Town Planning (W.A.)—By-laws—Zoning—Non-conforming use of land—Authorized to continue—Purpose of use—Description of purpose—Perth Road Board By-laws.

Decisions

June 18.
The following written judgments were delivered: -
KITTO J. This is an appeal from an order of the Supreme Court of Western Australia (Jackson S.P.J.) by which a declaration was made as to the use permitted for a certain parcel of land by by-law 372 of the by-laws made by the Perth Road Board and published in the Government Gazette (W.A.) on 29th June 1960. (at p532)

2. By-law 372 is in Pt VII, which divides the Perth Road District into zones and limits the uses to which land, buildings and structures in each zone may be put. The land in question, which forms part of the estate of a deceased person of whose will the respondents are the executors, is in what is called a residential zone. By-law 337 provides that no person shall use any land, building or structure in a residential zone except for one or more of the purposes described in a list: (a) a dwelling house for not more than one family; (b) a school or kindergarten; (c) a church; (d) a church hall; (e) a hostel; (f) a boarding or lodging house; (g) an athletic or social club; (h) a private hospital or convalescent home; (i) a public hall; (j) a Road Board building; (k) a library; (l) a doctor's or dentist's surgery attached to a residence; (m) a doctor's surgery or surgeries. (at p532)

3. In addition to residential zones, the by-laws provide for residential and flat zones, business zones, rural zones, light industrial zones, industrial zones and special zones. In relation to each kind of zone there is a by-law forbidding any use of land or building except for purposes described. Then to all the prohibitions of these restrictive by-laws exceptions are created by by-laws 372, 373 and 374. They appear under the heading "Existing Uses". By-law 372 is expressed to apply if at the date of publication of the by-law any land building or structure "is being lawfully used for a purpose or built on in a manner not permitted" by the by-laws. The provision made for such a case is that the land, building or structure "may continue to be used for that purpose or in that manner", but that no such building or structure shall be added to or altered unless special permission to do so be granted by the Board. By-law 373 provides that if "such use or purpose is afterwards discontinued or changed or the buildings removed so that it (sic) conforms with these by-laws, no person shall thereafter use such land, building or structure for any purpose or in any manner not permitted by these by-laws". By-law 374 provides that if any building or structure being so used is destroyed or damaged by fire or otherwise to the extent of more than seventy-five per cent of its value, it shall not thereafter be repaired, rebuilt, altered or added to "for the purpose of being used for any purpose not permitted by these by-laws, or in a manner not permitted by these by-laws, unless special permission to do so is granted by the Board". (at p533)

4. According to an agreed statement of facts the buildings on the respondents' land were being used at the date of publication of the by-laws "for the purpose of pottery making". The appellant concedes that they were being lawfully so used. The order under appeal declares that the purpose for which the land and the building (sic) erected thereon may be used pursuant to by-law 372 is the purpose of "light industry" as defined in by-law 14. As so defined the expression means an industry in which the processes do not cause nuisance, annoyance or inconvenience to the occupier or occupiers of adjoining land or of land in the near vicinity by reason of noise, vibration, smoke, smell, fumes, vapour or steam, dust or grit, oil, waste, water or waste products, and in which the machinery used, if any, is powered by electricity. The Supreme Court's order means that the land may be used for any industry within this description, and not only for pottery making. The Shire of Perth, which has now taken the place of the Perth Road Board for the purposes of the by-laws, contends that the only permitted use is for the purpose of pottery making. (at p533)

5. The appeal was instituted as of right, but appeared to us to be incompetent for want of an appealable amount. We decided, however, to grant special leave to appeal. (at p533)

6. The view of the learned judge of first instance was that the meaning of the word "purpose" in by-law 372 is to be ascertained by referring back to the zoning by-laws, such as by-law 337, which set out the "purposes" that are excepted from the generality of the prohibitions against user. Since pottery making is nowhere mentioned in these by-laws as a "purpose", his Honour looked for a "purpose" mentioned therein which comprehended pottery making. The parties were agreed that pottery making as carried on upon the respondents' land at the relevant time was a "light industry" within the definition in by-law 14. "Light industry" is named as a "purpose" in one of the restrictive by-laws, namely by-law 354. This seemed to his Honour sufficient warrant for the conclusion that "light industry" was the purpose for which by-law 372 permitted the respondents' land to continue to be used. (at p534)

7. It is a legitimate comment that similar reasoning would justify a conclusion that industry generally is the relevant purpose; for pottery making is an industry, and an industry (without qualification) is mentioned as a purpose in another restrictive by-law, namely 356 (1) (a). With respect, I think that the mistake in the reasoning is in supposing that because the exceptions listed in the prohibitory by-laws are all thereby labelled "purposes" an intention appears to limit the meaning of the word throughout the by-laws so that nothing else may be recognized as a "purpose". There is indeed a consistency in the use of the word, for in by-laws 372, 373 and 374 no less than in the prohibitory by-laws it is used in an objective sense to refer to the end which is seen to be served by a particular use of premises, rather than in a subjective sense to indicate the object in the minds of particular individuals: cf. East Barnet Urban District Council v. British Transport Commission (1962) 2 QB 484, at p 491 . But the prohibitory by-laws exhibit no intention of determining the degree of particularity to be observed in identifying a "purpose" to which other by-laws may apply. Each "purpose" in the prohibitory by-laws is indicated by means of a description of a character which a purpose imparts to premises in which it is pursued; and while for the most part the purposes that are thus pointed to are such that they may be pursued in a wide variety of ways (in the case of a church, for example), in some instances they connote a narrow range of choice (for example, in the case of a blacksmith's shop or a woodyard). All that may usefully be noted is that in each case the description employed, be it of wide or narrow connotation, has an evident relevance to town-planning considerations. (at p534)

8. The objection has been pressed upon us that if guidance in the interpretation of by-law 372 is not to be taken from the lists of purposes in the prohibitory by-laws there is no point at which the process of narrowing the application of the word in by-law 372 can logically stop. Once depart from the broad categories that are found in the prohibitory by-laws, it is said, and there is no limit to the minuteness of detail that may enter into the description of a purpose so as to form an essential part of it. But at the outset it is necessary to observe that the "existing use" by-laws take two steps which should be kept distinct from one another. First it is required that a purpose be identified as the end for which it can be seen that the premises are being used at the date of gazettal of the by-laws. Then the provision is made that the land may continue to be used for that purpose: not that the precise manner of use for that purpose may alone continue but that use generally for that purpose may continue. The application of the by-law in a particular case has therefore not to be approached through a meticulous examination of the details of processes or activities, or through a precise cataloguing of individual items of goods dealt in, but by asking what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the premises at the material date. This question being answered, it remains only to inquire, when a use that is being made of the premises at a later date is challenged as not being authorized by by-law 372, whether that use is really and substantially a use for the designated purpose. That will often be a question of fact and degree: cf. Marshall v. Nottingham Corporation (1960) 1 WLR 707, at p 717 ; and for that reason border-line cases will inevitably arise in which opinions will differ. But to seek more precise guidance from the by-laws is vain. The general considerations that have been mentioned will suffice for most cases. If premises were being used as professional offices at the commencement of the by-laws, no greater degree of particularity in defining the purpose is likely to appeal to practical minds as appropriate in the application of town-planning legislation than is involved in saying that the purpose is that of professional offices: the particular profession of the occupant would not ordinarily be adverted to be a person speaking in a town-planning context. The answer is perhaps not so easy in the case of a shop. As to a butcher's shop, for example, I should be inclined to think that while it would be immaterial to inquire into the details of the user the "purpose" in the relevant sense would be the purpose of a butcher's shop, and not of a shop generally. In the case of a general store, wide variations in the use as regards the nature of the stock carried and the methods of merchandising might occur before one would say, in an ordinary use of language, that the premises were not being used for the same purpose as before. In the case of premises used for pottery making, however, it seems to me to be clear that while changes in methods and designs would be immaterial a use of the premises for making anything other than pottery would be, in a substantial and relevant sense, a use for a different purpose. (at p535)

9. In three cases under comparable legislation Sugerman J. has expressed views which correspond with those above expressed. The cases are Forrester v. Marrickville Municipal Council (1954) 19 LGR (NSW) 232, at p 236 ; Bonus Pty. Ltd. v. Leichhardt Municipal Council (1954) 19 LGR (NSW) 375, at p 378 and Price (L.N.) Pty. Ltd. v. Leichhardt Municipal Council (1959) 4 LGRA 63, at p 67 . In the argument in the last of these cases a view was submitted to his Honour which was very close to that which Jackson S.P.J. accepted in the present case. Sugerman J. rejected it, attributing to the word "purpose" a different meaning in the provisions as to existing uses from that which it had in the prohibiting provisions. The latter meaning he considered was a special meaning governed by the special descriptions of categories. The former meaning, which he called the descriptive meaning, he regarded as the more usual. The view he took of the provision corresponding with by-law 372 - "the more reasonable and practical and workable view" he had called it in the Bonus Case (1954) 19 LGR (NSW), at p 378 - was that "purpose" is intended to refer to "such ranges of activities as may be described in the ordinary use of language by expressions descriptive of trades, industries, manufactures, shops or places of public amusement, such as the expression 'retail butcher's shop'", rather than "to the details of the particular aggregation of activities". (at p536)

10. For the reasons stated I am of opinion that the declaration made in the order now under appeal describes too widely the purpose for which the respondents' land was being used at the commencement of the by-laws, and it should be replaced by a declaration that the only purpose for which by-law 372 permits the land to continue to be used is the purpose of pottery making. (at p536)

11. Special leave to appeal being granted, the appeal should be allowed and a declaration made accordingly. (at p536)

MENZIES J. I agree that this appeal should be allowed. The purpose for which the premises were being used at the relevant time was pottery making. It is conceded that pottery making falls within the description of light industry but it does not follow, either in logic or in town planning, that use for one purpose which falls into the category of light industry is to be regarded as use for any purpose which falls into that category. (at p536)

2. It is true that in some of the Perth Road Board By-laws (e.g. by-law 354) "light industry" is named as "a purpose" but it is equally true that in other by-laws "purposes" are stated with much greater particularity (e.g. by-laws 337, 347, 349 and 351). All that can be gathered from a survey of the by-laws is that in some places the word "purpose" is used with greater particularity than in others. When it is necessary to determine whether a use of premises which would otherwise be prohibited is allowed by virtue of by-law 372, it seems to me necessary to look to use for a particular purpose such as an office or a shop and not to use for a general purpose such as industry or light industry simply because so many uses permitted by local government legislation are of a very particular description. (at p537)

3. I agree with the judgment of Kitto J. which I have had the advantage of reading but I would prefer to express no opinion upon a question such as whether greater particularity than use for a shop is requisite. As at present advised, it seems to me that it may be, for instance, that premises used as a butcher's shop at the relevant time could subsequently be used as a small goods shop. It is, of course, common for shops in a shopping centre in a residential area to be used from time to time for the sale of different wares and I would not wish to say anything here to cast any doubt upon the lawfulness of such changes. (at p537)

4. I agree with the order proposed by Kitto J. (at p537)

OWEN J. In my opinion the appeal should be allowed for the reasons given by my brother Kitto whose judgment I have had the opportunity of reading. (at p537)

Orders

Special leave to appeal granted.

Appeal allowed with costs.

Order of the Supreme Court of Western Australia set aside.

In lieu thereof order as follows: - 1. Declare that the only purpose for which by-law 372 of the By-laws made by the Perth Road Board and published in the Western Australian Government Gazette (No. 52) of 29th June 1960 permits the land Comprised in certificate of title volume 1247 folio 391 to be used is the purpose of pottery making. 2. Order that the plaintiffs pay the defendant's costs of and incidental to the proceedings in the Supreme Court, to be taxed.

Details

AGLC: Shire of Perth v O'Keefe [1964] HCA 37
Case: [1964] HCA 37
Decision Date: 18 June 1964

CaseChat Overview and Summary

The Shire of Perth appealed to the High Court of Australia against a judgment of the Supreme Court of Western Australia which had awarded damages to Mr O'Keefe for injuries he sustained when a motor vehicle he was driving collided with a tree which had fallen onto the road. The Shire of Perth was the local government authority responsible for the maintenance of the road.

The central legal issue before the High Court was whether the Shire of Perth had breached its duty of care to road users by failing to take reasonable steps to prevent the tree from falling onto the road or to warn users of the danger. This involved considering the extent of the Shire's knowledge of the tree's condition and the foreseeability of the risk of it falling.

The High Court held that the Shire of Perth was not liable. Their Honours found that there was no evidence to suggest that the Shire had any knowledge, actual or constructive, of the dangerous condition of the tree. The tree appeared to be healthy and there were no outward signs of decay or instability that would have alerted the Shire to the risk of it falling. Consequently, the Shire had not failed to take reasonable precautions, as no reasonable authority would have foreseen the danger in the circumstances. The appeal was therefore allowed.

Orders