Lizzio v Ryde Municipal Council

[1983] HCA 22

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 the land itself may be used, without the consent of the responsible authority, is that of "Dwelling-houses": cll. 22 and 24. No consent has been given by the responsible authority for any other use of the land, but in any case among the purposes for which buildings may not be erected or used under any circumstances are included "commercial premises", "roadside stalls" and "shops". It is clear enough that the use to which the appellants put the land was use for the purposes of a roadside stall. By cl. 73(c) of that Ordinance, nothing in the Ordinance is to be construed as restricting or prohibiting, or enabling the responsible authority to restrict or prohibit, "home occupations carried on in dwelling-houses". However, by cl. 3 "home occupation" is defined so as to exclude an occupation which involves, inter alia, "the display of goods, whether in a window or otherwise". The selling of the flowers, by displaying them on the stand, is not a home occupation within the meaning of the Ordinance. (at p215)

4. In these circumstances, it was contended on behalf of the Council, and accepted in the courts below, that the selling of the flowers in the manner described amounted to the use of the land for a prohibited purpose. On behalf of the appellants, it was contended that this use was not in breach of the Ryde Planning Scheme Ordinance for two reasons: (1) because such use was merely incidental or subordinate to the use of the land for the purpose of a dwelling-house, and was not distinct or separate therefrom, so that it remained true to say that the land was used only as the site of a dwelling-house; and (2) because the use of the land by the appellants at the date immediately before the Ryde Planning Scheme Ordinance took effect was lawful under cl. 31(b)(ii) of the County of Cumberland Planning Scheme Ordinance and therefore protected by the provisions of the Environmental Planning and Assessment Act 1979 (N.S.W.). (at p215)

5. It was further contended that the Council is estopped from asserting as against Mrs. Lizzio that the use of the land is not lawful and that if the Council cannot obtain relief against Mrs. Lizzio for that reason it will be a proper exercise of the Court's discretion to refuse relief against Mr. Lizzio also. An information had been laid by the Council which alleged that on or about 26 October 1978 Mrs. Lizzio "did use the property for a purpose to wit, the sale of flowers, without the consent of the Council of the Municipality of Ryde, the responsible authority under the (County of Cumberland Planning Scheme Ordinance) contrary to the provisions of cll. 29 and 59 of the said ordinance". The information came on for hearing before a magistrate and was, on 23 April 1979, dismissed. The magistrate held that the use of the land was protected by cl. 31(b)(ii) of the County of Cumberland Planning Scheme Ordinance. The learned judge of the Land and Environment Court (Cripps J.) held that this finding gave rise to an issue estoppel, and precluded the Council from asserting thereafter that the activity of Mrs. Lizzio which was the subject of the magistrate's determination was illegal under the County of Cumberland Planning Scheme Ordinance. He further held that in those circumstances it would not be appropriate to make an order against Mr. Lizzio, although he found that the activity of selling flowers was not in truth within the exemption claimed under cl. 31(b)(ii). The Court of Appeal held that there was no issue-estoppel. Before us, counsel for the appellants repeated the argument which Cripps J. had accepted. (at p216)

6. The first argument, that the land was used for the purposes of a dwelling-house and nothing more, takes as its starting point the judgment of the Court of Appeal in Foodbarn Pty. Ltd. v. Solicitor-General (1975) 32 LGRA 157, at p 161 , where Glass J.A. said:

"It may be deduced that where a part of the premises is used for a purpose which is subordinate to the purpose which inspires the use of another part, it is legitimate to disregard the former and to treat the dominant purpose as that for which the whole is being used. Doubtless the same principle would apply where the dominant and servient purposes both relate to the whole and not to separate parts."

Obviously a person who is entitled to use land for the purpose of a dwelling-house may use it for incidental purposes, such as garaging his car or housing his boat. No doubt in some circumstances a householder who on an isolated occasion used his land for the purpose of making sales from a stall might be held to be doing no more than using his land for the purposes of a dwelling-house. For instance, if a householder allowed his land to be used annually as the site for a fete to raise money for some charitable purpose, the use of the land in that way might be regarded as simply incidental to its use for the purposes of a dwelling-house. The question is one of fact and degree. Having regard to the regularity and extent of the activities involved in selling the flowers, and to the fact that some of the flowers were grown on other land, there is no reason to disagree with the decision reached in the courts below that the use of the land in the present case could not be regarded as merely incidental to its use for the purposes of a dwelling-house. In those circumstances, some further remarks of Glass J.A. in Foodbarn Pty. Ltd. v. Solicitor-General (1975) 32 LGRA, at p 161 become apposite:

"Where the whole of the premises is used for two or more purposes none of which subserves the others, it is, in my opinion, irrelevant to inquire which of the multiple purposes is dominant. If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be overshadowed by the others . . ." (at p217)

7. However, even if the use of the land would otherwise be contrary to the provisions of the Ryde Planning Scheme Ordinance, it will nevertheless be lawful if it is no more than the continuance of an existing use, i.e. a use for a purpose that was lawful immediately before the Ryde Planning Scheme Ordinance took effect. Section 107(1) of the Environmental Planning and Assessment Act 1979 provides as follows:

"Except where expressly provided in this Act, nothing in this Act or an environmental planning instrument prevents the continuance of an existing use."

By s. 106 of that Act, "existing use" is defined to include "the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument having the effect of prohibiting that use". The evidence showed, and it was accepted in the courts below, that immediately before the Ryde Planning Scheme Ordinance came into force on 1 June 1979 the land was used for the purpose of selling flowers in the same manner as it has been used since that date. It is true that initially the appellants sold their flowers to a shop, and that at the time of the proceedings before the magistrate some of the flowers were sold to a shop and some from the land, but the descriptions of the appellants' activities given in evidence before the magistrate and before Cripps J. were, as was said in the Court of Appeal, strikingly similar. Although the evidence was not in all respects precise, it establishes, on the balance of probabilities, that the purpose for which the land was being used immediately before 1 June 1979 was the same as that for which it is used at the present time. Notwithstanding the provisions of the Ryde Planning Scheme Ordinance the use of the land in this way is not prohibited provided that its use in that manner immediately before 1 June 1979 was lawful. It was common ground that under the planning instrument in force before that date, viz. the County of Cumberland Planning Scheme Ordinance, the use of the land for the purpose of the sale of the flowers in the manner described was lawful if it fell within the protection of cl. 31(b)(ii) of that Ordinance, and not otherwise. (at p218)

8. Clause 31(b)(ii) provides as follows:

"Nothing in the foregoing provisions of this Part shall be construed - . . . (b) as restricting or prohibiting or enabling the responsible authority to restrict or prohibit - . . . (ii) the practice by any occupant of a dwelling-house or residential building of a profession, or occupation which does not involve the use of the dwelling-house or residential building for the purpose of an industry."

If the words of cl. 31(b)(ii) are given their ordinary and natural meaning, it is apparent that the activity of the appellants was not prohibited by the County of Cumberland Planning Scheme Ordinance. The appellants were the occupants of a dwelling-house, and they practised an occupation (that of growing and selling flowers) which did not involve the use of the dwelling-house for the purpose of an industry. If the words of cl. 31(b)(ii) are taken as they stand they appear to apply exactly to the situation of the appellants. (at p218)

9. However, both Cripps J. and the learned members of the Court of Appeal held that cl. 31(b)(ii), when understood in the light of the interpretation placed on it by this Court in Morris v. Woollahra Municipal Council (1966) 116 CLR 23 , does not protect the present appellants. In that case a dwelling-house or residential building was used for the purpose of catering for wedding receptions, banquets and other social gatherings - the business was a substantial one. It was held that the use of the building in that way was not protected by cl. 31, because the premises were not used essentially as a dwelling-house or residential building. The judgment of the court was delivered by Taylor, Menzies and Owen JJ. Their Honours referred to the provisions of the County of Cumberland Planning Scheme Ordinance which forbad the use of land in the relevant zone for various purposes without consent, and for other purposes even with consent, and continued (1966) 116 CLR, at pp 32-33 :

"It is in the light of these specific and exclusive prohibitions that it is necessary to consider the scope of the exceptions created by cl. 31. It seems to us that the relevant words of cl. 31 should not be so widely construed as to enable the occupant of a dwelling house, or for that matter an occupant of a residential building, to carry on upon the premises any sort of trade or business in any manner he chooses so long as it does not involve the use of the premises for the purpose of an industry. If it were so construed it would mean of course, the premises could be used, for example, as a shop or as commercial premises or professional chambers notwithstanding that such a use without consent is explicitly prohibited by cl. 28. What the exception permits, it seems to us, is the use of the premises by an occupant for the 'practice' of some personal skill which is a qualification of his profession or occupation. Moreover, the practice must be ancillary only to the occupation of the occupant in question and therefore, a use which does not operate to transform the character of the dwelling house. In other words, the 'practice' must be ancillary to his occupation of the dwelling house as such and the exception has no application to a case where a business is conducted in a dwelling house and the occupancy is merely incidental to the conduct of the business (cf. the situation which arose in Harnam Singh v. Jamal Pirbhai (1951) AC 688, at p 703). It is difficult to frame a more precise test and in some cases there may be difficulties in drawing the line, but there is no difficulty in the present case for the trade which the appellants conducted cannot, in any way, be regarded as the 'practice' of an occupation which is ancillary to an occupation of the premises as a residential building of the type for which they received approval. It is true, of course, that the first-named appellant was one of the occupants of a residential building of the type for which he had received approval but it is impossible to regard the substantial business which was conducted as the practice of his 'occupation' incidentally to his situation as an occupant of the residential building. We appreciate that this may be thought to place a somewhat more limited meaning on cl. 31 than the Supreme Court was prepared to adopt in Ku-ring-gai Municipal Council v. Cooney (1962) 8 LGRA 144 but we do not suggest that a practice must be carried on pursuant to the clause without the assistance of others. The point which we wish to make is that it is essential that, notwithstanding the 'practice', the premises should continue to be used essentially as a dwelling house or, in this case, as a residential building, and this condition is not satisfied where the premises are primarily used as business premises and the owner's occupancy is merely incidental to the conduct of the business."

In the present case, it was held by Cripps J., and by all the members of the Court of Appeal, that the protection afforded by cl. 31(b)(ii) applied only to the practice of an occupation which had, as its qualification, some personal skill, and only if the activity was ancillary to the occupation of the dwelling-house. Cripps J., and in the Court of Appeal Glass and Mahoney JJ.A., held that the latter, but not the former, condition was satisfied. Hutley J.A. considered that the activity carried on by the appellants was ancillary to their occupation in so far as it involved the sale of the flowers grown on the land, but not in so far as it involved the sale of flowers grown elsewhere; he would have remitted the proceedings to the Land and Environment Court to determine whether the growing of the flowers exhibited skill. (at p220)

10. The ratio of the decision in Morris v. Woollahra Municipal Council (1966) 116 CLR 23 is, in my opinion, expressed in the concluding words of the passage cited. The words of cl. 31(b)(ii) are somewhat elliptical, but they must be understood as referring to the case in which the dwelling-house or residential building retains its character as such. The person conducting the activity must continue to be the occupant of a dwelling-house or residential building; it would not be enough that his occupancy was merely incidental to the conduct of a business. However, with all respect, it is difficult to see any justification for construing the provision as permitting the use of the premises only for "the 'practice' of some personal skill which is a qualification of his profession or occupation". The words of the provision refer to the practice of an occupation as well as to the practice of a profession, and the word "practice" means "the habitual doing or carrying on of something" or "the exercise of a profession or occupation": see The Shorter Oxford English Dictionary. When applied to an occupation, the word does not connote that the occupation practised must necessarily be one involving special skill, except to the extent that it may be thought that any occupation involves some degree of skill, however slight. It may be that their Honours in Morris v. Woollahra Municipal Council meant no more than that the provision refers only to some personal activity of the occupants of the dwelling-house or residential building in carrying on a profession or an occupation of their own, even though they might do so with the assistance of others. Their words, of course, must be regarded as an aid to the understanding of, and not as a substitute for, those of cl. 31(b)(ii) itself. (at p220)

11. In Ryde Municipal Council v. Wagemaker (1970) 19 LGRA 327, at p 329 , Else-Mitchell J. said that "it is the word 'practice' which provides the significant key to the content of the exception, the scope of which seems to me properly defined by the statement of the High Court that it permits 'the use of the premises by an occupant for the "practice" of some personal skill which is a qualification of his profession or occupation': Morris v. Woollahra Municipal Council. I should add that to extend the exception to include businesses of any sort which can be conducted by one person would do irreparable violence to the whole conception of a living area as defined in the County of Cumberland Planning Scheme Ordinance." It is true that cl. 31 must be construed as part of a planning instrument which regulated the use of land and buildings in the various zones shown on the scheme map to which it referred. The purpose for which buildings might have been used without consent in an area zoned "Living Area" (which is roughly the equivalent of Residential Area in the Ryde Planning Scheme Ordinance) was that of dwelling-houses; even with consent they could not have been used for "Generating works; warehouses; bulk stores; industries other than local light industries; mines; institutions; drive-in theatres": s. 26, Table, Pt I, Column V; for other purposes they could have been used with consent. The exceptions which cl. 31(b)(ii) permitted would not seem to be destructive of the nature of a "Living Area". The conditions which attracted the protection conferred by cl. 31(b)(ii) were fourfold, viz., (1) that the building on the land was, and retained its character as, a dwelling-house or residential building; (2) that the use was by an occupant of such building; (3) that the activity of such occupant could properly be described as the practice by him or her of a profession or occupation; and (4) that the practice did not involve the use of the dwelling-house or residential building for the purpose of an industry. If these conditions were satisfied, it seems to me that the provision would fall far short of extending its protection to include businesses of any sort which can be conducted by one person. Of course, nothing in the clause permitted the erection of further buildings on the land. (at p221)

12. In the present case, Cripps J. and the majority of the Court of Appeal decided as they did because they held that what the appellants were doing on the land did not involve the practice of any personal skill. If it had not been for that finding they would have held that the protection afforded by cl. 31(b)(ii) was applicable. For the reasons that I have given I consider that in so holding the learned judges were led by a dictum in Morris v. Woollahra Municipal Council to misapprehend the true effect of cl. 31(b)(ii). It is undesirable to attempt to explain the manner in which the provisions of cl. 31(b)(ii) might operate in circumstances different from those of the present case. Construing the provision as I do I would hold that the activity of the appellants was the practice of an occupation which did not involve the use of the dwelling-house for the purpose of an industry and that it was protected by cl. 31(b)(ii). (at p222)

13. Before us it was further submitted that cl. 31(b)(ii) protected the practice of a profession or occupation only if it was carried on within the four walls of the dwelling-house or residential building. The words of the provision, if given their ordinary meaning, do not refer only to a profession or occupation which is carried on entirely within the dwelling-house or residential building, and there is no reason why the provision should be understood in that way. Clause 31(b)(ii) creates an exception to the earlier provisions of Pt III of the Ordinance, which place restrictions on the use of land as well as on the use of buildings, and this suggests that the words of the provision refer to the use of the land and not only to the use of the buildings themselves, and that construction accords with the ordinary meaning of the words of the provision. Further, to restrict the application of cl. 31(b)(ii) to the use of buildings would in some cases lead to inconvenient results, since the use of a building for a particular purpose often involves the use of the land as well. (at p222)

14. For these reasons, the use of the land by the appellants for the purpose of growing and selling flowers was lawful immediately before the Ryde Planning Scheme Ordinance came into force, and is therefore protected by virtue of the provisions of s. 107 of the Environmental Planning and Assessment Act 1979. The Council's application for an injunction was rightly dismissed by Cripps J., although I find it unnecessary to consider whether the reason which he gave for his decision - that there was an issue-estoppel - was correct. (at p222)

15. The case does not directly involve the question whether the use of the neighbouring land was lawful. However, it was not suggested that to grow flowers on a neighbour's land, without selling them there, is prohibited by the Ordinance. The fact that some of the goods sold on land are not produced there is relevant in deciding whether the occupant is practising an occupation which does not involve the use of the dwelling-house or residential building for the purpose of an industry, but in the circumstances of the present case the fact that some of the flowers were grown - by the appellants - on adjoining land does not alter the conclusions I have already stated. (at p222)

16. I would allow the appeal and restore the judgment of Cripps J. (at p223)

MURPHY J. For the reasons given by the Chief Justice, the appeal should be allowed. (at p223)

WILSON J. For the reasons given by the Chief Justice, I would allow the appeal. (at p223)

BRENNAN J. I agree with the reasons of the Chief Justice and I would allow the appeal. (at p223)

DEANE J. Rosario and Giuseppa Lizzio ("the appellants") are husband and wife. They live, with their children, in the Sydney suburb of Ryde in a house built on an ordinary suburban allotment which they own. During most of the year, they sell flowers from a table or stand placed just inside the front boundary of their land. They have been doing this for some years. All the flowers which they sell are grown by them on their land or, under an arrangement with the respective owner or occupier, upon one or other of two adjoining blocks. Their sales fluctuate between twenty and 150 (the week before Mother's Day) bunches of flowers per week, with an average of between fifty-five and sixty bunches at $1 or $1.50 per bunch. They display the flowers for sale in three buckets standing on the table under a yellow umbrella. Mr. Lizzio is employed by Telecom as a linesman. Mrs. Lizzio describes herself as a "married woman". (at p223)

2. The appellants' land is zoned residential "2(a)" under the provisions of the Ryde Planning Scheme Ordinance ("the Ryde Ordinance"). The provisions of the Ryde Ordinance prohibit the use of land so zoned for the purposes of a shop, commercial premises or a roadside stall. It was argued on behalf of the appellants that the use of the land for their flower-selling activities should be disregarded for the reason that it was merely incidental or subservient to their use of the land for the purpose of a dwelling-house: cf. Foodbarn Pty. Ltd. v. Solicitor-General (1975) 32 LGRA 157 . That submission was rejected by the learned primary judge (Cripps J.) in the New South Wales Land and Environment Court. His Honour said:

"In my opinion the selling of fifty bunches of flowers each week in the manner these flowers are sold could not be described as an activity ancillary to the use of a dwelling-house in the sense that it should be regarded as an integral part of that use (as for example in the case of a garage attached to a dwelling-house). The mere fact that an item had been sold from a dwelling-house would not, in my opinion, necessarily require the conclusion that that activity resulted in a separate use; but the sale of fifty bunches of flowers each week from a make-shift stall could not be regarded as an activity ancillary to the ordinary use of a dwelling-house."

In the Court of Appeal, Glass J.A. adopted the above passage while Mahoney J.A. expressed his agreement with the finding of Cripps J. that the appellants' flower-selling activities represent a use of the land additional to its use for the purposes of a dwelling-house. That being so, it would seem that there are concurrent findings in the court of first instance and the court of first appeal on what is essentially a question of fact: see, as to the consequences of such concurrent findings, The Commonwealth v. Introvigne (1982) 150 CLR 258, at p 274 . It is not, however, necessary that I decide the question on that basis for the reason that I agree with the conclusion reached by Cripps J. and affirmed in the Court of Appeal that the flower-selling activities could not, in the circumstances of the present case, properly be seen as merely incidental to the use of their land for the purposes of a dwelling-house. They represent a separate or additional use of the land. (at p224)

3. Regarded as a separate or additional use, the appellants' flower-selling activities constitute a prohibited use of the land under the Ryde Ordinance unless they are protected by the existing use provision contained in s. 107 of the Environmental Planning and Assessment Act 1979 (N.S.W.). To be so protected, the land must have been lawfully used for the purpose of those activities immediately before the Ryde Ordinance came into force on 1 June 1979. There has been no challenge to the finding of Cripps J., which was accepted in the Court of Appeal, that the land was used for the purpose of the flower-selling activities at that time. The dispute between the appellants and the respondent Council is whether that purpose was at that time a lawful one under the provisions of the County of Cumberland Planning Scheme Ordinance which were then applicable to the land. The land was zoned "Living Area" under that Ordinance and it is common ground that the use for the purposes of the flower-selling activities was prohibited unless those activities came within the protection of cl. 31(b)(ii) thereof. (at p224)

4. The County of Cumberland Planning Scheme Ordinance ("the Ordinance") was introduced as a schedule to the Local Government (Amendment) Act 1951 (N.S.W.). It is deemed, by that Act, to be an Ordinance made under the Local Government Act 1919 (N.S.W.). The Ordinance has been amended on numerous occasions since its introduction and its application has been excluded or modified as regards most of the land in the County of Cumberland by planning scheme ordinances relating to particular areas. It remains, however, the basic planning instrument for Sydney and its provisions remain relevant even in respect of areas to which it no longer directly applies by reason of the abovementioned existing use provisions of the Environmental Planning and Assessment Act. (at p225)

5. Clause 31 is the last clause in Pt III of the Ordinance. Part III constitutes the heart of the planning scheme which the Ordinance embodies in that it imposes the prohibitions and restrictions upon the erection and use of buildings and the use of land in the various zones. The clause operates as one of a number of general overriding directions relating to the construction of those prohibitions and restrictions. Sub-paragraph (ii) of par. (b) remains in the form in which it was introduced in 1951. In the context of the clause, it reads:

"Nothing in the foregoing provisions of this Part shall be construed - . . . (b) as restricting or prohibiting or enabling the responsible authority to restrict or prohibit - . . . (ii) the practice by an occupant of a dwelling-house or residential building of a profession, or occupation which does not involve the use of the dwelling-house or residential building for the purpose of an industry; . . . "

Clause 24 defines "dwelling-house" as meaning, for the purposes of Pt III, "a building designed for use as a dwelling for a single family . . . ". Whether or not a building is a "dwelling-house" therefore falls to be determined by reference to design rather than use: see South Sydney Municipal Council v. James (1977) 35 LGRA 432 . Prima facie, the reference in cl. 31(b)(ii) to an "occupant of a dwelling-house" is a reference to an occupant of a building designed for use as a dwelling for a single family. It is common ground that the appellants are occupants of such a building. (at p225)

6. The effect of cl. 31(b)(ii), for present purposes, is to require that the provisions of Pt III (cll. 26 and 29 and the definition of "shop" in cl. 24) which would prohibit the use, without consent, of the appellants' land for the purpose of a shop ("any . . . place . . . used . . . for the purpose of exposing or offering goods for sale by retail") or of a roadside stall not be construed so as to prohibit the "practice" of a "profession, or occupation" which does not involve the use of the dwelling-house for the purpose of an industry. The question at the heart of the present case is whether the carrying on by the appellants of their flower-selling activities constitutes the practice of a profession or occupation for the purposes of the clause. If to "practise an occupation" is construed, for the purposes of the clause, as meaning "the habitual doing or carrying on" of "that in which one is engaged; employment; business" (definitions of "practice" and "occupation" in the Shorter Oxford English Dictionary), cl. 31(b)(ii) would plainly require that the prohibitions and restrictions contained in Pt III be construed as not prohibiting Mr. and Mrs. Lizzio's flower-selling activities which do not involve the use of their dwelling-house for the purpose of an industry. Such a construction of cl. 31(b)(ii) would mean that any occupant of a dwelling-house on land zoned "Living Area" under the provisions of the Ordinance could carry on any sort of business, or commercial or trading activities on his land provided that so doing neither affected the character of his occupation of the dwelling-house nor involved the use of the dwelling-house for the purpose of an industry: the Ordinance would offer an ineffective barrier against a quiet residential street being transformed into a Paddy's Market or Petticoat Lane. It is arguable that such a construction of cl. 31(b)(ii) would misconceive its purpose and function and that, when viewed in their context in the Ordinance, the provisions of the clause should be seen as directed not to permitting the carrying on of a business, such as a shop or roadside stall, on land whose use for such a purpose was otherwise prohibited but to precluding a construction of the prohibitions and restrictions contained in Pt III in a way which would restrict or prohibit the type of personal activity which the practice of a profession or other occupation may involve the occupant of a dwelling-house in doing at his home. According to that argument, the word "occupation" in cl. 31(b)(ii) should be seen as deriving colour from the words "practice" and "profession" and as importing an element of personal qualification or skill in the sense of being in the nature of a calling. (at p226)

7. In Ku-ring-gai Municipal Council v. Cooney (1962) 8 LGRA 8, at p 15 , Jacobs J. rejected such a restricted construction of the referrence to an "occupation" in cl. 31(b)(ii). His Honour said:

"The words 'practice of a profession' are usual and well known; but the words 'practice of an occupation' are somewhat unusual. I do not see how, by the use of the word 'practice', which is more appropriate to the word 'profession', the word 'occupation' can be limited in its meaning to something which can be practised, similar to a profession so that the word 'practice' becomes approximately appropriate. It seems to me that it is necessary to ignore the limitation implicit in the common restriction of its use to the phrase 'practice of a profession' and to regard it in its primary meaning of 'carrying on regularly' or 'pursuing'. It then becomes appropriate to the word 'profession' and to the word 'occupation'."

When the case went on appeal to the Full Court (1962) 8 LGRA 144 , his Honour's refusal to give a restricted meaning to the word "occupation" was confirmed. In the course of a joint judgment the Full Court (Sugerman, Walsh and Hardie JJ.) observed (1962) 8 LGRA, at pp 148 - 149 :

"The next submission to be considered is that in the clause, the word 'occupation' should be limited in its meaning to something to which the use of the word 'practice' is appropriate, that is, to something akin to a profession. It was submitted that the word 'occupation' should not be given the extended meaning by which it would include any employment, business or calling but should be limited to what might be described as a calling, using that word to denote that by reference to which a man may be described. We are of opinion that the language of the clause does not justify adopting the limited meaning of the word 'occupation' for which the appellant contends. The presence in the clause of the words beginning 'which does not involve' suggests that the word 'occupation' has a meaning which is capable of including the carrying on of an industry. There is an express exception from the ambit of the clause, in relation to use for the purpose of an industry, but no express exception in relation to use for the purpose of a trade or business. In our opinion, it is not necessary, because of the use of the word 'practice', to give a restricted meaning to the word 'occupation'. The word 'practice' is used as the object of 'restricting or prohibiting' and in its context, seems to be the equivalent of 'practising' or 'pursuing' or 'carrying on' or 'engaging in'." (at p227)

8. In Cooney's Case, both Jacobs J. and the Full Court held that the activities of the occupant of a dwelling-house in using and permitting it to be used for social functions in respect of most of which she received payment, including a charge for her own services, were within the protection of cl. 31(b)(ii) in that they constituted, in the particular circumstances of the case, the practice by the occupant of an occupation which did not involve the use of the dwelling-house for the purposes of an industry. The case came on appeal to this Court but only Dixon C.J., who dissented, found it necessary to consider the applicability of cl. 31(b)(ii). The Chief Justice expressed his entire agreement with the conclusion of Jacobs J. that, in the light of that clause, the prohibitions and restrictions in the Ordinance did not apply to Mrs. Cooney's activities: see Cooney v. Kuring-gai Municipal Council (1963) 114 CLR 582, at p 587 . (at p228)

9. The question of the construction of cl. 31(b)(ii) arose directly for consideration in this Court in Morris v. Woollahra Municipal Council (1966) 116 CLR 23 which was an appeal from a decision of the Supreme Court of New South Wales in its equitable jurisdiction. At first instance, Else-Mitchell J. indicated disagreement with the wide operation which some of the comments in the judgment of the Full Court in Cooney's Case would give to cl. 31(b)(ii). Speaking of Cooney's Case, his Honour said (Woollahra Municipal Council v. Morris (1966) 12 LGRA 359, at p 368 ):

"That case concerned the use of an ordinary private dwelling house for activities of a personal though commercial nature such as could be comprehended within the concept of the practice of an occupation; the analysis of the text of cl. 34(b)(ii) made by members of the Court does not seem to me to have envisaged the implications of one occupant of a residential building, such as a guest house, block of flats or hotel, conducting commercial activities of a non-industrial nature . . . "

In this Court, the wide construction of the reference to "practice . . . of . . . (an) occupation" which had been accepted by Jacobs J. (1962) 8 LGRA 8, at p 15 and the Full Court (1962) 8 LGRA, at pp 148-149 in Cooney's Case was plainly rejected. The relevant passage in the joint judgment of Taylor, Menzies and Owen JJ. is a lengthy one and, since it is set out in the judgment of Gibbs C.J., I refrain from repeating it in full. Their Honours (1966) 116 CLR, at p 32 approached the clause through, and in the context of, the provisions comprising the relevant prohibitions and restrictions recognizing that the function of the clause was directed to the construction of those provisions (1966) 116 CLR, at p 32 :

"It seems to us that the relevant words of cl. 31 should not be so widely construed as to enable the occupant of a dwelling house, or for that matter an occupant of a residential building, to carry on upon the premises any sort of trade or business in any manner he chooses so long as it does not involve the use of the premises for the purpose of an industry. If it were so construed it would mean of course, the premises could be used, for example, as a shop or as commercial premises or professional chambers notwithstanding that such a use without consent is explicitly prohibited by cl. 28."

That comment of their Honours can, of course, be applied to the use of the land in the present case for a shop or a roadside stall. There then follows the sentence which Cripps J. and the members of the Court of Appeal, in my view correctly, regarded as of critical importance to the judgment:

"What the exception permits, it seems to us, is the use of the premises by an occupant for the 'practice' of some personal skill which is a qualification of his profession or occupation."

The importance of that sentence is emphasized by their Honours' use of the word "moreover" to introduce the requirement, which follows, that "the practice must be ancillary only to the occupation of the occupant in question". (at p229)

10. The judgment in Morris' Case (1966) 116 CLR 23 is not without difficulty. In particular, their Honours did not refer, in their insistence on a "use which does not operate to transform the character of the dwelling-house", to the fact that, as has been mentioned, "dwelling-house" is defined, for the purposes of Pt III, by reference to architectural design as distinct from use or intended use. The reference, in the judgment, to "the 'practice' of some personal skill which is a qualification of his profession or occupation" borders on the obscure. The rationale and effect which it attributes to cl. 31(b)(ii) are however clear enough. In the context of prohibitions and restrictions on use of land, the occupant of a dwelling-house is not to be obliged to draw an impossible barrier between the practice of his profession or occupation and his domestic life. He may "practice" in his home those personal skills which are involved in his profession or his occupation, be it that of barrister or dressmaker, provided that what he does is ancillary to his occupation of the dwelling-house and does not involve the use of the dwelling-house for the purpose of an industry. As regards the reference to "personal skills", I agree with the comment of Mahoney J.A. in the Court of Appeal, that the emphasis should be seen as being on the word "personal". (at p229)

11. The considered statement of this Court that what cl. 31(b)(ii) excluded from the prohibitions and restrictions contained in Pt III of the Ordinance was "the use of the premises by an occupant for the 'practice' of some personal skill which is a qualification of his profession or occupation" (1966) 116 CLR, at p 32 was naturally accepted in New South Wales as settling the construction of cl. 31(b)(ii). Some sixteen years have elapsed since Morris' Case. In that period, councils, framers of new planning scheme ordinances, and occupiers and purchasers of land have, no doubt, acted on innumerable occasions in relation to land within the County of Cumberland on the basis that cl. 31(b)(ii) meant what this Court had said it meant. The Ordinance itself has been frequently amended without any amendment being made to the clause. The Court's construction of the clause has not, so far as I am aware, attracted any published adverse criticism. To the contrary, it would seem to have been accepted as an appropriate construction of the relevant words. Thus, in another case involving the present respondent (Ryde Municipal Council v. Wagemaker (1970) 19 LGRA 327, at p 329 ), in rejecting a submission that activities of an earthmoving contractor in maintaining and repairing vehicles and machinery on its land came within the protection of cl. 31(b)(ii), Else-Mitchell J. observed:

"The first reason is that the conduct of a business of this character is not the practice of a profession or occupation, for it is the word 'practice' which provides the significant key to the content of the exception, the scope of which seems to me properly defined by the statement of the High Court that it permits 'the use of the premises by an occupant for the "practice" of some personal skill which is a qualification of his profession or occupation' (Morris v. Woollahra Municipal Council (1966) 116 CLR, at p 32). I should add that to extend the exception to include businesses of any sort which can be conducted by one person would do irreparable violence to the whole conception of a living area as defined in the County of Cumberland Planning Scheme Ordinance." (at p230)

12. It was suggested in argument on the present appeal that the ratio of the decision in Morris' Case is to be found in the last sentence of the relevant passage where their Honours commented that "the point" which they wished to make was that the premises should continue to be used essentially as a dwelling-house and that that consideration was not satisfied where the premises were primarily used as business premises and the owner's occupancy was merely incidental to the conduct of the business. I incline to the view that that comment was directed to the requirement, introduced by the word "moreover", that the practice must be ancillary only to the occupation of the occupant in question and not to the prior explanation of what was involved in the concept of "practice" of a profession or occupation. Be that as it may however, I can see little point in analyzing the passage for the purpose of determining which of their Honours' comments should be described as ratio and which should be described as obiter. Where this Court has ruled upon the construction and scope of a particular clause in a particular planning instrument, the Court should be more than ordinarily reluctant, in a subsequent case involving the construction and scope of that clause, to disregard views expressed in considered comments made in reaching that decision. The provisions of a planning scheme ordinance constitute a reference point for persons apart from those involved in any particular case. The applicability and scope of such provisions are of importance to government, town planners and councils in framing and administering planning instruments. They are also of importance to the people who live in a relevant area and whose lives and property can be drastically affected by what they and their neighbours can do on particular land. It would, in my view, require extraordinary circumstances to warrant the Court, in a case involving the scope of a particular clause of a local planning scheme ordinance, to depart from the considered views which it had expressed years previously in a unanimous judgment in a case concerning the scope of that very clause of that very ordinance: cf. Reg. v. Williams; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1982) 153 CLR 402, at pp 408-409 . No such extraordinary circumstances have been shown to exist in the present case. That being so, I can see no proper basis for disagreeing with the approach of Cripps J. and the members of the Court of Appeal that, in conformity with what was said by this Court in Morris' Case the appellants' use of their land for their flower-selling activities would only enjoy the protection of cl. 31(b)(ii) if it was a use for the practice of some personal skill which was a qualification of his or her occupation. It is again at least arguable that the finding of Cripps J. and of a majority of the Court of Appeal, that the appellants' use of their land for their flower-selling activities was not such a use, constituted concurrent findings on a question of fact. Again however, it is unnecessary that I decide the question by reference to that consideration since I agree with the conclusion which their Honours reached. As Mahoney J.A. pointed out in the Court of Appeal, the appellants were not using the land for the practice of an occupation in the sense explained in Morris' Case but were simply carrying on the business of a roadside stall or shop (as defined) on te land. Their use of the land corresponded with what the Court expressly indicated in Morris' Case was not within the protection of cl. 31(b)(ii), namely, use, "for example, as a shop . . . notwithstanding that such a use without consent is explicitly prohibited . . . ". (at p231)

13. It was argued on behalf of Mrs. Lizzio that her appeal should be allowed in any event for the reason that the respondent Council was estopped from denying, as against her, that her use of the land for flower-selling activities came within the protection of cl. 31(b)(ii). The alleged estoppel is said to have arisen as the consequence of the finding by a magistrate on the hearing of an information, laid on behalf of the respondent Council against Mrs. Lizzio, alleging that on or about 26 October 1978 she had used the subject land for the sale of flowers contrary to the provisions of cll. 29 and 59 of the Ordinance. The magistrate dismissed the information on the ground that Mrs. Lizzio's use of the land was within cl. 31(b)(ii). (at p232)

14. The issue between the Council and Mrs. Lizzio, on the hearing before the magistrate, related to the flower-selling activities on the land on or about 26 October 1978. The issue before Cripps J. related to the flower-selling activities on the land immediately before the Ryde Ordinance came into force on 1 June 1979. The evidence before the magistrate indicated that, at the time of the alleged offence, Mr. and Mrs. Lizzio had been growing their flowers on their own land and had only been selling from the table or stand the surplus flowers which remained after sales to a shop. The evidence before Cripps J. was to the effect that the flowers were grown both on their own and adjoining land and that, immediately prior to 1 June 1979, all the flowers grown were being sold from the table or stand. These differences in the relevant circumstances may not be of great significance. They do however tend to demonstrate the difference between the issue before the learned magistrate and the issue before Cripps J. The question whether the use of the land at a particular time was within cl. 31(b)(ii) must, once this Court's construction of the clause in Morris' Case (1966) 116 CLR 23 is accepted, involve consideration of the use being made of the land at the particular time in the context in which that use took place. A finding that what was being done on the land in October 1978 does not found an estoppel in relation to what was being done on the land immediately prior to 1 June 1979. That being so, the learned magistrate's finding that what was being done on the land in October 1978 was within the protection of cl. 31(b)(ii) did not estop the respondent Council from denying that what was being done immediately prior to 1 June 1979 was within the protection of that clause: see O'Donel v. Commissioner for Road Transport and Tramways (N.S.W.) (1938) 59 CLR 744 . (at p232)

15. It was also submitted on behalf of the appellants that an injunction should have been refused as a matter of discretion. If Mrs. Lizzio had succeeded in her appeal on the estoppel issue, there would plainly have been great force in a submission that, as a matter of discretion, injunctive relief should not be granted against Mr. Lizzio alone. In the context of Mrs. Lizzio's failure on that issue however, there is no proper ground for interfering with the decision of a majority of the Court of Appeal that relief by way of injunction was appropriate. (at p233)

16. The appeal should be dismissed. (at p233)

Orders

Appeal allowed with costs.

Order of the Court of Appeal of the Supreme Court of New South Wales set aside and in lieu thereof order that the appeal to that Court be dismissed with costs.