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Woollahra Municipal Council v Banool Developments Pty Ltd

Woollahra Municipal Council v Banool Developments Pty Ltd

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Case Copied 21 December 1973 20 min read

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1973] HCA 65
Decision Date: 21 December 1973

CaseChat Overview and Summary

Woollahra Municipal Council and Banool Developments Pty Ltd were the parties in this matter before the High Court of Australia. The dispute concerned the validity of a development consent granted by the Council to Banool Developments for the construction of a block of home units. The Council sought to challenge the validity of this consent, alleging it was invalidly granted.

The High Court was required to determine whether the development consent granted by the Woollahra Municipal Council to Banool Developments Pty Ltd was valid. Specifically, the Court had to consider whether the Council had followed the correct procedures and satisfied the necessary legal requirements when granting the consent, and if any procedural irregularities rendered the consent void.

The Court found that the development consent was invalid. It held that the Council had failed to comply with the requirements of the relevant planning legislation, which mandated that certain conditions be met before a consent could be lawfully granted. The failure to adhere to these statutory preconditions meant that the consent was a nullity from its inception. The legal principle applied was that where a public authority is entrusted with a statutory power, it must exercise that power in accordance with the specific conditions and procedures laid down by the statute conferring the power. Any failure to do so renders the exercise of that power invalid.

Consequently, the High Court ordered that the appeal be dismissed, upholding the invalidity of the development consent.

Orders