pose other than residential purpose-Exception confined to use for purpose for which land " was used " at date of coming into force of ordinance-Test of use- Not limited to physical activities observable on land on day in question-Lease by MELBOURNE, trustees-Acceptance of rent in respect of period not expired on day in question- Whether land used by trustees on day-Brisbane City Council Ordinances, Chap. 35.

Chapter 35 of the Brisbane City Council Ordinances provides by cl. 2 that no person shall use any land (whether having a building thereon or not) or use or erect any building or part of a building on any land within the city for any purpose other than residential purposes and by cl. 5 that " nothing herein contained shall prevent the use of any land or building or part of a building for the purpose for which such land or building or part of a building was used at the date of the coming into force of this chapter

The chapter came Held that cl. 5, in referring to the purpose for which land etc. " was used " on a given day, called for an inquiry, not limited to the physical activities which might have been observed on the land or in the building on that day, but taking account of any course of user which might fairly be regarded as having been current on that day. Most forms of user of land or buildings involve not continuous activity but recurring activities. Whether an inter- ruption of activity puts an end to the user must always be a question of fact and in resolving the question the circumstances of each case must be considered

Schwerzerhof v. Wilkins (1898) 1 Q.B. 640, discussed and distinguished.

98 CLR 36

Trustees of premises had accepted a payment by way of rent in respect of period which had not expired on 3rd December 1955. Held, that having thus parted with the use of the premises the trustees could not be regarded as using them for any purpose.

Commissioners of Taxation v. Trustees of St. Mark's Glebe (1902) A.C. 416, at p. 421, applied.

Held, further, on the facts, that the premises in question in the case were not used for any purpose at the date of coming into operation of the chapter.

Decision of the Supreme Court of Queensland (Stanley J.), affirmed.

APPEAL from the Supreme Court of Queensland.

Lawrence Rosenblum and Maxims Proprietary Limited com- menced an action in the Supreme Court of Queensland on 3rd February 1956 against the Brisbane City Council. The statement of claim was as follows :-1. The defendant is a body corporate incorporated under and pursuant to The City of Brisbane Acts 1924 to 1954 (Q.). 2. Pursuant to an agreement in writing dated 19th…

Details

AGLC: Rosenblum v Brisbane City Council [1957] HCA 98
Case: [1957] HCA 98
Decision Date: 23 December 1957

CaseChat Overview and Summary

The appellants, Lawrence Rosenblum and Maxims Proprietary Limited, appealed to the High Court of Australia from a decision of the Supreme Court of Queensland. The dispute concerned the application of Chapter 35 of the Brisbane City Council Ordinances, which prohibited the use of land for purposes other than residential, unless the land was already being used for that purpose at the ordinance's commencement date. The appellants sought declarations that their intended use of the premises at 19 Bayview Terrace, Clayfield, for commerce and business, specifically as a catering establishment for social functions, was permissible under an exception to the prohibition.

The central legal issue before the High Court was whether the premises at 19 Bayview Terrace, Clayfield, were being used for a purpose other than residential on 3rd December 1955, the date Chapter 35 of the Brisbane City Council Ordinances came into force. The appellants contended that the premises were being used as a catering lounge, even if no physical activities were occurring on that specific day, arguing that the intention and preparation for future use constituted a current use. The Brisbane City Council argued that the premises were not being used for any purpose other than residential on the material date.

The Court reasoned that the phrase "purpose for which such land... was used" on a given day required an inquiry that was not limited to observable physical activities but encompassed any course of user fairly regarded as current. It acknowledged that most land uses involve recurring, not continuous, activities, and whether an interruption constitutes an end to user is a question of fact dependent on the circumstances. However, the Court found that on 3rd December 1955, neither the former occupants (the Young Men's Hebrew Association), nor the trustees for the debenture holders, nor the prospective lessee, Mr. Rosenblum, nor the yet-to-be-incorporated appellant company, were using the premises as a catering lounge. The Court noted that the association's use had ceased, the trustees had parted with the use by accepting rent for a future period, Mr. Rosenblum had not yet taken possession or commenced any overt steps beyond preparing a sketch, and the company did not exist.

Consequently, the High Court affirmed the decision of the Supreme Court of Queensland, holding that the premises were, in plain fact, unused for any purpose on 3rd December 1955. The appeal was dismissed with costs.

Orders