The Northern Territory Planning Authority v Murray Meats (NT) Pty Ltd
[1983] FCA 112
•31 MAY 1983
And: MURRAY MEATS (N.T.) PTY. LIMITED, AMOONGUNA COMMUNITY INCORPORATED,
AMOONGUNA ABORIGINAL LAND TRUST (1983) 66 FLR 394
Town Plan - Building Control and Town Planning - Cross appeal
NTG 30 of 1982
IN THE FEDERAL COURT OF AUSTRALIA
NORTHERN TERRITORY OF AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
McGregor(1), Lockhart(2) and Fitzgerald(3) JJ.
Town Plan - appeal against order for declaratory relief - zoning before 1981 - Alice Springs Town Plan 1981 - limited to land physically shown on plan - Aboriginal land - Land Rights Act - substantial completion of use of abattoir in non-abattoir area - continuation and completion not contrary to any planning law of the Northern Territory or in any other respect unlawful - effect of Planning Act 1979 - existing use provisions not to be qualified by insertion of word "lawful".
Cross Appeal - By-products section not integral part of abattoir structure - no substantial, or any, commencement of by-products section - alternative method of disposal intended - Planning Act 1979 s.69(1) - "work" includes something erected or "works", something used.
Planning Act 1979 ss.67, 68, 69, 163, 171
Associations Incorporations Act.
Aboriginal Land Rights (Northern Territory) Act 1976 (Cth.) ss.19, 66 70.
Crown Lands Act.
Abattoirs & Slaughtering Act, Fourth Schedule.
Town Planning Ordinance 1964 ss.5, 39(1)
Regulations
Second Schedule
Interpretation Act ss.15 AA, 18, 52.
Crimes Act 1914 s.86(1).
Local Government Act 1949 s.5 (Vic.)
Local Government (Amendment) Act 1971 (N.S.W.) s.3(6).
Ramsden v. Dyson (1866) L.R. 1 H.L. 129.
Building Control and Town Planning - Substantial completion of abattoir on land granted under Land Rights Act - Byproducts section not commenced - Whether construction prohibited by town plan - Whether construction breached Land Rights Act - Effect of new planning legislation - Existing use provision - Declarations by trial judge - Cross appeal - Whether byproducts section integral part of abattoir structure - Alternative method of disposal intended - Town Planning Ordinance 1964 (N.T.), ss. 5, 39(1) - Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), ss. 19, 66, 70 - Planning Act 1979 (N.T.), ss. 67, 68, 69, 163, 171.
In 1981 the first respondent commenced to construct an abattoir at Amoonguna, south-east of Alice Springs. By 10th April, 1981, the abattoir had been substantially commenced but the byproducts section had not. The site of the abattoir was land which had been part of an Aboriginal reserve created under the Crown Lands Act 1931 (N.T.). On 30th August, 1978, the Governor-General, pursuant to the provisions of the Aboriginal Land Rights (Northern Territory) Act 1976 (the Land Rights Act), had executed a deed of grant of the greater part of the land that had formed part of the reserve to the Amoonguna Aboriginal Land Trust, the third respondent. Section 19 of the Land Rights Act permitted a land trust with the consent in writing of the Minister and at the direction in writing of the relevant land council to grant a leave or licence in respect of the land vested in it. The first respondent had not obtained that consent but had discussed its proposed construction with the councillors of the Amoonguna Community Incorporated, the second respondent. The Alice Springs Town Plan made in 1972 under the Town Planning Ordinance 1964 regulated the planning and development of land in and near Alice Springs and on its extreme eastern side showed a small part of the western edge of the Amoonguna land, but not that on which the abattoir was constructed. Pursuant to regulations made under the Town Planning Ordinance 1964 land, including that containing the Amoonguna Reserve, was prescribed to be subject to the provisions of the Ordinance as if it were part of the town, but town planning controls were not applied to it. The Planning Act 1979 on 3rd August, 1979, repealed the Town Planning Ordinance but continued in force the regulations made thereunder. On 10th April, 1981, the Alice Springs Town Plan 1981, a planning instrument under the Planning Act, came into force and applied to the site of the first respondent's abattoir site and did not permit the use of that site for that purpose. Section 68 of the Planning Act stated that "existing uses" did not contravene a planning instrument.
In proceedings brought by the respondents in the Supreme Court of the Northern Territory, declarations were granted that the continued use by the first respondent of the abattoir and the continuation and completion on the land of an abattoir did not contravene the provisions of the Alice Springs Town Plan 1981. The declarations granted did not apply to the proposed byproducts section of the abattoir. The appellant appealed from these orders and the respondents cross appealed from the failure of the trial judge to declare that the building or work which had substantially commenced by 10th April, 1981, did not include a byproducts section.
Held: (1) Per curiam - The Alice Springs Town Plan 1972 did not apply to the site of the abattoir as it was not intended to apply to any land not physically shown on the plan.
(2) The land trust, the third respondent, had not breached the requirements of s. 19 of the Land Rights Act. It was doubtful if the land trust could be compelled to dispose of any estate or interest in the Amoonguna land or to perfect an incomplete disposal.
R. v. Toohey; Ex parte Attorney-General for the Northern Territory (1980) 145 CLR 374, referred to.
Ramsden v. Dyson (1866) LR 1 HL 129, distinguished.
(3) The phrase "existing use" referred to in s. 68 of the Planning Act should not be qualified by the word "lawful".
Per Fitzgerald J. - Section 68(1) was concerned with use in point of fact and not with the legality of the prior user by reference to considerations extraneous to planning.
Parramatta City Council v. Brickworks Ltd. (1972) 128 CLR 1, referred to.
(4) Section 163 of the Planning Act did not affect the operation of s. 68 of that Act and only provided that a person who uses or develops land in conformity with the Planning Act is not exempted from complying with the requirements of other laws of the Northern Territory provided those laws are not inconsistent with the Planning Act.
Per McGregor and Lockhart JJ. - The Land Rights Act, being an enactment of the Parliament of the Commonwealth was not "a law of the Territory" for the purposes of s. 163 of the Planning Act 1979.
Sankey v. Whitlam (1978) 142 CLR 1, referred to.
(5) The appeal should be dismissed.
(6) The cross appeal should also be dismissed. On the unchallenged findings of the trial judge, the conclusion had been open that any intention of the first respondent to erect a byproducts section as part of the abattoir had ceased by 10th April, 1981.
Brisbane, 1983, April 19-22; May 31. #DATE 31:5:1983
APPEAL.
The appellant appealed and the respondents cross appealed from orders of Toohey J. in the Supreme Court of the Northern Territory. The facts appear from the headnote and the judgment.
B.C.M. Wall Q.C., F. Gaffy Q.C. and G. Miller for the appellant. B. O'Keefe Q.C. and J. Mant for the respondents.
Cur. adv. vult.
Solicitor for the appellant: J.B. O'Rourke, Crown Solicitor.
Solicitors for the respondents: Priddle Gosling.
T.J. GINNANE
l. The appeal be dismissed.2. The cross appeal be dismissed.
3. The appellant pay to the respondents three quarters of the costs of the appeal and cross appeal.
THE NORTHERN TERRITORY PLANNING AUTHORITY (defendant) is a body corporate constituted by the Planning Act l979. Its functions include the submission to the Minister of proposals or policies for the use or development of land, or with regard to planning; considering and reporting to and advising or making recommendations to the Minister upon any such proposal or policy, whether prepared by it or not (s.32). It has appealed against certain orders set out below made by a judge of the Supreme Court of the Northern Territory. The orders were sought in an action brought by three plaintiffs viz. MURRAY MEATS (N.T.) PTY. LIMITED (Murray Meats), a company incorporated in the Northern Territory, AMOONGUNA COMMUNITY INCORPORATED (Amoonguna Community) a body incorporated under the Associations Incorporation Ordinance l963 (as it then was) of the Northern Territory, AMOONGUNA ABORIGINAL LAND TRUST (Land Trust) a body constituted under the provisions of the Aboriginal Land Rights (Northern Territory) Act l976 (Land Rights Act).ITEM No. NAME OF MANNER IN WHICH PURPOSE FOR WHICH LAND INThe three plaintiffs had sought declaratory relief that the continued use by Murray Meats on certain land at Amoonguna in the Northern Territory and at the existing buildings and works thereon; and the continuation and completion of a certain abattoir structure undertaken by the said Murray Meats on the said land and largely completed was not contrary to any planning law of the Northern Territory including the Alice Springs Town Plan l98l or in any other respect unlawful.
Following the hearing on 25, 26, 27, 28 and 29 October l982 and l5 November l982, decision was reserved. On 6 December l982 judgment was delivered wherein it was adjudged and declared as follows -
'l. That the continued use by the First Plaintiff of the land being the land described in the Schedule hereto and of the existing buildings and works thereon for the purpose of yarding and killing feral horses and chilling, boning, packing, freezing and shipping their carcasses does not contravene the provisions of the Alice Springs Town Plan l98l.
2. That the continuation and completion by the First Plaintiff on the land being the land described in the Schedule hereto of an abattoir consisting of yards, raceways, a killing floor, chillers, boning room, packing room and freezers, does not contravene the provisions of the Alice Springs Town Plan l98l.'
Amoonguna is an area south east of Alice Springs which was for many years an Aboriginal reserve, created under the provisions of the Crown Lands Act. Certain relevant history, which does not appear to be disputed and which leads up to critical matters, is set out in the Reasons for Judgment.
On 22 July l975 the Amoonguna Community was incorporated with a constitution defining it as 'the group of Aboriginals who for the time being are resident at Amoonguna and includes all members of the Association wherever residing'. The objects of the Association include, inter alia, the promotion of the welfare and development of that community.
On 26 January l977 the Land Rights Act came into force whereby there was created a category of land described as 'Aboriginal land', in effect an inalienable fee simple, subject to various prohibitions and controls on dealing. It provided, inter alia, that land may become Aboriginal land as the result of a recommendation by the Aboriginal Land Commissioner, accepted by the Minister for Aboriginal Affairs, and made the subject of a grant by the Governor-General. That Act identified areas of Aboriginal land to be the subject of a grant by the Governor-General, one of which areas was of 53O.5 hectares, more particularly referred to in the judgment of the learned trial judge and situated at Amoonguna.
On 3O August l978 the Governor-General, pursuant to the provisions of the Land Rights Act, executed a deed of grant to the Land Trust of the land or a greater part thereof and not precisely identical with it. Nothing is said to turn on the difference between the particular land referred to in the said Act and that referred to in the deed of grant. It is referred to hereafter as the Amoonguna land.
Some time before September l98O, Murray Meats investigated various proposals to establish an abattoir in the Northern Territory. On 9 September l98O the Australian Meat and Livestock Corporation wrote to Murray Meats giving certain information about its policy as to the method of killing of cattle and buffalo to provide meat for export for human consumption; in view of which Murray Meats looked around for a site which would be suitable for the construction of an abattoir.
In September l98O there was correspondence between Murray Meats and the Minister for Lands and the Department of Transport and Works wherein Murray Meats manifested an intention to establish an export horse abattoir and by-products plant in the Alice Springs area.
Late in l98O Mr. David Douglas Murray, a Director of Murray Meats, acting on its behalf, made an approach intended to be to the Amoonguna Community with a proposal to build an abattoir on the Amoonguna land in return for which that company would train and employ Aboriginal people in the meatworks. The land upon which Murray Meats sought to construct this abattoir was Aboriginal land held by the Land Trust. The initial discussions were with a Mr. Bookie, the chairman of the Community Council, and Mr. Freeney, its community adviser. For the purpose of its abattoir, Murray Meats required an area of 5-lO acres; and such an area was pointed out to Mr. Murray by Messrs Bookie and Freeney, as being land known as the Old Orchard on the Amoonguna land. Before February l98l, Mr. Murray met with councillors of the Amoonguna Community. An agreement was reached on the part of the councillors that Murray Meats might build, construct and bring on to the land that had been viewed a mobile abattoir. It was not until later that Mr. Murray became aware of the existence of the Land Trust and of the position of a certain Mr. Ross as a member of that Trust.
On 6 February l98l, Mr. Murray wrote to the Department of Primary Production, referring to discussions with that Department and advising it _
'.....that I have been given approval by the Amoonguna Council to locate my Abattoir on the Community.'
Accompanying the letter was a plan of the proposed slaughtering facility, comprising a loading bay, storeroom, washroom, snap freezer, boning room, chiller and quartering room and washing bay. There was also included a plan of 'Proposed Bi (sic) Products Section'. There was a reply to that letter from the department under the hand of Mr. B.R. Abel, a meat inspector, which his Honour said could be taken to have been written on lO February l98l. It acknowledged Mr. Murray's letter and referring to the plans, commented:-
'I can see no objections to them being approved for Amoonguna.'
though in the letter Mr. Abel pointed out that that area was outside the Alice Springs Township and so the appropriate licence would be 'for an abattoir in a non abattoirs area as per Fourth Schedule of the Abattoirs and Slaughtering Act'. The Fourth Schedule to Regulations made under that Act does, in fact, provide standards for an abattoir not in a licensed abattoirs area.
It is necessary to refer to certain legislation which bears upon the issues.
The Town Planning Ordinance l964, the predecessor of and repealed by the Planning Act l979, was expressed to be 'an Ordinance relating to the planning and development of towns and land in and near towns.' By s.5, Regulations under that Ordinance may prescribe that a specified area of land shall be subject to the provisions of the Ordinance as if it were a town; or prescribe that land adjacent to a town shall be part of that town. However, there had been no exercise of regulation making power pursuant to s.5 to incorporate by specific reference land that fell without the town.
Pursuant to the Town Planning Ordinance l964 as amended, s.39 which read _
(l) Subject to this Ordinance, land represented in a town planning scheme by a portion of the plan of the scheme shown in the manner specified in Part l of the legend set out in the Second Schedule to this Ordinance as the manner in which a zone, site or reserve is shown in the plan may be used for a purpose indicated by the words set out in the last column of Part l of the legend opposite the name of that zone, site or reserve.
(2) ....."
the Alice Springs Town Plan was produced, being approved on lO July l972. It was the Exhibit 29 referred to by the trial judge. The second schedule refers, inter alia, to the Amoonguna land thus _
SECOND SCHEDULE
The Legend
Part l - Items having effect to regulate the use of land
ZONE ZONE SITE OR ZONE SITE OR RESERVE MAY BE61 Welfare Yellow edge Social welfare purposes
SITE OR RESERVE IS USED
RESERVE SHOWN IN TOWN
PLAN
Reserve with green
hatch
Pursuant to s.5 of the Town Planning Ordinance l964, Town Planning Regulations were made on 22 December l978 by which various areas of land 'being adjacent to the town specified in respect of that area of land in that Schedule' were prescribed to be subject to the provisions of the Ordinance if it were part of that town. The area so prescribed included the Amoonguna land portions 46l and 568. However Town Planning controls were not applied to it. The Plan on its extreme eastern side shows a small part of the western edge of the Amoonguna reserve; but not including that on which the abattoir was constructed; and the yellow edging of the Amoonguna land is incomplete, extending to the right hand or eastern edge of the Plan with no closure in a north south direction indicating, as the first judge found, that it was not intended to include any more of the Amoonguna land than was shown.
The Planning Act l979 repealed the Town Planning Ordinance l964 as amended. It came into force on 3 August l979. However a Town Planning Scheme in force immediately before the Act came into operation was deemed to be a planning instrument made under the Planning Act l979 (s.l7l(l)); and the Second Schedule to the repealed Ordinance was deemed to form part of each planning instrument, deemed to be a planning instrument by the prior sub-section, s.l7l(2). Thus the l972 Alice Springs Town Plan became a planning instrument made under the Planning Act l979. Regulation 5 of Planning Regulations made under that Act specified areas which 'are to be treated as towns'. The land so described included the abattoir site; but no legislation extended the controls of the Planning Act l979 to the said areas. It seems that the mere prescription of land including the abattoir site as land to be treated as a town did not extend the scope of the Act's operation.
On 10 April l98l there came into force the Alice Springs Town Plan l98l, a planning instrument under the Planning Act l979. This brought into existence the Town Plan l98l which applies to the abattoir site. Its effect is, as the trial judge found, to zone the Amoonguna land including the abattoir site as one of special purposes zones. It does not permit development of land as an abattoir. His Honour, after referring to this Plan, summed up the position which then obtained as follows _
'The plaintiffs then are faced with this situation. Whatever the limitations of the Town Planning Ordinance l964 and the Alice Springs Town Plan l972, if the Alice Springs Town Plan l98l is valid, then, subject to the existing works and existing use provisions of the Planning Act, development of an abattoir is contrary to the scheme.'
This comment has not been challenged.
In his Reasons for Judgment, and after referring to the evidence, the judge at first instance summarised his findings and conclusions thus _
'l. As at lO April l98l the abattoir being constructed by Murray Meats on the Amoonguna land had been substantially commenced.
2. As at lO April l98l the abattoir had been used for the slaughtering of horses for export for human consumption.
3. As at lO April l98l the abattoir did not include a by-products section nor had there been any use of the abattoir for by-products.
4. When the Alice Springs Town Plan l972 came into operation, it did not extend beyond the boundary of the town of Alice Springs and it did not extend to N.T. portion 46l or 568.
5. The Town Planning Regulations made pursuant to the Town Planning Ordinance on 22 December l978 did not have the effect of extending the Town Plan l972 to the land on which the abattoir stands.
6. The use of the land as an abattoir does not fall within the concept of social welfare purposes in the Second Schedule to the Town Planning Ordinance.
7. Regulation 5 of the Planning Regulations made pursuant to the Planning Act l979 specified the Amoonguna land as land to be treated as part of the town of Alice Springs. Of itself that did not extend the scope of the Town Plan l972.
8. The specification of Planning Area 8 by notice published in the Gazette of 7 August l979 did not extend the scope of the Town Plan l972.
9. The Town Plan l972, the subject of Exhibit 29, did not extend beyond the land therein shown. In particular it did not purport to include portion 46l or portion 568 except as shown on that plan. It did not purport to extend to the abattoir site.
lO. The evidence failed to demonstrate that Exhibit 29 was intended to relate to any land other than that shown on the exhibit itself and failed to demonstrate that the land as shown on the exhibit extended beyond those sections of portions 46l and 568 actually depicted.
ll. The effect of s.l7l of the Planning Act was to deem the Town Plan l972 to be a planning instrument under the Planning Act. It did not bring a new town plan into existence.
12. The Alice Springs Town Plan l98l zoned the Amoonguna land including the abattoir site as Sl, limiting the development of the land to institutional purposes.
13. There was no failure by the defendant to comply with s.44 of the Planning Act; if there was such a failure it was not destructive of the Town Plan l98l.
14. The Town Plan l98l does not offend either s.9 or lO of the Racial Discrimination Act l975.
15. The Town Plan l98l is a valid planning instrument.
16. The distinction in the Planning Act between an existing building or work and an existing use in the present case may not be vital because s.69(3) permits an existing building or work to be used for the purpose for which it was erected."
Neither the consent of the Central Land Council nor the consent of the Minister was given to any transaction between the Land Trust and Murray Meats.
The argument for the defendant, and repeated before us by senior counsel for the appellant, was that the l972 plan is not merely a plan, it is legislation; what he describes as a 'juristic concept' and that the words 'Amoonguna Reserve' appearing on the plan indicate that the whole of the reserve including the portion not depicted by it falls within the scheme. The effect of counsel's argument would be that quite apart from the Amoonguna Reserve other land of a particular category not shown on the plan would be regulated by it, just as what was shown on it was regulated. So for example, the whole Todd River Recreation Reserve, part of which was shown on the Plan, would be controlled no matter how much further it extended. In my opinion this proposition is not acceptable. It would appear to make the plan a mere token, which when it is examined in its entirety, it is not. However it has to have limits.I accept, as did the trial judge, that the plan, Exhibit 29, was not intended to refer to any land not physically shown on it. The appeal on this ground fails.
The appellant's second argument depended upon the construction and interpretation of the Land Rights Act. Counsel submitted that notwithstanding there were no planning controls the plaintiffs were precluded from obtaining the relief sought; that the use of the land for the purpose of an abattoir and the construction of it on the said land was in contravention of the provisions of the Land Rights Act, illegal and contrary to public policy and therefore, in the eyes of the law a 'nullity'. He referred to s.l9 which reads _
'(l) Except as provided by this section or section 2O, a Land Trust shall not deal with or dispose of, or agree to deal with or dispose of, any estate or interest in land vested in it.
(lA) (2) (3) .....
(4) With the consent, in writing, of the Minister and at the direction, in writing, of the relevant Land Council, a Land Trust may _
(a) grant a lease or licence in respect of the whole, or any part of, the land vested in it to any person for any purpose; and
(b) transfer to another Land Trust, or surrender to the Crown, the whole of its estate or interest in the whole, or any part of, the land vested in it.
(5) A Land Council shall not give a direction under this section for the grant, transfer or surrender of an estate or interest in land unless the Land Council is satisfied that _
(a) the traditional Aboriginal owners (if any) of that land understand the nature and purpose of the proposed grant, transfer or surrender and, as a group, consent to it;
(b) any Aboriginal community or group that may be affected by the proposed grant, transfer or surrender has been consulted and has had adequate opportunity to express its view to the Land Council; and
(c) in the case of a proposed grant of a lease or licence _ the terms and conditions of that lease or licence are reasonable.
(6) Where a Land Council, in giving a direction for a proposed grant, transfer or surrender of an estate or interest in land, fails to comply with sub-section (5), that failure does not invalidate that grant, transfer or surrender unless the person to whom the grant, transfer or surrender was made procured the direction of the Land Council by fraud.
...."
and to Part Vll of that Act including ss.66 and 7O _
'66. A reference in this Part to an estate or interest in Aboriginal land includes a reference to _
(a) a mining interest;
(b) an interest arising out of the operation of the Atomic Energy Act l953 or any other Act authorizing mining for minerals;
(c) an interest arising out of the taking possession, ming or occupation of land by virtue of a miner's right; and
(d) an interest by way of the occupation or use of land in accordance with section l2A, l4, l8, l8A or l8B.'
'7O (l) Except in the performance of functions under this Act or otherwise in accordance with this Act or a law of the Northern Territory, a person shall not enter or remain on Aboriginal land.
Penalty: $l,OOO.
(2) Where a person, other than a Land Trust, has an estate or interest in Aboriginal land _
(a) a person is entitled to enter and remain on the land for any purpose that is necessary for the use or enjoyment of that estate or interest by the owner of the estate or interest; and
(b) a law of the Northern Territory shall not authorize an entry or remaining on the land of a person if his presence on the land would interfere with the use or enjoyment of that estate or interest by the owner of the estate or interest.
(3)....'
and to ss. 67, 68 and l63 of the Planning Act l979 _
'67.(l) In this Part, 'former planning instrument", in relation to any land to which a planning instrument applies, means the planning instrument which applied to that land immediately before the date of commencement of the planning instrument which applies to the land.
(2) For the purposes of this Act, in relation to any planning instrument _
(a) a building or work is an existing building or existing work, as the case may be, if _
(i) it was in existence immediately before the date of commencement of the planning instrument; or
(ii) it is completed under section 69; and
(b) the existing use of any land, building or work is the use of the land, building or work, as the case may be, for the purpose for which it was used immediately before the date of commencement of the planning instrument.
68. (l) Subject to sub-section (2), a person shall not be held to contravene the provisions of a planning instrument by reason only that he continues to use any land, existing building or existing work after the date of commencement of the planning instrument for its existing use.
(2) Sub-section (l) does not apply to permit the use of any land, existing building or existing work to which a former planning instrument applied for a purpose which was not authorised _
(a) by or under this Act; or
(b) by or under the former planning instrument.
....
l63. Nothing in this Act permits a person to use or develop any land in contravention of a law of the Territory other than this Act."
Senior counsel for the appellant submitted that on the evidence there had been an agreement to deal or a dealing with the land on which the abattoir was sighted, that there had been a disposal of an estate or interest or lease of the land contrary to s.l9 of the Land Rights Act; that the scheme of the Act was to regulate what use and objects may be carried out on such land; that the use and occupation of the land was to be reserved solely for Aboriginals unless the Act expressly permits other use or occupation. Further, he argued that Murray Meats did not come within the category of persons so permitted; that the purpose of the use of the land by the first plaintiff was not a purpose or use for the benefit of Aboriginals but for a commercial operation. He said, on the evidence, no direction had been given by the Central Land Council allowing use by Murray Meats. Counsel then referred to Yango Pastoral Co. Pty. Limited v. First Chicago Australia Limited (l978) l39 C.L.R. 4lO at p.429 per Mason J. and to the Planning Act l979 s.68. He submitted that the declaratory relief sought should have been refused because the activity of Murray Meats was illegal and forbidden by the Land Rights Act, or that, as a matter of discretion, relief should have been refused. He contended, further, that there was an abattoir construction activity and use by the first plaintiff relied upon under the existing use provisions of the Planning Act l979 s.68; yet the only use protected was a legal use; that insofar as their purported operation and effect would be inconsistent with regulation of Aboriginal land by the Land Rights Act, that building and the use was illegal; ss. 68 and 69 should be read down so that the existing use would not include a use prohibited under the laws of the Northern Territory including the Land Rights Act. No use which was illegal could be relied on as an existing use within the meaning of s.68; being illegal, it was a 'nullity'. He referred to s.l63 of the same Act.
Senior counsel for the respondents submitted that there was no contravention of the Land Rights Act by the building or use of the abattoir; the continued use or existing use which s.68 of the Planning Act l979 permitted was not to be qualified by the insertion of 'lawful' before 'use' _ as he contended the appellant's argument stated.
He referred to H. & W. Hurdis Pty. Ltd. v. Lane Cove Municipal Council (l956) 20 L.G.R. (N.S.W.) 322 at p.325; Bourne v. Marrickville Municipal Council (l954) l9 L.G.R. (N.S.W.) 2l8; Parramatta City Council v. Brickworks Ltd. (l972-73) l28 C.L.R. at p.25 per Gibbs J. as he then was. He submitted the argument was stronger against any qualifying or weakening of the existing use provision where the illegality relied on was in a different Act on a different subject matter. (p.l92). He referred to Vumbaca v. Baulkham Hills Shire Council (l978-79) l4l C.L.R. 6l4; Parramatta City Council v. Brickworks Ltd. (supra) at p.6. He submitted that no authority supported that the Land Rights Act or like provision concerned with a subject matter other than land use can be said to avoid the effects of a land use in fact which was lawful under the land use legislation then in force; that aided by s.67(2), s.68 was concerned with a factual determination as to the existence of, as I understand him, building work or use; that s.67 and s.68 can give rise to protection though not creating rights.
On the effect of repeal of an Act or Ordinance, he referred to Ferrum Metal Exports Proprietary Limited v. Lang (l96O-6l) lO5 C.L.R. 647 at pp.654,655. As to the significance of s.7O of the Land Rights Act, he contended that the provisions of the Act relate to entry and remaining on Aboriginal land, not to what the entrant does when on the land; nor was there any evidence of breach; if there was then the penalty provided for such breach may be sufficient. As to the argument by the appellant relying on s.l9, counsel submitted that the trial judge had reached the correct conclusion; the section was concerned with estates and interests in land. He contrasted the language with 'occupation or use' in sections l4 and l5; and s.l9 did not concern itself with permission to enter or do what would otherwise be a trespass; and the breach of s.l9 would be by the person to whom the command was addressed i.e. the Land Trust. As to the argument that the actions of the first plaintiff was against the policy of the Land Rights Act, he contended that the Act was concerned specifically with the granting of traditional Aboriginal land for their benefit; and not a general purpose Act intended to benefit Aboriginals. Section l63, he submitted, was concerned with planning; it did not affect applications under other acts and regulations relating to use and development of land; that a law of the Territory meant an enactment and not, e.g. the law of torts. He referred to the Interpretation Act (Northern Territory of Australia) ss.l5, l8 and 52 as assisting to discern the meaning of a law of the Territory. There was no basis for saying s.l63 struck down the existing use provision in s.68.
It will now be convenient to consider the arguments raised in the appeal, bearing in mind that on the view already expressed the Alice Springs Town Plan l981 did not regulate or control the part of the Amoonguna reserve not shown on Exhibit 29. As to the argument of a contravention by constructing and using an abattoir as contrary to the Land Rights Act I suggest, its policy may be inferred from its short title. Some further expansion or commentary on this is to be found in R. v. Toohey & Ors; Ex parte Attorney-General for the Northern Territory (l979-80) 28 A.L.R. 27 per BarwickC.J. at p.32 (dissenting though not relevantly on this subject) and per Stephen, Mason, Murphy and Aickin JJ. at p.37. They considered the most important provisions were ss.ll and l2 enabling Crown Land to be granted to Land Trusts to be held for the benefit of those Aboriginals entitled by Aboriginal tradition to the use or occupation of that land. The thrust of the provisions, I consider, is in granting of land to be so held. Nothing in the use which has occurred at the Amoonguna Reserve in relation to the abattoir is inconsistent with or against any such policy. In my view the argument in this area is unacceptable. None of the respondents' actions were in opposition to or inconsistent with ss.l9 or 7O; or contrary to the granting of such land, even if it could be said that thereafter there was a misuse or an impermissible use of it.
I do not accept that anything done here by the Land Trust is contrary to s.l9 of the Land Rights Act. It did not deal with or dispose of an estate or interest in land vested in it or agree so to do.
Section l63 of the Planning Act l979 was referred to briefly. Negative in form, it has no application here. It saves or preserves the operation of other Acts of the Territory; it does not qualify at all the operation of Part lV of that Act. The Land Rights Act is not a law of the Territory, cf. Crimes Act l9l4 s.86(l) and the discussion in Sankey v. Whitlam (l978) l42 C.L.R. l at pp.28, 7l, 9l et seq.
The Land Trust may, in conformity with s.l9(2), (3) and (7), grant a lease or license. On the evidence there has been no lease or license granted by the Land Trust; in fact, the arrangement is, with respect, aptly described by the learned trial judge as 'very loose'. The trial judge found that this was between the Amoonguna Council and Murray Meats. The Land Trust had not yet entered into an arrangement with interested parties. Though not satisfied that there is any reason to depart from the finding of the trial judge adverse to the appellants i.e. that the Land Trust has not dealt with or disposed of an estate or interest in this land to Murray Meats, I prefer not to express this view, as did the trial judge, in terms of 'no evidence'.
The appellant has argued that any existing use upon which the plaintiffs might rely for a continuation of the abattoir operation by both use and additions to buildings would require that the previous (existing) use or erection was 'lawful'. The word 'lawfully' was used by the draftsman in equivalent legislation: See e.g. Local Government Act l949 s.5 (Victoria); Local Government (Amendment) Act l97l (N.S.W.) s.3(6). However, the terms of s.68(l) and (2) of the Planning Act l979 are explicit: they do not indicate, imply or require any insertion of the word 'lawful' or 'lawfully'; and perhaps even an earlier use or erecting which was unlawful does not thereby fall outside that which by s.68 is permitted to continue _ cf. Parramatta City Council v. Brickworks Ltd. (supra) per Gibbs J. (as he then was) at p.26 with whose reasons other members of the Trust agreed; per Walsh J. at p.6. The effect of the Parramatta case is that in the particular not dissimilar legislation a previously 'unlawful' use was yet permissible under later legislation. If the legislature was not intending to permit continuation unqualified of existing use it would easily have said so; particularly when one must assume that the draftsman of s.68 was aware of legislation elsewhere on such provisions and how courts had considered them.
During argument, reference was made from time to time to Ramsden v. Dyson (l866) L.R. l H.L. l29. Even though, so the argument ran, there was no illegality, the Land Trust could not give Murray Meats a notice to quit because it had agreed, though not yet by any formally concluded document, that Murray Meats should have exclusive use and occupation of the relevant land, and erect and conduct an abattoir there (which has been done), and employ persons associated with the Land Trust; and there is an agreement to pay rent; thus, it was argued, Murray Meats has legal rights in relation to the land and to remain in occupation of it; that this was some evidence that the Land Trust had disposed of an estate or interest in land contrary to s.l9 of the Land Rights Act. The argument was not limited to Ramsden v. Dyson (supra) which was, of course, an action for compensation and to stay ejectment, for a declaration that the appellant was entitled to have a lease granted or lien on the property. A more explicit summary of that case than was offered in argument was expressed by Jordan C.J. (with whom Long Innes and Davidson JJ. agreed) in The N.S.W. Trotting Club Ltd. v. Council of the Municipality of the Glebe (l937) 37 S.R. (N.S.W.) 288 at pp.3O8,3O9 _
'What is usually referred to as the principle in Ramsden v. Dyson (of which that case was not itself an illustration) or equitable estoppel by acquiescence, becomes applicable where a person improves land in the mistaken assumption that it is his own, the true owner being aware of the mistake and deliberately doing nothing to undeceive the other; in such a case a Court of Equity, so far as it can, will prevent the owner from profiting by the mistake. This is referred to by Lord Wensleydale in Ramsden v. Dyson and Michaud v. Montreal (92 L.J.(P.C.) l6l) supplies an illustration of the application of the rule. There is also the other principle, of which Plimmer v. Mayor of Wellington (9 A.C. 699) affords an illustration, which is referred to by Lord Kingsdown in Ramsden v. Dyson, that if a person lays out money in improving land which he knows to belong to another, and does so, to the knowledge of the other, on the faith of an express or implied promise from that other that he is to have some interest in the land, a Court of Equity, so far as it can, will compel the other to give effect to the promise. It is pointed out in Canadian Pacific Railway Co. v. The King ((l93l) A.C.4l4 at 428) that this type of case depends on contract express or implied. Neither of these principles can, however, be applied if the interest sought to be established against the owner of the land is an interest which he has no power lawfully to create: Attorney-General v. Municipal Council of Sydney (2O S.R.46; 6 Austn. Digest 255)."
However, even if a court might consider a case had been made out for compelling conveyance of title, it would not necessarily do so, but give some lesser relief. See generally Equity Doctrines & Remedies, Meagher, Gummow and Lehane para.l7l8 suggesting that the equity in such cases might be to strip a profit, not complete a gift. It may be a matter for debate whether in the hypothetical situation of an action e.g. ejectment by the Land Trust against Murray Meats, the latter could compel the Land Trust to make good an informal arrangement for a ten year licence; or whether it would be appropriate to 'strip' the Land Trust of any profit, if there were any, unconscionable or otherwise. This subject is discussed with detailed reference to current authority in Cases and Materials on Equity and Trusts (l982), Heydon, Gummow and Austin at pp.3OO,3Ol.
The transfer of even an interest in Aboriginal land is not achieved without co-operation of persons who are not parties to this litigation, and precedent steps. See s.l9(4). See also Halsbury's Laws of England 4th Ed. para.l5l5 and cases cited at note 5. So if a court intervened in a hypothetical action by the Land Trust to remove Murray Meats it would, I suggest, not be obliged, or even be likely, to attempt to procure a grant of any interest where the other persons named in s.l9(4) did not co-operate. These matters were not fully argued before us. I mention them merely because I am by no means satisfied, if it were necessary to say so, that the Land Trust on the evidence and findings here could, by recourse to Ramsden v. Dyson principles, be said to have disposed or could be compelled to dispose of any estate or interest in the Amoonguna land; or to perfect any incomplete disposal _ cf. Kennedy v. Vercoe (l96O-6l) lO5 C.L.R. 52l; Brown v. Heffer (l966-67) ll6 C.L.R. 344 per the majority at pp.349-35O.
In my view, the Plan, Exhibit 29, did not regulate or control the use of the land on which the abattoir was erected. There is no basis for reading into s.l9(l) and (2) the word 'lawfully'. There is nothing contrary to the policy of the Land Rights Act by the erection or use of the abattoir structure were such an order sought in an appropriate case. There has not been any disposal of an estate or interest in the relevant land, nor would a court compel such an action were that contention advanced. The existing use provisions are sufficient to avoid the impact of the Alice Springs Town Plan of l98l.
I would therefore dismiss the appeal.
Senior counsel for the respondents argued only one ground in support of the Cross Appeal, i.e. as to the conclusion of the trial judge that the building or work which had substantially commenced by lO April l98l did not include a by-products section. He submitted that the trial judge was in error in his conclusion; that having regard to the findings of fact made, interpreted in the light of the correct legal test, the consequence would be that the by-products section was part of that which gained the protection of section 68. He submitted that the effect of the reasons for judgment was there was an intention in acquiring the land to erect, even if not immediately, the by-products section; it did not cease to be part of what gained the protection of s.68 because not commenced at once. The meaning of 'work' in s.69(l) was 'works' (as in e.g. 'steel works') 'or complex', there being a contrary intention to 'work' being used in the defined sense. Work is something erected as well as used. He referred to Dawson v. Hoffman Brick and Potteries Ltd. l924 V.L.R. 2O8 at pp.2lO,2ll; Merri Creek Quarry Pty. Ltd. v. Foletta (l95O-5l) 82 C.L.R. 347 per Latham C.J. at p.35l; Parramatta City Council v. Brickworks Ltd. (supra). He argued that the purpose for which the land was put or intended to be put, and as I understand him there was in that sense an existing user, was one which includes the establishment of a by-products section. He argued that the correct view was as stated in Council of the City of Newcastle v. Royal Newcastle Hospital (l956-57) 96 C.L.R. 493 by Taylor J. at p.5l5. He submitted, on evidence to which he referred, that work including the by-products section was embarked upon prior to lO April l98l; the mere fact, there being no abandonment, that it was not intended to commence erection of the by-products section at once did not mean it was not part of the complex of buildings; that, in effect, the trial judge may have addressed himself to the wrong issue. The real question was: what had been substantially commenced or included, there being no change in intention or finding that the intention had ceased to exist. He submitted that whether the by-products section was really part of the abattoir structure; or part of 'work' which the plaintiff was then entitled to complete, the result was the same _ an entitlement to complete. Accordingly, he submitted that his clients were entitled to the declaration which as to an entitlement to complete the abattoir building included the addition of the by-products plant.
Senior counsel for the appellant, in reply, said that in view of the findings of fact, no issue remained for determination; there had been no substantial, or any, commencement of a by-products plant. He referred to e.g. Bourne v. Marrickville Municipal Council (l954) l9 L.G.R. (N.S.W.) 2l8 at p.223. He argued that an abattoir complex does not necessarily, in that concept, include a by-products plant; that it was a correct approach to look at what had been done on lO April l98l, in the effect he argued the trial judge had found there was no intention in March or April l98l to build the by-products section; that the respondents had failed to show the trial judge had fallen into an error in his findings.
The finding of the trial judge that a by-products section was not an integral part of an abattoir was not challenged before us but, as I have said, claimed to be irrelevant. The finding was one open to his Honour and, in my view, is not irrelevant. He referred to Mr. Murray as "adamant" from the outset that the abattoir was to include a by-products section. His Honour was satisfied that Murray Meats "contemplated" a slaughtering facility which included a by-products section. These are not findings that it was always intended to construct such a section as part of the abattoir; the finding of intention is that in the early stages viscera was to be buried, as has taken place. It is, in my view, significant that, having referred to the evidence of a Mr. Fox, Mr. Murray had been told of a departmental objection to one aspect of a by-products section. His Honour quoted from Mr. Fox's evidence that Mr. Murray had said he "wanted nothing to do with a by-products section". So in the result, the findings do not include an intention to construct the by-products section which, as has been found, is not anyway, an integral part of an abattoir; but there is a positive finding that an alternative method of disposal was intended. I do not accept that in the light of the findings made and omitted to be made, the reference to Taylor J.'s statement in the Council of City of Newcastle v. Royal Newcastle Hospital case (supra) is of assistance to the respondents' argument which requires there to be a "purpose" even if not fully immediately to be fulfilled; no relevant purpose has been found except perhaps in relation to an abattoir.
In the result, the order I propose is that the appeal and cross appeal be dismissed. The appellant should pay to the respondents three quarters of their costs of the appeal and cross appeal.
Amoonguna is just south-east of Alice Springs. It covers an area of about 530 hectares and was for many years an Aboriginal reserve. The fee simple to Amoonguna is vested in the third respondent, Amoonguna Aboriginal Land Trust, pursuant to the provisions of the Aboriginal Land Rights (Northern Territory) Act 1976 ("the Land Rights Act"). The second respondent, Amoonguna Community Incorporated, is a body incorporated under the Associations Incorporation Ordinance 1963 of the Northern Territory. It is not a land holding body and has no statutory powers or duties with respect to the Aboriginal land at Amoonguna.Late in 1980 David Douglas Murray a director of the first respondent, Murray Meats (N.T.) Pty. Limited, approached the Aboriginal community at Amoonguna with a proposal to build an abattoir on their land and to train and employ Aboriginal people in the abattoir. The first respondent needed an area of 5 to 10 acres for its abattoir. Mr Murray discussed the proposal with various people including Government officials. Correspondence was exchanged. Between February and April 1981 the first respondent entered upon the Amoonguna land, cleared portion of it and commenced construction of an abattoir.
The learned primary Judge (Toohey J.) held that by 10 April 1981 the construction of the abattoir had been substantially commenced and that it had been used for the slaughtering of horses for export for human consumption. These findings are not challenged by the appellant.
His Honour also found that as at 10 April 1981 the abattoir being constructed by the first respondent did not include a by-products section. This finding is challenged by the respondents in their cross-appeal.
The significance of the date 10 April 1981 is that on that day the Alice Springs Town Plan 1981, a planning instrument under the Planning Act 1979 (N.T.) 'the Planning Act' came into force and it provides (by section 68 and 69) for the protection of certain existing uses. Those two sections are central to the outcome of the appeal and cross-appeal. They provide as follows:-
'68. (1) Subject to sub-section (2), a person shall not be held to contravene the provisions of a planning instrument by reason only that he continues to use any land, existing building or existing work after the date of commencement of the planning instrument for its existing use.
(2) Sub-section (1) does not apply to permit the use of any land, existing building or existing work to which a former planning instrument applied for a purpose which was not authorized _
(a) by or under this Act; or
(b) by or under the former planning instrument.
69. (1) Subject to sub-section (2), a person shall not be held to contravene the provisions of a planning instrument by reason only that he continues and @completes the erection of a building or work after the date of commencement of the planning instrument if the erection of a building or work was substantially commenced before that date.
(2) Sub-section (1) does not apply to permit the continuation and completion of the erection of a building or work on land to which a former planning instrument applied if the erection of that building or work was not authorized _
(a) by or under this Act; or
(b) by or under the former planning instrument.
(3) A building or work erected under this section may be used for the purpose for which it was erected.'
The contentions of the parties may be considered conveniently under three headings which I shall deal with in turn.
1. The 1972 Town Plan
The appellant relied on sub-s. 68(2) in support of its contention that the Amoonguna land could not be used as an abattoir. The appellant contended that the 1972 Alice Springs Town Plan, the predecessor of the 1981 Town Plan, was 'a former planning instrument' which applied to the Amoonguna land by classifying it as a 'welfare reserve' so that it could be used solely for 'social welfare' purposes, that the use of part of the land as an abattoir was not for 'social welfare' purposes, so that sub-s. 68(2) of the Planning Act applied to prevent the existing use protection that might otherwise have been afforded by sub-s. 68(1).
The Planning Act repealed its predecessor, the Town Planning Act 1964, previously called 'the Town Planning Ordinance 1964'. For convenience I shall refer to it as 'the Town Planning Ordinance 1964'. The long title to the Town Planning Ordinance 1964 describes it as 'an ordinance relating to the planning and developing of towns and the use of land in or near towns.'
Sub-section 39(1) of the Town Planning Ordinance 1964 provided:-
'39 (1) Subject to this Ordinance, land represented in a town planning scheme by a portion of the plan of the scheme shown in the manner specified in Part 1 of the legend set out in the Second Schedule to this Ordinance as the manner in which a zone, site or reserve is shown in the plan may be used for a purpose indicated by the words set out in the last column of Part 1 of the legend opposite the name of that zone, site or reserve.'
The legend in Part 1 of the Second Schedule included Item 61 which stated that land bearing that Item number, being a 'Welfare Reserve', may be used for 'Social Welfare' purposes, an expression that is not defined. The manner in which such land was to be shown in a Town Plan was 'Yellow Edge with Green Hatch'.
Section 44 of the Town Planning Ordinance 1964 prohibited the use of land to which a town planning scheme applied for a purpose other than a purpose permitted by or under that Ordinance.
The relevant town planning scheme for the purposes of this case was the 1972 Town Plan. It was constituted by a plan and a legend. The plan has a number of curious features. For example, it does not delineate the western boundary of the Town of Alice Springs. Its boundaries in some cases do not coincide with the boundaries of a particular 'Zone Site or Reserve' or with the boundaries of particular land. Notwithstanding that the legend in Part 1 of the Second Schedule to the Town Planning Ordinance 1964 provided that the manner in which a 'Zone Site or Reserve' was to be shown in a Town Plan was by an Edge of a particular colour with Hatching of another colour, the 1972 Town Plan shows some land as a 'Zone Site or Reserve' and depicts it by an Edge of a particular colour with Hatching of another colour, but the coloured Edge is not completed along the relevant side of the Plan. This applies to both private and public land.
The Amoonguna land comprises two portions: 461 and 568. It is shown on the 1972 Town Plan as being outside the boundaries of the Town of Alice Springs. The 1972 Town Plan shows only a small part of portion 461 namely, part of the north-west corner of the portion on the northern side of the Todd River. It also shows a small rectangular strip of portion 568 south of the Todd River along the western edge of the portion. The abattoir is on portion 461 but well south-east of the part shown on the Plan. Only a small segment of each portion is depicted in the 1972 Town Plan. The two small segments of the Amoonguna land defined on the Plan are shown as linked by a symbol known to surveyors as a vinculum. The primary Judge found that the vinculum 'serves no purpose other than to indicate to the viewer that the Amoonguna reserve includes portions 461 and 568.' The Plan shows such of the Amoonguna land as is there depicted as being hatched in green with a yellow edge but not along its eastern boundary which is the edge of the Plan. It describes the land as 'Amoonguna Reserve'. It was argued before the primary Judge that the abattoir on the Amoonguna land answered the description of a 'social welfare' purpose. His Honour rejected that contention and his finding was not challenged before us.
The primary argument of the appellant was that, although only a small portion of the Amoonguna land is physically represented on the Plan, there are clear indications that the whole of the Amoonguna land fell within the Plan. Particular reliance was placed on the matters to which I have already referred. The appellant contended that the 1972 Town Plan is not merely a visual concept, but a 'juristic' concept.
The primary Judge held that the onus of showing that the 1972 Town Plan extended to the abattoir site lay on the appellant, that on its face it does not do so, that the evidence failed to demonstrate that the Plan was intended to relate to any part of the Amoonguna land except that actually depicted there and that the notation 'Amoonguna Reserve' was 'descriptive of what appears, not definitive of what is included."
The matters relied on by the appellant in challenging these findings of the primary Judge fail to convince me that the findings were erroneous. A town planning scheme must clearly define the uses to which land included in it may be put. This is especially so where, like the present case, the scheme consists solely of a plan and a legend. Landowners rights and powers are vitally affected by town planning schemes. Penalties are imposed for the unauthorised use of land to which a town planning scheme applies (for present purposes s.44 of the Town Planning Ordinance 1964). It would be wrong to deprive landowners of vested rights of ownership by doubtful implications drawn from town plans.
Section 39 of the Town Planning Ordinance 1964 itself emphasised that for land to be included in a town planning scheme it must be:-
'represented' in a town planning scheme by a portion of the plan of the scheme shown in the manner specified in Part I of the legend set out in the Second Schedule to this Ordinance as the manner in which a zone site or reserve is shown in the plan..."
Part I of the legend set out in the Second Schedule described the 'manner in which zone, site or reserve is shown in Town Plan.' The emphasis is mine. This demonstrates that a town planning scheme under the Town Planning Ordinance 1964 was dependant upon visual representation or depiction of the land subject to the scheme.
The appellant conceded that it was ambiguous whether the land on which the abattoir stands was included in the 1972 Plan, but contended that the ambiguity should be resolved in favour of the view that it was included, relying on the matters mentioned by me before.
Notwithstanding the presence of some curious features to the 1972 Plan, I do not find any ambiguity in the Plan relating to the question whether that part of the Amoonguna land on which the abattoir stands is included in it. Even if there were ambiguity I would resolve it against the inclusion of the abattoir. This contention of the appellant fails.
2. The Land Rights Act
The appellant contended, alternatively to its first contention, that the protection of existing uses afforded by sub-s. 68(1) did not extend to uses of land involving contraventions of the law, that the use of the relevant portion of the Amoonguna land as an abattoir was prohibited in the circumstances by the Land Rights Act, so that sub-s. 68(1) afforded no protection to the respondents. It was contended also that the prohibition imposed by the Land Rights Act had effect independently of sub-s. 68(1) to prevent the use of the land as an abattoir namely, by reason of the provisions of s. 163 of the Planning Act.
It is convenient to consider the scope and operation of sub-s. 68(1) and s.163 before turning to the question whether the Land Rights Act was contravened.
The argument based on s.163 may be dealt with briefly. That section provides:-
'163. Nothing in this Act permits a person to use or develop any land in contravention of a law of the Territory other than this Act.'
Section 163 appears in Part VIII of the Planning Act 1979 entitled 'Miscellaneous'. There is no discernible connection between it and Part IV (which includes ss. 68 and 69) containing existing development provisions.
In my opinion the only work done by s.163 is to provide that a person who uses or develops land in conformity with the Planning Act is not exempted from complying with the requirements of other laws of the Northern Territory provided those laws are not necessarily inconsistent with the Planning Act. For example, a person must comply with licensing, registration, health and hygiene requirements of other laws of the Territory.
I agree also with the primary Judge that the Land Rights Act, being an enactment of the Parliament of the Commonwealth, is not 'a law of the Territory' for the purposes of s.163.
At the heart of the appellant's contention is the proposition that if any law renders illegal the prior use by a person of the land falling within a planning scheme, s.68 gives no protection.
Grozier v. Tate (1946) 64 W.N. (N.S.W.) 1 and Nash v. Stielow (1950) V.L.R. 39 are two cases referred to in argument where a by-law or proclamation that made a specified use of land illegal was repealed by another by-law or proclamation under which that use remained illegal. It was held in those cases that a provision permitting the continuance of existing uses did not permit the continuance of a use that had been and still remained unlawful.
The correctness of these judgments was challenged before the High Court in Ferrum Metal Exports Pty. Limited v. Lang (1960) 105 C.L.R. 647 but the Court (Dixon C.J., Taylor and Menzies JJ) found it unnecessary to review them. (See p.653). Gibbs J (as the Chief Justice then was), with whose judgment Barwick C.J., Menzies, Owen and Walsh JJ agreed, took the same view in Parramatta City Council v. Brickworks Limited (1972) 128 C.L.R.1 (at p.26).
In the Brickworks Case the Ordinance (the County of Cumberland Planning Scheme Ordinance) which preserved an existing use, repealed or suspended a statutory provision that had made the use unlawful and did not re-enact the prohibition contained in the earlier provision. The High Court held that the use which had previously been illegal was permissible under the later statutory provision. Gibbs J. (at p.26) approved similar conclusions expressed by Sugerman J. in Bourne v. Marrickville Municipal Council (1954) 19 L.G.R. (N.S.W.) 218 (at p.225); by Hardie J. in H & W. Hurdis Pty. Limited v. Lane Cove Municipal Council (1956) 20 L.G.R. (N.S.W.) 322 (at p.325) and by Manning J. in Harris v. Tom Byrne Pty. Limited (1957) 2 L.G.R.A. 257 (at p.262).
The present case is markedly different from those cases. All of them were concerned with the legality of the existing use by reference to prohibitions imposed by planning legislation. Neither the research of counsel, nor my own research, revealed any case in which existing use provisions were held to be unavailable by reference to laws other than planning laws. Nor can I discern any sound reason why s.68 of the Planning Act should be construed as the appellant would have us construe it. The language of sub-ss. 67(2) and 68(1) and the fact that sub-s. 68(2) expressly excludes from the application of sub-s. 68(1) the use of land not authorised by the Planning Act itself or the former planning instrument strongly support the conclusion that any contravention of the Land Rights Act is not within the scope or operation of s.68 of the Planning Act.
These conclusions lead to the rejection of the appellant's contentions. It is therefore unnecessary for me to consider whether there has been a breach of any relevant provision of the Land Rights Act, in particular s.19.
3 The By-Products Section
That leaves the respondents' contention on the cross-appeal. The starting point of the respondents' argument is s.69. It was argued that prior to 10 April 1981 and at all material times it was the intention of the first respondent to incorporate a by-products section into the abattoir on the Amoonguna land at some suitable time in the future. The argument proceeded that the word 'work' in s.69 was used in a sense different to its defined sense of an 'operation in relation to land' (sub-s. 4(1)) and encompassed for present purposes the abattoir complex including a by-products section. In these circumstances sub-s. 69(1) was said to permit the incorporation at some future time of the by-products section in the abattoir complex and that sub-s. 69(3) would then permit the use of the entire abattoir complex including the by-products section.
I am prepared to assume in considering this question that the construction of the word 'work' in s.69 contended for by the respondents is correct. It is not necessary to finally determine that question, but the contention has considerable force.
The notion that any intention of the first respondent subsisting prior to and on 10 April 1981 to incorporate a by-products section in its abattoir at some future time, operated to extend the protection of s.69 to the addition of that by-products section and its use thereafter was said by the respondent to be derived from the notion of use referred to in the Brickworks Case in particular the judgment of Gibbs J. I have some reservations whether the judgment of Gibbs J. can be relied on by the respondents to support this contention, but do not find it necessary to deal with the question.
It is the primary Judge's findings of fact that are destructive of the respondent's cross-appeal. His Honour accepted Mr Murray as a generally credible witness, and he expressly accepted his evidence as to what had in fact been done by 10 April 1981 except on some matters of detail which I gather concerned an amenities building. His Honour found that Mr Murray, as early as 9 September 1980 and as recently as 6 February 1981, said that the abattoir on the Amoonguna land was to include a by-products section. Although his Honour did not in terms hold that Mr Murray or the first respondent did not retain this intention on 10 April 1981, it is clear that his Honour accepted the evidence of two officers of the Health Department (Mr Fox and Mr Harris) who from 4 March 1981 onwards objected strongly to the first respondent having a by-products section on the Amoonguna land and would not approve such a project and communicated those views to Mr Murray.
Mr Fox gave evidence that Mr Murray told him, also before 10 April 1981, that he wanted nothing to do with a by-products section on the Amoonguna land, but hoped to establish one at Corkwood Bore, north of Alice Springs and that in the meantime the first respondent would dispose of viscera by burial in pits at Amoonguna.
It was plainly open to his Honour to conclude that any intention of Mr Murray or the first respondent to erect a by-products section as part of the abattoir at Amoonguna had ceased by 10 April 1981. A fair reading of his Honour's reasons for judgment shows that he must have drawn that conclusion. The respondents placed considerable reliance upon his Honour's statement _
'I am satisfied that Murray Meats contemplated a slaughtering facility that would include a by-products operation, but that such an operation might well be long term and that initially offal would be disposed of by being buried in pits.'
But this passage must be read in its context and when it is so read it is reasonably clear that it related to the initial intention of the first respondent, before the objections to a by-products section were voiced to Mr Murray by officers of the Department of Health.
The primary Judge may have formed the view that on this question Mr Murray's credibility was suspect or that he was truthful but unreliable. Whatever the correct analysis be it is plain that his Honour did not accept that on 10 April 1981 Mr Murray and the first respondent still intended to construct a by-products section on the Amoonguna land.
His Honour considered the question of the application of s.69 also by reference to the objective fact whether a by-products section was an integral part of an abattoir or slaughtering facility and concluded that it was not. Thus his Honour considered the possibility of s.69 affording protection to the inclusion of a by-products section in the abattoir at Amoonguna with reference to both subjective and objective elements.
The respondents bore the onus of establishing that the first respondent had the necessary intention on 10 April 1981. It failed to do so. It has not been established that the primary Judge fell into error in finding against the respondents on this question. The cross-appeal fails.
I would dismiss both the appeal and the cross-appeal. The appellant should pay three-quarters of the respondents' costs of the appeal and cross-appeal.
The appellant, the defendant in proceedings No. 279 of 1982 in the Supreme Court of the Northern Territory of Australia, has appealed from a judgment pronounced by the Honourable Mr Justice Toohey on 6 December 1982. The formal judgment was as follows:
"It is Adjudged and Declared:
1. That the continued use by the First Plaintiff of the land being the land described in the Schedule hereto and of the existing buildings and works thereon for the purpose of yarding and killing feral horses and chilling, boning, packing, freezing and shipping their carcasses does not contravene the provisions of the Alice Springs Town Plan 1981.
2. That the continuation and completion by the First Plaintiff on the land being the land described in the Schedule hereto of an abattoir consisting of yards, raceways, a killing floor, chillers, boning room, packing room and freezers, does not contravene the provisions of the Alice Springs Town Plan 1981.
And it is further Adjudged:
1. That the Defendant pay the Plaintiffs' costs of the action to be taxed save that as to the Plaintiffs' application dated the 1st day of July 1982 the costs of which were reserved by His Honour Mr Justice Muirhead on the 5th day of August 1982 there be no order as to costs and that the Plaintiffs pay the Defendant's costs of the Plaintiffs' application dated the 23rd day of September 1982."The appellant seeks to have the judgment set aside. The respondents, the plaintiffs in the Supreme Court, have lodged a notice of cross-appeal seeking the following further declarations:
"(3) . . . that the Alice Springs Town Plan 1981 is wholly, or to the extent that it purports to restrict the use of the land described in the Schedule hereto, unlawful.
(4) . . . that the Alice Springs Town Plan 1981 is wholly, or to the extent that it purports to restrict the use by the Second Respondent of the land described in the Schedule hereto, unenforceable against the Second Respondent and against the Third Respondent.
(5) . . . that the Alice Springs Town Plan 1981 is wholly, or to the extent that it purports to restrict the use of the land described in the Schedule hereto, void and of no effect."However, those claims have not been pursued. The respondents have confined themselves to challenging the omission from the declarations of a reference to a proposed "by-products section" at the abattoir.
The appellant is a body corporate constituted by the Planning Act 1979 of the Northern Territory ("the 1979 Planning Act"). Its relevant function for present purposes involved the regulation of land use in the Territory.
The third respondent, Amoonguna Aboriginal Land Tribunal ("Land Trust"), is a body constituted under the provisions of the Aboriginal Land Rights (Northern Territory) Act 1976 of the Commonwealth ("the Land Rights Act"). The Land Rights Act created a category of land described as "Aboriginal land" which is in effect, an inalienable fee simple subject to various prohibitions and controls on dealings. An area near Alice Springs known as "Amoonguna", which had for many years been an Aboriginal Reserve created under the Crown Lands Act of the Northern Territory was granted to the Land Trust under the Land Rights Act on 30 August 1978. Amoonguna consists of Portions 461 and 568 and is freehold land except for two special purpose Crown leases upon which townships are situated. Part of the Amoonguna land which is vested in the Land Trust (the "Amoonguna abattoir site") is the site of the activities which have given rise to the present dispute.
On 22 July 1975, the second respondent, Amoonguna Community Incorporated ("Amoonguna Community"), was incorporated under the Associations Incorporation Ordinance 1963 of the Northern Territory. The constitution of the Amoonguna Community defines it as "the group of aboriginals who for the time being are resident at Amoonguna and includes all members of the Association wherever residing".
The remaining respondent, Murray Meats (N.T.) Pty Ltd, is a company incorporated in the Northern Territory. It has constructed and operates on Amoonguna the abattoir referred to in the declarations made by the learned primary judge. His Honour found, and the finding has not been challenged, that construction of the abattoir had been substantially commenced as at 10 April 1981 and that the abattoir had then been used for the slaughtering of horses for export for human consumption. His Honour also found that, as at that date, the abattoir did not include a by-products section. The significance of the date 10 April 1981 is that, on that day, the Alice Springs Town Plan 1981 ("the 1981 Town Plan") came into force under the 1979 Planning Act. It is common ground that, subject to the possible effect of sub-s. 68(1) of the 1979 Planning Act, the 1981 Town Plan precludes the use of the abattoir on Amoonguna.
Sub-s. (1) of s.68 of the 1979 Planning Act provides that the 1981 Town Plan is not contravened by reason only that a person continues "to use any land, existing building or existing work for its existing use". However, sub-s. (1) is subject to sub-s. (2), the effect of which, so far as presently material, is that an existing use is not protected if it was not authorised by whatever planning scheme was previously in force. The appellant's primary submission was that the use of the Amoonguna abattoir site for an abattoir was not so authorised prior to the date of commencement of the 1981 Town Plan.
Prior to the 1979 Planning Act, the relevant Northern Territory legislation had been the Town Planning Act 1964, originally called the Town Planning Ordinance 1964 ("the 1964 Town Planning Ordinance"). The 1964 Town Planning Ordinance was expressed to be "an Ordinance relating to the planning and developing of towns and the use of land in or near towns". Sub-s. 39(1) and s.44 of the 1964 Town Planning Ordinance provided:
"39. -(1) Subject to this ordinance, land represented in a town planning scheme by a portion of the plan of the scheme shown in the manner specified in Part 1 of the legend set out in the Second Schedule to this Ordinance as the manner in which a zone, site or reserve is shown in the plan may be used for a purpose indicated by the words set out in the last column of Part 1 of the legend opposite the name of that zone, site or reserve.
44. A person shall not use land to which a town planning scheme applies for a purpose other than a purpose permitted by or under this Ordinance."The Second Schedule referred to was, so far as now relevant, in the fo lowing terms:
SECOND SCHEDULE
The LegendPart 1 - Items having effect to regulate the use of land
ITEM No. NAME OF ZONE MANNER IN PURPOSE WHICH
SITE OR WHICH ZONE LAND IN ZONE61 Welfare Yellow Edge Social welfare
RESERVE SITE OR SITE OR RESERVE RESERVE IS MAY BE USED
SHOWN IN
TOWN PLAN
Reserve with Green purposes
HatchThe relevant planning scheme under s.39(1) of the 1964 Town Planning Ordinance for present purposes was the Alice Springs Town Plan 1972 ("the 1972 Town Plan"). It consisted of a plan bearing markings to give effect to the Second Schedule to the 1964 Town Planning Ordinance.
The 1964 Town Planning Ordinance was repealed by the 1979 Planning Act. However, by s.171 of the 1979 Planning Act, the 1972 Town Plan was deemed to be a planning instrument under the 1979 Planning Act and the Second Schedule to the 1964 Planning Ordinance was deemed to form part of the 1972 Town Plan.
The debate before this Court extended to whether the 1972 Town Plan validly included, or might have validly included, Amoonguna. Questions were raised as to the meaning and effect of a number of provisions of the 1964 Town Planning Ordinance, especially the definitions of "town", and "zone" in s.3, sub-ss (1) and (2) (e) of s.28, and ss. 37, 39 and 44, as well as to regulations made under s.5 on 22 December 1978. I am satisfied that there is no need to consider such questions.
Reference has been made to the regulations made under s.5 of the 1964 Town Planning Ordinance on 22 December 1978. There were also Regulations made under the 1979 Planning Act when it came into force in August 1979. It is clear that, by virtue of those Regulations and a notice gazetted under s.10 of the 1979 Planning Act on 7 August 1979, the whole of Amoonguna was, in law, part of the town of Alice Springs for planning purposes from 22 December 1978 and, more importantly, for the purposes of the 1979 Planning Act. There is no doubt that land use on Amoonguna could have been regulated under the 1979 Planning Act. Exhibit 62 is a plan of the area which was relevantly liable to planning control under the 1979 Planning Act and includes the whole of Amoonguna.
Exhibit 62 stands in marked contrast to Exhibit 29 which is the plan which comprised the 1972 Town Plan. The two simply do not coincide. So far as is presently significant, land physically included in Exhibit 62 is not wholly included in Exhibit 29. More particularly, not all of Amoonguna is physically included on Exhibit 29. Only a small section of Amoonguna, stretching from north to south near its western boundary, is included. The Amoonguna abattoir site is not included.
Exhibit 29 is a large rectangular linen plan, about 12 to 13 feet long and 3 to 4 feet wide, drawn at a scale of 600 feet to 1 inch. Although it was the only town plan for Alice Springs under the 1964 Town Planning Ordinance, it does not physically include the whole of the town of Alice Springs. Conversely, some land outside the town of Alice Springs, even after its notional extension for planning purposes by regulation, is included. No attempt is made in Exhibit 29 to have the extremities of the plan expressly coincide with the boundaries of a particular zone, site or reserve, to use the language of the Second Schedule to the 1964 Town Planning Ordinance, or with the boundaries of particular properties. The plan simply uses the available space on the linen paper on which the plan is marked. The colouring or hatching which the Second Schedule provides as the manner in which zones, sites and reserves are to be shown extends to or close to the edge of the plan and the edge of the paper. In cases in which a zone, site or reserve included in the plan extends to the edge of the plan and the Second Schedule provides for coloured edging to be used as, or as part of, the manner in which such a zone, site or reserve is to be shown, the coloured edging is not closed off along the relevant edge of the plan. The plan includes some identification of the land included, e.g. by portion number or other description such as the name of a reserve. The same scheme is adopted in respect of both private and public land, such as recreation reserves including the Todd River and the Heavitree Range, both of which extend far beyond the area physically included in the plan. The part of Amoonguna included in the plan has the description "Amoonguna Reserve" attributed to it, is hatched in green, and has a yellow edge along its northern, western and southern boundaries but not along its eastern boundary which is the edge of the plan. Green hatching with a yellow edge is the manner provided in the Second Schedule for showing that land is a Welfare Reserve and may be used for social welfare purposes.
The learned primary judge held that the abattoir did not meet the description of a social welfare purpose. That has been accepted before us. He also held that the 1972 Town Plan did not show the abattoir site. The appellant's entire argument that the abattoir was not an authorised use of the abattoir site under the town planning legislation prior to the 1981 Town Plan rested upon a submission that his Honour's finding in that respect was erroneous. The appellant submitted that the plan showed not only the area which it physically included but also all other land which met the various descriptions used on the plan, such as portion numbers or names of reserves, and that, in order to determine the land shown in the plan, regard was to be had not only to the plan but also to the various instruments from which boundaries could be ascertained. Thus, for example, it was submitted that not merely the part of the Todd River Recreation Reserve included on the plan was regulated by the plan but all of that reserve, however far it extended. Similarly, on the appellant's argument, the whole of Amoongona, including the abattoir site and, presumably, the townships, is shown on the plan and is restricted to use for social welfare purposes.
In my opinion, the appellant's argument is unsustainable. The only land in the Welfare Reserve zone site or reserve relevantly shown in the 1972 Town Plan by "Yellow Edge with Green Hatch" is that part of Amoonguna in fact physically included in the plan.
The appellant's alternative argument was that, nonetheless, the use of the abattoir was outside the protection of s.68 of the 1979 Planning Act because it involved a contravention of the Land Rights Act or at least a disobedience of its underlying policy. I have found no need to consider these matters and I think that, in the circumstances, it is better not to do so since similar questions may fall for decision in other proceedings involving parties who are not party to this litigation. The argument fails at the outset because, in my opinion, it is founded on an erroneous view of s.68 of the 1979 Planning Act.
The purpose and effect of s.68 appear more clearly when it is seen in the context of certain of the surrounding provisions. Sections 63, 67, 68 and 69 of the 1979 Planning Act provide: "63. Subject to this Act, land to which a planning instrument applies shall not be used or developed otherwise than in accordance with that instrument.
67. (1) In this Part, "former planning instrument", in relation to any land to which a planning instrument applies, means the planning instrument which applied to that land immediately before the date of commencement of the planning instrument which applies to the land.
(2) For the purposes of this Act, in relation to any planning instrument -
(a) a building or work is an existing building or existing work, as the case may be, if -
(i) it was in existence immediately before the date of commencement of the planning instrument; or
(ii) it is completed under section 69; and
(b) the existing use of any land, building or work is the use of the land, building or work, as the case may be, for the purpose for which it was used immediately before the date of commencement of the planning instrument.
68. (1) Subject to sub-section (2), a person shall not be held to contravene the provisions of a planning instrument by reason only that he continues to use any land, existing building or existing work after the date of commencement of the planning instrument for its existing use.
(2) Sub-section (1) does not apply to permit the use of any land, existing building or instrument applied for a purpose which was not authorized -
(a) by or under this Act; or
(b) by or under the former planning instrument.
69. (1) Subject to sub-section (2), a person shall not be held to contravene the provisions of a planning instrument by reason only that he continues and completes the erection of a building or work after the date of commencement of the planning instrument if the erection of a building or work was substantially commenced before that date.
(2) Sub-section (1) does not apply to permit the continuation and completion of the erection of a building or work on land to which a former planning instrument applied if the erection of that building or work was not authorized -
(a) by or under this Act; or
(b) by or under the former planning instrument.
(3) A building or work erected under this section may be used for the purpose for which it was erected."In Grozier v. Tate (1946) 64 W.N. (N.S.W.) 1 and Nash v. Stielow (1950) V.L.R. 39 it was held that an existing use which had been illegal under a planning provision which was repealed by new planning legislation and which continued to be illegal under the new planning legislation was not protected by a provision in the new planning legislation protecting existing use. The correctness of those decisions has been left open: see Ferrum Metals Exports Pty Ltd v. Lang (1960) 105 C.L.R. 647; Parramatta City Council v. Brickworks Ltd (1972) 128 C.L.R. 1; and Vumbaca v. Baulkham Hills Shire Council (1979) 141 C.L.R. 614. In the Brickworks Ltd case, it was held that the position was different when the repealed planning prohibition which had previously rendered the use illegal was not repeated in the new planning legislation which included protection for existing uses. In that case, the use which had previously been illegal was lawful with the local authority's permission under the new planning legislation. Those cases are very different from the present in a number of respects. For example, the illegality relied on to deny that the prior use was entitled to protection arose out of the previous planning legislation and the provisions protecting existing use which were said to provide the protection were couched in materially different terms from sub-s. 68 (1) of the 1979 Planning Act and positively provided that an existing use might be continued. The matters with which those cases were concerned are substantially convered in the 1979 Planning Act by sub-s. 68 (2). Those cases provide no assistance in the construction of sub-s 68 (1).
The assumptions for present purposes are:
(i) that the use of the abattoir site as an abattoir after 10 April 1981 would be prohibited by s.63 of the 1979 Planning Act and the 1981 Town Plan were it not for s.68 of the 1979 Planning Act;
(ii) the use of the abattoir site as an abattoir up to 10 April 1981 was not prohibited by planning legislation; but
(iii) the use of the abattoir site as an abattoir contravened the Land Rights Act both up to and after 10 April 1981.The terms of sub-s. 67(2), the qualified protection afforded by sub-s. 68(1), the express exclusion from that protection of use for a purpose not previously authorized by either the 1979 Planning Act itself or other prior planning legislation, and the terms of s.163 of the 1979 Planning Act (which provides that nothing in that Act permits a person to use or develop any land in contravention of a law of the Territory other than that Act), all lead inexorably in my opinion to a conclusion that sub-s. 68(1) is concerned with use in point of fact and not with the legality of the prior user by reference to considerations extraneous to planning. Sub-section 68(1) provides no more than that the use to which it applies does not "contravene the provisions of a planning instrument". It is not unimportant that the only declarations sought by the respondents and made by the trial judge are expressly and appropriately limited to non-contravention of the 1981 Town Plan. The question of whether or not the Land Rights Act had been or is being contravened remains open for resolution in other proceedings on another occasion. There is, of course, nothing inconsistent with this view in s.74 of the Land Rights Act, a provision referred to in argument but far removed in its operation from any present issue.
No separate challenge was mounted to the second declaration made by the primary judge, which was founded on s.69 and not s.68 of the 1979 Planning Act.
In my opinion, therefore, the appeal fails.
It remains to consider the respondents' contention, the substance of which was that each of the declarations, or at least the second declaration, should be expanded to include reference to a proposed by-products section of the abattoir. If the reference was included only in the second declaration, sub-s. 69(3) of the 1979 Planning Act would permit the use of the by-products section after it was erected. However, notwithstanding the form of the relief asked in the respondents' final Statement of Claim, it was my understanding of the argument addressed on behalf of the respondents that they submitted that, prior to 10 April 1981, their use of the abattoir site had included use for the production of by-products, relying upon a broad notion of use which they said was to be derived from the Brickwork's Case, supra. The respondents did not challenge findings by the primary judge that the abattoir did not include a by-products section at 10 April 1981 or that a by-products section is not an integral part of an abattoir or slaughtering facility. They submitted that the latter finding was irrelevant. In the respondents' submissions, they were entitled to succeed in relation to the by-products section if, as they contended, it was established that it was the first respondent's intention at 10 April 1981 to include such a facility in the abattoir. The respondents' case in relation to this aspect of the matter focussed on the construction of ss. 68 and 69 of the 1979 Planning Act. They argued that "work" as there used did not bear its defined meaning in sub-s. 3(1) but meant the entire abattoir complex. Reference was made to Dawson v. Hoffman Brick and Potteries Ltd (1924) V.L.R. 208 and Merri Creek Quarry Prop. Ltd. v. Foletta (1950) 82 C.L.R. 347, as well as the Brickwork's Case, supra. However, I find no need to deal with the respondents' legal submissions.
We were referred at length to the findings and the evidence. It is clear that Mr Murray did swear that it was at all material times the first respondent's intention to incorporate a by-products section into the abattoir. It is equally clear that there was no finding accepting this part of his testimony and that there was a body of evidence to the contrary, including evidence of statements made by Mr Murray that a by-products operation was not to be incorporated at Amoonguna but that the offal from the abattoir there was to be buried unless and until a by-products section was established elsewhere, possibly at a location known as Corkwood Bore.
Whilst there is room for some debate as to the exact nature of the findings, I am satisfied that they are consistent with non-acceptance of Mr Murray's evidence on this aspect of the matter. His Honour's express acceptance of Mr Murray's evidence related only "to what had been done" by 10 April 1981. Further, in context, a sentence "I am satisfied that Murray Meats contemplated a slaughtering facility that would include a by-products operation, but that such an operation might well be long-term and that initially offal would be disposed of by being buried in pits. . ." related to the initial contemplation of the first respondent prior to objections to a by-products section being expressed by health officers. It is by no means insignificant that those objections were an impediment to the first respondent obtaining a license under the Abattoirs and Slaughtering Act of the Northern Territory.
The first respondent obviously bore the onus of establishing the necessary intention and it failed to do so. In my opinion, his Honour's rejection of the notion that a by-products section is an integral part of an abattoir was of considerable importance. His Honour was obviously considering that question as a possible alternate basis on which the respondents might have succeeded in view of their failure to prove that the first respondent had the requisite intention.
In the circumstances, the respondents' argument on this aspect of the matter lacks any factual foundation.
In my opinion, the appeal and cross-appeal should be dismissed. The appellant should pay to the respondents three-quarters of their taxed costs of the appeal and cross-appeal.
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