Wain v Maroondah City Council
[2000] VSC 540
•18 December 2000
| SUPREME COURT OF VICTORIA | |
| COMMON LAW DIVISION | Not Restricted |
No.4810 of 2000
| GRANT ARTHUR WAIN & ANOR | Plaintiff |
| v | |
| MAROONDAH CITY COUNCIL | Defendant |
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JUDGE: | Smith, J. | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 & 5 December 2000 | |
DATE OF JUDGMENT: | 18 December 2000 | |
CASE MAY BE CITED AS: | Wain & Anor v Maroondah City Council | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 540 | |
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Town planning – inconsistency between planning scheme of local law – application of covering field test.
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APPEARANCES: | Counsel | Solicitors |
For the Plaintiff | Mr. J. H. Gobbo Q.C. & | Best Hooper |
| For the Defendant | Mr. G. Garde Q.C. & Mr. N. T. Tweedie | Maddock Lonie & Chisholm |
HIS HONOUR:
The proceedings
The plaintiffs have brought proceedings by way of originating motion seeking the following declarations:
(a)that cl. 23 of the Maroondah City Council Environment Local Law Number 1 ("The local law"), gazetted in the Victoria Government Gazette Number S120 on 14 December 1995, is ultra vires, unlawful and ought to be quashed for illegality on the ground that it breached s. 111(4) of the Local Government Act 1989 ("The Act") in that it was inconsistent with the former Maroondah Planning Scheme ("the Former Maroondah Planning Scheme") and
(b)alternatively, that cl. 23 of the local law is ultra vires, unlawful and ought to be quashed for illegality on the ground that it breached s. 111(4) of the Act in that it duplicated the former planning scheme.
Counsel for the defendant drew my attention to possible procedural irregularities in the proceeding and indicated that their client waived any objections that might have been based on them.
Background
The plaintiffs have been charged with breach of cl. 23 of the local law. It is alleged against them that in July and August 1999 they removed trees defined as canopy trees under the local law from land in an area subject to the local law without a permit.
The land in question is situated at 3-5 and 7-9 Bonnieview Road, Croydon in the City of Maroondah. At the relevant time there was operating a planning scheme described as the Maroondah Planning Scheme which operated over the City of Maroondah and thus was applicable to the land in question.
The issues
The plaintiffs argue that cl. 23 of the local law is either inconsistent or duplicates provisions in the planning scheme and therefore contravenes s. 111(4) of the Local Government Act and is invalid.
Relevant provisions – The Act
Section 111 of the Local Government Act 1989 provides as follows
111.How to make local laws
(1)A Council may make local laws for or with respect to any act, matter or thing in respect of which the Council has a functional power under this or any other Act.
(2)A local law must not be inconsistent with any Act or regulation.
(3)A local law is inoperative to the extent that it is inconsistent with any Act or Regulation.
(4)If a planning scheme is in force in a municipal district of a Council, the Council must not make a local law which duplicates or is inconsistent with the planning scheme.
Relevant provisions - The Planning Scheme
Turning to the planning scheme it is common ground that there was a planning scheme operating in the municipality of Maroondah at the relevant time. It was common ground that the procedure by which such a planning scheme came into existence and effect was that the council approved the scheme and then submitted it to the Minister for approval. The scheme would be tabled in the Parliament which had the power to disallow the scheme.
It was common ground that there were three parts to the planning scheme of relevance; the State Section and, in the Local Section, the Croydon Landscape Protection Area and "Notable Trees".
The State Section comprised provisions required to be included in planning schemes throughout the State. The relevant clause was 7-4 which provided as follows:
"7-4Native vegetation control
Note: The regional section or the local section may have controls over the removal, destruction or lopping of native vegetation and these also must be complied with.
The following requirement does not apply if the regional section or the local section includes a statement that the State section controls over the removal, destruction or lopping of native vegetation do no apply to specific land.
7-4.1 Permit required
A permit is required to remove, destroy or lop native vegetation."
The scheme then provided that the permit requirement did not apply in various circumstances including the following:
"Site area
*To land which, together with all contiguous land in one ownership, has an area of less than 0.4ha."
There were then exceptions for dead vegetation, emergency work, fire fighting measures, fuel reduction, making fire breaks, compliance with fire prevention notices under various specified Acts or for the maintenance of assets under s. 66 of the State Electricity Commission Act 1958. There was also an exception for native vegetation planted for timber production and a further exception for licensed extractive industry and other provisions. The State section of the scheme also set out guidelines to be considered in determining whether to grant a permit.
The next relevant section of the Maroondah Planning Scheme was the Local Section. It designated an area of land, being the area marked 78LPA on the Planning Scheme map. While the area was large it was only part of the municipality. It was described as the Croydon Landscape Protection Area. The purposes of the designated area were described in cl. 126 as follows:
"*To conserve the existing pattern of vegetation, landscape quality and ecosystems within the area and encourage the regeneration of vegetation.
*To maintain a dense vegetation canopy that contributes to the environmental significance of the area.
*To control or minimise the effect of future development upon natural features particularly significant vegetation and ridge lines.
*To ensure that the development, use and management of land is compatible with existing character and landscape protection of the area.
*To maintain the overall scenic beauty of the municipality."
There were then restrictions set out on buildings and works in the area. Clause 126-2 of the Planning Scheme provided as follows:
"Vegetation Control
Except with a permit, vegetation must not be removed, destroyed or lopped. "
It went on to provide that this requirement did not apply in various circumstances including where what was involved was a tree having a single trunk circumference of less than 0.5 metres or a diameter of 16 centimetres at a height of 1 metre above the ground and less than 5 metres in height. The other exceptions set out included an exception that applied to various listed native and other plants which were presumably regarded as weeds in that area. There was also a note as follows:
"Note: Native vegetation controls of the State Section of the Planning Scheme also apply to the area covered by this clause."
Turning to the "Notable trees" section of the local section of the planning scheme (cl. 129), the purpose of that part of the scheme was described as follows:
"*To conserve trees of aesthetic, scientific or special cultural value, or historic importance.
*To protect notable trees against any activity which will impair their health, appearance or cultural value."
The relevant clause then went on to list the particular trees in question giving their locations. Clause 129-2 required a permit for inter alia the removal, pruning or alteration of a notable tree other than a tree which is "dead or dying or has become dangerous as declared by a suitably qualified person".
Relevant provisions - the Local Law
Under Local Law Number 1 of the Council, the principal provision in question was cl. 23 which provided as follows:
"23. CANOPY TREES
No person shall remove, destroy or lop a canopy tree from any land shown hatched on the Planning Schedule 6 (hereto)."
The map in the Schedule included the subject land and the land in the Croydon Landscape Protection Area. A canopy tree was defined in the local law as follows:
"Means any tree having a diameter of more than 200 millimetres measured one metre above the ground or a height of more than 15 metres or a branch spread of more than 10 metres."
Clause 23 of the local law provided a number of exceptions including the circumstance that notice to remove vegetation had been given under the Forest Act 1958, the Country Fire Authority Act, of the Local Government Act 1989 on under the Electricity Industry Act 1993. Exceptions also include allowing the pruning of trees for regeneration or shaping, and the removal, destruction or lopping of any tree which was dead or dying or had become dangerous and any tree within three metres of an existing house or building. It also allowed the removal of weeds of the type referred to above. The final exception was as follows:
"(vii)Removal of vegetation by the holder of a planning permit issued under the Planning and Environment Act 1987, or by the holder of a permit issued by the Council which specifically authorises such removal destruction or lopping."
While the issue was for a time in dispute, it is common ground that the local law came into effect after the above planning scheme provisions.
Application of the planning scheme and local law to the subject land
The plaintiffs' land comprises two blocks which each have an area of less than 0.4ha. At the time they were in separate ownership. As a result a permit was not required under the State section of the planning scheme to permit the removal of native trees. Further, the land was not situated within the Croydon Landscape Protection Area and thus was not subject to the controls spelt out in that part of the local section of the Maroondah Planning Scheme. The trees were not "notable trees". Thus, on the facts of the case, the only controls that could apply were those contained in the local law. Because permits were not necessary under the planning scheme, they could not have been applied for and, therefore, the plaintiffs could not approach the matter on the basis that they had permits under the Planning and Environment Act 1987 (Clause 23 (vii) ).
Parties' positions
The Council's position was, and is, that the plaintiffs were obliged to obtain a permit to bring themselves within the cl. 23 exceptions (exception 23 (vii) ) and thus obtain permission to remove canopy trees from the land.
The plaintiffs' argued that the provisions of cl. 23 of the local law were inconsistent with the provisions of the Maroondah Planning Scheme. They argue inconsistency on the basis that, for town planning purposes, the planning scheme is intended to cover the field of the control of vegetation in the Maroondah Municipality. The State section dealt with native vegetation and the local section dealt with all vegetation. The field having been covered, it was put that the local law was inconsistent with the planning scheme in that the local law purported to operate in the same town planning area and served the same town planning purposes. As to features of inconsistency, counsel noted in particular the following:
(a)the fact that a local law permit was required when the planning scheme said that the owner did not need a planning scheme permit
(b)in deciding whether to issue a permit under the local law, the council decided what was to be allowed without reference to detailed criteria whereas there were very specific criteria to be considered in the planning scheme
(c)the applicant for a permit under the local law had no right of statutory appeal as existed for a person applying in respect of a planning scheme permit.
Counsel submitted that the reality is that an applicant was better off under the planning scheme particularly in circumstances where a permit was not required under the planning scheme. Counsel submitted that the planning scheme controlled this particular "field" in two ways – requiring permits for certain activities and exempting other activities from the permit requirement. In essence, counsel submitted that, where an exemption to the vegetation controls was provided in the planning scheme, the owner of the land within such exemption had a right to remove the vegetation. Thus the local law, in requiring a permit, attempted to render unlawful that which was lawful under the planning scheme.
Counsel submitted that, there being an inconsistency, the local law, breached s. 111(4) and was, therefore, invalid. Alternatively, counsel argued that the local law duplicated the scheme.
I have had the benefit of detailed and well argued oral and written submissions dealing with a number of issues. In the circumstances, however, it is not necessary to resolve all the questions raised and I do not propose to do so. The fate of the application ultimately turns on the question whether the planning scheme purports to cover the alleged field.
Does the planning scheme cover the field?
I was referred to various authorities on the question of whether a "covering the field" test of inconsistency as developed in relation to s. 109 of the Australian constitution is applicable to the issues raised in this proceeding. The authorities to which I was referred included Cooper v Boorman 42 LGRA 157 at 159-160; Matthews v City of Prahran [1925] VLR 469, 474-476; Butler v Attorney General (Vic) (1961) 106 CLR 268 per Fulligar, J. at 276; Suat Holdings Pty Ltd v Australian Postal Corporation 86 ALR 532, 546-547; Myer Queenstown Garden Plaza Pty Ltd v City of Port Adelaide (1975) 33 LGRA 70, 110-112 and Lyster v Camberwell City Council (1989) 69 LGRA 250, at 257; Hallion v Eade (1938) VLR 179; Tucker v Dickson (1980) 46 LGRA 262 and on appeal at 351. Counsel put forward arguments as to whether and to what extent and in what way a "covering the field" test could be applied in the present circumstances where the alleged inconsistencies arise between a planning scheme and a local law. In many respects it is a situation more analogous to a conflict between Acts of the same parliament; for the planning scheme and the local law were both developed by the Council. I suggest, however, that the remarks of King, C.J. in Tucker v Dickson (above) at 353 are apposite. In that case, counsel had argued that the inconsistency test used in relation to s. 109 of the Australian Constitution should not be applied in the context of an alleged conflict between planning regulations and by-laws controlling advertisements. His Honour commented
"But some such test cannot be avoided. It is a question of ascertaining the effect of the legislation which is to prevail in case of inconsistencies. If its true meaning and effect is that it is to apply as the sole rule regulating the particular subject matter and to the exclusion of all other rules, then the other rules are necessarily inconsistent with it and must give way."
Proceeding on that basis, the issue is to be determined by asking whether the true meaning and effect of the planning scheme is that it was, by implication, to apply as the sole rule regulating the subject matter with which it deals. If it did, then the failure to address a particular situation in the planning scheme controls had the consequence that a land owner had the right to remove canopy trees under the planning scheme and the local law was inconsistent.
I am not persuaded that it did apply as the sole rule. The first problem is to identify the "field" which is to be exclusively dealt with in the Planning Scheme. Assuming that it can be described simply as vegetation control for town planning purposes, it cannot be said when one reads the relevant provisions of the planning scheme that there is any intention evinced that those provisions should be exclusive. To begin with, large areas of the municipality do not come under the control of the planning scheme. Taking the State section, land of less than 0.4ha is excluded from its operation. As to the Landscape Protection Area, it applies only to the land marked on the plan. It doesn't apply to the rest of the Maroondah municipality and there is no reason to infer that it was intended that that which was not covered was never to be subject to any other controls.
The inference of such an intention is in fact a difficult one to draw when there existed at the same time the power in the Council to make local laws under Local Government Act which could extend to these precise issues. Referring to s. 111(1) of the Local Government Act 1989, it will be noted that it conferred on Council, the power to make local laws for or with respect to any act, matter or thing in respect of which the Council has a function or a power under the Local Government Act or any other Act. Section 8 of the Local Government Act 1989 gave the Council a number of functions including those listed in the first schedule to the Act. They in turn included the following:
"3. Planning and land use including –
(1)building control;
(2)housing and other accommodation
4.Property services including –
(1)water, drainage, sewerage, gas and electricity;
(2)land development scheme;
(3)street maintenance and cleaning;
. . .
7.Any other functions relating to the peace, order and good government of the municipal district including –
(1) – (7)
(8)environment control, protection and conservation;
. . ."
In my view the situation is a classic one of multiple controls. The controls under the Planning Scheme and under the local laws are to be exercised by the Council. If the Planning Scheme applies and permits are obtained no permit is required under the local law (see cl. 23 (vii) ). If, however, the planning scheme does not apply and it is desired to remove canopy trees then a permit must be required under cl. 23(vii) of the local law. The provisions are cumulative. (As to multiple controls see Makucha v Albert Shire Council [No.2] (1993) 81 LGRA 250, 255; South Australia v Tanner and Others (1989) 166 CLR 161, at 170; Associated Minerals Consolidated Ltd v Wyong Shire Council [1975] AC538, at 553).
I reach this conclusion from consideration of the provisions independently of authority dealing with the issue of inconsistency relevant to circumstances of this kind. The conclusion is strengthened by consideration of that authority. Gummow, J. in Suatu v Australian Postal Corporation (11989) 86 ALR 532, at 547 commented that:
"However, in general, where legislation of the same legislature is under consideration, the courts have tended to eschew the application of any 'covering the field' doctrine derived from Federal Constitutional Law."
His Honour also quoted with approval the passage from the judgement of Fullagar, J. in Butler v Attorney General (Vic) (1961) 106 CLR 268, at 276 where his Honour stated:
"But, where the comparison to be made is between two State Acts, there is a very strong presumption the state legislature did not intend to contradict itself, but intended that both Acts should operate. It will often be found that the two may reasonably and properly be reconciled by reading the one as subject to the other."
The issue was considered by the High Court in South Australia v Tanner (1989) 166 CLR 161(at 168-172). What emerges from the discussion in the majority judgment in that case is that, where each State Act has a distinct purpose different from the other, the pieces of legislation "can stand together and operate cumulatively" and so there is no inconsistency. Their Honours there again cited the above statement of Fullagar, J. I was also referred to the passage from the judgment of Gaudron, J. in Saraswati v R (1991) 172 CLR 1, at 17 cited by Phillips, J.A. in Horvath v Commonwealth Bank of Australia [1999] 1 VR 643 where her Honour said that:
". . . there is a general presumption that the legislature intended that both provisions should operate and that, to the extent that they would otherwise overlap, one should be read as subject to the other (citing Fullager J and Windeyer, J. in Butler's case."
Counsel for the defendant also relied upon the discussion by Wells, J. in Myer Queenstown Garden Plaza Pty Ltd v City of Port Adelaide (1975) 33 LGRA 70, at 111. His Honour in discussing the issue of apparent conflicts between statutory instruments said:
"Case law and test book record many applications of the general presumption that authors of statutory instruments must not be supposed to have intended to contradict themselves: one reads, for example, of the constant efforts made to avoid apparent conflicts within a statute; of the reading down of provisos; of the extreme are reluctance with which implied repeals are held to have occurred: of the frequent invocation of the maxim generalia specialibus non derogant; of the presumption against attributing to the legislature an intention to enact what is unreasonable and inconvenient having regard, inter alia, to other legislation; of the refusal to give a statue a retrospective operation unless an intention to do so clearly appears; of the encouragement given to courts to harmonise provisions in pari materia.
Having regard to this traditional approach to the general body of domestic legislation I should, in my judgment, be in error if I were astute to find inconsistency or repugnancy within the meaning of s. 36 if a not unreasonable construction of two opposing laws can reconcile them."
The reality in the present case was that Council provided planning controls at different levels of detail. Further, there was no practical difficulty in operating what might be called the four levels of control. If a land owner had a canopy tree which he or she wished to remove, prune or lop, and, if it was outside an area in respect of which there were controls spelt out in the planning scheme, that person had to obtain a permit under clause 23 (vii) of the local law. If, however, the tree was one that was subject to the controls under the planning scheme, the land owner had to obtain a permit under the planning scheme. Having done so, it was not necessary for the land owner to seek a permit under the local law; for the local law provided for the recognition of permits given under the planning scheme (cl. 23 (vii) ). If the planning scheme did apply, to have a permit under the local law did not relieve the land owner of the obligation to obtain the necessary permits under the planning scheme. It could not be said, however, that that was inappropriate or reveals any inconsistency as such. The local law was concerned only with canopy trees whereas the planning scheme was concerned with broader planning questions.
Thus the planning scheme was generally given primacy. Section 111(4) itself is a further indication that primacy was to be given to the planning scheme. It deals with the problem of a local law being enacted after a planning scheme. Applying common law principles, the later instrument where inconsistent would impliedly repeal inconsistent portion of the planning scheme. It was, therefore, necessary to include a provision like s.111(4) to ensure primacy in that situation of the planning scheme over the local law if it was desired by the Parliament that planning schemes should be the primary instruments. Where the planning scheme comes into force after the local law, the same common law principle would give primacy to the planning scheme where there was demonstrated to be an inconsistency.
In the discussion, I have assumed that cl. 23(vii), in referring to permits other than planning scheme permits, encompassed a permit given under cl. 23 itself as well as a permit that might be given by the Council under other legislation, relating, for example, to extractive industries, where that permit specifically authorised the removal, destruction or lopping of trees. Counsel for the plaintiffs submitted that on a proper reading of the local law, canopy trees could not be the subject of permits under the local law because the reference to permits in cl.23(vii) was to permits provided from other sources. Counsel referred to the drafting in many of the provisions which expressly provide for a permit exception. For example, in cl. 24, immediately following the relevant clause, it was provided:
"24.1Except with a permit a person must not use a Recreation Vehicle (Permit) on any Council Land unless the land has been designated for that purpose."
There are many such examples in the local law. By and large, however, those provisions are ones where there are no exceptions or qualifications to the embargo set out in the clause other than the exception of a permit. From a drafting point of view it is, therefore, not surprising that such clauses would start with the words "except with a permit". Clause 23, however, lists a series of exceptions the last of which referring to a permit. The words in cl. 23(vii) that are relevant are:
"Removal of vegetation . . . by the holder of a permit issued by the Council which specifically authorises such removal, destruction or lopping."
If a person were to apply for a permit to remove, destroy or lop a canopy tree it is to be expected that that permit would be one that specifically authorised such activity. While the words quoted could extend to permits granted under other legislation or regimes, the words plainly can apply to an application for a permit under the local law itself and I see no reason why it should be limited in the way sought by the plaintiffs. I note that the procedure for the application of permits is set out in cl. 42 of the local law.
Conclusion
For the foregoing reasons I am not persuaded that there is any inconsistency or duplication between the planning scheme and cl. 23 of the local law and accordingly the application must fail.
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