Langdon v City of Launceston
[1991] TASSC 49
•11 April 1991
Serial No 22/1991
List "A"
COURT: SUPREME COURT OF TASMANIA
CITATION: Langdon v City of Launceston [1991] TASSC 49; A22/1991
PARTIES: LANGDON, J W
LANGDON, H M
v
CITY OF LAUNCESTON
FILE NO/S: LDR 195/1989
DELIVERED ON: 11 April 1991
JUDGMENT OF: Green CJ
Judgment Number: A22/1991
Number of paragraphs: 12
Serial No 22/1991
List "A"
File No LDR 195/1991
J W & H M LANGDON v CITY OF LAUNCESTON
REASONS FOR JUDGMENT GREEN CJ
11 April 1991
The plaintiffs claim compensation from the defendant pursuant to s735(1) of the Local Government Act 1962.
The statement of claim reads as follows:
"1In this Statement of Claim:–
(a)A reference to 'the 1976 Scheme' is to be construed as a reference to the Scheme referred to in paragraph 3.
(b)A reference to 'the 1986 Scheme' is to be construed as a reference to the Scheme referred to in paragraph 5.
(c)Any expressions contained herein in respect of the 1976 Scheme shall have the meanings attributed thereto by the 1976 Scheme.
(d)Any expressions contained herein in respect of the 1986 Scheme have the meanings attributed thereto by the 1986 Scheme.
(e)A reference to 'the land' is to be construed as a reference to the land and premises described in paragraph 2.
(f)A reference to 'the Act' is to be construed as a reference to the Local Government Act 1962.
2The Plaintiffs are and at all material times have been the beneficial owners of and the registered proprietors for an estate in fee simple of the land and premises situate and known as 78 Cimitiere Street Launceston in Tasmania as the same is comprised and described in Folio of the Register Volume 2443 Folio 95.
3At all relevant times prior to the 13th day of June 1986 the land was included within the area governed by the provisions of the City of Launceston Planning Scheme 1973 sealed pursuant to the provisions of Section 730(2) of the Local Government Act 1962 which scheme came into force on the 1st day of September 1976.
4Upon the trial of this action the Plaintiffs will rely on the whole of the 1976 Scheme for its full term and effect.
5On the 13th day of June 1986 the City of Launceston (Area No. 1) Town Planning Scheme 1983 took effect pursuant to Section 730(2) of the Act.
6Upon the trial of this action the Plaintiffs will rely on the whole of the 1986 Scheme for its full terms and effect.
7The land is and since the 13th day of June 1986 has been within the area governed by the provisions of the 1986 Scheme.
8The land was zoned 'general commercial' under the 1976 Scheme.
9By virtue of that zoning:–
(a)the following uses were principal uses of the land permitted as of right:– car sales yard, hotel, light industry, professional offices, public recreation, service industry, show rooms, store, transport depot, funeral parlour, warehouse and wood yard;
(b)the following uses were discretionary in that the Defendant in its discretion might grant permission for the use of the land for those purposes caravan park, car park, church, civil building, consulting rooms, educational establishment, fish shop, flats, fuel depot, general offices, health centre, institutional home, motel, motor repair garage, private recreation, recreational grounds, restaurant, service premises, service shop, service station shop, veterinary establishment and miscellaneous uses; and
(c)all other uses where prohibited, subject to the power of the Council to grant temporary permits in respect of such uses.
10The land is zoned 'urban residential' under the 1986 Scheme.
11By virtue of that zoning:–
(a)the following uses are principal uses of the land permitted as of right:– single dwelling, flat, residential building, church, home occupation and public recreation;
(b)the following are discretionary uses in respect of which the Council might grant a permit:– institutional home, cluster house, tourist facility, motel, local shop, licensed establishment, restaurant, consulting rooms/health centre, professional offices, hospital, education establishment, place of assembly and car park; and
(c)all other uses are prohibited, with no power on the part of the Council to grant any form of temporary permit.
12The effect of the said alterations in the permitted and discretionary uses of the land effected by the 1986 Scheme was:–
(a)That all uses which formerly were uses which were permitted as of right (with the exception of hotel, professional offices and public recreation) were prohibited;
(b)The uses of hotel, professional offices could only be permitted with the consent of Council in its discretion;
(c)Other uses which were previously prohibited uses became principal uses as of right, namely, single dwelling residential building and home occupation;
(d)Other uses which were previously discretionary uses became principal uses as of right, namely, cluster house and tourist facility; and
(e)Another use which was previously a prohibited use became a discretionary use, namely, place of assembly.
13At all material times, the land has had upon it only minor improvements (being a metal clad workshop building, blockwork sheds and an adjacent weatherboard cottage) and, subject to the same being permitted under the 1986 Scheme, and by the Defendant in the exercise of its powers thereunder, is available for development.
14Under each of the 1976 Scheme and the 1986 Scheme a permit was required from the Defendant for any development of the land and under each Scheme the Defendant in exercising its discretion whether or not to grant a permit for development was required to take into account the uses to which the land might be put. Specifically, the Plaintiffs rely on paragraph 5.2 of the 1976 Scheme and 4.2.1 of the 1986 Scheme.
15As to the said discretionary uses, the extent to which the discretion of the Council may be exercised in favour of permitting any use or development of that nature has been further limited by the provisions of paragraph 2.1.3 of the 1986 Scheme.
16The matters referred to in paragraphs 11 to 15 (inclusive) hereof have substantially limited the nature and extent of any development of the land which is capable of being permitted and in that as a result of the said zoning under the 1986 Scheme the value of the land has been reduced from what it would have been had the 1976 Scheme continued in force.
17As a result of the said reduction in the value of the land as referred to in paragraph 16 hereof the land has been injuriously affected, as alleged in paragraphs 11 to 15 (inclusive) hereof, by operation of the 1986 Scheme.
18The Plaintiffs have claimed compensation from the Defendant solely in respect of the said injurious affectation (sic) referred to in paragraphs 16 and 17 hereof, pursuant to Section 735(1) of the Act and Part III of the Public Authorities' Land Acquisition Act 1949.
19The Defendant has denied that the Plaintiffs are entitled to any compensation for such injurious affectation (sic)."
The defendant admits all the allegations made in the statement of claim but denies that the plaintiffs are entitled to compensation "because such a claim is a claim for compensation made in respect of a provision of a scheme regulating the use of land and compensation in respect thereof shall not be paid by virtue of the operation of Section 735(2)(b) of the Act".
By consent the Master made an order that the issue of whether the defendant is liable to compensate the plaintiffs be tried before any other issue.
The material parts of s735 read as follows:
"735–(1)Any person–
(a)having any land injuriously affected by the operation of a planning scheme or of section 734; or
(b)who for the purpose of complying with any provision in a planning scheme or with any exercise of the powers conferred in subsection (1) of that section has incurred an expenditure which is rendered unnecessary by a subsequent variation or revocation of the scheme,
is, subject to the provisions of this section, entitled to compensation in accordance with Part III of the Public Authorities' Land Acquisition Act 1949.
(2)Compensation shall not be paid under this section if it is claimed in respect of–
(a)the operation of any provision in a planning scheme if that provision could have been made and enforced without liability to pay compensation by any authority independently of this Division;
(b)any provision of a scheme regulating the space about buildings or limiting the number of buildings that may be erected within any area of regulating the bulk, floor space, height, coverage, use or design, external appearance, or character of buildings or the use of land;
(c)any provision of a scheme which regulates or enables the municipality to regulate the height of any fence, wall, or hedge near corners or bends of any road or near the intersection of any road;
(d)any provision of a scheme which requires, in the case of the erection of any building intended to be used for the purpose of business or industry, the provision of accommodation for loading, unloading, or fuelling vehicles with a view to preventing obstruction of traffic on roads; or
(e)any building erected or any contract made or other thing done in contravention of any scheme after the sealing of that scheme under section 730."
It being admitted that the land has been injuriously affected by the operation of the 1986 scheme the plaintiffs are prima facie entitled to compensation. The only issue is whether the compensation claimed by the plaintiffs can be said to be compensation claimed in respect of a provision of that scheme regulating the use of land. The provisions which have limited the nature and extent of the development of the land and caused the diminution in its value which has given rise to the claim for compensation are contained in clauses 4.2.1 and 4.2.3 and Schedule No 2 of the 1986 scheme which are to the effect that the development of land is restricted to a use approved by the defendant and that some uses are prohibited "unless the Council ... uses its discretion to approve the development" whilst other uses are prohibited. The essential question is whether for the purposes of s735(2)(b) those provisions are provisions "regulating the use of land".
Counsel for the plaintiffs submitted that the phrase "provision ...regulating ... the use of land" refers only to a provision which has the effect of regulating some use to which land is presently being put but does not apply to provisions such as those applicable here which regulate other uses to which the land might be put in the future. Counsel supported that submission by saying that the phrase "the use of land" appearing in s735(2)(b) are in the singular and in the present tense. Counsel also referred to s750 of the Act in which "development" is defined as meaning "changing the use of land in accordance with a provision for the purposes of paragraph 7 of Schedule 7 by altering or changing the use of existing buildings or by erecting new buildings;". Counsel also drew some support from the other phrases appearing in s735(2)(b) all of which he submitted relate to the regulation of physical aspects of the use of land.
In my opinion the ordinary meaning of the phrase "provision ... regulating ... the use of land" is a provision which governs, controls or restricts the way in which land may be used now or in the future and is not confined to provisions which merely regulate the use to which the land is currently being put. The submissions made by counsel for the plaintiffs do not persuade me that I should adopt any meaning other than the ordinary meaning of the phrase. The word "use" in the phrase "use of land" is not confined to a single activity or use but just as aptly refers collectively to all activities which may be conducted on a piece of land or all the uses to which a piece of land might be put. As it is impossible to regulate that which has already taken place "regulating ... the use of land" obviously refers to the situation in the future. Even if it be the case that on their proper construction the other phrases appearing in s735(2)(b) refer to physical aspects of the uses to which land may be put I do not see how that leads to the conclusion that the phrase "provision ... regulating ... the use of land" should be confined to provisions which regulate the way in which land is currently being used. In my view the fact that the context makes it clear that the phrase "use of land" appearing in s750(a) applies to the use to which land or buildings are currently being put does not have any bearing upon the meaning which that phrase should be given in the different context of s735(2)(b).
Counsel for the plaintiffs submitted in the alternative that the provisions in the scheme under consideration could not be characterised as provisions "regulating ... the use of land" as they in fact prohibit certain uses or authorise the defendant to prohibit certain uses. Counsel relied on the well established principle that prima facie a power to regulate an activity does not include a power to prohibit that activity altogether and referred to In re Martin's Application [1974] Tas SR 43 and Foley v Padley (1983) 154 CLR 349.
In my view the fact that the provisions of the scheme with which I am concerned prohibit some uses of the land does not mean that those provisions may not be regarded as provisions which regulate the use of land. Virtually all provisions which regulate activity also necessarily expressly or by implication prohibit some activities but they do not cease thereby to be regulatory provisions. Thus for example a traffic regulation which imposes upon drivers of motor vehicles a speed limit of 60 kph is intra vires a regulation making body which has been authorised to regulate the speed of traffic notwithstanding that such a regulation necessarily involves an absolute prohibition upon motor vehicles being driven at any speed above 60 kph. By contrast a regulation prohibiting motor vehicles being driven on streets at any speed at all would be ultra vires. Similarly in the present case the provisions in the scheme which permit some uses but prohibit others may still properly be collectively regarded as provisions "regulating ... the use of land" whereas provisions which absolutely prohibit land being put to any use at all could not be so regarded.
In my opinion the words "provision of a scheme ... regulating ... the use of land" appearing in s235(2)(b) should be given their ordinary meaning. I hold that the provisions referred to in the statement of claim which have given rise to the injurious affection referred to in para17 of the statement of claim are provisions of the kind referred to in s735(2)(b) and that therefore compensation is not payable for that injurious affection.
The plaintiffs' claim will be dismissed.
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