Attorney-General (NSW) v Stocks and Holdings (Constructors) Pty Ltd

[1970] HCA 58

HIGH COURT OF AUSTRALIA

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

ATTORNEY-GENERAL (N.S.W.) v. STOCKS AND HOLDINGS (CONSTRUCTORS) PTY. LTD.

(1970) 124 CLR 262

21 December 1970

Constitutional Law (Cth)

Constitutional Law (Cth)—Places acquired by Commonwealth for public purposes—Exclusive legislative power of Commonwealth Parliament—Extent of power—State law made after acquisition of place—Whether operative in place—Disposal of place by Commonwealth—Whether State law revives—The Constitution (63 &64 Vict. c. 12), s. 52 (i.)—Local Government (Amendment) Act, 1951 (N.S.W.)—Interpretation Act, 1897-1969 (N.S.W.), s. 14A—Judiciary Act 1903-1969 (Cth), s. 40A.

Decisions

December 21.
The following written judgments were delivered:
BARWICK C.J. This suit in which a declaration was sought that a consent given by the appropriate authority under the County of Cumberland Scheme (the scheme) for the erection of an hotel by the defendant on its land in the municipality of Randwick was void and of no effect and for a consequential injunction was removed into this Court by the operation of s.40A of the Judiciary Act 1903-1969 (Cth). The statutory provisions and the circumstances necessary to be considered in order to resolve the questions arising in the case are to be found in the judgments of other members of the Court and I have no need to repeat them. (at p266)

2. The defendant's land was formerly a part of the Randwick Rifle Range owned by the Commonwealth. The ultimate question in so much of the suit as was heard by the Court on this occasion is whether the provisions of the scheme as modified by an interim development order made after the defendant's land had ceased to be part of the rifle range and to be in the ownership of the Commonwealth, applied to the defendant's land so that the consent of the appropriate authority was necessary for the development of the land by the erection of an hotel upon it. However, other matters must be first resolved in order to reach conclusion upon that question. (at p266)

3. I have had the advantage of reading the reasons for judgment prepared by my brother Walsh and, as I am in agreement with his conclusions in all matters which are necessary to be decided for the disposal of this appeal and in general agreement with his reasons therefor, I propose merely to state for myself the conclusions to which I have come, saying that I agree in the reasons which my brother Walsh gives for like conclusions. (at p266)

4. In my opinion, the legislative authority vested by the Constitution in the Commonwealth with respect to places acquired by it for public purposes will support all laws of the Commonwealth with respect to a place or places so acquired so long as but only so long as the place remains in the ownership or possession of the Commonwealth. Any law of the Commonwealth made pursuant to s. 52 (i.) with respect to that place will cease to operate when the Commonwealth's ownership or possession ends. The legislative authority of a State to make laws regulating the use of land within its territorial limits will be available to be exercised so soon as the place ceases to be in the ownership or possession of the Commonwealth. The function of the expression "acquired for public purposes" in s. 52 (i.) is to describe the places in respect of which the legislative authority of the Commonwealth becomes available. But the legislative authority is, in my opinion, quite clearly intended only to be available so long as the place is a place of the Commonwealth. Thus, in my opinion, the submission of the defendant that although the Commonwealth had ceased to own the land on which there was formerly a rifle range the State still had no power to make any law with respect to it but that the land remains within the area of Commonwealth exclusive legislative power must be rejected. (at p267)

5. It is quite clear having regard to the decisions of this Court that the scheme could not have applied to the area of the rifle range at the time that scheme became operative. In my opinion, it was not merely that the restrictions it sought to impose could not apply to the Commonwealth. The scheme regarded as an ordinance was, in my opinion, clearly a law falling within the description of s. 52 (i.). (at p267)

6. It was submitted that because of the general rule of construction which would seek to confine a statutory provision within the legislative competence of the legislature which made it, and because of particular statutory provisions such as s. 652 of the Local Government Act, 1919-1970 (N.S.W.) and s. 14A of the Interpretation Act, 1897 (N.S.W.), as inserted by the Interpretation (Amendment) Act, 1969 (N.S.W.) the scheme should be construed as if it contained a provision that its terms should not apply to land being a place or forming part of a place acquired by the Commonwealth for public purposes so long as the Commonwealth should own or possess such place but that it should apply so soon as the Commonwealth ceased to own or to possess the place. In my opinion, there are two answers to this submission. The first is that it would not be, in my opinion, an exercise of construction to import such a provision into the scheme. It would, in my opinion, amount to an attempt to legislate. (at p267)

7. But secondly and more importantly such a provision, in my opinion, would itself offend s. 52 (i.) for the reasons expressed by my brother Walsh. (at p267)

8. In this connexion, I have no need to decide and do not decide that s. 14A of the Interpretation Act 1897-1969 is applicable to the construction of an ordinance, and in particular, to the construction of the scheme regarded as an ordinance. (at p268)

9. As I have indicated, the power of the State to pass a law in terms of the scheme or of some modification of it so soon as the land ceased to be owned by the Commonwealth is, in my opinion, quite clear. The remaining question in the case is whether that power of the State was in fact exercised after the land had ceased to be in the ownership of the Commonwealth as part of the rifle range. There was no new Act of the State legislature after the land had so ceased to be the property of the Commonwealth. But the interim development order referred to in my brother's reasons was so made and specifically relates to an area of which the subject land formed part. This order was made by virtue of delegated legislative authority. The question, then, is whether it fell within that authority. (at p268)

10. The relevant authorizing provision, in my opinion, is s. 342Y of the Local Government Act, 1919-1970. Such power with respect to interim development as that section gives depends upon the suspension of the scheme upon notification by the Minister pursuant to s. 342Y (1). In my opinion, the effectiveness of any suspension of the scheme in relation to any parcel of land must depend upon that land being subject to the scheme at the time of the notification suspending the scheme. In my opinion, for reasons already assigned, the scheme did not at any time apply to the rifle range, or to any part thereof. Consequently, in my opinion, the interim development order of 13th August 1965 was inoperative to effect any limitation on the user of the subject land. (at p268)

11. For these reasons I am of opinion that all three questions raised by the parties by their agreed statement of facts, namely,

(1) Whether upon its enactment on 27th June 1951 the County of Cumberland Planning Scheme Ordinance bound the Commonwealth as owner of the subject land;

(2) Whether upon the transfer by the Commonwealth to the Council of the subject land on 3rd February 1965 the said Ordinance bound the Council as owner thereof;

(3) Whether the notification in the Government Gazette of 13th August 1965 bound the Council and subsequent owners of the subject land including the defendant;

should be answered in the negative. (at p268)

McTIERNAN J. By this action the Attorney-General for the State of New South Wales seeks to restrain the defendant, at the instance of the relators, from erecting an hotel upon the land in question. The action has been removed from the Supreme Court of New South Wales to this Court under s. 40A of the Judiciary Act 1903-1969 (Cth). (at p269)

2. In the statement of facts upon which they have agreed the parties have set forth three questions which arise upon the informant's demurrer to the defendant's amended statement of defence. The first question is whether upon its enactment on 27th June 1951 as the schedule to the Local Government (Amendment) Act, 1951 (N.S.W.) the County of Cumberland Planning Scheme Ordinance bound the Commonwealth as owner at that time of the land in question. (at p269)

3. On 27th June 1951 the subject land was owned by the Commonwealth of Australia, having been acquired in 1929 for the purposes of a rifle range. Section 52 (i.) of the Constitution gives to the Parliament of the Commonwealth exclusive power to make laws with respect to, inter alia, places acquired by the Commonwealth for public purposes. It is clear that a law of a State enacted after the acquisition of such a place by the Commonwealth has no application in so far as it is a law with respect to that place: Worthing v. Rowell and Muston Pty. Ltd. (1970) 123 CLR 89 . In my opinion the Ordinance in question, which purported on its face, by cll. 26-29, to require the consent of the responsible authority before any building might be erected on the range or the land used for any purpose, was a law with respect to the rifle range. The range was delineated and coloured grey on the scheme map which showed the details of the planning scheme. This colour indicated a "Special Uses Area". It is stated in cl. 3 that "special uses" include the use of land or buildings for defence areas. Even if the Ordinance were read down so as to avoid any excess of power, the result would be the same, for the scheme on its enactment would have had no application to the land in question. (at p269)

4. In my opinion therefore the first question should be answered "No". (at p269)

5. The second question which arises is whether upon the transfer by the Commonwealth to the Council of the land on 3rd February 1965 the Ordinance bound the Council as owner thereof. After this transfer the Commonwealth Parliament no longer had exclusive power under s. 52 (i.) of the Constitution to legislate with respect to the range. But the Ordinance was not applicable to the land in question before the transfer by virtue of s. 52 (i.). In my opinion there was nothing entailed in the change of ownership which would have had the effect of applying the Ordinance to the rifle range. (at p269)

6. The second question should also therefore be answered "No". (at p270)

7. The third question is whether the notification in the Government Gazette of 13th August 1965 bound the Council and subsequent owners of the land including the defendant. By that notification the Minister, pursuant to s. 342Y (1) of the Local Government Act, 1919 (N.S.W.), suspended the provisions of the planning scheme with regard to the land in question, and, pursuant to s. 342Y (2), made an interim development order with respect to the land to which the suspension applied, which order was set out as a schedule to the notification. (at p270)

8. In my opinion the language used in s. 342Y (1) and (2) indicates that an interim development order is intended to affect only land to which a prescribed scheme has applied and in respect of which that scheme has been suspended by the Minister's notification. The land in question did not fall into this category. (at p270)

9. The third question should therefore be answered in the way in which the earlier questions have been answered - "No". (at p270)

MENZIES J. This suit was commenced in the Supreme Court of New South Wales and was brought by the Attorney-General of the State at the instance of relators to restrain the defendant from erecting an hotel upon land which it now owns but which between 1929 and 1965 had been part of the Long Bay Rifle Range. The land as a whole had been acquired by the Commonwealth in 1929 for the purpose of a rifle range and it was so used. Part of it was transferred by the Commonwealth to the Council of the Municipality of Randwick (hereinafter called "the Council") in 1965 and the area which the defendant now owns has been transferred to it by the Council before 7th February 1968. All the land has, at all times material, been within the Cumberland County District. (at p270)

2. The defendant, on 7th February 1968, applied for the consent of the Council pursuant to the County of Cumberland Planning Scheme - which I shall call "the scheme" - and an interim development order (known as the "Interim Development Order No. 2 - Municipality of Randwick", made by the Minister for Local Government on 13th August 1965) to erect an hotel upon its land and that consent, subject to certain conditions, was granted on 20th February 1968. The injunction was sought upon the ground that the consent so given was invalid and ineffective by reason of certain provisions of the scheme. A more important issue, however, emerged. It was contended on behalf of the defendant that the Local Government Act, 1919 (N.S.W.), as amended, the scheme, and the interim development orders made thereunder, do not now apply to the defendant's land by reason of the fact that it was land which had been acquired by the Commonwealth for public purposes in 1929 and was owned by the Commonwealth until 1965. Upon this question arising the suit was removed to this Court under s. 40A of the Judiciary Act 1903-1969 (Cth) and the Court has decided to deal with the constitutional question before the remainder of the case. The elaboration of the question that has been raised necessitates some further reference to the relevant New South Wales legislation. (at p271)

3. By the Local Government (Town and Country Planning) Amendment Act, 1945 (N.S.W.), the Local Government Act, 1919 (N.S.W.) was amended by the inclusion of Pt XIIA which introduced novel provisions relating to town and country planning. In 1951 the Local Government (Amendment) Act, 1951 (N.S.W.), s. 2, and a schedule thereto made provision for the County of Cumberland Planning Scheme and it was enacted that the provisions of the schedule - which constituted the "County of Cumberland Planning Scheme " - " shall be deemed to be an ordinance made by the Governor prescribing the scheme under section 342K" of Pt XII of the Local Government Act, 1919, as amended by the Act of 1945. The scheme, therefore, came into force at a time when the Long Bay Rifle Range belonged to the Commonwealth by virtue of the acquisition in 1929 and while it was being used for defence purposes. (at p271)

4. The scheme, according to its terms, applied to all land within the Cumberland County District and the word "land" therein was expressed to include "all lands of the Crown". The reference to "the Crown" is, no doubt, a reference to the Crown in its State right. (at p271)

5. It is now beyond question that the scheme cannot operate without some restriction in favour of the Commonwealth and Commonwealth land. The prohibitions and restrictions which it contained could not operate to prevent or hinder the performance by the Commonwealth of its constitutional functions whether upon its own land or upon the land of any other person: The Commonwealth v. Bogle (1953) 89 CLR 229, at pp 259 and 260 . In addition, s. 52 of the Constitution denies operation to a State law with respect to places acquired by the Commonwealth for public purposes. The power to make such laws was, by the Constitution, given to the Parliament of the Commonwealth exclusively: Worthing's Case (1970) 123 CLR 89 . (at p271)

6. The scheme did not expressly provide for any limitation of its operation in favour of the Commonwealth or Commonwealth or Commonwealth land and, accordingly, when made it was either invalid or should, as a matter of construction, be read down so that it would not exceed State power and have an intended operation which would be unconstitutional, either by its direct application to the Commonwealth itself, or, as legislation in respect of a place acquired by the Commonwealth for a public purpose. The initial choice to be made, as a matter of law, is between these alternatives of invalidity or reading down. (at p272)

7. Reference to the scheme map shows the Long Bay Rifle Range, as well as other land of the Commonwealth, coloured so as to fall within zone 13 of the scheme describing any "Special Uses Area". The rifle range was shown by grey colour and was described simply as "Long Bay Rifle Range". (at p272)

8. Now there is, of course, no objection to a State, by virtue of statute or otherwise, compiling a map of part of the State which comprises land of the Commonwealth and showing that land in its relation to other land. Nor could it matter to validity how such land is coloured or described. What raises a constitutional question is the operative provisions of the scheme in respect of such land. Such provisions are cll. 26 to 29. These absolutely deny the use of some land for particular purposes and define the use for which other land may be put (1) without the consent of the responsible authority, or (2) only with the consent of the responsible authority. Land within zone 13 - special uses area - may be used for any purpose only with the consent of the responsible authority. (at p272)

9. The foregoing limitations are subject to provisions, such as s. 32 of the scheme, safeguarding existing user, but these provisions do not require consideration here because I have no doubt that it would be beyond State power to apply the prohibitions and limitations to be derived from cll. 26 to 29 to the Commonwealth or to the land of the Commonwealth - if I may use that term imprecisely to describe places "acquired by the Commonwealth for public purposes". Section 32 could not preserve the validity of a State law which, upon its true construction, so applied. (at p272)

10. The question then is whether, as a matter of interpretation, the restrictions of the scheme do, upon their proper construction, apply to the Commonwealth and to Commonwealth land. Two statutory provisions relating to interpretation may be noticed, (1) s. 652 of the Local Government Act, 1919 (N.S.W.), as amended, and (2) s. 14A of the Interpretation Act, 1897, as inserted by s. 2 (c) of the Interpretation (Amendment) Act, 1969 (Act No. 36), which came into force on 24th Aril 1969. The former is as follows:

"652. The provisions of this Act shall be read subject to the provisions of the Commonwealth of Australia Constitution Act."

The latter is as follows:

"14A. (I) An Act shall be read and construed as operating to the full extent of, but so as not to exceed, the legislative powers of the State, to the intent that where any provision of the Act, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, have been construed as being in excess of those powers, it shall be a valid provision to the extent to which it is not in excess of those powers, and the remainder of the Act and the application of the provision to other persons, subject-matters or circumstances shall not be affected. (II) Subsection one of this section applies to an Act passed before or after the commencement of the Interpretation (Amendment) Act, 1969, and applies to any such Act in addition to, and not in derogation of, any provision of any such Act relating to the construction, or extent of the operation, of the Act."

I should also, perhaps, refer to the Local Government Act, s. 579, which is as follows:

"579. (1) An ordinance shall save as therein otherwise expressly provided be construed as if the Interpretation Act of 1897, applied mutatis mutandis to the interpretation thereof. (2) Section eighteen of the Interpretation Act of 1897 is amended by inserting after the word 'regulations' the word 'ordinances'." (at p273)

11. If s. 14A inserted by Act No. 36 of 1969 were to apply to the scheme I would regard its operation as conclusive that such restrictions upon the use of land, as the scheme imposes, had no application to the Commonwealth or to Commonwealth land. I have, however, been forced to conclude that it would be taking an unwarranted liberty with the language used were I to regard the scheme - although a schedule to the Act - as other than s. 2 (2) of the Local Government (Amendment) Act, 1951 deems it to be; viz. "an ordinance made by the Governor prescribing the scheme under section 342K of the Principal Act". Quite clearly the scheme has not the quality of an Act of Parliament and it can be varied as an ordinance in a way that is quite foreign to the amendment of Acts of Parliament. See Local Government (Amendment) Act, 1951, s. 2(4). (at p273)

12. It seems to me, however, that, even in the absence of an express provision requiring reading down, it is in accordance with well accepted principle for the court to attribute to the Parliament of the State the intention of legislating within its own power so that, where possible, words used without express limitation should be read with such limitation as is necessary to keep the enactment within legislative power: D'Emden v. Pedder (1904) 1 CLR 91, at p 120 , where the Court said:

" . . . we should not, we think, be justified in assuming that the Tasmanian Parliament intended the general words of their enactment to have an application which would conflict with the Constitution of the Commonwealth. In our view, therefore, the Tasmanian Statute under consideration should be construed as not applying to a receipt given by a federal officer under the circumstances of this case."

The problem was stated by Dixon J., as he then was, in Bank of New South Wales v. The Commonwealth (1948) 76 CLR 1, at p 369 , as follows:

" . . . when a statute or statutory instrument goes beyond the Constitution the question for the Court is whether a provision too widely or generally expressed should be confined in its operation to so much of the subject it is capable of covering as is constitutionally competent to the legislature, or, as it is sometimes said, whether the general words are to be read and applied distributively."

His Honour went on to point out (1948) 76 CLR, at p 370 , that, in the absence of an expressed severability clause in an Act:

"no severance could be effected unless an inference that the provisions are not to be interdependent can be positively drawn from the nature of the provisions, from the manner in which they are expressed, or from the fact that they independently affect the persons or things within power in the same way and with the same results as if the full intended operation of the legislation had been valid."

This principle, so it seems to me, applies with additional force when the only vice that is attributed to the law of a State is that it does not expressly exempt the Commonwealth from its operation: D'Emden v. Pedder (1904) 1 CLR 91 ; Municipal Council of Sydney v. The Commonwealth (1904) 1 CLR 208 . Thus a State law prohibiting the use of firearms within the State, except with police authority, and doing so without exempting members of the military forces of the Commonwealth, would not, in the absence of an express exemption in their favour, be an invalid law. The natural construction of the law would be to treat it as having no application to soldiers. There are, of course, cases where it would be difficult to be sure that a State law was not intended to apply to the Commonwealth, but, in most cases, it would be so obvious that reliance upon express reading down provisions is unnecessary. This, I think, is such a case. Here, it seems to me, that the exclusion of the Commonwealth and of Commonwealth land from the restrictions and prohibitions of the scheme was so obviously necessary for validity that it is proper to conclude that such exclusion was intended, and, the mere fact that there are no express words of exclusion, does not warrant the invalidation of the scheme as a whole. Not only is there no difficulty about the scheme operating without it imposing any obligations upon the Commonwealth or in relation to Commonwealth land, but some recognition that its commands were not addressed to the Commonwealth is, as it seems to me, to be found in the way in which the Commonwealth lands have been treated in the scheme map. It is, I think, a fair reading of the map that the scheme was not intended to operate in respect of Commonwealth lands which were shown upon the map with a description of the way in which they were being used by the Commonwealth. Thus, for instance, one area is simply called "Kingsford Smith Aerodrome", another "Military Reserve", and another "under the control of the Commonwealth Government". (at p275)

13. Therefore, as a matter of interpretation, I have come to the conclusion that the prohibitions and limitations of the scheme do not apply to the Commonwealth or to lands at any time answering the description of "places acquired by the Commonwealth for public purposes". (at p275)

14. When, therefore, the scheme was adopted it did not apply to the Long Bay Rifle Range for two reasons - (1) that the scheme was not intended to control the Commonwealth in the exercise of its constitutional functions, and (2) that it was not intended that the scheme should apply to lands of the Commonwealth situated within the County of Cumberland District. (at p275)

15. Once the Commonwealth disposed of land comprised in the Long Bay Rifle Range the first reason would no longer afford any ground for denying the application of the scheme to land which the Commonwealth had ceased to use. To the literalist, however, it is more difficult to conclude that land, having been acquired by the Commonwealth for public purposes, ceased to be land within that description once the Commonwealth had disposed of the land and it had been acquired from the Commonwealth by some other person. However, having regard to the purpose of s. 52 of the Constitution, it seems right to me to construe that section as authorizing Commonwealth legislation with respect to places being the property of the Commonwealth which have been acquired by the Commonwealth for public purposes. Land within the County of Cumberland District, owned by the State of New South Wales and then acquired by the Commonwealth for public purposes, would, upon such acquisition, fall within s. 52 as being a place within the description to be found therein. On the other hand, it would seem to me an unreasonable construction of s. 52 to deny the application of State laws in respect of places merely because, at an earlier day, they had been acquired by the Commonwealth for public purposes. The word "acquired" in s. 52 (i.) does not, I think, require such an unreasonable consequence and I read the phrase "acquired by the Commonwealth" as carrying within itself the notion of being the property of the Commonwealth. Once land falls outside that description it is no longer one of the places with respect to which the Commonwealth has power to make laws under s. 52 and it is a place in respect of which the State Parliament may make laws. Any other conclusion would leave areas of land in which the Commonwealth had ceased to have any particular interest as subject to Commonwealth legislative power to the exclusion of State legislative power even if the land had become the property of the State. A construction of s. 52 producing such an arbitrary and unreasonable result should be adopted only if the language used compels it. As I have said, s. 52 is susceptible of a more rational construction. (at p276)

16. In the course of argument we were referred to a decision of the Supreme Court of the United States, S.R.A., Inc. v. Minnesota (1946) 327 US 558 (90 Law Ed 851) . There land which had been acquired by the United States for public purposes, with the consent of Minnesota and over which the United States had exercised legislative authority pursuant to Art. 1, par. 8, cl. 17 of the Constitution, was sold by the United States to a private purchaser. It was held that when the purchaser took possession of the property it became subject to the territorial jurisdiction of Minnesota and in the course of delivering the judgment of the Court Reed J. said, (1946) 327 US, at pp 563-564; (90 Law Ed, at pp 856-857) :

"It would seem that the United States obtained this property in compliance with cession by Minnesota of exclusive sovereignty. Act of February 9, 1867, Minn. Laws 1867 Jan., Ch. LXXIX. The acceptance by the United States at that time of the power ceded is presumed. This Court apparently has never directly passed upon the effect on federal sovereignty of the property's transfer by the United States to private hands.

In this instance there were no specific words in the contract with petitioner which were intended to retain sovereignty in the United States. There was no express retrocession by Congress to Minnesota, such as sometimes occurs. There was no requirement in the act of cession for return of sovereignty to the State when the ceded territory was no longer used for federal purposes. In the absence of some such provisions, a transfer of property held by the United States under state cessions pursuant to Art. 1, par. 8, cl 17, of the Constitution would leave numerous isolated islands of federal jurisdiction, unless the unrestricted transfer of the property to private hands is thought without more to revest sovereignty in the States. As the purpose of cl 17 was to give control over the sites of government operations to the United States, when such control was deemed essential for federal activities, it would seem that the sovereignty of the United States would end with the reason for its existence and the disposition of the property. We shall treat this case as though the Government's unrestricted transfer of property to non-federal hands is a relinquishment of the exclusive legislative power. Recognition has been given to this result as a rule of necessity. If such a step is necessary, Minnesota showed its acceptance of a supposed retrocession by its levy of a tax on the property. Under these assumptions the existence of territorial jurisdiction in Minnesota so as to permit state taxation depends upon whether there was a transfer of the property by the contract of sale." (at p277)

17. Although it is not possible to apply this decision directly to s. 52 of the Constitution of the Commonwealth, it is of some assistance upon the question whether the defendant's land is now land "acquired by the Commonwealth for public purposes" to find that the Supreme Court of the United States has come to the conclusion that the power of the United States ceases and the power of a State applies when land which has been subject to Art. 1, par. 8, cl. 17, has been disposed of by the United States. Furthermore, I do not think that s. 52 would prevent a State from enacting a valid law specifying property, including places acquired by the Commonwealth, but having no operation with respect to such places until they cease to be the property of the Commonwealth. The reason for this is that I think, for reasons already stated, that a Commonwealth law, expressed to operate with respect to a place acquired by the Commonwealth not only while it is the property of the Commonwealth but after it has ceased to be so, would not be a valid law. What the Commonwealth Parliament cannot do, a State Parliament can. Section 52, according to my construction, is an exclusive power to make laws for property so long as it fulfills the description of a place acquired by the Commonwealth but not thereafter. Accordingly, in my opinion, a State law imposing rates or land tax and passed before or during the time a place fell into the description of a place acquired by the Commonwealth, could apply, without further legislation, to the place which had ceased to be a place acquired by the Commonwealth. (at p278)

18. Construing both s. 52 and the scheme as I do, I have, therefore, come to the conclusion that the Long Bay Rifle Range was at all times within the scheme but that the scheme imposed no limitation with respect to its use until the land had been acquired from the Commonwealth by the Council, i.e. until it ceased to be a place acquired by the Commonwealth. In the sense in which the word has been used in the argument of this case, I would say that the scheme did not bind the Commonwealth, but did bind the Council when it acquired part of the rifle range from the Commonwealth. (at p278)

19. This conclusion disposes of the constitutional question in favour of the plaintiff and against the defendant, for, if the land was subject to the restrictions of the scheme when the Minister gave the notification and made Interim Development Order No. 2 - Municipality of Randwick, on 13th August 1965, no question could arise as to the effectiveness of that order which is the particular restraint which the defendant is anxious to avoid. (at p278)

20. The plaintiff did, however, argue that, even if the scheme itself had no application to the defendant's land, Interim Development Order No.2 - Municipality of Randwick, having been made after the land had ceased to be the property of the Commonwealth, was nevertheless effective to impose restrictions upon the land in accordance with its terms. It appears to me, however, that, had I decided that, notwithstanding the acquisition of part of the Long Bay Rifle Range by the Council from the Commonwealth, that land for any reason remained outside the prohibitions of the scheme, I would have had grave doubts whether the Minister could, in relation to that land, have done what he did by his notification of 13th August 1965, and, in relation to that land only, have suspended provisions which had no application to it - for to suspend provisions is to put them in abeyance so that, for a time, they will no longer apply. If there were no valid notification, then I think there was no valid making of Interim Development Order No. 2 - Municipality of Randwick. This view is not final for it is unnecessary for me to express a final conclusion. My present impression of the meaning of s. 342Y of the Local Government Act, 1919, as amended, and my reading of the notification made by the Minister on 13th August 1965, are such, however, that I would regard an effective suspension of the provisions of the scheme as a prerequisite to the making of an interim development order. However, in view of my earlier conclusion, I say no more about this matter. (at p279)

21. In a statement of agreed facts the parties, in par. 18, have said:

"The questions which arise upon this demurrer are : - (1) Whether upon its enactment on 27th June 1951, the County of Cumberland Planning Scheme Ordinance bound the Commonwealth as owner of the subject land.

(2) Whether upon the transfer by the Commonwealth to the Council of the subject land on 3rd February 1965, the said Ordinance bound the Council as owner thereof.

(3) Whether the notification in the Government Gazette of 13th August 1965, bound the Council and subsequent owners of the subject land including the defendant." (at p279)

22. I would answer these questions:

(1) No.
(2) Yes.
(3) Yes. (at p279)

WINDEYER J. In my opinion the reservations and restrictions upon the use of lands within the County of Cumberland in New South Wales that are imposed by the County of Cumberland Planning Scheme Ordinance have never applied to the land at Long Bay that was acquired by the Commonwealth in 1929 for the purposes of a rifle range. The Ordinance was enacted as a schedule to the Local Government (Amendment) Act, 1951 (N.S.W.), which came into force on 27th June 1951. The Ordinance and the supporting Act have both been extensively amended from time to time since then ; but it is not necessary to trace in detail their history since 1951. The whole of the land constituting the Long Bay Rifle Range, as acquired by the Commonwealth in 1929, was then still Commonwealth property ; and the range was in regular use by members of the Defence Forces for target practice. (at p279)

2. By virtue of s. 52 of the Constitution the Commonwealth Parliament has exclusive power to make laws with respect to places acquired by the Commonwealth for public purposes. Whatever view be taken of the scope and effect of s. 52, this much is clear : first, that any law of a State made after the acquisition of a place by the Commonwealth has no force or effect in so far as it is a law with respect to that place: secondly, that a law, whether in general or specific terms, which restricts and controls the use to which a place can be put is a law with respect to that place. Therefore the Planning Scheme Ordinance could not have any lawful operation in respect of any place that had been acquired by the Commonwealth for public purposes before 27th June 1951, and which was at that date still held by the Commonwealth for such purposes. That I consider means that the restrictions and controls that the Ordinance imposes were not applicable at all to such Commonwealth places. But it does not mean that it was improper to delineate them on the scheme map. The colouring on the map indicates the rifle range as a "special uses" area as referred to in cl. 3 of the Ordinance. From that it might seem that the Ordinance, by its terms, purported to require the Commonwealth to get the consent of the "responsible authority" for the erection of any building there. If that were so, the Ordinance would be pro tanto invalid. But I am not prepared to assume, from this topography, that the State of New South Wales was claiming to dictate to the Commonwealth how it might use its land, and that the Ordinance should be read as meaning that the Commonwealth must not erect an ammunition shed, or build firing mounds or butts, on the rifle range without first obtaining the consent of a State official. Rather it seems to me that the scheme, including the map, is to be read with an implication that it does not encroach upon matters that are within the exclusive power of the Commonwealth. This does not mean that the various Commonwealth places within the County District that are delineated on the map are not of significance for the scheme. In the preparation of any scheme of town planning the nature of any existing special use of lands adjacent to the land the use of which is being planned must be considered. The Cumberland plan is a comprehensive plan, made, I take it, having regard not only to land that could lawfully be brought within the controls prescribed by the Ordinance but also to the nature and the use of other lands adjoining. (at p280)

3. In 1965 the Commonwealth, no longer requiring the whole of its rifle range land, disposed of part by transfer to the Council of the Municipality of Randwick; and later the Council transferred a part of what it had thus acquired to the defendant, Stocks and Holdings (Constructors) Pty. Ltd., which proposes to build an hotel there. As I read s.52 of the Constitution, the exclusive power of the Commonwealth with respect to a place it has acquired subsists only so long as it holds the place for that purpose. If the Commonwealth transfers land to the State, it becomes land of the Crown in right of the State. If the Commonwealth transfers it absolutely to a person, it becomes vested in the transferee as tenant in fee simple in right of the State. In either event the authority of the Commonwealth Parliament in respect of the place comes to an end: and so, in my view, do any laws that the Parliament made by virtue only of its exclusive power to make laws with respect to the place, unless the State Parliament legislates to keep them alive. This result flows from the nature of the Commonwealth power under s.52 with respect to places. A more or less corresponding provision in the Constitution of the United States has been held to have a similar effect: S.R.A. Inc. v. Minnesota (1946) 327 US 558, at p 564 (90 Law Ed 851, at p 857) . It may be that the same result would follow not only if the Commonwealth relinquished entirely its ownership of a place, but also if it surrendered exclusive possession of it for a term of years, and it was no longer used for public purposes. But it is not necessary to consider in this case whether that would be so; for here the subject land was transferred absolutely. (at p281)

4. A person who becomes a tenant in fee simple of land in a State holds it subject to the law for the time being in force in the State. I do not think that he can obtain any immunities by looking back to a time when some other law prevailed with respect to his land. For example, a person who becomes the owner of land that was once part of a Commonwealth rifle range cannot say that he is at liberty to disregard State laws relating to the discharging of firearms. In short, a person who becomes a landowner by transfer of land from the Commonwealth is in the same position as a person who acquires land in the State from any other transferor. If the land lies within a local government area, a municipality or shire, he is subject to the control of the local authority in respect of his use of and dealings with that land, just as is any other landowner. So it seems to me. But that does not answer the present question. It is not a question of the application of general laws of a State in places that have ceased to be Commonwealth places. It is whether or not a particular State law, the Ordinance, which had previously no force with respect to the subject land, because that land was by law placed outside its purview, somehow came into force there when the Commonwealth relinquished its ownership. The Solicitor-General for New South Wales argued that the Ordinance should be read as if it provided that it should not affect any Commonwealth land while it was held by the Commonwealth but should take effect in respect of any such land shewn on the scheme map if the Commonwealth should cease to hold it. I do not think that the Ordinance can be read in that way, as prospectively and contingently bringing land not subject to its provisions within them in the future. Such an enactment would I consider be invalid, for the State Parliament has no power to make any law with respect to a place acquired by the Commonwealth for public purposes. A law would not be any the less an infringement of this prohibition because it was not to operate forthwith but only upon the contingency of the Commonwealth in the future abandoning the place. It may be that a valid law could be made by the State expressed to operate upon a transfer of title by the Commonwealth that was actually pending becoming effective. But the proposition was far wider than that. If the Ordinance did not bind the Commonwealth with respect to its use of the subject land, then I do not think that it can be said to bind its successors in title simply because the condition, Commonwealth ownership, which put the place beyond the reach of the Ordinance has come to an end. The doctrine applicable to concurrent powers, enunciated in Butler v. Attorney-General (Victoria) (1961) 106 CLR268 , has no application here. Moreover, it is not clear to me in what way land which in the scheme map was shewn as "zoned", as the phrase is, for a special use could, when it ceased to be excluded from the powers of the State Parliament, become, without more, zoned for some other use. If the land that the Commonwealth gave up has been made subject to the scheme, that must be as the result of something occurring after the Commonwealth gave it up effective in law for that purpose. Not only does the law of the Constitution as I understand it demand that: it would seem to be necessary also to meet the purposes of planning law. The whole nature of a planning scheme is altered if land, which was previously excluded from its operation, is to be subjected to its provisions. A new and appropriate zoning must be determined for it; and the zoning of neighbouring lands might need reconsideration. Therefore, unless there be a State law which meets the situation that has arisen, it seems to me that the subject land was not by its transfer from the Commonwealth to the Randwick Council brought within the provisions of the Ordinance. (at p282)

5. The question then is, does the interim development order catch the subject land? This order appears to have been made pursuant to s. 342Y of the Local Government Act, 1919 (N.S.W.). This section was added to the Act in 1945, and then amended in 1962 and 1963. It is a troublesome question. The statutory provisions are complex, technical and difficult. I have, however, come to the conclusion that the interim development order brought into operation a "local scheme" within the meaning of s. 342L and that the Minister could under s. 342Y suspend the provisions of the prescribed scheme to enable the local scheme to come into effect. It is true that in the view that I take that land was never subject to the restrictions and control of the Ordinance. It can therefore be said that the power which the Minister has under s. 342Y to "notify the suspension of the provisions of the prescribed scheme pending the coming into operation of the varying scheme" cannot be invoked in this case, because, it may be said, the provisions of the prescribed scheme never applied to the subject land. That is a forceful objection I agree. Nevertheless, the rifle range land was within the County District. It was shewn on the scheme map. Its zoning there, as for special uses, gave it a special place in relation to the scheme, so it seems to me. Its existence and special position were matters that could affect in practice the administration of the controls which the Ordinance imposed on other lands. It seems to me that to bring within the purview of the Ordinance land which was formerly excluded from it involves a suspension of the provisions of the existing scheme, simply because it is a radical modification and enlargement of it. I appreciate the force of the contrary view based on a precise reading of s. 342Y. But I think that it can be read more broadly without doing violence to its words, and in a way that accords with its intent. I take comfort from the old maxim that, as Staunford J., citing Bracton, expressed it: "benigne faciendae sunt interpretationes instrumenti, ut res magis valeat quam pereat": Throckmerton v. Tracy (1555) 1 Plowd 145, at p 160 (75 ER 222, at p247) . (at p283)

6. I would answer the questions: (1) No (2) No (3) Yes. (at p283)

WALSH J. A suit was brought against the defendant in the Supreme Court of New South Wales by the Attorney-General of that State, at the instance of relators, seeking a declaration that an interim development consent to the erection of an hotel on certain land was void and of no effect and an injunction to restrain the defendant from developing the land for the purpose of the hotel. The defendant, although it had regarded itself as bound to obtain an interim development consent and had sought and obtained such a consent raised a contention that this was not necessary. It asserted that the subject land was acquired in 1929 by the Commonwealth of Australia for public purposes and was on 27th June 1951 owned by the Commonwealth and was immediately before and after that date used by the Commonwealth as a rifle range for the defence forces. It was on 27th June 1951 that the Local Government (Amendment) Act, 1951 (N.S.W.) came into operation. It was thereby enacted that the provisions in a schedule to the Act should be the scheme required by Div. 8 of Pt XIIA of the Principal Act to be prepared for the County of Cumberland and should be deemed to be an Ordinance made by the Governor prescribing the scheme. The defendant claimed that although the land to which the suit relates (being part of the land which was acquired by the Commonwealth and used as a rifle range) had been transferred on 3rd February 1965 to the Council of the Municipality of Randwick and had afterwards been purchased from the Council by the defendant, neither the provisions of the scheme embodied in the 1951 Act nor the provisions of an interim development order made by the Minister for Local Government on 13th August 1965 had any application to the land and the defendant was not bound by any of those provisions. (at p284)

2. The suit was removed into this Court pursuant to s. 40A of the Judiciary Act and argument has been heard on three questions which have been regarded by the parties as arising out of the foregoing contentions of the defendant. These may be stated shortly as being whether the enactment which came into operation on 27th June 1951 bound the Commonwealth as owner of the subject land; whether upon the transfer of it on 3rd February 1965 that enactment bound the Council as owner of the land, and whether the notification of 13th August 1965 of an interim development order bound the Council and subsequent owners of the land, including the defendant. (at p284)

3. The defendant relies upon s. 52 (i.) of the Constitution and upon the decision in Worthing v. Rowell and Muston Pty. Ltd. (1970) 123 CLR 89 . It contends that the enactment in 1951 had no valid application to the subject land, because the Parliament of New South Wales had no power to pass any law "with respect to" the rifle range of which it formed part. The defendant contends that if after 3rd February 1965 the State Parliament had power to pass laws relating to the land, which had then ceased to be owned or used by the Commonwealth, the Parliament has not done so. The result is that the land, which was not affected by the scheme when it was enacted, has remained unaffected by it. It is contended also, for reasons to which I shall refer later, that the interim development order of August 1965 had no effect. (at p284)

4. The defendant's argument does not depend upon interpreting s. 52 (i.) as having the effect that every place which has been acquired by the Commonwealth for public purposes remains forever a place to which that provision applies. It is nevertheless proper to consider whether it requires that interpretation. In my opinion it should not be interpreted in that way. I agree with the reasons given by Menzies J. for holding that a construction should be adopted by which s. 52 (i.) did not continue to apply to the subject land after it had been transferred by the Commonwealth. I am of opinion, therefore, that after that time the Parliament of the State could make laws with respect to it. (at p285)

5. It is necessary, first, to consider what effect, if any, the 1951 enactment had in relation to the land. I shall refer to the Schedule to the 1951 Act as the Ordinance. Clause 4 thereof provides that it applies to all land within the Cumberland County District. It is provided in cl. 3 that "land" includes "all lands of the Crown". It is provided that "special uses" include the use of land or buildings for defence areas. The relevant operative provisions of the Ordinance, prescribing the purposes for which buildings may be erected or used (1) without consent of the responsible authority; (2) with its consent; or (3) not at all, and the purposes for which land may be used, are contained mainly in cll. 26, 28 and 29. These provisions are made by reference to the "Scheme Map" and to the "Zone" to which land is shown to belong by means of distinctive colouring on the scheme map. See the definitions in s. 3 of the Local Government (Amendment) Act, 1951 (N.S.W.) and the table to cl. 26. On the scheme map the rifle range was shown by colouring which indicated a "Special Uses Area". Clause 26 provides that on land so zoned buildings may be erected or used for any purpose only with the consent of the responsible authority. There is a provision (cl. 32) for the continued use of buildings or of land for an existing use. (at p285)

6. In my opinion a law that, except with the consent of a specified authority, land shall not be used for any purpose and no buildings shall be erected on it for any purpose is, in so far as it applies in a place acquired by the Commonwealth for public purposes, a law with respect to the place. No other conclusion could be consistent with the reasons of any of the members of the Court who constituted the majority in Worthing's Case (1970) 123 CLR 89 . If upon their proper construction, the 1951 Act and the Ordinance applied to the rifle range land, I think that those enactments must be held to have been to that extent beyond power and invalid. Unless they should be construed as less extensive in meaning than their general terms would indicate, they cannot be held to be wholly valid. It was submitted that the provisions should be by construction confined so that they do not exceed what the Parliament of the State was competent to enact. The learned Solicitor-General for New South Wales submitted that the provisions were not intended to bind the Commonwealth or the land, whilst it remained in Commonwealth ownership, but were intended to bind the land and the owners of it for the time being (whether individuals, corporations or States) after the cessation of Commonwealth ownership. The submission is not simply that the provisions should be construed as not binding the Commonwealth. It is that they should be construed as not intended "to bind the land" so long as it is owned by the Commonwealth. It seems inevitable that the submission must be put in that way, for a reading down of the provisions so that they imposed no restrictions upon the Commonwealth itself but yet operated immediately to make all other persons liable to penalties for using the land, except with the consent of the responsible authority, would not avail to prevent the law from being in conflict with s. 52 (i.). Therefore the submission must go so far as to say that the provisions should be read as meaning that no restrictions at all were imposed forthwith in relation to the subject land. I think it is essential also, that the submissions for the informant should include a submission that nevertheless the enactment did deal with the subject land and did make a law concerning it, namely, a law that if the land should cease at some future time to be owned by the Commonwealth, then the restrictions stated in the Ordinance to be imposed upon the erection of buildings upon, and the use of, land zoned as a "Special Uses Area", would be applicable to it. It is only upon that view of the matter that it would be correct to say that the land was "within the scheme" and that its restrictive provisions bound the owner of the land after it was transferred by the Commonwealth. If that construction were adopted and if on that construction the provisions would be valid, I think it would also be correct to say that the interim development order of August 1965 was effective and bound the defendant. (at p286)

7. But I am of opinion that these submissions for the informant cannot be accepted. If the legislation is capable of the construction to which I have just referred, then it may be that it would not operate to burden the performance by the Commonwealth of its constitutional functions. But it would still be in my opinion in conflict with s. 52 (i.), in so far as it operated in the manner for which, as I have said, the informant is in my opinion bound to contend in order to support his argument. I think it would be, to the extent to which upon that construction it would apply to the land, a law "with respect to" the Commonwealth place, although its operation in relation to that place would not be immediate but would be prospective and would be contingent upon the cessation of Commonwealth ownership. (at p287)

8. To the extent that the 1951 Act and its Schedule should be read as having even the limited application to the land which the informant's arguments must postulate, it would be in my opinion invalid because of s. 52 (i.). I do not mean that there would be any invalidity in showing the land on the map to which the Act refers in order to make it easier to understand the map or simply for the purpose of identifying land and stating facts as to its existing ownership and use. But if no more than that was done, I think that the land would not be brought within the scheme. It would not be land to which the scheme "applies". On the other hand, if the enactment is read as making the scheme apply to the land, and as issuing directions as to its use, whether in the present or in the future, I think that it is to that extent beyond legislative power. (at p287)

9. We were referred to s. 652 of the Local Government Act which provides: "The provisions of this Act shall be read subject to the provisions of the Commonwealth of Australia Constitution Act." In determining the effect of the 1951 Act and the Ordinance, that provision must be considered. In my opinion the provisions of s. 14A of the Interpretation Act of 1897 (N.S.W.), inserted by the Interpretation (Amendment) Act, 1969 are also applicable to the 1951 Act and the Ordinance. Although it is enacted in the 1951 Act that the provisions of the Schedule shall be deemed to be an rdinance made by the Governor and although they might be varied otherwise than by an amending Act, those provisions are part of the 1951 Act and I think that they fall within the scope of s. 14A. The present suit was not instituted until after the commencement on 24th April 1969 of the Act of 1969 and is therefore capable of being affected by that Act (see s. 3 thereof). Apart from those statutory provisions, regard must be had to the principle by which an enactment expressed in general terms may be confined in its operation so as not to extend beyond the competence of the legislature. (at p287)

10. If to some extent the provisions of the 1951 Act and the Ordinance were found to be invalid, those provisions would remain, in my opinion, valid and operative to the extent that they did not exceed the legislative power of the State. But in my opinion this conclusion does not mean that the submissions for the informant as to the validity and application of the provisions, in relation to the subject land, must be accepted. I think that, in ascertaining the effect of the provisions, general words should be read and applied in the same way as they would have been read and applied if appropriate qualifications or exceptions had been expressly added to them so as to confine them within the scope of the legislative power. For example, in cl. 4 of the Ordinance the expression "all land" should be read as if places acquired by the Commonwealth for public purposes had been excepted and in cl. 29 a similar exception should be understood. In my opinion the Ordinance may properly be read down to the extent required to avoid any excess of constitutional power. But if it be so read, the result is that the subject land was not within the scheme at all. The provisions of the Ordinance had no application to it. (at p288)

11. If the only constitutional impediment had been the principle that the State Parliament cannot lawfully dictate to the Commonwealth what it may do or allow to be done upon its property and cannot impede its performance of its constitutional functions, it may be that it would have been sufficient, in order to keep the provisions of the Ordinance within the power, to import into them the qualifications which would accord with the submissions for the informant. It may have been proper in that event to read these provisions as subject to a proviso that they were to have no operation or effect upon the Commonwealth or upon the use of any land so long as it remained Commonwealth land. But in my opinion if its provisions were understood to be subject to those qualifications, but to no more extensive qualification, the Ordinance would still be a law with respect to the Commonwealth places which at the time of its enactment were within the area to which the Ordinance referred. It is only if the provisions should be understood as having no application at all to lands which had been acquired by the Commonwealth for public purposes and were still held by it, that the Ordinance would avoid the consequences of s. 52 (i.). But if so understood, those lands, although marked upon the map, would not be within the scheme. The scheme would not apply to them. (at p288)

12. If the conclusions just stated be correct, I think that it follows that when the subject land was transferred in 1965 by the Commonwealth to the Council, the change of ownership did not have the effect that thereafter the Ordinance applied to that land. The new owner would be bound of course by any legislation which applied to the land or to its use. But the new owner could not be bound by legislation which did not apply to that land, whether this was because upon its proper construction the legislation was not intended to apply to it or because the application of it to that land, although intended, was beyond the legislative power. (at p289)

13. In reaching the foregoing conclusions as to the extent to which the Ordinance must be read down to save it from entrenchment on the exclusive power of the Commonwealth Parliament, I have not found it necessary to decide that no law of a State, enacted whilst a place acquired by the Commonwealth for public purposes is still owned by the Commonwealth, is capable of having a valid operation with respect to that place after it ceases to belong to the Commonwealth. I confine my opinion on this subject to the law with which we are concerned. I am of opinion that it is not competent for the State Parliament to declare in advance the uses which may be made of the land by any person who may succeed the Commonwealth as owner of it. Such a law would limit the extent and the value of the rights which could be enjoyed by a new owner to whom the Commonwealth transfers the land. It might have the effect that the Commonwealth could not dispose of its land, except for use for one particular purpose, e.g. as a park. In my opinion such a law would be in conflict with s. 52 (i.). Although I am of opinion that the Commonwealth power to make laws with respect to a place ceases after it has been transferred by the Commonwealth, I am of opinion that, so long as it is still held by the Commonwealth, a law concerning the use to which the land may be put by a transferee from the Commonwealth is within Commonwealth and not within State power. (at p289)

14. There remains for consideration the effect of the interim development order of 13th August 1965. The language of the provisions relating to interim development orders presents some difficulties. Section 342T (1) defines "interim development order" as meaning an interim development order made by the Minister under s. 342U. But s. 342T (2) refers to an interim development order made under s. 342Y (2). It seems clear that it was under the latter provision that the interim development order with which we are concerned was made. A notification was made in accordance with s. 342Y (1). Therefore the Minister was required by sub-s. (2) to make by the same notification an interim development order relating to the land to which the notification under sub-s. (1) applied. Subsection (1) provides that the Minister may in specified circumstances notify "the suspension of the provisions of the prescribed scheme pending the coming into operation of the varying scheme". He may do this "either as respects the whole of the land to which the varying scheme is to apply or as respects any portion thereof". The provision applies only where a resolution has been passed for the preparation of a scheme varying a prescribed scheme or the preparation of such a scheme has been directed. It is for this reason that the notification recited a resolution of the Council of the Municipality of Randwick for the preparation of a scheme for the whole of the municipality and it referred to s. 342L (2) (b) (i) of the Act. That provision enacts that a local scheme, in respect of the land to which it applies, may vary the County of Cumberland Planning Scheme. Section 342L (1) provides that a prescribed scheme may be varied by a subsequent scheme and that any such variation may supplement or amend (otherwise than by extension of the land to which the scheme applies) the prescribed scheme. In sub-s. (2) "local scheme" means a scheme prepared by the Council of an area wholly or partly included in the County of Cumberland or by the Authority in respect of any such area. When a local scheme comes into operation the County of Cumberland Planning Scheme is revoked to the extent to which it applies to the land to which the local scheme applies: see sub-s. (2) (d). When s. 342Y is considered in conjunction with those provisions of s. 342L it seems clear that its purpose is to enable suitable temporary variations of the provisions of a prescribed scheme to be brought into operation in anticipation of a varying scheme. This is effected by empowering the Minister to do by the same notification two things. The first is to suspend (in whole or in part) the provisions of the prescribed scheme. The second is to put in their place an interim development order. (at p290)

15. Because of the definition therein of "local scheme", s. 342L (2) appears to permit the preparation of a local scheme which, although it may vary the County of Cumberland Planning Scheme, may apply to land not included in the area of the County of Cumberland and therefore not included in the area to which the County of Cumberland Planning Scheme applies. It may be, therefore, that the prohibition in sub-s. (1) of any variation, which supplements or amends the prescribed scheme by extension of the land to which the scheme applies, does not operate in cases in which the more particular provisions of sub-s. (2) authorize a variation of the County of Cumberland Planning Scheme. Of course a local scheme would cover a smaller area than the County of Cumberland Planning Scheme, but it may be that it may incorporate an area not included in that scheme. Assuming that to be so, I think that nevertheless it is shown clearly enough by the language of sub-ss. (1) and (2) of s. 342Y that any action taken under those subsections can be effective only in relation to land to which a prescribed scheme does apply. It is true that sub-s. (1) refers to "the land to which the varying scheme is to apply". But the notification therein suspends the provisions of the prescribed scheme or some of them. If there is land to which the prescribed scheme has no application and in respect of which it imposes no prohibitions or restrictions upon development, I do not think it is possible to regard s. 342Y as empowering the Minister "to suspend" the provisions of the prescribed scheme in respect of that land. That is what the notification purported to do in this case. It purported to suspend the provisions of the scheme "as respects all development of the land referred to in Schedule 'A' hereto". The land so described was land which had been part of the rifle range. It included no other land. But according to the views which I have already expressed, the scheme did not apply to that land at all. There were no provisions of the scheme "as respects" development of that land. (at p291)

16. Subsection (2) of s. 342Y provides for the filling of a gap which a notification under sub-s. (1) creates. It directs that an interim development order should accompany a suspension and this order must relate to the land to which the notification under sub-s. (1) applies. I do not think it is possible to hold that this requirement is satisfied simply because land is identified and described in the notification under sub-s. (1). I think it can be satisfied only where there is a notification which is effective under sub-s. (1) and which "applies" to land, in the sense that it operates to suspend provisions of the scheme by which the development of that land was validly regulated. (at p291)

17. I conclude therefore that the interim development order was not effective to impose the restrictions upon development which are set out in the table appended to the order. (at p291)

18. In my opinion the subject land was not land to which the scheme applied when it was enacted in 1951. In the period since the land passed from the ownership of the Commonwealth, no legislation has been enacted and no step has been validly taken under legislative authority to apply to the land the provisions of the scheme or any other relevant restrictive provisions. (at p291)

19. Before leaving the case I think that, having regard to some submissions which the Court heard, it is proper to say that in my opinion s. 108 of the Constitution has no bearing upon the conclusions which I have stated or upon the questions which the Court is required in this case to decide. (at p292)

20. I am of opinion that the defendant's contention should be upheld. The three questions set out by the parties in a statement of agreed facts should be answered "No". (at p292)

Orders

Order that the following questions of law arising in the pleadings in this suit be answered as follows:

(1) Whether upon its enactment on 27th June 1951, the County of Cumberland Planning Scheme Ordinance bound the Commonwealth as owner of the subject land.
No.

(2) Whether upon the transfer by the Commonwealth to the Council of the subject land on 3rd February 1965, the said Ordinance bound the Council as owner thereof.
No.

(3) Whether the notification in the Government Gazette of 13th August 1965, bound the Council and subsequent owners of the subject land including the defendant.
No.

Order that the relators pay the defendant's costs of the argument on those questions. Further proceedings in this Court to stand over generally with liberty to apply to restore to the list on seven days' notice.