Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council

[1970] HCA 42

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Menzies, Windeyer and Walsh JJ.

ALLEN COMMERCIAL CONSTRUCTIONS PTY. LTD. v. NORTH SYDNEY MUNICIPAL COUNCIL

(1970) 123 CLR 490

10 November 1970

Town Planning (N.S.W.)

Town Planning (N.S.W.)—Town and Country Planning Scheme—Regulation of building and related matters—Construction of building—Development consent—Condition limiting hours of construction work—Whether relevant to implementing planning policy—Validity—Discretion of town planning authority—Local Government Act, 1919-1968 (N.S.W.), s. 342G (2), (3) (i)*.

Decisions

1970, November 10.
The following written judgements were delivered:-
BARWICK C.J. In this appeal I have had the advantage of reading the reasons prepared by my brother Walsh. As I agree entirely with his conclusions and his reasons I have nothing which I would desire to add. I agree that the appeal should be dismissed for the reasons which he gives. (at p492)

McTIERNAN J. I would dismiss this appeal on the ground that condition (f) of the council's consent to the appellant's development application was within the powers conferred upon the council as the responsible authority under the North Sydney Planning Scheme by the Local Government Act, 1919, as amended, and by the North Sydney Planning Scheme Ordinance. (at p492)

2. In accordance with cl. 46 of the Ordinance the appellant submitted a development application and a building application for the land in question. The council, as the responsible authority, granted its consent to the development application, subject to a number of conditions which were stated to be imposed "in order to safeguard the present and future amenity of the neighbourhood". The relevant condition reads as follows :

"(f) the hours of work being limited to between 7 a.m. to 5 p.m. Mondays to Fridays and 7 a.m. to 1 p.m. on Saturdays with no work on Sundays."

Clause 40 (1) of the Ordinance provides thus :

"Subject to the provisions of this Ordinance, the responsible authority may grant an application unconditionally or subject to such conditions as it may think proper to impose or may refuse to grant an application."

Clause 36 of the Ordinance states that :

"In respect of any application for consent to erect or use a building or to carry out or use a work or to use land, the responsible authority shall take into consideration . . . (e) the existing and future amenity of the neighbourhood. . . ."

The appellant contended that the above-mentioned condition was ultra vires the Ordinance and Pt XIIA of the Act which is headed "Town and Country Planning Schemes". But if the word "amenity" is given its usual meaning of "pleasantness", it is clear that the noise emanating from the work in question was a relevant consideration under cl. 36 (e). (at p492)

3. In my opinion such consideration under cl. 36 (e) falls within the ambit of s. 342G (3) which states :

"Without prejudice to the generality of subsection two of this section a scheme may contain provisions for or in relation to all or any of the following matters, that is to say . . . (i) the regulation of building and of matters relating thereto. . . ."

It may be that the more general s. 342G (2) also authorizes such a construction of cl. 36 (e) but it is not necessary to decide if this is so. (at p492)

4. In my opinion the decision of the New South Wales Court of Appeal (1969) 71 SR (NSW) 1 ; 90 WN (Pt 2) 181 ; 18 LGRA 1 in this matter was correct. (at p493)

MENZIES J. A planning scheme, such as the North Sydney Planning Scheme Ordinance, is, I think, essentially concerned with the orderly development of an area of land for the benefit of the community and particularly the community of that area, both presently and in the future. (at p493)

2. I have been in doubt whether a wholesale restriction upon the hours for working upon certain buildings within an area does not go beyond the purpose of a planning scheme because such a restriction prevents all work without particular regard to the question whether or not some work could be carried out without adversely affecting the neighbourhood. Thus, for instance, whereas it is clear that rivetting at night upon a building in the course of construction would adversely affect a neighbourhood, it is not clear to me that interior painting at night would do so. Here the condition imposed prevents any work in the erection of a building at night, on Saturday afternoons or on Sundays. (at p493)

3. The matter that has troubled me is whether an ordinance, giving a responsible authority power to grant a building application subject to such conditions as it may think proper to impose, does authorize such a wholesale restriction upon building operations. The general words of authority must, no doubt, be limited in some way, and the relevant limitation here is, I think, that the condition must be one which could reasonably be thought to do no more than contribute to "the present and future amenity of the neighbourhood", to use the terms adopted by the responsible authority in giving conditional assent to the application for approval for the erection of a building. (at p493)

4. With some hesitation I have come to the conclusion that although, had I been the responsible authority, I would have thought that the condition in question should have been limited to work likely to cause annoyance, I cannot say that it could not have been reasonably decided that the condition, as framed, did not go beyond affording protection of the living conditions of those in the neighbourhood in which the building was being erected. It may be - although it does not seem so to me - that any work during what are generally regarded as non-working times is calculated to disturb those who are non-workers during those times. (at p493)

5. Apart from the reservation which I have expressed, I am in agreement with the judgment of Walsh J. and, accordingly, I agree that the appeal should be dismissed. (at p493)

WINDEYER J. I have had the advantage of reading the judgment that my brother Walsh has written. I agree in his Honour's conclusions and his reasons. I have nothing to add. (at p494)

WALSH J. On 21st May 1968 the appellant (herein called the "defendant") made an application to the respondent (herein called the "plaintiff" or "council") for "Town Planning Development Permission" in respect of a proposed development in Arthur Street, North Sydney. The form used for the application indicated that it was both a development application pursuant to the North Sydney Planning Scheme Ordinance and an application for the approval for the council for the erection of a building, pursuant to ss.311 and 312 of the Local Government Act, 1919-1968 (N.S.W.). On 21st June 1968 the defendant was notified by letter that the plaintiff, as the responsible authority, granted its consent to the development application, subject to certain conditions. One of the conditions was in these terms :

"(f) the hours of work being limited to between 7 a.m. to 5 p.m. Mondays to Fridays and 7 a.m. to 1 p.m. on Saturdays with no work on Sundays."

The letter stated :

"The above conditions are imposed in order to safeguard the present and future amenity of the neighbourhood."

The letter stated also :

"Whilst approval of this development application does not constitute approval of a formal building application, Council has granted approval, in principle, under Part XI of the Local Government Act in respect of the subject building, contingent upon the following. . . ."

Certain conditions were then set out, including "compliance with the conditions of development consent". (at p494)

2. There is evidence that on 31st July 1968 the building surveyor of the plaintiff, acting with its authority, approved the building application of the defendant subject to certain notations and conditions which need not here be set out. The defendant commenced the work of erecting the building. On 29th October 1968 the plaintiff, by an originating summons in the Supreme Court of New South Wales, sought an injunction restraining the defendant from carrying on any building operations in or on the building then in course of construction, except between the hours which had been specified in condition (f) set out above as those to which the hours of work were to be limited. A temporary injunction was granted ex parte and, subsequently, further interim injunction orders were made. When the suit came on for hearing on 7th March 1969 before Helsham J. it was dismissed. His Honour said in his judgment that it was quite clear that the defendant claimed that it was entitled to operate and threatened to continue to operate outside the stipulated hours unless restrained by the order of the Court. The ground on which Helsham J. held that the suit failed was that in his view there was no relevant connexion between the condition imposed as to the hours of work and the implementation of planning policy and, therefore, it could not be validly imposed as a condition of consent to the development application. Upon an appeal to the Court of Appeal of the Supreme Court, it was held that the plaintiff had power to impose the condition and was entitled to succeed in its suit. However, as the erection of the building had then been completed the Court did not grant any injunction. It ordered that the appeal should be allowed, that the decretal order made by Helsham J. should be set aside and that in lieu thereof there should be an order that the defendant pay the cost of the proceedings before Helsham J. and of the appeal. From that order the defendant has appealed by special leave to this Court. (at p495)

3. Part XIIA of the Local Government Act was introduced into that Act in 1945 and has been amended from time to time. It contains provisions for the preparation of planning schemes and for the approval of them and for giving effect to them by means of ordinances prescribing them. On 19th April 1963 the North Sydney Planning Scheme was embodied in an ordinance published in the Government Gazette. The provisions of Pt XIIA as they stood at that time were shortly afterwards amended by the State Planning Authority Act, 1963 (No. 59 of 1963) (N.S.W.). Except in one respect mentioned later, it is not necessary for present purposes to refer to the changes which were then made. Section 342G of the Local Government Act describes the provisions which a scheme may contain. Subsection (2) provides that a scheme "may contain provisions for regulating and controlling the use of land and the purposes for which land may be used". Subsection (3) provides that, without prejudice to the generality of sub-s. (2), a scheme may contain provisions for or in relation to all or any of the following matters. This is followed by twenty-four paragraphs of which two should be quoted. These are "(i) the regulation of building and of matters relating thereto"; and "(q) the provision of amenities". (at p495)

4. When this Ordinance was proclaimed, sub-s. (5) of s. 342G provided that a scheme should contain provisions specifying the responsible authority or responsible authorities which should be charged with the functions of carrying into effect and enforcing the provisions of the scheme and that any responsible authority so specified should be a council or two or more councils acting together as prescribed. As amended by the State Planning Authority Act, 1963 (N.S.W.), the subsection provides that a scheme may specify the authority constituted by that Act, as the responsible authority for the purposes of the scheme or some of them. In the present case the Ordinance by cl. 6 has since 1966 designated that Authority as the responsible authority in respect of some of the provisions of the Ordinance and the council as the responsible authority in respect of the remainder of its provisions. When considering the construction and operation of s. 342G and the relationship of the provisions of Pt XIIA to those of Pt X and Pt XI of the Act, it should be borne in mind that the council, which has the powers conferred by Pt X and Pt XI, would not necessarily be the authority called upon to exercise the functions of carrying into effect and enforcing the provisions of a scheme. (at p496)

5. Under cl. 26 of the Ordinance and its table, commercial premises (with some immaterial exceptions) did not require the consent of the responsible authority for their erection in a "General Business" zone and the subject premises were so zoned. But as the building was to be of a height greater than three floors above ground level, cl. 46 made necessary the obtaining of consent for its erection. (at p496)

6. Clause 35 of the Ordinance sets out the manner in which any application for consent is to be made. Clause 36 provides, in part:

"In respect of any application for consent to erect or use a building or to carry out or use a work or to use land, the responsible authority shall take into consideration - . . . (e) the existing and future amenity of the neighbourhood; (f) the circumstances of the case and the public interest; and (g) the provisions of the scheme."

Clause 40 (1) and (2) of the Ordinance provide:

"(1) Subject to the provisions of this Ordinance, the responsible authority may grant an application unconditionally or subject to such conditions as it may think proper to impose or may refuse to grant an application. (2) The responsible authority shall cause notice to be given to the applicant of its decision and in the case of a consent given subject to conditions or of a refusal, the reasons therefor shall be stated in the notice." (at p496)

7. On behalf of the defendant two main submissions were made. One was that the Ordinance did not empower the plaintiff to impose condition (f) as a condition of its consent. The second was that if the Ordinance did confer that power then in so far as it did so, it was ultra vires. It went beyond the power contained in the Act to prescribe a scheme. I think it is not easy to regard these as two independent questions capable of separate examination and determination. Nevertheless, I think it will be convenient to refer first to some questions which have been raised as to the construction of the Act and then to deal with some submissions which relate more particularly to the terms of the Ordinance. (at p497)

8. There was some discussion of the question whether or not the plaintiff, when dealing with an application for consent under the Ordinance, was entitled to exercise powers conferred upon it by the provisions of Pt X and Pt XI of the Act, such as s. 289 (c) and s. 305, and of the question whether in this case it did exercise any such power and could rely upon it, if necessary, to uphold the validity of its action in imposing the condition. Since I have reached the conclusion that it is not necessary for the plaintiff to rely upon any of those other provisions, I do not propose to state an opinion as to whether any of those provisions could justify the condition which was imposed. (at p497)

9. Counsel for the defendant submitted that a limited construction ought to be put upon par. (i) of s. 342G (3) because of the subject matter of this part of the Act and because the other matters enumerated in sub-s. (3) are "town planning" matters. It was submitted that par. (i) should be construed as providing for the regulation of such matters as standards of construction and design and the appearance and the relationship to its surroundings which a building will have when it has been erected and as not extending to the regulation of the process or operation of erecting a building. In my opinion this submission should be rejected. It appears to assume that it is possible to formulate, independently of the Act, some general concept of "town planning" which is sufficiently definite to enable it to be used to impose a restriction upon the meaning in which otherwise the words of par. (i) would be understood. In my opinion the provision is framed in a way which indicates that it is intended to have a wide and not a narrow operation. The scheme may contain provisions "for or in relation to" the matters enumerated. Then par. (i) refers not only to the regulation of building but also to the regulation "of matters relating thereto". In my opinion this includes within its meaning the regulation of the way in which building work is carried out. If this goes outside what would be considered by some people to be within the scope of town planning, that is not to the point. It is, of course, competent for the Parliament to include in this enactment whatever matters it considers might properly be included in a scheme and might thus be made subject to the supervision of the responsible authority. (at p497)

10. It was submitted, in one part of the argument, that this part of the Act is intended to authorize the regulation of the purpose for which land is to be used and not the steps that may be taken in the course of erecting buildings which will enable the land to be used subsequently for some intended purpose for which the buildings are appropriate. This argument denies that the erection of a building on land is "the use" of that land within the meaning of sub-s. (2) of s. 342G. But in my opinion that subsection is expressed in language which does not warrant a narrow construction of it. It provides that a scheme may contain provisions not merely for regulating and controlling the purposes for which land may be used, but also for regulating and controlling the use of land. The reference in sub-s. (3) to the generality of the provisions of sub-s. (2) indicates that sub-s. (2) ought to be given a wide meaning. Subsection (3) itself states expressly that "a scheme may contain provisions for or in relation to . . . the regulation of building and of matters relating thereto". There is no sufficient reason for holding that this provision is intended to do no more than permit the scheme to contain provisions for regulating the purposes for which buildings may be used after they have been erected. It was conceded in the argument for the defendant that the Act authorized the inclusion in a scheme of provisions for regulating the size, shape, design and appearance of buildings. This means that it is not so limited as to relate solely to the purpose for which land is to be used. But it was said that any regulation of the structure of the building, as contrasted with the regulation of the purpose for which it may be used, must be limited to the regulation of matters which have a permanent effect upon the relationship of a building to its environment. It cannot extend to the control of the process of the erection of a building, in the interests of the convenience and welfare of the inhabitants of the neighbourhood. I am of opinion that such a limited construction should not be adopted. It puts unwarranted restrictions both upon the meaning of sub-s. (2) and upon the meaning of sub-s. (3) (i). (at p498)

11. One of the matters mentioned in sub-s. (3) is "the provision of amenities". It was argued that this means only the provision of parks and playgrounds and similar public areas. It may be observed, however, that there are other paragraphs of sub-s. (3) which refer specifically to some such conveniences: see pars. (f) and (j). Although par. (q) may include in its meaning amenities of that kind I am of opinion that the taking of measures for the protection of residents from noise and from the disturbance of their rest may properly be regarded as included in the expression "the provision of amenities". (at p499)

12. I turn now to consider some questions relating to the provisions of the Ordinance and to refer to the principal submissions made in relation to them. In my opinion it is not essential that a scheme should by its own terms set out all restrictions to which the owner of land may be obliged to submit. It would not be practicable to lay down detailed rules which would govern every specific factual situation. In accordance with the provisions of s. 342G (2) and (3), I think that a scheme may contain provisions by which the giving or the refusing of consent to the use of land in certain ways may be entrusted to an authority, which may make decisions in accordance with the circumstances as they may exist in particular cases and as they may vary from time to time : see Taylor v. Brighton Borough Council (1947) KB 736 . For similar reasons it is convenient and desirable in aid of the fulfilment of the purposes which a scheme is designed to serve that the authority should not be bound either to give an unconditional consent or to refuse a consent but should be able to give a consent subject to conditions. This is what s. 40 (1) of the Ordinance provides. In my opinion its inclusion in the Ordinance is not beyond the scope of the description in s. 342G of the Act of the provisions which a scheme may contain. The powers conferred on the responsible authority either to grant an application unconditionally or to grant it "subject to such conditions as it may think proper" or to refuse to grant it are expressed to be "subject to the provisions of this Ordinance". Elsewhere in the Ordinance provision is made for the procedure to be observed in the making of an application for consent (cl. 35) ; and it is provided in cl. 36 that in respect of any application for consent the responsible authority shall take into consideration the matters therein set out. It is to be noticed that the clause is expressed to relate to any application for consent "to erect or use a building or to carry out or use a work or to use land". (at p499)

13. In accordance with a well-recognized rule, s. 40 (1) ought to be understood (quite apart from the limitation contained in its opening words) not as giving an unlimited discretion as to the conditions which may be imposed, but as conferring a power to impose conditions which are reasonably capable of being regarded as related to the purpose for which the function of the authority is being exercised, as ascertained from a consideration of the scheme and of the Act under which it is made. This purpose may be conveniently described, in accordance with the expression used by Lord Jenkins in Fawcett Properties Ltd. v. Buckingham County Council (1961) AC 636, at p 684 , as being "the implementation of planning policy", provided that it is borne in mind that it is from the Act and from any relevant provisions of the Ordinance, and not from some preconceived general notion of what constitutes planning, that the scope of planning policy is to be ascertained. (at p500)

14. I am of opinion that cl. 40 (1), understood in the sense I have endeavoured to explain, is within power. This brings me to what is I think the critical question in this appeal. It has been submitted for the defendant that condition (f) was extraneous to the proper exercise by the plaintiff of its functions under the Ordinance and was a condition of a kind which was outside the scope of the matters relevant to the exercise by the plaintiff of its powers when considering the development application in this case. The principal propositions put forward as the basis for contending that the imposition of the condition was invalid were the propositions to which I have already referred, namely, that the plaintiff in performing its relevant function was concerned only with the ultimate result of the development and the purpose for which the building when erected would be used and was not concerned with the process of its erection or with the activities of the defendant and their effect on others during the period of its erection. I have indicated already that I do not regard the relevant provisions of the Act as being restricted in that way. Nor, in my opinion, is the Ordinance so restricted. It may be acknowledged that, as has been stressed by counsel for the defendant, the Ordinance is very much concerned with the purposes for which land and the buildings on land are to be used. But it would be wrong to assert that because that is a dominant feature of the Ordinance it must be read as dealing only with that. It was argued that the consent which may be given upon such an application as was made in this case is not simply a consent to erect a building. It is a consent to erect a building which when erected is going to be used for a designated purpose and a consent to use it when erected for that purpose. This may be accepted as being true or at least as being generally true. But the circumstance that in the Ordinance there is a great deal of emphasis on the purpose for which land and buildings may be used does not require a conclusion that the plaintiff, when considering an application must concern itself only with the ultimate purpose of the development and may take nothing else into account. The consent which was required included, although it was not limited to, a consent to the putting up of a building. There is no warrant for saying that the plaintiff was bound to grant that consent unconditionally and was precluded from taking into account any matters relating to the erection of the building. (at p501)

15. Clause 36 of the Ordinance refers in par. (e) to "the existing and future amenity of the neighbourhood". I agree with the Court of Appeal in the opinion that these words do not refer only to the effect which the presence of the building itself when erected and its use when erected will have upon the amenity of the neighbourhood. They may refer also to the effects upon "the neighbourhood" of the operation of erecting a building. (at p501)

16. It was pointed out that cll. 35 and 36 are not clauses which impose an obligation to obtain consent. That obligation, if it exists, must be found elsewhere in the Ordinance. This is true but, in my opinion, it has no bearing upon the question now being considered. It happened in this case that the requirement of consent was not imposed by the provisions of cll. 26 and 28, which are the clauses by which in most cases the obligation to obtain consent would be imposed. It was imposed by cl. 46. But since the consent was necessary and an application for it was made, cl. 36 applied to the making of a decision on that application. So did cl. 40. The powers of the plaintiff were not less in this case than they would have been in any other case in which it had to consider whether a consent should be granted or refused and, if granted, whether conditions should be imposed. (at p501)

17. It was suggested that the Ordinance would operate in an odd way if it enabled the authority to regulate the hours of work upon a building more than three storeys high but would not enable it to do so in relation to other buildings. But this consideration cannot affect the question whether or not what was done in this case was within power. The Ordinance has been so framed that in certain cases no consent is needed for the erection of a building, but in all cases where the building is more than three storeys in height it is needed. In the latter case cll. 36 and 40 are made applicable. It is not for the Court to say whether or not the Ordinance should have been framed in that way. The Act authorized the inclusion in the scheme of provisions for or in relation to the regulation of building. Therefore, it could have included provisions applying generally to all building. It has been framed so that in some cases no restriction upon building is imposed. That affords no reason for not giving full effect to the provisions of the Ordinance in cases in which such restrictions are imposed. (at p501)

18. I am, therefore, of opinion that the condition was validly imposed. This makes it unneccessary to consider whether or not the effect of holding that the condition was not validly imposed would have been that the consent itself was void (cf. Lloyd v. Robinson (1962) 107 CLR 142, at p 152 ). (at p502)

19. I am of opinion that the decision of the Court of Appeal was correct and that the appeal should be dismissed. (at p502)

Orders

Appeal dismissed with costs.