Young v Callan
[2004] TASSC 100
•10 September 2004
[2004] TASSC 100
CITATION: Young v Callan[2004] TASSC 100
PARTIES: YOUNG, Russell
v
CALLAN, Francis
CALLAN, Catherine
SORELL COUNCIL (THE)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 113/2003
DELIVERED ON: 10 September 2004
DELIVERED AT: Hobart
HEARING DATES: 11 August 2004
JUDGMENT OF: Evans J
CATCHWORDS:
Administrative Law – Appeals from administrative authorities – Statutory appeals from administrative authorities to courts - Resource Management and Planning Appeal Tribunal (Tas) – Duty to give reasons – Adequate reasons.
Land Use Planning and Approvals Act 1993 (Tas), s64.
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, referred to.
Aust Dig Administrative Law [110]
Administrative Law – Appeals from administrative authorities – Statutory appeals from administrative authorities to courts – In general – Construction of statutory meaning of "incidental works".
Land Use Planning and Approvals Act 1993 (Tas), s64.
Sorell Planning Scheme 1993
Aust Dig Administrative Law [109]
REPRESENTATION:
Counsel:
Appellant: T J Williams
First Respondents: D R Armstrong
Second Respondent: S B McElwaine
Solicitors:
Appellant: Gunson Williams
First Respondents: Don Armstrong
Second Respondent: S B McElwaine
Judgment Number: [2004] TASSC 100
Number of Paragraphs: 15
Serial No 100/2004
File No LCA 113/2003
RUSSELL YOUNG v FRANCIS CALLAN
and CATHERINE CALLAN, THE SORELL COUNCIL
REASONS FOR JUDGMENT EVANS J
10 September 2004
The appellant appeals against a decision of the Resource Management and Planning Appeal Tribunal ("the Tribunal") dismissing his application pursuant to the Land Use Planning and Approvals Act 1993 ("the Act"), s64, for an order restraining the erection of bird netting over an orchard on property of the first respondents that adjoins the appellant's property. The netting was to be draped over a framework comprised of poles (6 metres in height placed at 20 metre intervals), wires and stays. Many of the poles, wires and stays had been in place for approximately 2 years. Netting had been installed over a portion of the orchard remote from the applicant's property. The respondents had indicated an intention to complete the installation of the netting up to a position a few metres from the boundary they shared with the appellant. For the purposes of the Tribunal’s decision it was assumed that further poles had been put in place within the last few months. This assumption was made in order to avoid the time limit contained in the Act, s64(16).
The issue before the Tribunal was whether it was necessary for the respondents to obtain a planning approval permit pursuant to the Sorell Planning Scheme 1993 ("the Scheme") in order to carry out their activities. The respondents had no such permit. As to the need for such permit, the following clauses of the Scheme relevantly provide:
"2.1.1 No person shall:
(a)erect, re-erect, alter, extend or demolish any building or works;
(b)allow, permit or suffer any building or works to remain erected, re-erected, altered, extended or demolished;
(c)change the use of or extend the use of any premises;
(d)change the use of or allow, permit or suffer any premises to be continued to be used; or
(e)do any other act of development or allow, permit or suffer the result of any such act of development to remain or continue on any premises
except pursuant to and in compliance with the provisions of this Scheme and the terms and conditions of a planning approval if required granted in respect of it."
"2.4.1.A use or development for a use of land in a zone where that use is depicted in the Table of Uses by the letter 'P' shall not be undertaken without the application for and issue of a planning approval, which Council shall grant with or without conditions, provided that use or development complies with all relevant use or development standards without invoking the provisions of Clause 2.5.1(b)."
"2.14.1 A planning approval shall not be required for the following developments:
(a)the erection of or external alteration to any building or works, where a building permit under the Building Regulations would not be required, except where the provisions of Clause 2.15 apply;
(b)an internal alteration of any building irrespective of whether a building approval is required;
…
(e)incidental works associated with agricultural and forestry activities including fencing, irrigation, and drainage works, harvesting and planting."
Under the provisions of the Scheme, the first respondents' property is in the rural zone and in that zone "agriculture" is a "P" permitted use. The Scheme further provides:
"S1.2.1 In this Scheme, unless inconsistent with context or subject matter:
Agriculture
means any land used for commercial farming operations, but does not include the processing of the produce of such operations other than the handling or packing, nor the retailing of produce whether produced on the site or elsewhere, and does not include Intensive Animal Husbandry, Forestry, Aquaculture, Garden Centre or other farming or forestry operations defined elsewhere in this Schedule."
The Tribunal held that the respondents' orchard operations came within the term "agriculture". That finding is correct and has not been challenged.
On behalf of the first respondents, it was submitted to the Tribunal that they did not need a permit for their activities as they were "incidental works associated with agricultural … activities" for the purposes of the exemption provided by cl 2.14.1(e). Counsel for the appellant, the applicant before the Tribunal, submitted otherwise to the Tribunal, and to that end relied on the following definitions given to "works" and "development".
The Scheme, cl 1.5.4 provides that:
"1.5.4 In this Scheme, unless inconsistent with context or subject matter:
Development
means as defined in the Land Use Planning and Approvals Act 1993
…
Works
means any change to the natural or existing condition or topography of the land including:-
(a)the removal, destruction or lopping of trees, and the removal of vegetation or topsoil;
(b)the construction of a road and access to a road;
(c)lighting, power, heating, water, telephone or similar utility service or supply;
(d)a drainage or sewerage system or other similar installation;
(e)construction such as dam, weir, canal; and
(f)infilling or drainage of wetland."
The Act, s3(1), relevantly provides: "In this Act, unless the contrary intention appears 'development' includes:
(a)the construction, exterior alteration or exterior decoration of a building; and
(b)the demolition or removal of a building or works; and
(c)the construction or carrying out of works; and
(d)…
(e)the placing or relocation of a building or works on land; and
(f)the construction or putting up for display of signs or hoardings."
In dealing with the submission that the respondents' activities were not incidental works associated with agricultural activities, the Tribunal said :
"11It was contended on behalf of the applicant that the definitions of 'works' in Clause 1.5.4 of the Scheme could not contemplate the construction of a building, and that the structure comprising the poles and netting was a building. Reference was made to Section 3 of the Land Use Planning and Approvals Act 1993 where the definition of 'development' distinguishes between the construction of a building, and works.
12Whether or not the poles and netting fall within the definition of a 'building', the Tribunal considers that they clearly fall within Clause 2.14.1(e), 'Incidental works associated with agricultural and forestry activities including fencing, irrigation, and drainage works, harvesting and planting.'
13The Tribunal finds that the poles, stays and netting the subject of the application are 'incidental works associated with agricultural … activities …' within the meaning of Clause 2.14.1(e) of the Planning Scheme. The works being, within clause 2.14.1(e) of the planning scheme, exempt from a requirement for a permit, the appellant has not demonstrated any contravention of the planning scheme. "
Adopting the definition the Scheme gives to "works", I am unable to see how the respondents' activities could be other than a "change to the natural or existing condition or topography of the land". This view is reinforced by the inclusive meaning given to "works" by par(b) of the definition which refers to any change including "lighting, power, heating, water, telephone or similar utility service or supply". Commonly poles similar to those being installed by the respondents are installed when lighting and power or telephone services are provided. It seems clear that the respondents' activities are "works" within the meaning of that term as used in the Scheme. In considering whether the activities are "incidental works associated with agricultural … activities" for the purposes of cl 2.14.1(e), I adopt the first meaning ascribed to "incidental" by the Shorter Oxford English Dictionary: "Occurring or liable to occur in fortuitous or subordinate conjunction with something else". In the absence of any contrary indication in the Scheme, there is no basis for concluding otherwise than that the installation of netting over the respondents' orchard is subordinate to and associated with their predominant activity, that is, orchard operations.
However, the appellant, by his first ground of appeal, contends that the Tribunal erred in law in determining that the respondents' activities fell within the exemption contained in cl 2.14.1(e). Counsel for the appellant submits that the respondents' activities amounted to the construction of a building and that in the context of the Scheme the word "works" should not be construed as extending to the construction of a building. He relies on the definition given to the word "building" in the Act, s3(1), which includes "a structure" and refers to authorities that provide some support for a finding that the framework and netting being installed by the respondents are a structure. See South Wales Aluminium Co Ltd v Assessment Committee for the Neath Assessment Area [1943] 2 All ER 587 at 592, Cardiff Rating Authority and Cardiff Assessment Committee v Guest Keen Baldwin's Iron and Steel Co Ltd [1949] 1 KB 387 at 396 and a Canadian case, Simplot Chemical Company v City of Brandon (1979) 10 MPLR 169 at 172 – 173.
Counsel for the appellant points out that the definition of "development" for the purposes of the Scheme includes two references to "a building or works" collectively, one reference to "a building" solely and one reference to "works" solely. On this basis, counsel submits that the term "works" in cl 2.14.1(e) should not be construed as encompassing a building. Ordinarily the terms "works" and "a building" do not have meanings that are mutually exclusive and some activities or outcomes may properly be characterised as coming within either or both of these terms. To construe either of these terms on the basis that it did not extend to an activity or outcome encompassed by the other would be artificial and would fetter its use in the Scheme. Such a course would only be justified if clearly indicated. If intended it would have been simple to have so indicated by the inclusion of a statement to that effect in the definition of "works" or elsewhere in the Scheme. In the absence of such an indication, there are no grounds for construing "works" in the confined and artificial way contended for by counsel for the appellant.
I should say that I have dealt with this aspect of the appeal on the basis that it involves an assertion that the Tribunal misconstrued the phrase "incidental works associated with agricultural … activities"; which would be an error of law. I am satisfied that the Tribunal did not misconstrue that phrase and that the facts of the case fall within it. There is accordingly no occasion for me to visit the question of whether an erroneous finding by the Tribunal that the facts of the case fell within the phrase was open to appeal as an error of law.
The first ground of appeal is rejected.
The appellant's further ground of appeal is that the Tribunal failed to provide any, or any adequate, reasons for its conclusion that the respondents' activities were covered by the exemption contained in cl 2.14.1(e). In pars11, 12 and 13 of its decision (see par8 above), the Tribunal encapsulated the argument advanced by counsel for the applicant before it (the appellant before this Court) in support of his argument and rejected it for the brief reasons there stated. Nothing more needed to be said. Not infrequently, an adjudicator's accurate formulation of an argument that has been advanced exposes the reasons for its rejection. It should be borne in mind that in this context the primary reason for the obligation to provide reasons for a decision is the need to enable an appellate court to determine whether the decision was based on error, Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430 at 441. Where, as here, the issue is whether the facts of the case fall within the meaning of a phrase, the briefest of reasons are often sufficient to enable an appellate court to fulfil its functions.
The appeal is dismissed.
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