Woollahra Municipal Council v Banool Developments Pty Ltd

[1973] HCA 65

HIGH COURT OF AUSTRALIA

. Barwick C.J., McTiernan, Gibbs and Mason JJ.

WOOLLAHRA MUNICIPAL COUNCIL v. BANOOL DEVELOPMENTS PTY. LTD.

(1973) 129 CLR 138

21 December 1973

Town Planning (N.S.W.)

Town Planning (N.S.W.)—Residential district proclamation—Zoning—Non-conforming use of land—Authorized continuance of use for purpose for &hich used immediately before proclamation of scheme—"Continuance of the use" of a building—Purpose of use—Description of purpose—Local Government Act, 1919 (N.S.W.), s. 309 (2).

Decisions

December 21.
The following written judgments were delivered:-
BARWICK C.J. In this matter I have had the advantage of reading the reasons for judgment prepared by my brother Mason. I agree with his conclusion and the reasons by which my brother supports it. I agree that the appeal be allowed and that the order my brother proposes should be made. (at p140)

McTIERNAN J. In my opinion the order proposed by Mason J. should be made. I agree with the reasons which he has prepared. (at p140)

GIBBS J. For the reasons given by my brother Mason, I consider that Hope J. applied the correct principles in reaching his decision (except in relation to the suggested abandonment of some of the uses of nos. 34 and 34A). The application of those principles to the circumstances, both in relation to the question of the continuance of an existing use after interruption, and in deciding what, according to ordinary terminology, is the proper description of the purpose being served by the use of premises, involve matters of fact and degree, on which a decision in one case will be of little assistance in deciding another. In the present case, I can see no ground on which an interference with the findings of Hope J. on those matters of fact and degree would be justified. (at p140)

2. I agree with the order proposed by my brother Mason. (at p140)

MASON J. In 1968 the respondent, which is a development company, purchased four adjacent parcels of land in Ocean Street, Woollahra on which buildings were erected. For the most part the buildings were combined shops and dwellings; in some instances the building comprised a shop or shops, and in one instance a motor garage. The respondent acquired the properties with a view to redeveloping the entire area as one site. The properties were affected by a residential district proclamation, made under s. 309 of the Local Government Act, 1919 (N.S.W.) (as amended) ("the Act"), which came into force on 17th November 1950 and which prohibited the carrying on on the land of all trades and the erection of any building for the purpose of any trade or shop. The properties were also affected by the County of Cumberland Planning Scheme Ordinance ("the County Ordinance") which took effect on 27th June 1951 and by a draft planning scheme in course of preparation ("the Woollahra Scheme") by the appellant Council. Under the County Ordinance the premises were zoned as Living Area. More recently, after the notice of appeal to this Court was lodged, the Woollahra Scheme took effect as a prescribed scheme under Pt XIIA of the Act on 15th December 1972 (s. 577). (at p141)

2. On 16th April 1969 the respondent lodged with the appellant four separate applications for building approval under Pt XI of the Act in respect of buildings which it proposed to erect on the four parcels of land in place of the old buildings which it intended to demolish. The proposed new buildings consisted for the most part of shops and storage areas. In one instance the building proposed was a service station and parking area. No indication was given of the particular purpose for which the shops would be used. The appellant did not grant the applications and the respondent exercised its right of appeal to the Board of Appeal. The Board adjourned the hearing of the appeal so as to enable the respondent to seek declaratory relief defining the nature and extent of the "existing use" rights applicable to each of the properties under s. 309 of the Act and Pt IV of the County Ordinance. Section 309 (2) makes lawful the continuance of the use of a building for the purpose for which it was used immediately before the date of the proclamation. Clause 32 of the County Ordinance provides that an existing building might be used for its existing use, that is, for the purpose for which it was used immediately before the appointed day, 29th June 1951. Under s. 309 (2) and cl. 33 of the County Ordinance buildings which existed immediately before the date of the proclamation and the appointed day respectively may be rebuilt. (at p141)

3. The respondent commenced a suit in the Supreme Court of New South Wales in Equity, seeking declarations that the proposed buildings, when erected, might be used as the respondent proposed in its building applications or, alternatively, in accordance with existing uses. The suit was heard by Hope J. whose decision was substantially in favour of the appellant. The respondent obtained a declaration that one parcel of land, nos. 34 and 34A Ocean Street, on which the respondent proposed to erect a service station and parking facilities, might continue to be used for its existing use in accordance with the respondent's application, but his Honour held that the respondent was not entitled to the relief which it sought in relation to the other three parcels of land. (at p141)

4. Hope J. rejected the respondent's submission that the purpose for which the shops were used on 17th November 1950 and 27th June 1951 was relevantly expressed as "neighbourhood shops" or "neighbourhood retail shops" and held that, in order to apply s. 309 (2) and cl. 32, it was necessary to ascertain what was the particular purpose for which a shop was used. His Honour, having found the particular purpose for which each shop was used immediately before the material dates, concluded that, with one exception (the proposal to erect the service station and parking facilities), the purposes for which the properties were then used were subsequently abandoned or did not conform with the respondent's proposals. The proposal to erect a service station and parking facilities was, his Honour thought, a rebuilding and was therefore permitted by the Act and the Ordinance. (1971) 2 NSWLR 16 (at p142)

5. On appeal the Court of Appeal, by a majority, took a different view. It made a declaration that the premises the subject of each of the four applications might when built be used for purposes specified by the respondent in the applications. (at p142)

6. Kerr C.J. and Jacobs J.A. (Hardie J.A. dissenting) held that the purpose for which the shops were used was relevantly expressed as "neighbourhood retail shops", that neither s. 309 (2) nor cl. 32 imported any element of continuity of use and that the proposals for each of the four parcels involved a rebuilding on the footing that the word "rebuilt" means "no more than a removal of the old building and the erection of a new building". By majority the Court declared that the premises may when built be used for the following purposes: "Nos. 20 &22 Ocean Street, Woollahra for retail shop and storage area. Nos. 24, 26 &26A Ocean Street, Woollahra for group of neighbourhood retail shops supplying goods and services of a kind and on a scale appropriate to a suburban neighbourhood retail shopping area. Nos. 34 &34A Ocean Street, Woollahra for Service Station, Lubritorium and car parking, car sales and panel beating." (1972) 2 NSWLR 353 (at p142)

7. The Woollahra Scheme, now that it has taken effect as a prescribed scheme, makes the question whether the proposals fall within the concept of "rebuilding" under s. 309 (2) and cl. 33 a matter of academic interest only. Clause 28 of the Ordinance proclaiming the Woollahra Scheme restricts in various ways the right to rebuild an existing building the existing use of which was for a purpose for which buildings may not be erected or used, Clause 28 (2) (c) requires that any rebuilding of an existing building

"shall be such that the floor space of such building as rebuilt from time to time shall never in any case exceed by more than 10 per centum the floor space of such existing building as it was at the appointed day."

The floor space of the new buildings proposed in the respondent's applications would exceed by more than ten per centum the floor space of the existing buildings. Accordingly, no declaration can now be made in the respondent's favour to the effect that it is entitled to rebuild in accordance with the proposals contained in the applications. (at p143)

8. As I have said, the residential district proclamation prohibited the carrying on on the land of all trades and the erection of any building for the purpose of any trade or shop. On the language of s. 309 (2) two questions arise for consideration. First, there is the question whether, as the majority in the Court of Appeal thought, notwithstanding that the use of a building for the purpose for which it was used immediately before the date of the proclamation has subsequently terminated, the right preserved by the sub-section to continue to use the building for that purpose may be exercised afresh at some later date. Secondly, there is the problem of determining the particularity of the purpose which the sub-section contemplates. (at p143)

9. Section 309 (2) provides:

"Nothing in this section shall preclude the continuance of the use of any building for any purpose for which the same was used immediately before the date of the proclamation aforesaid, or the alteration, enlargement, rebuilding or extension of any building used for any such purpose whether or not such alteration, enlargement, rebuilding, or extension involve the use of adjoining land which immediately before the date of the proclamation was in the same ownership or for such other purpose as the council thinks reasonable in the circumstances." (at p143)

10. What the sub-section does is to make lawful "the continuance of the use" of the building. "Continuance", according to the Shorter Oxford English Dictionary, means "maintaining" or "prolonging". When applied to legal proceedings, the word has the traditional legal meaning of an adjournment until a future date or period. With all respect to the learned judges in the Court of Appeal who thought otherwise, the use of the word in this special sense scarcely provides an illuminating guide to its meaning in the context of s. 309 (2). But, quite apart from this circumstance, the conclusion reached by the Court of Appeal is not supported by this special use of the word. A continuance, when granted, enables the hearing or the action to continue in the future; although it brings about an interruption it does not describe a commencement afresh of the hearing or the action after it has concluded. (at p143)

11. The Court of Appeal acknowledged the primary dictionary meanings to which I have referred, but the majority rejected the guidance which they offer, in favour of supposing that it "was used in the sub-section as the noun of the verb 'continue' when that verb is used as a transitive verb". A departure from the primary meaning was justified by reference to the remarks of Gibbs J. in City of Parramatta v. Brickworks Ltd. (1972) 128 CLR 1, at p 25 , where his Honour said, speaking of cll. 32 and 33 of the County Ordinance: "Those clauses are designed to preserve and protect existing rights and ought to be liberally construed ..." No doubt s. 309 (2) is also to be construed liberally, but this injunction is no warrant for failing to give due weight to the natural and ordinary meaning of the words used as influenced by the context in which they are found. (at p144)

12. The expression "the continuance of the use" in its natural and ordinary sense may be conveniently rendered as "the continued use". So understood the expression connotes neither a use which is commenced afresh after prior termination or abandonment, nor a continuity of use which is necessarily uninterrupted or unbroken. Rather does it suggest a use which is still continuing, notwithstanding that it may be marked by some interruptions or breaks which are not of such a kind to bring about a termination or abandonment of the use. (at p144)

13. There is nothing in the context of s. 309 to indicate that the expression should be given a different meaning. To say that the sub-section permits an existing use to be commenced afresh in the future denies any effective operation to the word "continuance" at all. It is the meaning the sub-section would have if the words "the continuance of" were omitted. Some operation must be accorded to the words and it is natural to read them as referring to "the continued use" at the relevant date. (at p144)

14. Confirmation for this view is, I think, to be found in the nature and character of the sub-section. It makes lawful a use which would otherwise be a breach of the general prohibition made in the public interest. It mitigates the impact of the prohibition in relation to the use to which premises are put at the relevant date. But there is no apparent policy consideration which would serve to explain why there should be any relaxation of the general prohibition in favour of those who at some future date, long after the earlier use terminated, propose to commence afresh the use to which the premises were put at the relevant date. (at p144)

15. The character of s. 309 (2) as a provision which makes lawful a continuation of a use which would otherwise be in breach of the proclamation supplies an indication that the purpose which is there referred to is specific rather than general. So does s. 309 (1) (c). It authorizes the making of a proclamation prohibiting the erection of any building for the use of such trades, manufactures, shops and places of public amusement as may be described: see also s. 309 (1) (d). The words of s. 309 (1) (c) are wide and general; they permit a proclamation to descend to the particularity of a shop described by reference to the trade carried on by the shopkeeper or the goods or services which he supplies. (at p145)

16. The degree of particularity permitted in the exercise of the power is then reflected in the concept of "purpose" in s. 309 (2). Unless that concept expresses a similar degree of particularity, the protection which the sub-section accords to an existing use may render lawful a future use of a shop for a purpose specifically prohibited in the proclamation, notwithstanding that the shop was not used immediately before the date of the proclamation for the purpose specifically prohibited. Indeed, the notion of purpose for which the respondent contends would have this result for, according to the argument, it is a sufficient description of the purpose of the existing use to say that the buildings were used as "neighbourhood shops" or "neighbourhood retail shops". (at p145)

17. In my opinion the observations of Kitto J. in Shire of Perth v. O'Keefe, apply with equal force to s. 309 (2). His Honour said (1964) 110 CLR 529, at p 535 :

"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 ... 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 townplanning 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 by 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."

Owen J. (1964) 110 CLR, at p 537 concurred; Menzies J. (1964) 110 CLR, at p 537 preferred to express no opinion on the question. (at p146)

18. There is one aspect of the respondent's argument which should be mentioned. It was suggested that no more particularity than that indicated by the description "neighbourhood shops" or "neighbourhood or village retail shops" was required because for town planning purposes no finer detail would be relevant. I do not agree that this is so. I should have thought that the particular purpose for which a shop is used, e.g. whether it sells food, has a relevance for town planning purposes. Secondly, there is an air of unreality in describing the purpose of the use of particular premises as a "neighbourhood or village retail shop". Whatever the expression may mean, it is certainly not a description which would be given as a matter of ordinary terminology. It seems that the majority in the Court of Appeal acknowledged the short-comings of this description of the purpose of the use when they went on to say that to answer the description the shop must be "a small scale retail shop regardless of the type of goods sold provided that they come within the broad class of goods usually found to be sold in such a neighbourhood or village retail shop". (at p146)

19. Clause 32 of the County Ordinance provides:

"An existing building or an existing work may be maintained and may be used for its existing use and an existing use of land may be contained."

An "existing building" is a building erected before the appointed day (cl. 3). "Existing use" means a use of a building, work or land for the purpose for which it was used immediately before the appointed day (cl. 3). It is evident from the terms of cl. 32 and from the reference in cl. 36 to "The right ... to continue the use of an existing building" that the use of an existing building which is permitted is the continuation of the existing use. (at p146)

20. Clause 32 cannot be read as authorizing the erection of a building or the use of a building which would constitute a contravention of a proclamation made under s. 309 (see ss. 306, 632 and 633) in cases where, as here, s. 309 and the proclamation are not suspended by the operation of cl. 57 of the County Ordinance. It is therefore unnecessary for me to decide whether the reference to "purpose" in the definition of "existing use" in cl. 3 contemplates a degree of particularity similar to that envisaged in s. 309. However, as we have heard argument on the question, I should state that, although some of the persuasive indications present in s. 309 are not to be found in cl. 32 and its associated provisions, I consider that the concept of "purpose" in the definition in cl. 3 should be approached in the manner outlined by Kitto J. in Shire of Perth v. O'Keefe (1964) 110 CLR, at p 535 to which I have already referred. (at p147)

21. I now turn to the facts as found by the primary judge as they relate to the particular properties.
Nos. 20 and 22 Ocean Street
(at p147)

22. A brick shop and dwelling was erected on the Ocean Street frontage to no. 20 Ocean Street. The building was demolished in 1966. The evidence did not disclose whether the shop was used in 1950 and 1951, or, if it was used, the purpose for which it was then used. At the rear of no. 20 Ocean Street is a brick building which was used from 1943 to 1968 as a building contractor's and plumber's office and workshop. (at p147)

23. In 1950 there was erected on no. 22 Ocean Street a two-storey brick shop and residence with a basement. The building was burnt out in 1967. It remained vacant thereafter. It does not appear whether the residence was occupied or used. Number 22 was used in 1950 and 1951 as a mixed grocery shop. (at p147)

24. Hope J. held that the use of no. 20 ceased when the respondent acquired the premises in 1968 and showed no signs of continuing the existing use. He also held that the existing use of no. 22 was abandoned in 1967 when the building was burnt out. (at p147)

25. In its building application in April 1969 the respondent sought approval for a building comprising a basement and a ground floor. The ground floor was to comprise a single shop and the basement was to comprise principally a storage area.
Nos. 24, 26 and 26A Ocean Street
(at p147)

26. There are here two main buildings. Number 24 is a two-storey brick shop and residence with a basement. In 1950 and 1951 it was used for the purpose of a dry-cleaning and laundry agency. Its use for that purpose continued until in or about the month of April 1969 when the premises were vacated. Hope J. held that the use for that purpose terminated or was abandoned as the respondent had no intention of continuing that particular use. (at p147)

27. Number 26 was used as a lending library from 1941 to 1967 and then it was devoted to use for the purpose of carrying on the business of an antique dealer. The existing use therefore ceased in 1967. (at p148)

28. Number 26A Ocean Street was used for the purpose of a milk bar from 1941 until the tenant vacated in 1969. Again Hope J. held that the use terminated or was abandoned at that time as the respondent had no intention of maintaining the particular use. (at p148)

29. In the application of April 1969 the respondent sought approval for a building comprising a basement, ground floor and first floor. The basement was to contain four shops, the ground floor four shops and the first floor a storage area.
Nos. 28, 30 and 32 Ocean Street
(at p148)

30. Number 28 is a brick building comprising a shop and residence with a basement. In 1950 and 1951 it was used for the combined purpose of a florist shop, dry-cleaning agency, haberdashery shop, banking agency and lottery ticket agency. It was used for these purposes until April 1969 when it was vacated by the tenant. Again his Honour held that the existing use was abandoned or terminated because the respondent did not intend to maintain the particular use. (at p148)

31. Numbers 30 to 32 Ocean Street comprise a two-storey brick building containing two shops, residences and a basement. (at p148)

32. Number 30 was used from 1961 to 1969 for the purpose of carrying on the business of a ladies' hairdresser. Again his Honour found that the existing use terminated or was abandoned by the respondent in 1969. (at p148)

33. Number 32 was used from 1941 to 1967 as a milk bar, when its use was changed to the business of the sale of antiques and old wares. The existing use terminated in 1967. (at p148)

34. In its building application of 1969 the defendant sought approval for a building comprising basement, ground floor and first floor, with open court area at the Ocean Street boundary and, at the rear, three shops.
Nos. 34 to 34A Ocean Street
(at p148)

35. There is erected on the property a single building which has a frontage to Ocean Street and which for many years was used as a motor garage and for related purposes. Until February 1967 there was a petrol pump constructed beside the kerb in front of it, but this pump was removed at that time at the requirement of the Council. The premises were used from 1943 to March 1969 as a motor garage and for the sale and repair of cars and for panel beating. In 1950 and 1951 the premises were used for the business of a motor garage, car sales, repairs and panel beating. In this instance Hope J. found that the respondent proposed to continue the existing use of the premises for the business of a motor garage and car sales. (at p149)

36. In the building application of April 1969 the respondent sought approval for a building comprising a basement and ground floor to run from Ocean Street to the rear boundary on Alton Street. The basement was to be used solely for parking purposes, apart from a small area set aside for garbage. The ground floor was to be a service station, with a lubritorium at the Alton Street end. (at p149)

37. With regard to the properties other than nos. 34 and 34A, in the light of the views which I have expressed as to s. 309 and cl. 32, it has not been suggested that the conclusions reached by the primary judge as to the "existing use" of those properties and, in so far as it occurred, the abandonment of "existing uses" should be disturbed. There is, however, an issue as to nos. 34 and 34A for the appellant submitted that if the view which I have expressed as to the law should be taken, then it should be held that the existing use of the premises was abandoned by the respondent. I do not agree with this submission. It is plain enough that the respondent has at all times intended that the premises should be used as a service station and for car parking and that the only reason why that intention has not been executed is that the Council refused to grant the application and that litigation has ensued. In the circumstances the lapse of time, since the premises were last used as a motor garage, although considerable, is not enough to warrant the conclusion that the existing use was abandoned or terminated. (at p149)

38. It is clear that car parking does not fall within the scope of the "existing use" of the premises, but there remains the question whether use for the purpose of car sales and panel beating which formed part of the "existing use" has been abandoned, as his Honour found. In coming to this conclusion the primary judge considered that it was not enough for the respondent to have a subjective intention to continue these activities and that it was incumbent upon the respondent to indicate its intention in the applications or accompanying documents. I do not agree. A building application indicates the use to which the applicant proposes to put the land if his application is approved: the making of the application is not necessarily inconsistent with the existence of an intention to put the premises to their "existing use" if the application be refused. Once the significance which his Honour attributed to the applications is put to one side, I am unable to conclude that the evidence established an intention to abandon or terminate "the existing use", for it seems to have been acknowledged that the respondent may have had a subjective intention to continue the sale of cars and panel beating in the premises. (at p150)

39. In my opinion, therefore, the respondent should have a declaration that it is entitled to continue to use the premises for the purposes of a service station, car repairs (including panel beating) and car sales. Otherwise I would allow the appeal and dismiss the suit. (at p150)

Orders

Appeal allowed with costs.

Order of the Supreme Court of New South Wales (Court of Appeal Division) set aside.

Decretal order made by Hope J. varied by adding a declaration that nos. 34 and 34A Ocean Street, Woollahra may continue to be used for the purpose of car sales and panel beating.

Otherwise appeal and cross-appeal to the Court of Appeal dismissed.

No order as to the costs of the proceedings before the Court of Appeal.