Re: Timberworld Pty Ltd

[1991] TASSC 134

Serial No B20/1991
List "B"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Re: Timberworld Pty Ltd [1991] TASSC 134; B20/1991

PARTIES:  Re: Timberworld Pty Ltd

FILE NO/S:  M18/1991
DELIVERED ON:  Cox J
JUDGMENT OF:  15 May 1991

Judgment Number:  B20/1991
Number of paragraphs:  16

Serial No B20/1991
List "B"
File No M18/1991

RE: TIMBERWORLD PTY LTD

REASONS FOR JUDGMENT  COX J

15 May 1991

1. The applicant seeks an order nisi calling upon the Planning Appeals Board and all other persons interested to show cause why a writ of certiorari should not issue to remove into this court and quash certain determinations made by the Board, the effect of which was to dismiss submissions that an Interim Order made by the Municipality of Deloraine did not apply to the applicant's land or did not apply to a change of use thereof contemplated by the applicant. The applicant also seeks an injunction to restrain the Board from resuming the hearing of an appeal on its merits instituted by the applicant until the outcome of these proceedings is known.

1. On 5 June 1990 the Municipality of Deloraine purported to make an Interim Order pursuant to s734 of the Local Government Act 1962 (the Act). The Order forbade the undertaking of any development of any land to which it applied unless planning approval had been obtained in accordance with the provisions of an Ordinance defined as the Municipality of Deloraine Planning Document No1, 1986 "comprising the whole Ordinance and Plan(s) provisionally approved by the resolution of the Council of the said municipality passed on 19 day of January 1987". The planning area said by the Interim Order to be the area to which it applied, was defined therein as "the lands under the jurisdiction of the Municipality of Deloraine within the area wholly enclosed by a thick black line on the Plan". The Ordinance itself defines the word "plan" in these words "Plan: means the plan(s) annexed to this Ordinance which show by colours and markings the various uses to which the land in that area may be put". The evidence is that when the Ordinance was passed by resolution of Council, no plan was physically annexed to it although plans are held by the Council bearing the seal of the municipality and an attestation clause to the effect that it had been thereto affixed on 19 January 1987 in pursuance of authorisation given at a meeting of the Council held on the same day.

1. The applicant company was desirous of using land owned by its principal director, Mr Booth, for a saw mill and sales of timber. In November 1990 the applicant applied to the Municipality of Deloraine for a dispensation pursuant to the provisions of s734 of the Act to develop and use the land for the purpose of the storage, sale, planing and milling of timber. On 19 November 1990 the Council resolved to grant a dispensation from the interim order in respect of the land and consider the proposal as a discretionary use. On 17 December 1990 the Building Inspector reported to the Council (inter alia):

"An application has been received from Timberworld to operate a timber mill at Main Road Meander. In brief the application seeks approval for the milling, planing, joinery and sale of timber at this site. The development of the site includes the extension of the existing shed and works associated with the above activities. Mr Booth, on behalf of Timberworld Pty Ltd, also has outlined a landscaping layout desired to reduce the visual impact as well as reduce noise associated with the above works. The land is presently zoned village under the Interim Order 190 with a timber mill being a prohibited use. At its last meeting Council agreed to conditionally dispense with the Interim Order and invited Mr Booth to submit a planning application to that effect. … It is recommended that: (1) the proposal not be approved on the basis that the development is not in keeping with the amenity of the area and that the proposal is not consistent with the needs of the local community ...".

Council refused to approve the proposal. The applicant then lodged an appeal to the Planning Appeals Board. Seven of the eight grounds nominated related to what can fairly be described as planning matters (eg the decision was not in accordance with proper Town and Country Planning principles or no weight was given to representations from 76 residents in favour of the development). The eighth ground was that the use of the site was within existing use right.

1. On 26 March 1991 the Planning Appeals Board sat at Deloraine to hear the appeal. Counsel for the applicant then made submissions relating to the jurisdiction of the Board including those now pressed as the basis for the issue of a writ of certiorari. In substance they were: first, that on a proper construction of s734 of the Act no Interim Order can lawfully deal with the use as opposed to development of land; second, that if s734 does permit dealing with the use of land, this particular order does not deal with the change of use; and third, that inasmuch as the original Ordinance did not have a plan or plans annexed to it, the Interim Order could not apply to the applicant's land.

1. The Board overruled these submissions and adjourned the further hearing of the matter until 22 May 1991. The applicant now seeks an order nisi for certiorari to quash these rulings and an injunction to restrain the Board from proceeding with the hearing of the appeal. Assuming that the rulings constitute a "determination" for the purposes of s75(2) of the Supreme Court Civil Procedure Act 1932, I consider that to issue an order nisi let alone an injunction is inappropriate.

1. The applicant's first argument is that an Interim Order made under s734(2) of the Act can only apply to the development of land and cannot apply to the use of land. s734(2) provides that a municipality may make Interim Orders "providing for the regulation, with respect to the matters specified in Schedule 7, of the development of any land in the area to be subject to the scheme, including, in particular and without limiting the generality of the foregoing provisions of this paragraph, the control, management, restriction and prohibition of any aspect of the development of that land that relates to any of those matters". "Development" at the time this Interim Order was made was not defined for the purposes of s734. Within the division dealing with Town and Country Planning Schemes, s733A contained a number of definitions for the purposes of s733A – s733E inclusive. But whether by drafting oversight or deliberate legislative intent, it was not provided that those definitions should have application for the purposes of s734. By Act No50/1990 definitions including that in respect of "development" now apply for the purposes of all sections within the division but that amendment was not made retrospective. "Development" as defined by s733A prior to Act 501990 and by s721A thereafter, means:

"(a) the carrying out of building, engineering, mining, or other operations in, on, over, or over the land;

(b) the demolition, in whole or in part, of any building or other works on the land;

(c) the making of any material change in the use of the land or any buildings or works thereon; or

(d) the carrying out of any procedure or the doing of any other thing that, by virtue of any provision in a planning scheme or Interim Order, is deemed to be development for the purposes of that planning scheme or Interim Order".

1. By s725 it is provided:

"Every planning scheme prepared pursuant to this Division shall, having regard to the present and to the probable future requirements of the area, make provision for all or such of the matters referred to in Schedule 7 as are relevant to the scheme with all such particularity as the Commissioner may require".

The matters referred to in Schedule 7 include such things as proposals for closing or diverting roads, the density and height of buildings, the provision of recreation grounds, systems of sewage and draining disposal, lighting and water supply, the provision of amenities and "the definition of areas to be used exclusively or principally for specified purposes or classes of purposes".

1. In interpreting s734 as there was at the time no statutory definition of the word development, recourse cannot be had to s733A and the words of the section must be given their ordinary and natural meaning. The verb "to develop" by derivation means to unfold, unroll, or unfurl. It includes to grow into a fuller, higher or maturer condition. Hence development includes a gradual unfolding, a fuller working out of the details of anything; growth from within; a developed or well–grown condition and the developed result or product". (Shorter Oxford English Dictionary). In relation to land this may involve a physical alteration to its surface or contours, the removal of trees and vegetation, the installation of roads or drains, the erection of buildings, its cultivation as a whole or in part and the improvement of such buildings as are already erected thereon. In addition, I see no reason for excluding from the concept of development, a material change in its use particularly, if it is combined with some other improvement in the physical condition of the land or fixtures thereon so as to facilitate a new use to which the land is put. Thus, if residential land with a derelict building upon it is subjected to a change of use and is employed in part as a storage place for raw materials (such as timber) which are then submitted to some process of treatment or manufacture and that process is facilitated by the improvement of the pre–existing buildings, I would have no doubt that the land could properly be said to have been the subject of development. Conversely, if a disused saw mill is without significant or structural alterations, cleaned up and converted to a residence, shop or warehouse, that too could properly be described as the development of the land in question. I derive no assistance from the cases of University of Western Australia v City of Subiaco (1980) 52 LGRA 360 or Ryde Municipal Council v Macquarie University (1979) 35 LGRA 267 where there are some observations on the distinction between "development" as defined in the relevant statutes there being considered and "use".

1. The latter part of s734(2) contemplates that each one of the matters listed in Schedule 7 (including notably the definition of areas to be used exclusively or principally for particular purposes) could have a relationship with some aspect of the development of the land. This to my mind suggests that Parliament recognised that development was not confined to purely physical alterations but could include alterations in use which might need regulating in an Interim Order.

1. The evidence before the Planning Appeal Board is not yet complete but among that already placed before it is evidence to the effect that the site was used as a saw mill until its operation ceased in 1980. The applicant took possession of the site in October 1990. The three sheds on the site were cleaned out and some repaired. A very large hole in one shed, large enough to enable log trucks to be driven in and out of the shed was covered with galvanised iron cladding. The front and rear doors of that shed were repaired as was the roof in several places. An internal toilet in ruinous condition was also repaired and old logs splitting works were removed from the shed. Several large holes in the concrete floor of the largest shed where formerly sawdust ducting equipment was located, were filled in. Electricity has been connected by the applicant to the largest shed. A number of trees have been planted along the boundary of the land and the boundary and internal fencing has been repaired. Counsel for the applicant concedes that the use of the property has been materially altered. The development application submitted by the applicant to the municipality also proposed an extension to the existing large shed, demolition of an addition to that shed and its replacement with a more aesthetic extension. It also proposed a provision of more formal driveways and a customer car–parking area but indicated to the Board that it would not undertake the latter activities until the outcome of the present proceedings before the Board was known.

1. In my opinion there can be no question but that there is ample evidence before the Board which would enable it to conclude that the applicant has undertaken development of the land and has indicated an intention to undertake further development of the land and (subject to the remaining arguments) requires planning approval in relation thereto in accordance with the provisions of the Ordinance. The applicant is seeking to ensure piecemeal determination on questions such as whether the Interim Order can apply to a change of use unrelated to any development by way of physical alteration to the premises. In my opinion it is totally inappropriate to issue an order nisi for certiorari on such a basis particularly when it is the applicant itself which seeks to invoke the appellate jurisdiction of the Board.

1. The second argument is that if an Interim Order may validly deal with questions of use, this particular Interim Order does not prohibit a change in use. The relevant clause is 1.3.1 which states:

"No person shall commence or carry out any subdivision within the planning area or any development that requires approval by Council under this Ordinance without first applying for and obtaining approval in accordance with the Act and the provisions of this Ordinance".

Counsel submits that if a change of use is treated as a development a prohibition on commencing or carrying it out cannot as a matter of construction apply to a change of use. A physical development can be commenced and carried out but a change of use cannot be commenced. He argues that a use is not a development until the material change has in fact occurred and that the Interim Order cannot prohibit the "carrying out" of a change of use as opposed to a "carrying on" of a change of use because carrying out involves an accomplishment or completion and that cannot occur until the changed use is terminated. In my view this argument is glib. The order, if it is incapable as a matter of construction of prohibiting the commencement of development which takes the form of a change of use, is certainly capable of prohibiting the carrying out of a change of use. The change of use is carried out not when the new use ceases to exist but when the land ceases to be used for its former purpose and that is replaced by the new use to which it is put. It is the accomplishment of this change which brings about the circumstance that the development is carried out. In my view there is neither merit or substance in this argument.

1. The last argument is that because the plan to which reference is made in the Interim Order was never physically annexed to the Ordinance, the latter document could have no practical operation. Its requirements and prohibitions relate to land in a non–existent plan for there is no "plan annexed to this Ordinance". It is not disputed that there is a plan which I infer has sufficient topographical features to identify it as land within the Municipality of Deloraine (and if that inference is not correct there is certainly no evidence that it does not contain such means of identification). There is further evidence that there are no other plans of the Municipality of Deloraine dealing with the zoning of lands within the municipality apart from three plans tendered to the Board which bear the inscription "Municipality of Deloraine Planning Document No1/1986" and the attestation mentioned earlier namely, that the seal of the Corporation was thereto affixed on 19 January 1987 in pursuance of authorisation given at a meeting of the Council held on the same day. The Ordinance itself has an identical attestation.

1. The only reasonable inference to be drawn from the evidence is that the plans thus inscribed were approved and executed by the Council as if they were part and parcel of the Planning Scheme then under consideration by the Council. They accompanied the Ordinance and were intended to be read in conjunction with the Ordinance. While the ordinary meaning of the word "annex", is to physically bind or join them together with a staple, cord, pin or other device, in the context of a planning scheme, it is capable of meaning that the documents are taken together and treated as if they were so physically joined as to be treated as one entity. Thus countries having no physical contiguity of boundaries may be annexed. To read the word figuratively rather than literally is not to do violence to the language used. On the other hand a literal interpretation would make the entire scheme totally inoperative and meaningless.

1. In my opinion none of the grounds advanced to support the grant of certiorari is tenable and to adopt the course of issuing an order nisi inviting further argument and issuing an injunction to restrain the Board from proceeding further is quite unwarranted.

1. The application is refused.