Practitioners advising on saving provisos in local government by-laws should note that the identity of pre-existing 'works' such as quarries is determined by physical continuity and operational connection, not by the boundaries of land owned at the relevant date.
Later decisions that cite Merri Creek Quarry Pty Ltd v Foletta
MERRI CREEK QUARRY PTY. LTD. v. FOLETTA [1951] HCA 12; (1951) 82 CLR 347
Local Government (Vict.)
High Court of Australia
Latham C.J.(1), Dixon(2), McTiernan(3), Williams(4) and Webb(5) JJ.
CATCHWORDS
Local Government (Vict.) - By-law - Prohibition of quarrying operations within municipality unless with consent of council - Exception of operations in connection with works commenced before a certain date - Quarry existing before that date extended thereafter to adjoining land - Local Government Act 1928 (No. 3720) (Vict.), s. 197 (1)(xviii).
HEARING
Melbourne, 1951, March 13;DECISION
April 16.2. It was proved before the court of petty sessions that the company carried on quarrying operations on certain land at Brunswick without the written consent of the council. The company contended that the quarrying operations were operations in connection with works commenced before 4th January 1911. (at p350)
3. The quarry was in operation and it was being worked before 4th January 1911. At that date the quarry-owners owned all the land which was then being exploited for quarrying purposes. (at p350)
4. On 8th October 1927 the quarry-owners acquired adjoining land. The quarry has been extended to that land and the offence of which the company was convicted was carrying on quarrying operations upon that land. (at p350)
5. It was held by the learned judge that the object of the proviso in the by-law was to preserve the rights that were in course of exercise actually or prospectively on the date mentioned. He was of opinion that what was protected was only what could lawfully have been undertaken at the specified date, and, as the quarry-owners did not own the adjoining land on that date, they could not lawfully have carried on operations on that land, and therefore such operations were not protected by the proviso. His Honour said that the proviso protected not only what was being done actually on 4th January 1911, but also "the potentialities of the undertaking as it then stood". But those potentialities were regarded as limited by the title of the then owners. (at p351)
6. The meaning of the word "works" will vary with the context: see Dawson v. Hoffmann Brick & Potteries Ltd. [1924] VicLawRp 31; (1924) VLR 208 . The proviso to the by-law protects quarrying operations in connection with works commenced before a specified date. The intention of this proviso is to make it unnecessary to obtain the consent of the council for the continuance of such operations. It therefore contemplates the development and extension of such operations in the only possible manner in the case of quarrying, that is downwards or laterally. The development of the quarry involves the enlargement of the quarry hole in one or both of these directions - that is what the by-law cannot interfere with if the "works were commenced" before 4th January 1911. Such works are to be allowed to continue. In the present case the extension of the quarry into adjoining land has not destroyed the identity of the quarry, which, notwithstanding the increasing excavation as the operations proceed, is still the same quarry. On any other view any excavation of stone made after 4th January 1911 would change the identity of the works because the quarry hole would, to the extent of the further excavation, be a new quarry hole. Such an interpretation would entirely deprive the proviso in the by-law of any effect. Thus the "works" which are now in operation, consisting of the quarry hole and the associated plant, are works which were commenced before 4th January 1911. (at p351)
7. The identification of works in this manner leaves no room in my opinion for introducing a limitation based on ownership of land. The fact that the excavation has been extended to land not owned by the proprietor of the original quarry before 4th January 1911 does not displace the conclusion that in the relevant sense the present quarry is the same "works" as the original quarry. The terms of the proviso to the by-law - reproducing the terms of s. 197 (1) (xviii) of the Local Government Act 1928 - are intelligible only upon the hypothesis that it is intended to preserve power to extend an existing quarry (though not to open a new quarry) without the consent of the council. The words of the by-law do not in my opinion provide any ground for limiting the operation of the proviso by confining it to operations conducted on land of which a person now engaged in quarrying was the owner before 1911. Before 1911 a quarry-master might have been a lessee with a limited term and a right to excavate stone. If his lease were extended, surely the "works" which he was conducting would be the same works. If he purchased the reversion and became the owner of the land the works would also be the same. If he sold the quarry to another person, the works would still be the same. If a quarry can fairly be described as a quarry which was commenced before 4th January 1911 the conditions of the proviso to the by-law are satisfied. (at p352)
8. I am therefore of opinion that the appeal should be allowed, the order of the Supreme Court set aside and the order of the magistrate restored. (at p352)
DIXON J. The question for decision upon this appeal is whether certain quarrying and blasting operations carried out by the appellant are quarrying and blasting operations in connection with works commenced before the fourth day of January 1911. The issue arises under by-law No. 126 of the city of Brunswick made on 10th May 1943 in pursuance of s. 197 (1) (xviii) of the Local Government Act 1928 of the State of Victoria. Section 197 is now replaced by s. 197 of the Local Government Act 1946. But par. (xviii) empowered the council of the municipality to make by-laws for the municipality for the purpose of prohibiting, regulating or controlling quarrying or blasting operations, provided that any by-law prohibiting such operations should not (among other things) apply to any such operations in connection with works commenced before the fourth of January 1911. The by-law provides that except with the written consent of the council no person shall within the city of Brunswick carry on any quarrying or blasting operations, and then by a proviso it goes on to exclude in terms quarrying and blasting operations in connection with works commenced before the fourth day of January 1911. (at p352)
2. The situation of fact is simple. Before the year 1911 the appellant company's predecessors in title opened a quarry upon land of which apparently they were owners in fee simple. Upon this site quarrying operations including blasting operations were regularly carried on. As stone was won the excavation grew and the face or faces were advanced towards the boundaries of the land. Stone crushing was done upon the site and there were some buildings. On the west at the southern end of the quarry was a contiguous piece of land of the same mineral character. It was, however, owned by strangers. Some years after 1911 the appellant company's predecessors in title or one of them acquired title to this land. At or about the same time the westerly face of their quarry was advanced across the boundary line. The enlargement of the quarry went on in consequence of their workings at the western face. Six or seven years later still, the appellant company was formed and the undertaking, including both parcels of land, was transferred to it. That is over twenty years ago and the western face of the southerly portion of the quarry is now some considerable distance inside the boundary of the second parcel of land, the parcel contiguous to that forming the original site. The question upon these facts is whether in working that part of the west face and blasting stone from it, the appellant company is carrying on quarrying or blasting operations in connection with works commenced before 4th January 1911. It has been decided that it is not doing so because the land upon which the face now is did not form part of the undertaking as it existed at the beginning of 1911. Neither the land itself nor any right to win stone upon it belonged to the enterprise. To qualify for protection from the application of the by-law the present quarrying and blasting operations must be "in connection with works commenced" before 1911 and it was said that to identify the works so commenced you must look at the undertaking enterprise, concern or establishment as it would be conceived to exist in 1911 with its potentialities. You must be able to say that the present are operations in connection with that undertaking, enterprise, concern or establishment. The identification, so it is said, means looking not only at objective physical facts but the rights and claims forming part of the undertaking. (at p353)
3. This view of the matter appears to me to import a restriction upon the simple word "works" which is not warranted by the context or subject matter. It is not a word of fixed connotation and besides being elastic it is somewhat indefinite. The only sure guide to the decision of a question like the present is to be found in the actual language and context of the provision itself: per Greene M.R., Attorney-General v. Rochdale Canal Company (1939) 55 TLR 754, at p 755 . But it is not necessary to attempt an exhaustive statement of the meaning of the word in the context of the proviso to par. (xviii) of s. 197 (1) transferred as the proviso is into the by-law. It appears to me to be enough that the workings at the west face at the south end of the quarry had been commenced long before 1911 and that work on that face continually went on progressively advancing the face to its present position. The workings thus sustained appear to me necessarily to form part of an ever enlarging "works". The very expression "works commenced" implies continuance or the possibility of continuance and as quarrying is the subject that means an enlargement of the dimensions of the quarry. (at p354)
4. Nothing in the form of expression suggests that the boundaries of the site or sites whence stone might be lawfully won by the proprietors of the undertaking fix the identity of the works so that workings outside the site or sites must be "new works". The acquisition of rights over contiguous sites is a "potentiality" of an undertaking, if potentiality enters into the test. But I prefer to say simply that the existing "works" expanded or advanced naturally without any loss of identity and that the blasting and quarrying operations are in connection with them. (at p354)
5. In my opinion the appeal should be allowed with costs, the order absolute made in the Supreme Court should be discharged and in lieu thereof an order should be made discharging the order nisi with costs. (at p354)
McTIERNAN J. I agree that the appeal should be allowed. (at p354)
2. The appellant was guilty of the offences of carrying on quarrying and blasting operations within the area of the municipality of Brunswick in contravention of the council's By-law, No. 126, unless the operations came within the proviso to the by-law. The by-law says that, except with the written consent of the council, no person shall within the municipality carry on quarrying or blasting operations, but further says that the restriction does not apply to "quarrying or blasting operations in connection with (a) works commenced before the 4th day of January 1911 and (b) foundations for buildings." (at p354)
3. It was necessary for the appellant to show, in order to bring itself within the proviso to the by-law, that its blasting and quarrying operations were in connection with works commenced before 4th January 1911. The only two matters which it was necessary for it to establish in order to get the benefit of the proviso were that "works" were commenced, whether by itself or some other person, before that date, and the blasting and quarrying operations, in respect of which it was prosecuted, were carried on in connection with those works. (at p354)
4. The evidence proves that the appellant was carrying on the blasting and quarrying operations in order to dig or win stone from a quarry that had been opened before 4th January 1911. The word "works" in its ordinary sense extends to a quarry which, like the appellant's, is an establishment in which labour is employed and a number of interrelated industrial operations are carried on. The by-law cannot be so narrowed by construction as to exclude this quarry from the benefit of the saving proviso. In the case of a quarry which is a "works" and which was "commenced before 4th day of January 1911", any quarrying and blasting operations which are done in connection with the quarry are free from the restrictions imposed by the by-law. In the present case the excavation forming the quarry proper has been extended by the appellant beyond the boundaries of the land upon which it was opened, to adjoining land, and the quarrying and blasting operations out of which the case arises were there carried on. It is argued that these operations are subject to the restriction imposed by the by-law because when the excavation crossed the boundaries it became a different works from the quarry commenced before 4th January 1911, for the reason that before that date those who worked the quarry had no right to extend it beyond those boundaries. The workings which the appellant has made across the boundaries into the adjoining land are the development of the quarry commenced before 4th January 1911 and the whole excavation is in a practical sense that quarry. The by-law contains no language showing that its intention is to free from the restrictions which it imposes, only quarrying and blasting operations within the boundaries marked out by the title of the land on which the works in connection with which the operations are carried on or commenced. The terms of the by-law are "the provisions of this paragraph shall not apply to quarrying and blasting operations in connection with works commenced before the 4th day of January 1911". The argument for the prosecutor seeks to imply a limitation in the proviso whereby a works, which is a quarry commenced before 4th January 1911, would be made subject to a restriction of which the proviso seems to intend that any such works should be free; for the development of a quarry involves its extension outwards by quarrying and blasting. (at p355)
5. The fact that the operations for which the appellant was prosecuted were carried on beyond the boundary of the land on which the quarry was started does not deprive them of the character of operations carried on in connection with works commenced on that land. The appellant was entitled to the benefit of the exception in the by-law because there is a plain physical connection between those operations and a quarry, that is to say "works commenced before the 4th day of January 1911" (at p355)
WILLIAMS J. I agree with the reasons of Dixon J. and with the order he proposes. (at p356)
WEBB J. I agree with the reasons for judgment of Dixon J. and with the order his Honour proposes and have nothing to add. (at p356)
ORDER
Appeal allowed with costs. Order of Supreme Court set aside. In lieu thereof order that order nisi be discharged with costs. Order of magistrate restored.