Brambles Australia Ltd v Pine Rivers Shire Council [1996] QSC 67

IN THE SUPREME COURT OF QUEENSLAND 883 of 1995 [Brambles Australia Ltd v. Pine Rivers Shire Council] BETWEEN: BRAMBLES AUSTRALIA LIMITED ACN 000 164 938 Applicant AND: PINE RIVERS SHIRE COUNCIL Respondent JUDGMENT - THOMAS J. Delivered: 26 April 1996 CATCHWORDS: ADMINISTRATIVE LAW - Approval for removal of refuse under s.98A of Health Act granted with conditions - whether in imposing conditions Respondent failed to have regard to a relevant consideration, namely a contractual obligation. CONTRACT LAW - Construction and interpretation - whether applicant should be exempted from the payment of fees. Counsel: Mr P.A. Keane QC with Mr M.E. Rackemann for Applicant Mr C.L. Hughes for Respondent Solicitors: Deacons Graham and James for Applicant Shire Solicitor, Pine Rivers Shire Council for Respondent Hearing Date: 19 April 1996 -- 1 of 6 -- IN THE SUPREME COURT OF QUEENSLAND 883 of 1995 [Brambles Australia Ltd v. Pine Rivers Shire Council] BETWEEN: BRAMBLES AUSTRALIA LIMITED ACN 000 164 938 Applicant AND: PINE RIVERS SHIRE COUNCIL Respondent JUDGMENT - THOMAS J. Delivered 26 April 1996 This is an application by a company ("Brambles") to review a decision by the Council which grants Brambles a licence to remove industrial refuse and commercial waste. The objection is to the Council's inclusion of three conditions which would require Brambles to provide monthly returns of the places from which refuse is removed and the amount and type of refuse, the disposal of same at approved waste-disposal facilities, and the obligation to pay the usual approved fees with respect to refuse deposited at the Council's waste-disposal facilities. It is Brambles' contention that an existing contract between it and the Council (made in 1985) exempts it from the payment of any fees for the disposal of refuse at the Council's tips, and that in imposing conditions contrary to an existing contract the Council failed to have regard to a relevant consideration, namely the contractual obligation. The 1985 contract granted Brambles the right and duty to carry out for the Council refuse- -- 2 of 6 -- 2 collection services including services that provide for the removal of domestic refuse, and certain, though limited, commercial refuse services. In addition Brambles agreed to operate and maintain two council refuse tips. These tips are owned by the Council, but under the contract they are run by Brambles which collects fees from persons using these tips. Prescribed charges are collected with respect to all kinds of refuse (domestic, commercial and industrial). Brambles pays half of the fees to the Council and retains the other half. The operation and maintenance of these tips is Brambles' responsibility, and its direct remuneration is one half of the gross fees that it collects. There are however certain exemptions from charges (clause 3.2.10), and it is this clause upon which Brambles relies for a general exemption from having to pay refuse-tipping charges, whether the refuse relates to the 1985 contract or not. "Charges - The Contractor shall, at its cost, collect any charges (to be set by Council each year, and operative from the 1st July each year after the charges have been set) for the disposal of refuse at the refuse tips and transfer stations. Any charges shall be made on the cubic capacity of refuse disposed or by specific items as determined by Council. No charges shall be applicable to owners or occupiers of single or multiple dwellings located within the Shire who are delivering refuse produced from those premises to any refuse tip, unless the Council so determines. No charges shall be applicable to refuse delivered by vehicles operated by the Council, or by Contractors employed by the Council on Council projects, or by the Contractor. The charges 1st July, 1985 to 30th June, 1986 shall, unless Council otherwise directs, be as follows:- Uncompacted Refuse - $ 4.00 cu.m. Compacted Refuse - $ 6.00 cu.m. . . ." The clause goes on to describe various other charges and to oblige the contractor to remit fifty percent of moneys received to the Council, and to oblige the contractor to maintain signs indicating the charges to be levied and the hours of operation of the tip. The whole exercise must be seen in the context of the statutory regulation of removal of -- 3 of 6 -- 3 refuse under the Health Act 1937. That Act provides extensive governmental control over disposal of waste substances throughout the State, with control being exercised in combination between the Director General of Health and the various local authorities. Section 95 gives a local government the power (and sometimes the duty) to undertake or to contract for the efficient execution of works including the removal of refuse and the disposal thereof. It can undertake such works itself or grant contracts for the carrying out of such works or a combination of both. In general no one can undertake for reward any removal or disposal of refuse without an approval under s.98A, but the making of a contract with a local government avoids the need for special application and approval (s.98A(1)(b)). Contracts aside, a detailed system is prescribed under the Refuse Management Regulations 1983, involving the examination of matters such as relevant equipment, quantity and type of refuse. A degree of interaction between the local government and the Director General of Health is contemplated. The application in question sought approval for the removal of various forms of refuse which were not already covered by the 1985 contract (as extended) and in particular industrial refuse and certain kinds of commercial waste. It is common ground that the approval was granted under s.98A of the Health Act, that it is a decision made under an enactment and that it is one to which the Judicial Review Act 1991 applies. The Council granted the necessary approval but imposed conditions including the payment by Brambles of the usual fees in respect of the dumping of such refuse. The words of clause 3.2.10 relied on by Brambles are the exemption in favour of "refuse delivered by vehicles operated . . . by the contractor". Counsel for Brambles submitted that they should not be read down. The context is however vital. The first specification requiring "no charges" is in respect of refuse delivered by owners or occupiers of dwellings, which is a general exemption from charges for domestic refuse. The scheme would seem to be that the Council -- 4 of 6 -- 4 provides its ratepayers with a service (through Brambles) of removing refuse which those persons place in the domestic refuse container at the premises at periodic intervals, and to provide a supplementary opportunity (again with the assistance of Brambles managing the tips) for those persons to take additional refuse to the tips themselves. In the latter instance, the contract ensures that such persons may do so without further charge, unless the Council so determines. The clause then goes on to specify "no charges" for refuse delivered by Council-operated vehicles or by contractors employed by the Council on Council projects or by the contractor. The exemption appears in the context of exemption from charges for the tipping of refuse in which the Council has a direct or contractual interest. The term "refuse" is used throughout the contract with a shifting connotation. Sometimes the reference is perfectly general, and on others it refers only to refuse contemplated as being removed under the contract. Thus clauses 3.1.01, 3.1.02, 3.1.03 and 3.1.05 plainly contemplate the refuse that the contractor will be depositing pursuant to the contract. Clause 3.1.04 deals specifically with refuse collected from outside the relevant area, over which the Council obviously has no initial control, and it provides that such refuse is not to be deposited at any refuse tip in the area. That is a specific reference to another category of refuse. Clause 3.2 then deals with the question of operation and maintenance of refuse tips. I do not think that the wider connotation given to "refuse" in clause 3.1.04 and the fact that the initial part of clause 3.2.10 deals with refuse that will be deposited by others changes the general context of reference to activities that the contractor will be performing under the contract. The cleansing contract only deals with certain specific types of refuse (i.e. domestic refuse and some commercial refuse, essentially that in containers of less than four cubic metre capacity). It relieved the applicant of the need to obtain approval from the Council under s.98A with respect only to refuse of those kinds. Beyond the purview of the cleansing contract Brambles was in the same situation as any other citizen or -- 5 of 6 -- 5 contractor. Arguably it was within the Council's power to confer an exemption from fees with respect to all other kinds of refuse no matter how large the applicant's business might become in those respects. But such a virtually open-ended exemption would be somewhat surprising, especially in a ten year contract, and is not lightly to be imputed. Counsel for the Council submitted that the grant of exemption from fees with respect to activity in respect of which no licence then existed would be a fetter upon its discretion to give proper consideration to the eventual application for a licence, as the imposition of fees is a relevant consideration in the grant of such licences. It is unnecessary to determine whether the grant of a benefit which fetters a discretion that the Council has a public duty to exercise would be an unlawful act or an improper exercise of power that would render such a benefit void for illegality. It is enough to say that a construction which would give such an effect to clause 3.2.10 is one to be avoided unless the words unambiguously require such a construction. In my view the context of the beneficial provision "no charges . . . applicable to refuse delivered by vehicles operated . . . by the contractor" reveals an intention to exempt the contractor from charges in respect of refuse delivered under that contract, but not in respect of other refuse for which the contractor would require a licence to deliver. It follows that there is no error to be corrected by judicial review, and the application should be dismissed. -- 6 of 6 --