Wright v Fairman; ex parte
[1995] QCA 145
•21/04/1995
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 192 of 1994
Brisbane
[Wright v. Fairman]
BETWEEN:
HAYDEN GEORGE WRIGHT
(Complainant)
AND:
REGINALD ALBERT FAIRMAN
(Defendant)
AND:
EX PARTE: HAYDEN GEORGE WRIGHT
(Appellant)
McPherson JA
Pincus JAWhite J
Judgment delivered 21/04/1995
Separate, concurring reasons delivered by Pincus JA and
White J; dissenting reasons delivered by McPherson JA.
APPEAL ALLOWED. IT IS ORDERED THAT:
1. THE ORDER NISI BE MADE ABSOLUTE
2. REMIT TO MAGISTRATE FOR DECISION IN ACCORDANCE WITH THE REASONS OF THE MAJORITY
3. THE RESPONDENT PAY THE APPELLANT'S COSTS OF THE APPEAL TO BE TAXED.
CATCHWORDS: | APPEAL - LOCAL GOVERNMENT - TOWN PLANNING - review of Magistrate's decision - whether respondent had contravened cl. 16 of the Town Planning Scheme by "changing the natural surface levels" - what is meant by "natural surface levels". |
| Counsel: | P Lyons QC and P Bickford for the appellant J Gallagher QC and A Innes for the respondent |
| Solicitors: | King and Co for the appellant Hemming & Hart for the respondent |
Hearing date: 8 March 1995
| IN THE COURT OF APPEAL | [1995] QCA 145 |
| SUPREME COURT OF QUEENSLAND |
Appeal No. 192 of 1994.
Brisbane
| Before | Pincus J.A. McPherson J.A. White J. |
[Wright v. Fairman]
HAYDEN GEORGE WRIGHT
Complainant
v.
REGINALD ALBERT FAIRMAN
Defendant
EX PARTE: HAYDEN GEORGE WRIGHT
Appellant
REASONS FOR JUDGMENT - PINCUS J.A.
Judgment delivered 21/04/1995
I have read the reasons of White J and agree with them. The use of the word
"natural" in the expression "natural surface levels" has, as her Honour's reasons
illustrate, produced some uncertainty. It should be said in defence of the drafter,
however, that the use of more elaborate expressions in an attempt to attain greater
certainty would not necessarily lead to any markedly better result; questions of degree
will inevitably be involved, however the protected surface level is defined. But with all
respect to the magistrate, it appears to me that the circumstances of the present case
compelled a conclusion opposite to that at which his Worship arrived.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 192 of 1994
Brisbane
| Before | McPherson J.A. Pincus J.A. White J. |
[Wright v. Fairman: Ex.Parte Wright]
BETWEEN
HAYDEN GEORGE WRIGHT
AND
REGINALD ALBERT FAIRMAN
Ex Parte: HAYDEN GEORGE WRIGHT
REASONS FOR JUDGMENT - McPHERSON J.A.
Judgment delivered the 21st day of April 1995
The Town Planning Scheme for Redland Shire provides in cl.16(1) of Division 5 of Part IV that "no person shall, without the written approval of the Council, change or cause to be changed the natural surface levels of any allotment ..." except in certain specified circumstances. What was done by Mr Fairman, who is the respondent to this appeal, was to bring fill, in the form of soil, from a site being excavated somewhere else and place it on an area of his land which had been eroded. The result was to restore the eroded area to the level of the surrounding land. Mr Dettori S.M. who heard the complaint against Mr Fairman in the magistrates court at Cleveland, came to the conclusion that there had been no contravention of cl.16(1), and he dismissed the complaint. I am, with respect, persuaded that his reasons and decision were correct, and that this appeal should be dismissed.
The appeal turns on the meaning in cl.16(1) of the expression "change ... the natural surface levels of any allotment ...". By cl.1 of Part I of the Scheme, the word allotment is said to have the meaning assigned to it by s.33 of the Local Government Act 1936-1987. It is defined there, so far as relevant for present purposes, as meaning simply a piece of land. What, therefore, is prohibited by cl.16(1) is changing the natural surface levels of a piece of land.
The prohibition in cl.16(1) is directed to altering "natural" surface levels, and not to any and all changes in the surface levels of land. If it were the latter, Mr Fairman would plainly have been guilty of contravening it when he filled in the eroded area. To reach that conclusion it would not be necessary to substitute the word "existing" for "natural" in cl.16(1). Filling land necessarily involves changing its surface level. Clause 16 is headed "Filling and Drainage"; but if it had been intended to prohibit filling as such, the prohibition could readily have been framed in that way. In Mills v. Caravonica Pty. Ltd. (C.A. 116 of 1992) a by-law of the Mulgrave Shire Council made it an offence to be an owner of any land "on which filling, excavation or removal takes place" in contravention of another by-law which prohibited earthworks from being carried out without the prior permission of the Council. The prohibition in the Redland Town Planning Scheme is not cast in any such form.
To read cl.16(1) as if it proscribed filling or altering surface levels is to disregard the qualifying adjective "natural". It is not just any surface level of land that must not be changed, but only the "natural" surface level. To anyone acquainted with the fate of the common law experiment in Rylands v. Fletcher, using that word in a statutory context would at once appear to be fraught with a potential for endless argument. But "natural" in cl.16(1) is not, I think, intended simply as an antonym for the word "artificial". In the collocation "natural surface levels" the expression "surface levels" can only mean the top of the ground or soil, so that it is to the "natural" top of that ground or soil that cl.16(1) refers. The "natural" surface level means its condition as "existing in or formed by nature", which is one of the meanings given for the it in the Shorter Oxford Dictionary, to which Mr Dettori referred in his reasons. It is the most relevant and obvious meaning to ascribe to it here.
Common parlance sanctions the use of the word in that sense. In both ordinary usage and legal literature we speak freely of the "natural" flow of water (Coulter v. T.M. Bourke Pty. Ltd. [1960] V.R. 16, 18), and a "natural" watercourse (Knezovic v. Shire of Swan-Guildford (1968) 118 C.L.R. 468); or of a natural rise or a natural depression in the ground. I have not found any decided case in which the expression "natural ground level" appears, but it is an expression in common use, and its meaning is sufficiently apparent. It is not used to mean ground that has been reduced in level by erosion.
The problem arises here because the conditions and
levels of the earth's surface are constantly changing.
Sometimes they do so suddenly and dramatically; more often
they change imperceptibly. Surface levels are, as Mr
Faulkner said at the hearing of the complaint, "dynamic".
Some of the changes are the result of only natural forces.
More often they proceed from the combined impact of the
actions of nature, man and beast. That was so in this case.
The subject land has for long been used for running dairy cows. Cattle and other stock have grazed on it and worn paths and depressions in and through the natural vegetation.
Rain and floodwater then drains along those places carrying away the topsoil, cutting channels in the natural surface of the land, and eroding it. Mr Faulkner, who twice inspected the site, said he saw evidence of sheet erosion, rill erosion, and intrusion of saline areas. He is the Co- ordinator of Natural Resources Management with the State Department of Primary Industries. His specialty is soil and land conservation, and from experience in that field he is able to speak of having seen gullies erode to six or 10 metres deep, and 600 metres in length, in only four or five years, depending on the seasons and the gradient of the land in question.
It seems to me that it would be difficult to regard the bed and banks of an erosion gully or channel like that as representing natural surface levels of that land. In time nature heals most of the earth's wounds and reclaims her own. Even sizeable man-made excavations and heaps are eventually integrated into their surroundings. To decide whether they have became part of the natural surface levels is a question of degree, in which visual impression obviously has an important part to play. Mr Faulkner, whose evidence on this aspect was accepted by the magistrate, said that the "natural or original level" of the subject land had been altered by the effects of the erosion he saw and described. He was able to identify pedestals of vegetation, with roots and lignotubers exposed, sitting up 30 or 45 cms above the surrounding area, which indicated that the eroded surface had formerly been at about that height or level.
The magistrate relied on that evidence and on his own inspection of the site in finding that the fill placed by Mr Fairman had simply replaced soil that had been lost to erosion, and that it did not exceed the level of the soil so lost. Adopting that approach, which I think is the correct one, he said he was not satisfied beyond reasonable doubt that Mr Fairman had caused the natural surface levels to be changed.
Any other conclusion would have some surprising results. Digging an irrigation ditch on farm lands in the Shire would plainly be forbidden by cl.16(1). Of more relevance here, it would mean that even some very simple methods of arresting further erosion would contravene the prohibition; for example, placing tree limbs or branches across an erosion gully or channel tends to slow water run- off and to trap silt, soil and other debris, which gradually builds up the level behind and even beyond that point. Using a primitive barrier like that would, if the Council's interpretation of cl.16(1) is correct, involve changing the natural surface levels, or at least causing them to be changed contrary to the legislative prohibition. It would have the consequence that, without written approval from the Council, an owner like Mr Fairman could not, except at the risk of incurring a penalty under the legislation, do anything to restore his land to its former condition or even to prevent it from becoming worse. A construction of a statute that leads to results like that offends against several aids to interpretation. One is the rule that an interpretation should if possible be avoided that would attract a penal consequence; another is that an owner's right to deal in a rational manner with his own property should not lightly be interfered with. Neither of these two presumptions, as they were formerly called, now has anything like the degree of cogency that they once possessed; but, for all that, they are not without force in a case where, like this, the statutory prohibition has been stated in ambiguous terms.
It remains to say something about Shire of Gisborne v. King [1994] 1 V.R. 364, 370. The case was mainly concerned with the respondent's actions, which directly contravened specific legislation, in felling hundreds of indigenous trees and moving some 7000 cu m of earth; but Nathan J. went on to hold that removing overburden and levelling pre- existing mullock heaps, which had resulted from mining in the area in much earlier days, also offended other legislation prohibiting "alteration to the natural conditions or topography" without approval of an application to the relevant authority. His Honour held that the quoted expression meant "that the surface or topography which must not be disturbed is that which immediately pre-dates the making of the application". With great respect, I am unable to accept his Honour's reasoning on this point, which would leave the question to be determined according to the date at which, or immediately before which, the application for approval was made. Here, and as one would expect in most cases in which a prosecution under cl.16(1) was instituted, no application for approval was ever made. The question for the court was and is whether between 21 and 22 September 1993, which are the dates averred in the complaint, Mr Fairman caused the natural surface level of identified allotments of land specified to be changed. In my opinion he did not. Speculation about what the natural surface levels might have been before European or even Aboriginal settlement of Australia seems to me, with respect, to be unnecessary and irrelevant.
I would discharge the order nisi with costs.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 192 of 1994
Brisbane
[Wright v. Fairman]
Before McPherson JA
Pincus JA
White J
BETWEEN:
HAYDEN GEORGE WRIGHT
(Complainant)
AND:
REGINALD ALBERT FAIRMAN
(Defendant)
AND:
EX PARTE: HAYDEN GEORGE WRIGHT
(Appellant)
JUDGMENT - WHITE J
Judgment delivered 21/04/1995
The respondent was prosecuted in the Magistrates Court at Cleveland for contravention of cl. 16 of Division 5 of Part IV of the Town Planning Scheme for the Shire of Redland in that he "changed the natural surface levels" of his land by introducing fill into certain eroded areas. The complaint was dismissed and the complainant obtained an order nisi to review the Magistrate's decision. The respondent is the owner of two-thirds of the property known as "Fernbourne", the other third of which is owned by his brother. He and his father and brother purchased the property in 1952 and it was then about 100 acres in extent.
It is now some 90 acres, divided into a number of lots, and bounded to the east by Moreton Bay. At the time when the Fairmans took over "Fernbourne" it was a registered dairy running about 100 milking cows which remained in operation until about 1970. Thereafter the land was used for growing small crops and vegetable gardening and about 30 to 80 cattle were retained. The uncontradicted evidence of the respondent was that stables and sheds used for dairying purposes were established on the property at the time of purchase in 1952 leading to the inference that the land had been used for that purpose for some time prior to 1952.
Evidence accepted by the Magistrate was that the cattle passing daily to and from the dairy facilities, situated on a ridge down to the low lying area constituting Lot 10 on the property compacted the soil. In wet areas this led to the soil becoming boggy and to the complete loss of vegetation. The compaction led to the loss of soil structure and erosion. Open drains had been constructed on Lot 10 which carried rainwater down the ridge and into a creek on the property. The loss of vegetation cover on the ground bounding the drains due to the activities of the cattle caused the drains to break down and the water, particularly from torrential rains, to further erode the land. Since the erosion, some four times per year during spring high tides, salt water from the Bay has inundated part of Lot 10. Mr Jeffrey Faulkner, a land care expert with the Queensland Department of Primary Industries (whose evidence the Magistrate accepted) concluded that some 90 percent of the observable erosion on Lot 10 had occurred through the activities of man namely, running cattle, digging drains and farming cultivation generally and was not naturally occurring erosion. He assessed the depth of erosion as at 30 to 45 centimetres.
Between 21 and 22 September 1993, as a result of a complaint, officers of the Shire observed lorry loads of fill travel to the respondent's property and deposited on Lot 10. The fill remained in several heaps and in due course was levelled off so as to fill the areas of erosion and then enriched and used for the cultivation of small crops. It was not contended that this had the effect of raising the level of the land above the non-eroded surface levels. The respondent had no written approval from the Shire to fill Lot 10.
Clause 16 provides:
"(1) Notwithstanding any other provisions of the scheme or the by-laws, no person shall, without the written approval of the Council, change or cause to be changed, the natural surface levels of any allotment or any group of allotments except -
(a) as a condition of approval to subdivide land or open a new road in accordance with the Subdivision of Land By-laws;
(b) as a condition of a building permit;
(c) pursuant to a consent issued under this scheme for the development or use of the subject land;
(d) for purposes of landscaping the immediate surrounds of an existing or approved building or other structure;
(e) for purposes of storing surface water in connection with the use of land for bona fide rural pursuits.
Provided that an approval pursuant to this subclause to fill an allotment or group of allotments which are subject to flooding at a frequency of more than one (1) in fifty (50) years shall not be granted except where such filling is of a minor nature.
(2) (a) Where the consent of the Council is not required under the scheme for the use of land or the erection or use of a building or other structure for any purpose, the owner, before such use is commenced or plans of the proposed building or other structure are submitted for approval of the Council, shall ascertain the Council's requirements, if any, as to drainage or filling or drainage and filling the subject land to render it fit for such use of land or the erection or use of a building or other structure.
(b) The owner shall comply with all such requirements which shall be deemed to be a condition of approval of the building plan if the erection of a building or other structure as aforesaid is proposed."
It is common ground that the respondent could not avail himself of the exceptions in (1)(a) to (e). The issue on appeal is a narrow one as indeed it was before the learned Magistrate, namely, what is encompassed in the expression "the natural surface levels" of an allotment. The Magistrate held that the surface level of Lot 10 prior to the introduction of soil by the respondent had, as a result of the activity of man and his farm animals, become the subject of erosion and that the surface level at the time that the fill was introduced was not the natural surface level for the purposes of cl. 16(1). He relied upon the meaning of "natural" found in the Shorter Oxford Dictionary as "existing in or formed by nature" to reach this conclusion. The appellant had contended before him that the meaning of "natural surface level" was the "existing" surface level prior to the introduction of the unlawful fill. Mr Faulkner, in response to a question from the Magistrate said that his discipline did not use the expression "natural level" in relation to the surface of the land as it saw "the whole system as being dynamic and changing".
Clause 16 is to be found in Division 5 "Miscellaneous" of Part IV - "Performance Standards" - of the Town Planning Scheme for the Shire of Redland. The appellant submitted that the evident purpose of the clause is to enable regulation by the Council of alterations in the surface levels of land. The exceptions in sub-cl. (1)(a), (b) and (c) are regulated by reference to some other Council approval, whilst (d) permits landscaping of "the immediate surrounds of an existing or approved building" or structure and (e) permits the establishment of a dam where the land is used for bona fide rural pursuits. Subclause (2) is conceded to have no application to the facts of this case. The word "natural" is also found in cl. 4 of Part IV but does not, in my view, assist in construing its meaning in cl. 16(1). That clause is concerned with determining the height of buildings.
The appellant submitted that the purpose sought to be effected by cl. 16 is the regulation of the alteration of surface levels which may affect flood waters. Other purposes might be for the regulation of interference with the flow of surface waters in areas not subject to flooding; ensuring a proper compaction of fill; protection of the environment; and the regulation of activities such as excavation and movement of soil materials. That is not in contest. The appellant argued that these statutory purposes are effectively achieved if the expression "natural surface levels" of land is taken to be a reference to levels immediately prior to the commencement of any act which might alter them. But this approach would lead to results, and not only in marginal or extreme cases, which could hardly have been intended. For example, if a previous owner left a heap of soil on the land the appellant's argument might, if accepted, make it an offence to demolish and remove the heap, restoring what would ordinarily be called the natural surface level. To put the point more generally, reading the word "natural" as if it were "existing" would protect alterations in level, however recent and artificial, and that can hardly have been intended.
The appellant contends that the construction adopted by the Magistrate, namely, the surface levels of the land prior to the impact of the activities of man and his animals upon the land leads to uncertainty and difficulty. On appeal the respondent did not submit that the provision is inapplicable unless the surface level is shown to be that which would have existed if there had been no human activities in the area (e.g. clearing, cultivation, grazing). Mr Gallagher QC recognised that such a construction would be strained and the word "natural" in the expression "natural surface level" would not in its ordinary meaning require one to attempt to ascertain what state eroded land would have been in if people had never come to the area. The respondent's argument tended rather to focus on the facts of this particular case and seemed to be that if there were relatively rapid erosion substantially accelerated by farming and/or grazing activities, the resultant surface would not be "natural". The second approach advanced by the appellant focuses on the cause of the surface levels being where they were prior to the impinged conduct, that is, where surface levels occur as a result of erosion of soil brought about by the forces of nature operating upon the results of the activity of man and his animals, those surface levels are "natural".
A number of dictionary meanings of "natural" were placed before the Court which lend support to a rejection of the appellant's first argument that "natural" should be construed as meaning "existing" before the change. The Shorter Oxford Dictionary (Vol. 2) includes the following:
"1...
2 Constituted by nature ..
3 Taking place or operating in accordance with
the ordinary course of nature ...
...
6 Existing in, or formed by nature; notartificial 1568 ... "
The Macquarie Encyclopaedic Dictionary defines "natural" as:
"... 1 existing in or from by nature; not
artificial ...
2 based on the state of things in nature;
constituted by nature ...
3 of pertaining to or pertaining to nature or the
created universe ...
...
5 in a state of nature; uncultivated, as land.
6 growing spontaneously, as vegetation."
Notwithstanding these definitions the meaning will vary
according to the context in which it is found, Council of
the Shire of Flinders v. Smiles (1970) Qd.R. 364 at 369A.
The expression "natural" when employed to describe a
characteristic of land has been the subject of little
judicial consideration. The defendant in Shire of Gisborne
v. King [1994] 1 V.R. 364 felled hundreds of indigenous
trees and massively rearranged the topography of his land
without obtaining the requisite permit. The land was
subject to the State Planning and Environment Act 1987 and
to a local scheme. The appeal concerned a possible
inconsistency between the two which need not be discussed
here, but Nathan J was concerned to give meaning to the
expression "works" in both the State and local schemes which
required a permit "to include any alteration in the natural
conditions or topography of the land". His Honour found
that prior to the defendant's deprecations nothing growing
on the land was pristine or predated European settlement.
He concluded at p.370:
"Does the topography mean the configuration of the land prior to European settlement? And what of the effect or alterations to that natural configuration brought about by mining, or other forms of industry which might have changed the shape of the land? In this case much of the ground surface has been altered by industrial intervention to which I have already referred.
Much of the sub-soil was brought to the surface by shaft goldmining and then stored in mullock heaps, some of which appears to have spread over the ground surface in a form of slurry in the intervening century. Other segments of the land have been cut by deep clefts as a result of slate mining and yet other portions have been altered by tracks presumably constructed and used to extract timber and provide access to the various mines.
The question is of relevance because King contends that he was doing nothing more than either renovating or rehabilitating existing tracks or levelling pre-existing mullock heaps. In one part of the borrow area (ibid) he contended he removed overburden from previous mining activity in order to display the 'natural' surface of the land, that is, that level which pre-dated European intervention. To my mind the term 'alteration to the natural conditions or topography' means that the surface or topography which must not be disturbed is that which immediately pre-dates the making of the application. That is, the configuration of the land, whether disturbed or otherwise as a result of prior European industrial, pastoral or mining activities, but being that which exists at the time an application is made. This conclusion bears the merit of commonsense. There will be many applications to rectify the results of extractive industries or neglect, so as to either restore the land to its pre-European shape or else render it productive in some other way."
The respondent sought to distinguish this case by suggesting that natural need not be read as qualifying "topography" but only "conditions". That would lead to a contradictory result. Nathan J made no reference to "natural" and that is hardly surprising given the facts of the case which dictated a fairly robust approach.
The American Restatement on Torts 2d §840 in comment (a) defines "natural condition of the land" as:
"... a condition that is not in any way the result of human activity. The term comprehends soil which has not been cultivated, graded or otherwise disturbed; water that is on the land wholly through natural causes ... . The term does not comprehend conditions which would not have arisen but for the effect of human activity even though the conditions immediately resulting from such activity were harmless in themselves and the harmful condition has arisen through the subsequent operation of natural forces."
Similarly with §363. They do not assist in the present case because the commentator was referring to the circumstances in which a possessor of land has a duty to abate a harmful natural condition.
Of some assistance, because the background facts encompassed some activity of man operating upon nature, is a case in the District Court of Alberta, Williams v. Mountainview Irrigation District [1938] 2 WWR 408. The Court was called upon to interpret the expression "natural level of the lake" in a contract between the predecessor in title of the plaintiff and the defendant. The plaintiff by licence was entitled to trap musk rats on lands covered by a lake within the defendant's jurisdiction. As an interim measure the defendant when completing a canal used in connection with an irrigation project used the subject lake as part of the system. The plaintiff's predecessor in title had agreed that the running of irrigation waters through the lake could occur so long as they did not interfere with the natural level of the lake. Some years later, the defendant having overlooked these arrangements raised the level of the lake by use of a head gate by some 18 inches in order to provide domestic water to farmers in the district. In the result the houses built for winter quarters on the lake by the musk rats were flooded which caused financial loss to the plaintiff. Jackson DCJ finding in favour of the plaintiff concluded at p. 411:
"The natural level is, I take it, the natural level that may exist from time to time according to natural conditions, having due regard to the use of the lake as a canal for the irrigation ditch."
The answer here, it seems to me, is neither that contended for by the appellant nor by the respondent but somewhere in between, that is, it is a question of degree. As I have suggested, the reference to "natural surface levels" cannot mean the levels of the land immediately prior to the impinged activity. That would bear absolutely no reference to any accepted meaning of "natural". Neither can it mean prior to the advent of man and his activities, particularly in a mixed rural/urban area as constitutes the Redland Shire, for that would lead in many instances to the need for extensive and often fruitless investigation and does not seem to reflect what was the intended effect of the provision. If the subject land has been put to lawful use and, as a consequence of that use together with the operation of the elements of nature over a period of time, the surface levels of the land change then those resulting levels would ordinarily be described as natural surface levels. Where a more immediate change in the surface levels occurs by erosion or accretion due to human activity, as, for example, where a newly erected retaining wall diverts surface rainwater which causes heavy erosion, the result could not be described as the natural surface level. If an extraordinary torrential rainfall causes excavations in the soil and a consequential building up of silt it would not, in terms of the legislation, be appropriate to describe those new levels as "natural" on the day following so as to preclude a land owner from filling or removing soil without a permit even though the forces that brought about the event were entirely natural.
Here the evidence indicates that the erosion brought about as a consequence of the dairy and farming activities combined with the natural elements has occurred at least over the past ten years and has been established for some years.
The choice of the word "natural" is not of assistance in advancing the agreed legislative purpose and leads to uncertainty for land owners as to what they may legitimately do with the surface levels of their allotments. Notwithstanding that the clause is penal in its effect and thus should be construed favourably to a defendant where there is ambiguity, this probably means no more in this case than that the appellant must justify an interpretation derogating from the respondent's entitlement to deal with his land.
I have concluded, not without some reluctance, that the conduct of the respondent in introducing fill onto Lot 10 effected a change to the natural surface levels of land. Accordingly, the order nisi ought to be made absolute and the matter returned to the Magistrate to be considered in the light of these reasons. The respondent must pay the appellant's costs of the appeal to be taxed.
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