Ace Waste Pty Ltd v Brisbane City Council [1991] QPEC 33

) IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE P.& E. Application No. 10 of 1990 QUEENSLAND BETWEEN: ACE WASTE PTY. LTD. BRISBANE CITY COUNCIL Applicant Respondent REASONS FOR JUDGMENT QUIRK, D.C.J. ~ c;Jo- I~- °t This application calls for a construction of certain parts of the Town Plan for the City of Brisbane. The applicant operates a refuse incineration facility at Willawong. The land upon which this is done is included in the Special Uses (Utility Installation) Zone in the Town Plan. The material suggests that the land has been in private ) ownership and has been used for waste disposal purposes for a ) considerable length of time. I was informed that prior to the current Town Plan it was zoned Special Uses (Sanitary Depot). The justification for a change of zoning does not emerge from the material put before me, but it is disclosed that on 29th October, 1987 (after the gazettal of the present Town Plan) the respondent approved an application (evidently made prior to the gazettal) for an amendment to the town planning consent relevant to the subject land to substitute for the words; "truck depot and caretaker's flat (in association with a sanitary depot)" the words; "a truck depot, caretaker's flat and incinerator (in -- 1 of 7 -- ) 2 association with a sanitary depot)". The applicant provides a unique and valuable service to the community. The bulk of its work is concerned with the disposal, by incineration of pathological ( hospital) waste, quarantine waster, and confidential documents. The affidavit of the managing director informed me that the major part of the work is carried out for and at the request of local authorities, hospital authorities, teaching and research establishments, lease and customs establishments and other statutory authorities and corporations which are obviously "of a public character". All ) permits and authorities necessitated by law have been obtained from relevant statutory bodies. ) ) Because of the pressures of demand, the applicant has decided that the installation of a more modern and efficient incinerator was called for. To use the words of Mr. Homewood; "the new incinerator was acquired by Ace Waste Pty. Ltd. for $2.5 million and is capable of disposing of some 1 , 500 kilograms of refuse per hour in a cost efficient and (more) environmentally acceptable method to that presently used". Application for the requisite approval for this upgrading was made to the Department of Environment and Heritage, efficiently dealt with and readily approved. However, when the respondent was approached regarding the matter, the applicant was informed that "it was required to make an application for notification of conditions of development pursuant to sub-s.24.3 of the Town Plan, and a building application and an environmental impact statement was to be included." These matters were attended to but the Council's response was to announce that the zoning in which the land had -- 2 of 7 -- ) ) ) ) 3 been included in the current Town Plan was inappropriate in that the applicant's use of the land was not a "utility installation". In the light of the wording of the approval given in November of 1987, the justification for calling for a further town planning application is anything but clear. But as this matter is one which was not argued before me, it is not appropriate that anything further be said about that matter. The question that I am asked to answer is whether the provision of services by the applicant for incineration disposal of pathological (hospital waste, quarantine waste and confidential documents) as described in an affidavit filed by Mr. Homewood constitutes a "utility installation" within the meaning of the Town Plan. Once again, the Town Plan has found a clumsy and confusing way of setting out a provision that could and should be stated in clear and precise terms. To discover what a "utility installation" is, one has to wrestle with a series of inelegantly worded definitions. "UTILITY INSTALLATION" means: - "premises used or intended for use by a person carrying on a public utility undertaking for the purpose of providing and maintaining that undertaking but does not include any building used or intended for use as an office or for administration or other like purposes unless the use of that building is ancillary to the conduct of some other activity on the land whereon that building is erected or at premises which include that land": "PUBLIC UTILITY UNDERTAKING" means - " (a) A railway, tramway, road transport, air transport, water -- 3 of 7 -- ) 4 transport, wharf, harbour or river undertaking (b) An undertaking for the supply of water, hydraulic power, electricity or gas or the provision of sewerage or drainage services (c) An undertaking for the collection, removal or disposal of refuse (d) An undertaking for the provision or maintenance of roads or traffic controls (e) An undertaking for the provision of postal or telecommunication services ) ( f) An undertaking for the impoundment of straying stock or ) ) domestic animals provided and maintained or caused to be provided and maintained - (i) Under the authority of some law in that behalf by - (A) the Council; or (B) some statutory authority or corporation of a public character, or (ii) pursuant to and by some person who is the holder of a franchise under the Gas Act 1965-1985" "UNDERTAKING" means:- "a continuous service". For the purpose of this case, it is possible to achieve some reduction in the totality of this verbiage to - "Premises used or intended for use by a person carrying on a ... (continuous service) ... for the collection, removal or disposal of refuse ... caused to be provided and maintained under the authority of some law in that behalf by the Council or some statutory authority or corporation of a public character for the purpose of providing and maintaining that (undertaking)". It did not appear to be disputed that the service for the collection, removal and disposal of refuse provided by the -- 4 of 7 -- ) 5 applicant in this case was continuous or that the major beneficiaries of the service were local authorities, statutory authorities and corporations of a public character. The respondent's argument against the applicant's facility being a "utility installation" appeared to be based on the contention that it could not be truly said to be "caused to be provided and maintained under the authority of some law in that behalf by the relevant bodies". One suggestion which appeared in the correspondence between the parties, but was not strongly argued before me, seemed to be that there should be some specific statutory enactment which relates directly to the provision of the service in question. This is doubtful. One only has to have regard to the wide category of matters picked up by the definition of "public utility undertaking" to see that many of them are among the usual responsibilities of local and statutory authorities and the power to do such things is generally to be found in the constituting statute of the authority. What does the phrase "under the authority of some law in that behalf" really mean? Does it mean anything more than "lawfully"? It is not easy to say from the context in which it makes its awkward appearance. The applicant submits that the words "in that behalf" should be read to refer to sub-para.(c) of the definition of "public utility undertaking" and so to lead to an interpretation of the phrase to mean "under the authority of some law with the respect to the collection, removal or disposal of refuse". Attention was drawn to the fact that a licence in respect of this facility had been issued pursuant to -- 5 of 7 -- ) 6 s.95 of the Health Act 1937-1988 which provides, in so far as it is relevant, that: "The local authority may ... undertake or contract for the efficient execution of the following works within the whole or any part of (the local authority area):- (i) The removal, collection or conveyance of refuse from any place and the disposal thereof ... " Faced with this, argued the appellant, how could one sensibly say that the service here provided by the applicant was not "caused to be provided and maintained under the authority of some law in that behalf by the relevant body. The respondent's strongest argument appeared to be that the fact that statutory authorities and corporations of a public character resorted to the facility, even on a continuous basis (and accepting that it was pursuant to some power or duty to do so) was not the same thing as saying that the service was cause to be provided and maintained by the relevant body (under the authority of some law in that behalf)." The respondent appeared to be arguing that, for this to be the case, the relevant body would either directly or by contract be involved not only in ) making use of the services but in setting it up and ensuring its continuance. It seems to me that this would call for a construction of the word "provided" in a way that made it equivalent to "established". I am of the opinion that such a construction would be too narrow and would attribute to this part of the Town Plan a level of definitude which is not to be found in the plan read as a whole. The controls with which we are concerned relate to land use. It is important at any given time to be able to determine whether -- 6 of 7 -- i J 7 a use of land is being lawfully conducted or not. On the facts put before me I am quite satisfied.that it has been established that the subject land is used:- 1. for the provision of a continuous service for the collection, removal and disposal of refuse by incineration 2. that in the main that service relates to work done for and at the request of local authorities, statutory authorities and corporations of a public character that, in that sense, those bodies have caused the service to be provided and maintained 3. there is no suggestion that the relevant bodies have caused the service to be provided and maintained other than in accordance with relevant provisions of the law and consistently with their powers which are given by the law. For those reasons I find that the use of the subject land as described in para.3 of the affidavit of John Rostyn Homewood filed on 16th November, 1991 in so far as the use relates to local authorities, statutory authorities, and corporations of a public character constitutes a "utility installation". I declare accordingly. I was asked to include a finding that the provisions of the services to other members of the public fell within the ambit of "utility installation". It may well be, as submitted, that such use of the land in being incidental to the dominant use is a lawful use. However, on the facts put before me, I do not feel able to go so far as making such a finding. If, in the unlikely event of such a finding being sensibly and practically required, the matter will have to be appropriately dealt with. -- 7 of 7 --