Jennings Group Limited v Warringah Shire Council

[1992] HCATrans 355

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S84 of 1992

B e t w e e n -

JENNINGS GROUP LIMITED

Applicant

and

WARRINGAH SHIRE COUNCIL

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

Jennings 1 10/12/92

AT SYDNEY ON THURSDAY, 10 DECEMBER 1992, AT 2.16 PM

Copyright in the High Court of Australia

MR W.R. DAVISON: If the Court pleases, I appear for the

applicant. (instructed by Abbott Tout Russell

Kennedy)

MR M.H. TOBIAS, QC: If the Court pleases, I appear for the

respondent. (instructed by Wilshire Webb)

MASON CJ: Yes, Mr Tobias. Mr Davison.

MR DAVISON:  Your Honours, this application relates to the

definition of commercial premises within the

warringah Local Environmental Plan 1985. The

formula of words in the instrument is the formula
of words adopted by the model provisions adopted
pursuant to the Environmental Planning and

Assessment Act and apply almost universally throughout the State, both in new instruments and

in historic instruments; that is to say those still

in force at the time of coming into force of the
Environmental Planning and Assessment Act and

continuing to operate as deemed environmental

planning instruments under that legislation.

The provisions are set out in their context in the decision of the learned President, beginning at

page 23 under the heading "The relevant provisions

of the planning instrument". His Honour notes the

zoning, what is permissible within the zoning and -

I should have said, Your Honours, the issue in the case was whether a display home, that is to say a

home built for the purpose of exhibition and
ultimate occupation by a purchaser, is a
permissible use within the 2(a) zone, and within

the planning instrument, what are permissible

without consent are dwelling houses and what are

permitted with development consent is any purpose

other than those prohibited by 3, and the only
relevant prohibition is commercial premises. The

definition of "commercial premises" is set out on

page 25 at line 15:

means a building or place used as an office or for other business or commercial purposes -

It is a very wide definition, but has two

exclusions: firstly, it:

does not include a building or place elsewhere

specifically defined -

That is the first exclusion and it is separate from the second exclusion, which is:

or a building or place used for a purpose

elsewhere specifically defined in this clause.

Jennings 2 10/12/92

The second category is irrelevant; the only

category that is relevant in the exclusion is a - " ... building ... elsewhere specifically

defined -

The definitions are expressed to apply, except

where the context or subject-matter otherwise

indicates or requires; the usual form.

The learned President approached the matter in

a similar way to the trial judge in the Land and

Environment Court of identifying the category of

use of dwelling house as being separately defined

in the planning instrument and -

GAUDRON J:  Yes, but why do you do that? Why do you start

as it were in the middle; why do you not just start

with one?

MR DAVISON: Well, the building is one, Your Honour, which

is, without doubt, permitted without consent as a

dwelling house. If one wishes to use the - - -

GAUDRON J: Dwelling house is defined by reference to its

capability and not otherwise.

MR DAVISON:	Yes, indeed it is, Your Honour, and that would be a simple response to the matter, but for the
fact that it is proposed - - -
GAUDRON J:	But the parties have conducted the case on the basis that it comes within 2 or nothing.

MR DAVISON: Well yes, Your Honour; also on the basis of the

decisions which applied, particular the decision of

Windsor Homes v Warringah Shire Council, where

Mr Justice Else-Mitchell held that a dwelling house

was not excluded from commercial premises on that

account.

MASON CJ:  Do you agree that the case was conducted on the basis of the second exclusion or nothing?

MR DAVISON: First exclusion, Your Honour.

MASON CJ: First?

MR DAVISON:  Yes. And the consequence, Your Honours, was

that in the analysis that the learned President
undertook, he referred to the capability within the

definition of "dwelling house" as being focal to

his decision and the definition of "dwelling house"

is to be found at page 25 line 25:

'Dwelling house' means a building containing 1

but not more than 1 dwelling.

Jennings 3 10/12/92

and "dwelling" is defined:

"Dwelling" means a room or suite of rooms

occupied or used or so constructed or adapted as to be capable of being occupied or used as

a separate domicile.

So that the particular premises were capable of

being constructed, but not capable of being used if

they were being used for a purpose other than

dwelling house, and it was the use to which the

particular matter went and the learned President's

reasoning begins at the foot of page 27 beginning

with "The words of capability" carrying through

into the middle of page 28, where His Honour's

findings were essentially the same as those of the

trial judge. The basis for the majority's decision

was that though, as Mr Justice Cripps says in his

judgment at page 33 line 30, he rejects the

arguments of planning purpose that were put to the

court, but contented himself solely by concluding

that the matter fell within an earlier decision of
that court, Food Barn Pty Ltd v The Solicitor-

General and it is our - - -

MASON CJ: Just stopping you there. If the Court were to

take this case up and, one assumes for the moment,

decide the case in your favour on the second

exclusion from commercial premises, what would that

entail in terms of existing decisions of the

Court of Appeal, Supreme Court and Land and

Environment Court?

MR DAVISON:  So far as the second exclusion is concerned,

Your Honour, not at all. It is only the

characterization of the building itself. Where one

gets to the second exclusion, one has a marrying of
the two propositions, the primary prohibition and
the secondary permission. It is only in the case

of the building where one gets this dichotomy, this

difference, and it would be our ultimate submission

that, as was noted by the learned President, there

context, because what one is concerned with	is no violence done to the planning regime in this
primarily is the question of character; the building retains its character as a dwelling; it
remains constructed for use as a dwelling; if it
were sought to alter it in any way, so as to change
that construction and therefore characterization,
then it would fall outside the exception. It is
only while it maintained that character as a dwelling that it would not be commercial premises
and not within that catch-all definition, and thus
capable of being approved for another use. And it
is to be borne in mind, as the learned President
said at page 29 point 5 of the papers in his
judgment, that:

Jennings 10/12/92

The result ..... is neither surprising nor

subversive of the plan's purpose. It permits

the useful facility of exhibition or model

homes within the Shire, subject to the consent

of the appellant and to any conditions which

it may properly attach.

And the essential part is, it is not permitting it without consent; it requires consent. If merit

considerations lead to its refusal, so be it,

otherwise it is simply, by the learned trial
judge's decision and the reasoning of the

President, made permissible and that permission

still remains to be obtained. His Honour says

that:

It involves no affront to the residential

purposes of zone 2(a).

And at the foot of the page at line 23:

Ample protection against the misuse or undue prolongation of a commercial use of the

dwelling within the zone is provided by the

obligation, acknowledged by the respondent, to

secure the development consent of the Council

and to submit to its lawful conditions.

Your Honours, it is our submission that

Mr Justice Cripps, in the judgment for the majority, had misapplied Food Barn to the

circumstances of this case. As can be seen from

the definition of "warehouse" that he quotes from
the Food Barn case at page 34 line 25, there it was
the use of the building or place which was within
the definition of warehouse which was sought to

find its way into similar words of exclusion in the

definition of "shop". That is in contradistinction

to this case, where it is the character of the

building, that is to say the construction of the building, which gives rise to the exclusion, and

what His Honour says in respect of Food Barn would

be applicable if it were the second category of

exclusion that was being sought to be relied upon;

Food Barn then would directly apply and, to amplify

the response that I made to Your Honour the Chief

Justice, Food Barn is the authority which has been relied upon for some considerable time, as His

Honour Mr Justice Cripps notes, in that context,

but it does not deal with the first category, the

category upon which we rely, namely the building

being constructed for use as a dwelling house, as

this building was; no demur on the facts as to

that.

Jennings	10/12/92
DEANE J:	Does your argument mean that if a building is

capable of being used as a separate domicile, it

will never be commercial premises?

MR DAVISON:  Yes, Your Honour.

DEANE J: That would have some rather surprising

consequences, would it not?

MR DAVISON:  Only the consequence, Your Honour, that it

would, rather than absolutely excluding it, it

would permit it. In other words, instead of being

prohibited, it would, whatever was being sought to

be done within the building, be permissible.	So
that, if the building was one which you could

describe by reference to the definition as a

dwelling, then what went on inside it was a matter

which could be regulated within the consent

process. The character of the building was

determined by it fulfilling the definition of

"dwelling" or "dwelling house". And that

therefore, as the learned President says, there is

no violence done to the planning instrument or the

intent of the 2(a) zone. And indeed,

Mr Justice Cripps does not seek to demur from that

in his judgment in rejecting, as he did, the
planning basis for the argument put by the

appellant before the Court of Appeal, where His

Honour says at page 33 line 30:

It is a mistake, in my opinion, to seek to interpret the provisions of the instrument by

reference to the nominated uses under the

heading "Prohibited" -

That is to say that commercial premises and

others -

Permissible uses under the heading "Only with

Development Consent" are not confined to those

uses defined by clause 5 and which are not

prohibited. Furthermore, on any view of the

intention of the drafter of the instrument
that all commercial activities are to be

prohibited in zone 2(a). For example, hotels
and buildings used for offices for

administrative purposes by statutory bodies
such as Elcom are permissible with the consent

of the Council.

matter, it could not be said that it was the

That is where His Honour is dealing with that merit

argument that was put to the Court of Appeal by the

appellant.

DEANE J: What is it that precludes use without consent?

Why, on your argument, do you need consent?

Jennings 6 10/12/92

MR DAVISON:  We need consent because of the definition of

"development", which is to be found in section 4 of

the Act and set out at page 21 of the appeal

papers:

"Development" in relation to land, means -

(a) the erection of a building on that land;

and that has been done. The dwelling house has

been erected and the dwelling house did not require

consent, it being in category 1. Then (c):

the use of that land or of a building or work

on that land;

So that, if one wishes to go from the construction

to the use, and if the use is different from that
of a dwelling house, and there is a provision of

the Environmental Planning and Assessment Act that

says that if, once a building has been permitted,

it is used for the purpose for which the building

is constructed, then no consent is required to that

use, but if it is sought to be used for a purpose

different from that for which the building is

constructed, then that is development within
subparagraph (c) of the definition of "development"
in the Environmental Planning and Assessment Act

and by reason of the operation of section 76 of

that Act, would require consent.

DEANE J:  No doubt what I am asking indicates my lack of

acquaintance with the legislation. If you erected

a building for use as a commercial office, but it

was capable of being used as a dwelling house, what

on your argument would require consent for use of

the building as a commercial office.

MR DAVISON:  If it is erected for the purpose of a

commercial office, no consent is required; that is

the operation of section 91(4), if my memory serves

me right.

DEANE J: Well, it is in the residential zone.
MR DAVISON:	If it is lawfully erected within the

residential zone, as an office - - -

DEANE J: Well, only because it is on your argument to be

treated as a dwelling house and not a commercial

office, but I am saying, assume the plans put in say, this is capable of being used as a dwelling

house, because it has got two rooms and a bathroom,

a little kitchen, but we are going to use it as a

commercial office and it has been erected for that

purpose, what requires consent to use?

Jennings 10/12/92

MR DAVISON:  Then the application is being rolled up. If

the application is to erect an office building in a

residential zone, if office buildings are

permitted, then so be it; if office buildings are
not permitted and the application is to erect an

office building, then it would be prohibited.

DEANE J: But on your argument, it is a dwelling house,

because it is capable of being used as a dwelling

house.

MR DAVISON:  No, Your Honour, only if that is what the application made is.

DEANE J: Right.

MR DAVISON:  If the application is to erect an office

building, then it is an office building.

DEANE J:  So the definition of "dwelling" does not carry

over to that?

MR DAVISON:  The definition is "constructed ..... as be

capable of being occupied or used as a separate

domicile". That entitles, Your Honour, the

building to be built, but it does not entitle you

to use it for any purpose other than a dwelling.

If one wishes to use the building so constructed

for a purpose other than a dwelling, then the

definition of "development" catches one in

subsection (c):

the use of that ..... building ..... on that land;

is development and development, of whatever

character, requires consent, unless it is in
category 1, and all that is permitted in category 1

is the dwelling house, not the use of it for a

different purpose.

DEANE J:  No doubt what you say is right.

MR DAVISON:	Your Honour, corning back to the reasoning of the majority, in any event - and I might say this
supplernentarily - in order to make the Food Barn
decision fit this case, His Honour at page 35
line 19 says:

I am of the opinion that "commercial premises"

in the WLEP was intended to include all

commercial purposes except those commercial

purposes elsewhere specifically defined.

Now firstly, what His Honour has had to do is

adjust the language so as to add the qualification

"commercial purposes" to fit the Food Barn

proposition but, in any event, what His Honour has

Jennings 10/12/92

said relates only to the second exclusion and not

the first. So far as the matter of general

importance is concerned, Your Honours, we say that

flows from that with which I opened, namely it

applies almost universally throughout New South

Wales and is a matter of great - - -

GAUDRON J:  Each plan is, however, capable of being modified

by each Council?

MR DAVISON:  No, Councils do not have their own power to

modify it; they may apply to the minister and the

minis~er may modify. But yes, the planning process

is such that the delegated legislation is capable

of being amended by pursuit of the process.

MASON CJ: But it is true to say, Mr Davison, that this

Court has, from time to time, indicated its general

reluctance to grant special leave to appeal in

planning matters, unless it can be demonstrated

that there is an important question of principle

involved, and by that, it has been said from time

to time, one does not just mean a question of

construction; one means an important principle of

interpretation.

MR DAVISON:	Your Honours, the two cases that have been the subject of reporting have been Courtney Hill v
South Australian Planning Commission and Legal & General v North Sydney case.

MASON CJ: Yes, they are the two I had in mind.

MR DAVISON:  In each of those cases, what the Court was

required to address, as part of the review process,

was the exercise of the discretion and as to what

the bounds were upon the exercise of that

discretion. In the Courtney Hill case, the

question was whether the development was seriously

at variance.

MASON CJ: Yes, well that is a different matter.

have, although I had these two cases in mind, it I did not

seemed to me the question in the Courtney Hill case

was rather different, because ultimately a judgment

had to be formed as to whether or not the variation

was seriously at variance, a matter on which this

Court could not be expected to bring to bear any

specialist judgment. But the Legal & General case

seemed to me to be a different case.

MR DAVISON: Well, that related to the extent of the

discretion that applied under the instrument called

State Environmental Planning Policy No 1, and

similarly, in our submission, Your Honours, was one

directed towards endeavouring to frame the ambit of

discretion. That is not this case; this case is

Jennings 9 10/12/92

here concerned with a definition widely operating

throughout the State of New South Wales in respect
of economically important development, and the

application to that definition of the principle in

the Food Barn case. In our respectful submission,

the matter of importance is the error of the Court
of Appeal in seeking to apply the reasoning of that
case to this definition and these circumstances.

Those are our submissions, may it please

Your Honours.

MASON CJ: Yes, thank you, Mr Davison. Yes, Mr Tobias.

MR TOBIAS:	Can I hand up a short outline, Your Honours.
MASON CJ:	Do I take it that the last sentence in

paragraph 4 of your outline is designed to

demonstrate there is no question of general

principle involved?

MR TOBIAS:  No, that is in relation to the fact that -

MASON CJ: It just seemed a rather strange notation at the

end of the paragraph.

MR TOBIAS: It is there, Your Honour, to answer a suggestion

in the affidavit in support of the application that

the Court of Appeal differed from the decision of a

specialist court and to note to the Court that in

fact the judge of the Court of Appeal, who

delivered the majority judgment, was in fact a

specialist judge before he took up that office.

So, in that sense, it is perhaps a neutral

consideration. But, Your Honour, we seek to

basically make three points, and before I state

them shortly, may I make this simple observation.

The learned President in his judgment made a number

of remarks in relation to whether or not the

subject proposal would or would not be consistent

with the planning objectors of the plan in matters
which, in our submission, call for expertise of a

planning body, rather than that of a judge, let

alone a judge of appeal.

Similar remarks are made in the affidavit in support on page 39 at the bottom of the page, 3.4.2

and 3.4.3, which are assertions which are in

contest. Therefore one starts off, in our

respectful submission, upon the basis that one

cannot make any assumptions in relation to whether

or not a display home in a residential area is a

good or a bad thing. Although in the present case

the proposed application was for the display home
to remain as such for a limited period, the

question that this Court is being asked to take up

is one in respect of which one must assume that, if

it is correct, that a display home may be

Jennings 10 10/12/92

constructed in a residential zone on a permanent,

as distinct from a temporary, basis or that

possibility must arise.

But the three points that we simply wish to

make are these: firstly -

DEANE J: It is a bit odd in a way, Mr Tobias, is it not,

that you should be fighting for the view that your

client has not got power?

MR TOBIAS:	No, Your Honour, because one assumes that - - -
DEANE J:	Do not Councils want power to allow things?

MR TOBIAS: Well, if I was not doing it, Your Honour, I

suppose the minister would, but one approaches it

this way, as Mr Davison has indicated: the local

environmental plan process set out in the

Environmental Planning and Assessment Act

presupposes that a draft plan is prepared by the Council and is then, in effect, presented to the minister for making and gazettal. The assumption

one must therefore make is that the provisions of

this plan which, in our submission, prohibited this

use in a residential zone, was a co"nscious decision

taken by the Council in exercise of its expertise

in planning for its municipality.

DEANE J: Yes, I understand the answer, yes.

MR TOBIAS:  The three points we simply wish to make is this:

firstly the issue is a narrow question of

construction of the definition of "commercial

premises" limited, in our submission, to a

particular type of use, being a dwelling house, and

to the extent to which a dwelling house may be used

for a non-dwelling, but commercial purpose, yet not

be a commercial building. So the point is narrow.

Secondly, in our respectful submission, and

consistent with what this Court has said in

Courtney Hill in terms of the principle, we would submit that firstly there is no fundamental fundamental question of general principle.

question, but more importantly, there is no

What we respectfully submit is that when this

Court spoke of a question of general principle in

what is essentially an area of administrative law,

it was referring to a general principle that

transcended the narrow confines of town planning

such as, for instance, whether or not a particular

decision of a planning decision maker was subject

to the rules of natural justice or procedural

fairness; an issue which would transcend matters of

town planning and would extend over the general

area of administrative law.

Jennings 11 10/12/92

MASON CJ:  Or if it raised some general question of

interpretation; some general principle of

interpretation.

MR TOBIAS:	Which applied outside the confines of a piece of delegated legislation and across the board, as it
were.

MASON CJ: Yes.

MR TOBIAS:	Now if that be correct, in our submission, then even if the construction contended for by my
learned friend has substance, which we submit it
does not for reasons to which we will address in a
moment, that issue cannot be one involving a
general principle in the sense in which that term
has been used by this Court in Courtney Hill.
Whether it be correct or whether it not, it cannot
create a matter of principle or a question of
interpretation that can go outside, not only the
town planning area, but which even transcends one
particular definition of one particular term,
albeit a term, that is "commercial premises", which
is in the model provisions which are adopted these
days, sometimes with amendments; generally by
planning instruments confined to the
State. Therefore we would submit that the
applicant fails at the threshold to establish at
least, to use this Court's words in Courtney Hill,
that there is a fundamental question of general
principle.

The second matter that we wish to address is

that referred to in paragraph 5, and that is one that Justice Gaudron raised, and that is that if

the planning authorities in their wisdom considered
that a display home is an appropriate use for a

residential area, given that the effect of this

decision, so far as Warringah is concerned, is to

deny Warringah residential A zones the benefit, if

it be a benefit, of a display home or homes within

that zone, then the matter is easily overcome,

either by amendment initiated by the Council of its

local environmental plan or by the making by the

minister of a State environmental planning policy,

which is a particular form of planning instrument
which does not require as a matter of law any

relevant public participation. So there are a

number of ways, either initiated by the minister,

initiated by the industry, initiated by the

Council, which practically by the stroke of a pen one can change the law in relation to this issue if

it was considered by those having appropriate

planning powers and planning expertise to be

necessary.

Jennings 12 10/12/92

The third point, Your Honour, is that we

respectfully submit that His Honour was correct,

that is Mr Justice Cripps. I should preface that

comment by stating that no doubt it was my own

fault that the court did not seek, either in the

judgment of the President or, for that matter, in

the judgment of Mr Justice Cripps, to take up in

whole the argument that we sought to put below. It

is not referred to in the President's judgment: it

is referred to at page 33 of Mr Justice Cripps'

submission, that:  judgment, just above line 15, where he notes the

the instrument, although permitting the

erection and use of a dwelling house without

the need for development consent -

that is category 1 -

prohibits its use after erection for a

commercial purpose of a display home. He

submits that the words "building or place

elsewhere specifically defined" -

being the first limb of the exception upon which my

learned friend relies -

do not, and are not intended, to include the

use -

The submission had gone on to say that the

two-pronged exception to the genus that was

prohibited, that the second one dealt with purpose

and the first one dealt with physical form and

that, if that be correct, there was no building to

be used for a purpose that was elsewhere

specifically defined, nor would it make any

difference to the ultimate result that there was a

dwelling house elsewhere specifically defined,

because that only took out of the prohibited genus

the structural form of the building and said

nothing about its subsequent use.

It is for that reason that we respectfully

submit that Mr Justice Cripps was right, because

what we were dealing with here was not an erection

situation, not the physical form of the structure,

but with its use and its use for a purpose. And to

that extent, if there was to be an exception, the

exception had to come within the second limb of the

two-pronged exception and not within the first.

He then applied Food Barn which, as my learned

friend has said in the affidavit, was not referred

to below, in our submission, correctly.

The second point we wish to make is this in relation to what His Honour decided: the critical

Jennings 13 10/12/92

reasoning of Mr Justice Glass in Food Barn is to be

found in that part of the passage from that case
cited at page 35 between lines 5 and 10, where

His Honour said this, starting at line 7:

It could not have been intended to exclude
from the genus of shop purposes, purposes

which would not have been included in any

event. The clear intention is to exclude

purposes which would otherwise be a species of

that genus.

That principle, in our submission, is equally

applicable to the first limb of the exception in
the definition of "commercial premises" as it is to

the second. There would be no point in excluding

by the first limb a building which did not fall

within the prohibited genus, which is the opening
words of the definition. Accordingly, in our

respectful submission, what His Honour was saying,

although the reasoning is not entirely exposed, is

simply this, that even for the first limb to

operate, the building elsewhere specifically defined must be a building which, absent the exception, would fall within the prohibition. If

that be correct, then a dwelling house, being

elsewhere specifically defined, would not fall

within the opening prohibition and therefore the

exception could not apply. That is the principle

His Honour Mr Justice Glass was expounding and

which, in our submission, His Honour

Mr Justice Cripps took up by parity of reasoning,

both in relation to certainly the second limb and,

in our submission, we submit correctly, in relation

to the first limb.

So that, unless a dwelling house would

otherwise fall as a structure within the

prohibition of the first part of the definition,

then the first limb of the exception simply has no

part to play, and clearly, a dwelling house, in

terms of its erection and its use, does not fall

within the prohibition of commercial premises, for

obvious reasons. It therefore follows, in our

submission, that His Honour's decision, certainly

his ultimate conclusion, that the use of this
building for the purpose in question fell within
the definition and was not excluded by either of

the two exceptions.

DEANE J:	Mr Tobias, you have lost me.
MR TOBIAS:	I am sorry.
DEANE J:	If it does not fall within the first part of the

definition, does that not lead to the conclusion

that it is out of the definition anyway?

Jennings 14 10/12/92

MR TOBIAS: As a dwelling house. Let me go back, if I may.

The point that Mr Justice Glass was making was - - -

DEANE J:	I followed his point; I did not follow your point.
MR TOBIAS:	My point is simply this: in order for the two

limbs to operate, the building must first fall

within the prohibition contained in the definition.

This building as a building - - -

DEANE J:  I am sorry; that is where I missed you. What

prohibition?

MR TOBIAS:  The prohibition against a building being used

for a commercial purpose.

DEANE J: That answers my question.

MR TOBIAS:  We would therefore submit, with respect, that

apart from the first two reasons - - -

DEANE J:	Where is the prohibition?
MR TOBIAS:	The prohibition is a prohibition against use.

DEANE J: But where is it? Can I see it? Can I see the

prohibition?

MR TOBIAS:  I am sorry; it is in the definition of

"commercial premises", page 32 line 30:

'Commercial premises' means a building or
place used as an office or for other business

or commercial purposes -

DEANE J:  No, I was asking you can I see the prohibition.

MR TOBIAS: Yes; page 24 line 20. What is prohibited, as

emphasized, are commercial premises. Development,

being either the erection of a building, as

Mr Davison says, or the use of a building as

commercial premises is a prohibited use.

DEANE J: But, then we go to the definition of "commercial

premises" and if it comes within the first part,

the first exception takes it out?

MR TOBIAS:  No.

DEANE J: Well, that is where I am not following your

argument.

MR TOBIAS:  The first exception only takes it out, as

Your Honour correctly says, if it otherwise falls

within the first part. The dwelling house as a

dwelling house as defined, that is one capable of

Jennings 15 10/12/92

being occupied as a separate domicile, does not

fall within that prohibition; it only starts to
fall within it when you are going to use it for the

prohibited purpose. Once you get to that point

then, in our submission, the first limb of the
definition only takes it out if there is elsewhere

specifically defined a building which would

otherwise fall within the prohibition. A dwelling

house does not fit that category. If there was a

definition of a dwelling house, for instance, that

said, a dwelling house capable of use for

commercial purposes, then it would fall within the

first limb of the exception, but a dwelling house

that is limited in its ambit to use for a dwelling,

that is as a domicile, does not fall within that

requirement.

What Mr Justice Glass said, in our submission,

would apply to both of the two limbs of the

exception. That is, if you fall within the first

one because you are going to use the building as a

commercial premises, that is if you fall within the

initial prohibition, the exceptions ..... only

applies if the particular building that is

specifically defined is one which has a commercial

flavour, as it were, which a dwelling house does

not have. That is why he held, in relation to the

second limb, and in our submission the same

reasoning must apply to the first limb, that a
warehouse did not fall within the initial

prohibition, therefore the second limb was irrelevant. Similarly, in relation to our

situation, a dwelling house, being a suite of rooms

capable of being occupied as a separate domicile,

does not fall within the prohibition of commercial

premises, and that is common ground, therefore the

first limb of the exception which is related to the

definition of a dwelling house, simply is

irrelevant.

We know in the present case that the use for a

commercial premises of the building, albeit one

being a dwelling house, falls within the first part

of the prohibition. It will only be taken out by

the first limb if one can find a building which is elsewhere specifically defined, which, but for the exception, would fall within the prohibition. That

is consistent with what Mr Justice Glass says at

line 10 on page 35. A dwelling house cannot be so

categorized because it can never fall, per se,
within the initial prohibition, because it is a

building erected for a residential use and not for

a commercial use. Therefore, in our submission,

Justice Cripps was correct in applying the

reasoning of Mr Justice Glass in Food Barn, where

that reasoning is encapsulated in that part of the

paragraph to which I have referred.

Jennings 16 10/12/92

Now, I concede that it is not entirely clear

from the passage between lines 15 and 25 of

Justice Cripps' judgment that that line of

reasoning was adopted but, in our submission, it

follows from his reliance upon Justice Glass'

reasoning and would lead to the same ultimate

conclusion that the majority arrived at, namely

that neither exception applies to the use of this

building for a commercial purpose. Those are our

submissions, Your Honour.

MASON CJ: Thank you, Mr Tobias. Yes, Mr Davison.

MR DAVISON:  Your Honours, on the question of the

importance, we would say that town planning is not

a poor cousin of property law; it is an important

branch of it. What occurs in planning instruments

fundamentally regulates the right of property

owners to use their land. This case reflects that

important right. It is not a matter that is

capable of being remedied by the Council moving to

resolve the anomaly. Council's opposition through

three courts rather bespeaks that that is not

likely to happen.	The minister's powers to
Act and confined to those matters which are of	intervene with a State policy are limited by the questions for the minister, both of formation of
that judgment and undoubtedly political questions
related to the Council's interest in matters such
as this. So, in our respectful submission, the
alternate road is not one which is open with any
degree of certainty to my client or to anybody in the same situation.

MASON CJ: Yes, thank you, Mr Davison. This application for

special leave relates to the interpretation of a

provision in a Local Environment Plan, a

subordinate planning instrument. The application

raises no question of general principle in the

field of interpretation and as such is not

appropriate for the grant of special leave.	The
application is therefore refused.

MR TOBIAS:	We seek costs, Your Honour.
MASON CJ:	You do not oppose that, Mr Davison? The

application is refused with costs.

AT 3.08 PM THE MATTER WAS ADJOURNED SINE DIE

Jennings 17 10/12/92