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Lizzio v Ryde Municipal Council

Lizzio v Ryde Municipal Council

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Case Copied 4 August 1983 38 min read

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HIGH COURT OF AUSTRALIA

Gibbs C.J., Murphy, Wilson, Brennan and Deane JJ.

LIZZIO v. RYDE MUNICIPAL COUNCIL

(1983) 155 CLR 211

4 August 1983

Town Planning (N.S.W)

Town Planning (N.S.W.)—Prohibited use—Existing use—Sale of flowers from roadside stall in front of dwelling in residential zone—Whether incidental to use as dwelling-house—Whether lawful existing use—Issue estoppel—Finding of magistrate on previous prosecution—Environmental Planning and Assessment Act 1979 (N.S.W.), ss. 106, 107—Ryde Planning Scheme Ordinance (N.S.W.), cll. 3, 22, 24, 73—County of Cumberland Planning Scheme Ordinance (N.S.W.), cl. 31(b)(ii).

Decisions

August 4.
The following written judgments were delivered:-
GIBBS C.J. The appellants, Mr. and Mrs. Lizzio, are the owners and occupiers of land at 46 Balaclava Road, Eastwood, which is in the Municipality of Ryde. The land is an ordinary suburban block, and standing on it is a dwelling-house in which the appellants reside. Mr. Lizzio is employed by Telecom as a linesman, but for some years he and his wife have been augmenting the family income by selling flowers from their land. The flowers are grown by the appellants on the land at 46 Balaclava Road and on adjoining land, owned by a neighbour, which they are permitted to use for the purpose. They are placed in buckets and exhibited on a stand, protected by a beach umbrella, inside the boundary of the land but in a position from which they can be seen by persons passing down Balaclava Road. The quantity of flowers sold depends on the seasons, but the evidence shows that for most of the time the sales average fifty-five or sixty bunches a week. The price per bunch is either $1.00 or $1.50 depending on the species of flower sold. No sign is displayed to advertize the flowers or to indicate their prices. The sales are usually made by Mrs. Lizzio, or by one or other of the appellants' children. (at p214)

2. On 3 October 1980 the respondent, the Council of the Municipality of Ryde, commenced proceedings in the Land and Environment Court of New South Wales, seeking an injunction to restrain the appellants from (inter alia) using the land, or permitting, causing or suffering it to be used, for the purpose of selling, or exposing or offering for sale, any goods, and in particular flowers. The application was dismissed by the Land and Environment Court, but an appeal by the Council to the Court of Appeal was successful, and it was held that the Council was entitled to an injunction of the kind sought. The present appeal is brought as of right from that decision. (at p215)

3. Since 1 June 1979 the use of land in the Municipality has been controlled by the Ryde Planning Scheme Ordinance. The land in question is zoned residential 2(a), which means that under the Table of Zones mentioned in that Ordinance, and subject to other provisions some of which will later be mentioned, the only purpose for which buildings on the land may be erected or used, or for which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1983] HCA 22
Decision Date: 4 August 1983

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Lizzio against a decision of the Supreme Court of New South Wales, which had upheld a decision of the District Court. The dispute concerned the liability of Ryde Municipal Council for injuries sustained by Lizzio when she tripped and fell on a public footpath. Lizzio alleged that the council had been negligent in its maintenance of the footpath, which she claimed had a dangerous defect.

The central legal issue before the High Court was whether the council had breached its duty of care to maintain the footpath in a safe condition. This involved determining whether the council had actual or constructive knowledge of the defect, and if so, whether it had taken reasonable steps to remedy the defect or warn users of its presence. The court also had to consider the principles of contributory negligence, should it find that Lizzio had also failed to exercise reasonable care for her own safety.

The High Court ultimately found that the council had not breached its duty of care. The majority of the court held that there was insufficient evidence to establish that the council had actual or constructive notice of the specific defect that caused Lizzio's fall. While the council had a general responsibility to maintain its footpaths, the evidence did not demonstrate that the defect was of such a nature or duration that the council ought to have known about it. The court applied the principles established in cases concerning the liability of public authorities for dangerous conditions on public land, emphasizing the need for proof of notice or a failure to take reasonable steps once notice was established.

The appeal was dismissed.

Orders