28 A similar argument was rejected by three of the five judges in Eaton & Sons Pty Ltd v Warringah Shire Council [1972] HCA 33; (1972) 129 CLR 270. Stephen J, with whom McTiernan J at 276 and Walsh J at 277 agreed, held at 293 - 294 that the consent under a planning scheme of a municipal council to the use of land for a particular purpose, so as to make that use lawful, did not confer rights or privileges in the sense words similar to those in s16(1)(c) were used. The similar words there being considered were in cl 65(1)(b) of a planning scheme called the Warringah Scheme Ordinance, which provided that the revocation, pursuant to statute, of a prior planning scheme, pursuant to which a particular use of land had been lawful, "shall not affect ... any right, privilege, obligation or liability acquired, accrued or incurred under that Scheme or under the Act in relation to that Scheme". This Court should apply the view of Stephen J. Prior to the day on which the planning scheme commenced, the appellant's lawful use of the land was not pursuant to any right or privilege, as those words are used in s16(1)(c). Counsel for the appellant sought to distinguish Eaton upon the basis that the appellant's right to continue to use the land exists by virtue of the 1962 Act, s759(1), and not by virtue of a planning scheme, but there is no merit in that argument. The question that is raised is whether the appellant had a "right" or "privilege" as those words are used in s16(1)(c) and for the reasons given by Stephen J, it did not. Section 759(1) did not purport to create any right or privilege for the appellant, but merely prescribed that the lawful use of land in the past could continue unaffected by a later scheme. It is to the nature of that prior lawful use, and whether the appellant had a "right" to it, that is to be considered for the purposes of s16(1)(c).