particular place work must not be done at that place for more than 7 working days in any period of 21 consecutive days.
6. If an approval is granted under section 4, no person may object thereto or make any claim against the Administration on any basis or for any reason whatever.
7. A person who fails to observe the terms of a condition imposed in respect of an approval granted under section 4 commits an offence.
Penalty: 1000 penalty units.’
On 19 November 2004, the Norfolk Island Government Gazette published notice of the Deputy Administrator’s assent to the Act.
The Minister’s approvals
On that same day, the Norfolk Island Minister for the Environment (‘the Minister’) granted two approvals in reliance on s 4 of the Act. The approvals related to different grantees. Each approval was in similar terms, as follows:
‘The person named in the schedule (the grantee) is authorised to remove from a place of stockpile (the site) such rock and stone as may be directed by the person named in the schedule (the supervisor) and then at the place referred to in the schedule (the works area) crush and sort (the work), such rock and stone as may be directed by the supervisor and take the material produced thereby and load and unload, the same and move it from one place to another and to deliver the same to such place as the supervisor may approve or to such person or persons who, by agreement with the grantee, may take delivery thereof at the works area.
When any material is removed from the site, it must be weighed at such time and place as agreed with the supervisor before it is taken or delivered to another place.’
The Schedule to one notice of approval contained the following particulars:
‘Grantee: ISLAND INDUSTRIES PTY LTD
The site: CASCADE CLIFF STOCKPILE LOCATED AT
PORTION 5A
The works area: PORTION 49b2
(NB. The works area must not be a place that is in a Residential, Business, Mixed Use, Light Industry, or Conservation Zone).
The work: CRUSHING AND SORTING ROCK AND STONE AT
THE WORKS AREA
Supervisor:
Dates of approval: Between Monday 22 November 2004, and Wednesday
20 January 2005.’The notice of approval set out eight items that were described as ‘Conditions of Approval’.
This document was accompanied by a document called ‘Conditions of Sale’, being the conditions (including prices) upon which rock could be made available for sale at the Cascade Cliff Stockpile.
The Schedule to the second notice identified the grantee as Richard Cottle, trading as Norfolk Island Block Factory. In that schedule, the ‘site’ was also identified as the Cascade Cliff Stockpile located at Portion 5A, but there was a different ‘works area’ viz part of Portion 183, Norfolk Island (Airport).
Standing of the plaintiffs
The plaintiffs in this proceeding are David Kendall Pitcher, Michelle Jan Saal Pitcher, Raymond David Grube, Kim Vanessa Partridge and Robert Terry Ryan. According to a joint affidavit of the five plaintiffs, made on 22 November 2004, all five plaintiffs ‘live in close proximity to portion 49b2, Stockyard Road, Norfolk Island’, the ‘works area’ identified in the approval granted by the Minister to Island Industries Pty Ltd (‘Island Industries’). In their affidavit, the plaintiffs identified the location of their residences.
In para 3 of their affidavit, the plaintiffs said:
‘Portion 49b2 Stockyard Road, Norfolk Island is the site of the proposed operation of a rock-crushing and screening plant by Island Industries Pty Limited. We have strenuously opposed the operation of such a plant in such close proximity to residences as we will be adversely affected by excessive levels of dust and noise. We have been advised by our legal representative and believe that we would all have actions for nuisance in respect of such operations because of the serious health problems arising therefrom and the loss of amenity and proper use of our properties.’
The plaintiffs went on to detail various earlier administrative decisions and litigation concerning those decisions, all arising out of an application by Island Industries for planning approval in respect of the relocation, erection and enclosure of a crushing plant on portion 49b2, Stockyard Road.
The written submissions of counsel for the plaintiffs, Mr Adrian Cook QC, contain the following statement:
‘The constant objections manifested by the Plaintiffs and other residents result from concerns that and apprehensions as to the deleterious and adverse effects of noisy and dusty rock crushing operations on the health of themselves and their families, their loss of the amenities and enjoyments of their homes and properties and actual damage to and reductions in value of their lands. When sorting and crushing of rock and stone takes place on Portion 49b2 their rights and advantages of the enjoyment of the peace and quiet normally occurring in a Rural Residential area are immediately taken from them. Their concerns and apprehensions are clearly mirrored by and reflected in the very considerable costs and expenses so far incurred by them in all the above proceedings.’
On the basis of these facts, Mr Cook argues that the plaintiffs have legal standing to challenge the validity of the Act and the Minister’s grant of approval to Island Industries.
The submissions lodged on behalf of the defendant, the Administration of Norfolk Island, do not contest the plaintiffs’ claim of standing. That concession was appropriate. On the plaintiffs’ evidence, it is clear they will be affected by the crushing and sorting of rock and stone at Portion 49b2 more adversely than, and in a manner different from, members of the general Norfolk Island community. The plaintiffs have standing to bring this proceeding.
The validity of the Act
The Norfolk Island Act 1979 (Cth) (‘the NI Act’) provides a limited form of self-government for the Territory of Norfolk Island.
Part II of the NI Act provides for the office of Administrator, whose function it is to ‘administer the government of the Territory as a Territory under the authority of the Commonwealth’ (s 5(1)). The Administration is a body politic with perpetual succession (s 5(2)) capable (amongst other things) of being sued (s 5(3)(a)).
Section 6 of the NI Act provides for the Administrator to be appointed by the Governor-General. Sections 8 and 9 respectively make similar provision in relation to any Acting Administrator and the Deputy Administrator. Section 9(2) sets out the circumstances under which the Deputy Administrator is to exercise the powers, and perform the functions, of the Administrator. No point is taken by the plaintiffs arising out of the fact that the Act was assented to by the Deputy Administrator, rather than the Administrator himself or an Acting Administrator. Accordingly, I presume the circumstances identified in s 9(2) applied on 16 November 2004.
Section 7 of the NI Act deals with the manner of exercise of the Administrator’s powers and performance of the Administrator’s functions. It is enough to note that s 7(1)(a) provides that those powers are to be exercised, and those functions performed, ‘in relation to a matter that, in his or her opinion, is a matter specified in Schedule 2 – in accordance with such advice, if any, as is given to him or her by the Executive Council’.
Part III of the NI Act provides for the establishment, membership and operations of the Executive Council.
Part IV of the NI Act concerns legislation affecting the Territory. Division 1 deals with the continuance, amendment and repeal of existing laws and the application of Commonwealth Acts to the Territory. For present purposes, that Division may be ignored.
Division 2 of Part IV concerns the legislative power of the Legislative Assembly, which is constituted under Division V of the NI Act. Section 19(1) of the NI Act provides:
‘Subject to this Act, the Legislative Assembly has power, with the assent of the Administrator or the Governor-General, as the case may be, to make laws for the peace, order and good government of the Territory.’
Subsection (1) is subject to limitations contained in subs (2) of s 19 and clarifications set out in subss (2A) and (3). Those subsections are not presently relevant.
Section 21 of the NI Act relates to assent to laws passed by the Legislative Assembly. The section reads:
‘(1)Every proposed law passed by the Legislative Assembly shall be presented to the Administrator for assent.
(2)Upon the presentation of a proposed law to the Administrator for assent, the Administrator shall, subject to this section, declare:
(a)in the case of a proposed law which, in the opinion of the Administrator, makes provision only for or in relation to matters specified in Schedule 2 or 3 or both:
(i)that he or she assents to the proposed law; or
(ii)that he or she withholds assent to the proposed law; or
(b)in any other case, that he or she reserves the proposed law for the Governor-General’s pleasure.
(3)The Administrator may return the proposed law to the Legislative Assembly with amendments that he or she recommends.
(4)The Legislative Assembly shall consider the amendments recommended by the Administrator and the proposed law, with or without amendments, may be again presented to the Administrator for assent, and subsection (2) applies accordingly.
(5)In the case of a proposed law which, in the opinion of the Administrator, makes provision only for or in relation to matters specified in Schedule 2, the Administrator shall not act under paragraph (2)(a) or subsection (3) except in accordance with the advice of the Executive Council.
(6)In the case of a proposed law which, in the opinion of the Administrator, makes provision only for or in relation to matters specified in Schedule 3 or matters specified in Schedules 2 and 3, the Administrator shall not act under paragraph (2)(a) or subsection (3) except in accordance with the instructions of the Minister.’
It is not necessary to refer to the remaining provisions of Part IV or to Parts V, VI, VII, VIII or IX. However, reference should be made to Schedule 2 of the Act.
As s 21(2) contemplates, that Schedule lists certain matters in relation to which laws may be made. Only two of those matters are argued to be relevant to this case. They are set out in items 19 and 44, as follows:
‘19. Quarrying.
…44. Public works.’
In his written submissions on behalf of the plaintiffs, Mr Cook deals with the meaning of the terms ‘quarrying’ and ‘public works’. The effect of his argument is that, as a matter of law, the Act is not legislation that makes provision only for, or in relation to, either of these matters. Consequently, it was not open to the Deputy Administrator to form the opinion that it did fall within Schedule 2 of the NI Act.
It is not suggested that the Act makes provision in relation to a matter specified in Schedule 3. The effect, therefore, of Mr Cook’s submission, if it is correct, is that the Act is not legislation that falls within para (a) of s 21(2) of the NI Act. On this view of the matter, the Deputy Administrator had no power to assent to the Act; his proper course, when the proposed law came to him for assent, was to reserve it for the Governor-General’s pleasure under para (b) of that subsection.
The noun ‘quarry’ is defined in the Macquarie Dictionary as ‘an excavation or pit, usu. open to the air, from which building stone, slate or the like is obtained by cutting, blasting etc’. The transitive verb is defined as ‘to obtain (stone, etc) from, or as from, a quarry’ and ‘to make a quarry in’. The definitions in the Australian Oxford Dictionary are very similar.
In the Macquarie Dictionary, ‘public works’ is defined as ‘constructions as roads, dams, post offices, etc., out of government funds for public use’. The equivalent definition in the Australian Oxford Dictionary is ‘building operations etc. done by or for the state on behalf of the community’. Having those definitions in mind, I turn to the text of the Act.
As set out at para 3 above, s 3 of the Act sets out two definitions for the purposes of the Act. The first of them, ‘extractive industry’ refers to ‘the quarrying or other extraction’ of (amongst other things) rock and stone. The term also includes ‘the sorting, crushing or other treatment of, or the manufacture of products from such materials’, whether on the quarry site or on adjacent land, or land to which the materials have, with approval, been removed for such purposes.
The only use in the Act of this elaborate definition is in the second definition in s 3 – the definition of ‘extractive material’. That definition refers to ‘material that has been quarried or otherwise extracted from land as part of an extractive industry’. It is, therefore, plain that rock and stone that have been quarried or otherwise extracted from land, in the course of an organised industrial operation, are to be regarded as ‘extractive material’.
The critical provision in the Act is s 4(1). That subsection authorises the executive member to grant ‘approval for a person to sort, crush, or otherwise treat extractive material, or manufacture products therefrom’ at a particular place. The place must not be situated in any one of five specified zones, these presumably being zones established under town planning legislation. However, the place need not be the place where the extractive material was quarried, or otherwise extracted from the earth, or a place adjacent thereto.
It is apparent that the Act was intended to permit the executive member to make lawful something that would otherwise have been unlawful. Perhaps the unlawfulness would have stemmed from the zoning of the place where the proposed activity was to be carried out or from conditions of any consent granted in respect of the proposed activity. Perhaps the unlawfulness would have stemmed from legislation concerning the transport or storage of extractive materials. For present purposes, the perceived problem that the Act attempted to remedy does not matter. What is important is that s 4(1) is concerned with the treatment of already-extracted material, not the obtaining of that material from the earth.
As Schedule 2 of the NI Act lists possible subject matters of legislation, it is appropriate to read each item in the Schedule in a wide and generous way. This is the accepted approach to construing the enumerated powers of the Commonwealth set out in s 51 of the Constitution of the Commonwealth of Australia. Consequently, I would regard the term ‘quarrying’ as extending to activities incidental to actual extraction of rock and stone, such as on-site storage and treatment (including crushing and sorting) of materials extracted at that same place. The term probably also includes the making of rules regarding sales at the quarry and removal of extracted material from the quarry site. Although these incidental activities have their own importance, it is reasonable to regard them as activities subsidiary to the dominant use of the quarry site – the extraction of rock and stone from the earth. Consequently, if performed on-site, those activities can fairly be regarded as quarrying.
However, it seems to me impossible to read ‘quarrying’ so broadly as to cover legalising the treatment of the extracted material at another site, remote from the quarry itself. Treatment at such a site is a separate activity. What was incidental at the quarry site is now the sole or dominant activity.
Although the present problem occurs in a different context, planning law provides a useful analogy. Take the case of land zoned ‘Industrial’ in which ‘commercial premises’ and ‘residential flat buildings’ are prohibited. Notwithstanding that fact, it will be lawful for a factory owner to construct offices that are to be used for the purpose of administering the operations of a factory erected on the land and, perhaps, to erect residential flats for the use of factory employees. Those uses will be regarded as incidental to the dominant industrial use. Yet the same activities, if conducted elsewhere and free from the dominant site use, would be classified respectively as uses for commercial premises and a residential flat building.
No doubt the Legislative Assembly contemplated that some of the material to be treated pursuant to a s 4(1) authorisation would be used on public roads within the Territory, or for other public works. However, that circumstance does not mean the Act can be characterised as legislation in relation to public works. The legislation does not authorise the carrying out of, or provide funds for, any particular public works, or public works in general. It simply authorises an industrial process that might result in the production of materials suitable for public works.
It seems to me, as a matter of law, that the Act cannot properly be described as a law for, or relating to, either item 19 or item 44 in Schedule 2 of the NI Act. It was not open to the Deputy Administrator to conclude otherwise. Items 19 and 44 being the only items relied on by the defendant, it must be held that it was not open to the Deputy Administrator to conclude that the legislation fell within Schedule 2 of the NI Act. It follows that the Deputy Administrator had no power to assent to the Act. His assent being invalid, the Act itself is null and void.
The Minister’s approvals
Having regard to that conclusion, it is not necessary for me to deal with Mr Cook’s other arguments concerning the Minister’s approvals. If the Act itself is null and void, the Minister’s approvals are of no effect, irrespective of the other arguments put by Mr Cook.
Disposition
In a case such as this, it is unnecessary for a court to do more than make declarations of right. It may confidently be expected that any government will act within the law, as so declared. I propose to make declarations as to the invalidity of both the Act and the approvals granted by the Minister on 19 November 2004 in purported reliance on the Act. The defendant must pay the plaintiffs’ costs.
I wish to emphasise that, in making a declaration of invalidity, I am not entering into the long-standing controversy about the merits of rock and stone being crushed and treated on Portion 49b2, in the vicinity of the plaintiffs’ homes. I appreciate there is a need for crushed rock and stone on Norfolk Island, both for public and private use. I also appreciate that the plaintiffs believe that Portion 49b2 is not a suitable place for crushing to be undertaken. They have long complained that crushing at this place causes them an unacceptable degree of loss of amenity. While real, these issues do not arise in the present proceeding. I must decide the present case by reference only to the legal issues raised by the parties. I make no judgment about the desirability or otherwise of the outcome.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. Associate:
Dated: 17 December 2004
Counsel for the Plaintiffs: Mr A Cook QC Solicitor for the Plaintiffs: Mr W Richards Counsel for the Defendant: Mr G Rhead Solicitor for the Defendant: The Administration of Norfolk Island The matter proceeded on the basis of written submissions. Date of Judgment: 17 December 2004
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