Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council

Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council - [1970] HCA 42 - HCA 1970 case summary — Zoe

[21]

There is evidence that on 31st July 1968 the building surveyor of the plaintiff, acting with its authority, approved the building application of the defendant subject to certain notations and conditions which need not here be set out. The defendant commenced the work of erecting the building. On 29th October 1968 the plaintiff, by an originating summons in the Supreme Court of New South Wales, sought an injunction restraining the defendant from carrying on any building operations in or on the building then in course of construction, except between the hours which had been specified in condition (f) set out above as those to which the hours of work were to be limited. A temporary injunction was granted ex parte and, subsequently, further interim injunction orders were made. When the suit came on for hearing on 7th March 1969 before Helsham J. it was dismissed. His Honour said in his judgment that it was quite clear that the defendant claimed that it was entitled to operate and threatened to continue to operate outside the stipulated hours unless restrained by the order of the Court. The ground on which Helsham J. held that the suit failed was that in his view there was no relevant connexion between the condition imposed as to the hours of work and the implementation of planning policy and, therefore, it could not be validly imposed as a condition of consent to the development application. Upon an appeal to the Court of Appeal of the Supreme Court, it was held that the plaintiff had power to impose the condition and was entitled to succeed in its suit. However, as the erection of the building had then been completed the Court did not grant any injunction. It ordered that the appeal should be allowed, that the decretal order made by Helsham J. should be set aside and that in lieu thereof there should be an order that the defendant pay the cost of the proceedings before Helsham J. and of the appeal. From that order the defendant has appealed by special leave to this Court.

[34]

It was submitted, in one part of the argument, that this part of the Act is intended to authorize the regulation of the purpose for which land is to be used and not the steps that may be taken in the course of erecting buildings which will enable the land to be used subsequently for some intended purpose for which the buildings are appropriate. This argument denies that the erection of a building on land is "the use" of that land within the meaning of sub-s. (2) of s. 342G. But in my opinion that subsection is expressed in language which does not warrant a narrow construction of it. It provides that a scheme may contain provisions not merely for regulating and controlling the purposes for which land may be used, but also for regulating and controlling the use of land. The reference in sub-s. (3) to the generality of the provisions of sub-s. (2) indicates that sub-s. (2) ought to be given a wide meaning. Subsection (3) itself states expressly that "a scheme may contain provisions for or in relation to the regulation of building and of matters relating thereto". There is no sufficient reason for holding that this provision is intended to do no more than permit the scheme to contain provisions for regulating the purposes for which buildings may be used after they have been erected. It was conceded in the argument for the defendant that the Act authorized the inclusion in a scheme of provisions for regulating the size, shape, design and appearance of buildings. This means that it is not so limited as to relate solely to the purpose for which land is to be used. But it was said that any regulation of the structure of the building, as contrasted with the regulation of the purpose for which it may be used, must be limited to the regulation of matters which have a permanent effect upon the relationship of a building to its environment. It cannot extend to the control of the process of the erection of a building, in the interests of the convenience and welfare of the inhabitants of the neighbourhood. I am of opinion that such a limited construction should not be adopted. It puts unwarranted restrictions both upon the meaning of sub-s. (2) and upon the meaning of sub-s. (3) (i).

[36]

I turn now to consider some questions relating to the provisions of the Ordinance and to refer to the principal submissions made in relation to them. In my opinion it is not essential that a scheme should by its own terms set out all restrictions to which the owner of land may be obliged to submit. It would not be practicable to lay down detailed rules which would govern every specific factual situation. In accordance with the provisions of s. 342G (2) and (3), I think that a scheme may contain provisions by which the giving or the refusing of consent to the use of land in certain ways may be entrusted to an authority, which may make decisions in accordance with the circumstances as they may exist in particular cases and as they may vary from time to time: see Taylor v. Brighton Borough Council [1] . For similar reasons it is convenient and desirable in aid of the fulfilment of the purposes which a scheme is designed to serve that the authority should not be bound either to give an unconditional consent or to refuse a consent but should be able to give a consent subject to conditions. This is what s. 40 (1) of the Ordinance provides. In my opinion its inclusion in the Ordinance is not beyond the scope of the description in s. 342G of the Act of the provisions which a scheme may contain. The powers conferred on the responsible authority either to grant an application unconditionally or to grant it "subject to such conditions as it may think proper" or to refuse to grant it are expressed to be "subject to the provisions of this Ordinance". Elsewhere in the Ordinance provision is made for the procedure to be observed in the making of an application for consent (cl. 35); and it is provided in cl. 36 that in respect of any application for consent the responsible authority shall take into consideration the matters therein set out. It is to be noticed that the clause is expressed to relate to any application for consent "to erect or use a building or to carry out or use a work or to use land".

[38]

I am of opinion that cl. 40 (1), understood in the sense I have endeavoured to explain, is within power. This brings me to what is I think the critical question in this appeal. It has been submitted for the defendant that condition (f) was extraneous to the proper exercise by the plaintiff of its functions under the Ordinance and was a condition of a kind which was outside the scope of the matters relevant to the exercise by the plaintiff of its powers when considering the development application in this case. The principal propositions put forward as the basis for contending that the imposition of the condition was invalid were the propositions to which I have already referred, namely, that the plaintiff in performing its relevant function was concerned only with the ultimate result of the development and the purpose for which the building when erected would be used and was not concerned with the process of its erection or with the activities of the defendant and their effect on others during the period of its erection. I have indicated already that I do not regard the relevant provisions of the Act as being restricted in that way. Nor, in my opinion, is the Ordinance so restricted. It may be acknowledged that, as has been stressed by counsel for the defendant, the Ordinance is very much concerned with the purposes for which land and the buildings on land are to be used. But it would be wrong to assert that because that is a dominant feature of the Ordinance it must be read as dealing only with that. It was argued that the consent which may be given upon such an application as was made in this case is not simply a consent to erect a building. It is a consent to erect a building which when erected is going to be used for a designated purpose and a consent to use it when erected for that purpose. This may be accepted as being true or at least as being generally true. But the circumstance that in the Ordinance there is a great deal of emphasis on the purpose for which land and buildings may be used does not require a conclusion that the plaintiff, when considering an application must concern itself only with the ultimate purpose of the development and may take nothing else into account. The consent which was required included, although it was not limited to, a consent to the putting up of a building. There is no warrant for saying that the plaintiff was bound to grant that consent unconditionally and was precluded from taking into account any matters relating to the erection of the building.

At a glance

Court

Decision date

Before

Source

Judgment (43 paragraphs)

Parties

Cited By (3)