Lizzio v Ryde Municipal Council

The appellants' land is zoned residential "2(a)" under the provisions of the Ryde Planning Scheme Ordinance ("the Ryde Ordinance"). The provisions of the Ryde Ordinance prohibit the use of land so zoned for the purposes of a shop, commercial premises or a roadside stall. It was argued on behalf of the appellants that the use of the land for their flower-selling activities should be disregarded for the reason that it was merely incidental or subservient to their use of the land for the purpose of a dwelling-house: cf. Foodbarn Pty. Ltd. v. Solicitor-General [9] . That submission was rejected by the learned primary judge (Cripps J.) in the New South Wales Land and Environment Court. His Honour said:

In my opinion the selling of fifty bunches of flowers each week in the manner these flowers are sold could not be described as an activity ancillary to the use of a dwelling-house in the sense that it should be regarded as an integral part of that use (as for example in the case of a garage attached to a dwelling-house). The mere fact that an item had been sold from a dwelling-house would not, in my opinion, necessarily require the conclusion that that activity resulted in a separate use; but the sale of fifty bunches of flowers each week from a make-shift stall could not be regarded as an activity ancillary to the ordinary use of a dwelling-house. In the Court of Appeal, Glass J.A. adopted the above passage while Mahoney J.A. expressed his agreement with the finding of Cripps J. that the appellants' flower-selling activities represent a use of the land additional to its use for the purposes of a dwelling-house. That being so, it would seem that there are concurrent findings in the court of first instance and the court of first appeal on what is essentially a question of fact: see, as to the consequences of such concurrent findings, The Commonwealth v. Introvigne [10] . It is not, however, necessary that I decide the question on that basis for the reason that I agree with the conclusion reached by Cripps J. and affirmed in the Court of Appeal that the flower-selling activities could not, in the circumstances of the present case, properly be seen as merely incidental to the use of their land for the purposes of a dwelling-house. They represent a separate or additional use of the land. 1. (1975) 32 L.G.R.A. 157. 2. (1982) 150 C.L.R. 258, at p. 274.

Regarded as a separate or additional use, the appellants' flower-selling activities constitute a prohibited use of the land under the Ryde Ordinance unless they are protected by the existing use provision contained in s. 107 of the Environmental Planning and Assessment Act 1979 N.S.W.. To be so protected, the land must have been lawfully used for the purpose of those activities immediately before the Ryde Ordinance came into force on 1 June 1979. There has been no challenge to the finding of Cripps J., which was accepted in the Court of Appeal, that the land was used for the purpose of the flower-selling activities at that time. The dispute between the appellants and the respondent Council is whether that purpose was at that time a lawful one under the provisions of the County of Cumberland Planning Scheme Ordinance which were then applicable to the land. The land was zoned "Living Area" under that Ordinance and it is common ground that the use for the purposes of the flower-selling activities was prohibited unless those activities came within the protection of cl. 31(b)(ii) thereof.

The County of Cumberland Planning Scheme Ordinance ("the Ordinance") was introduced as a schedule to the Local Government (Amendment) Act 1951 N.S.W.. It is deemed, by that Act, to be an Ordinance made under the Local Government Act 1919 N.S.W.. The Ordinance has been amended on numerous occasions since its introduction and its application has been excluded or modified as regards most of the land in the County of Cumberland by planning scheme ordinances relating to particular areas. It remains, however, the basic planning instrument for Sydney and its provisions remain relevant even in respect of areas to which it no longer directly applies by reason of the abovementioned existing use provisions of the Environmental Planning and Assessment Act.

Clause 31 is the last clause in Pt III of the Ordinance. Part III constitutes the heart of the planning scheme which the Ordinance embodies in that it imposes the prohibitions and restrictions upon the erection and use of buildings and the use of land in the various zones. The clause operates as one of a number of general overriding directions relating to the construction of those prohibitions and restrictions. Sub-paragraph (ii) of par. (b) remains in the form in which it was introduced in 1951. In the context of the clause, it reads:

Nothing in the foregoing provisions of this Part shall be construed -

(b) as restricting or prohibiting or enabling the responsible authority to restrict or prohibit -

(ii) the practice by an occupant of a dwelling-house or residential building of a profession, or occupation which does not involve the use of the dwelling-house or residential building for the purpose of an industry;

Clause 24 defines "dwelling-house" as meaning, for the purposes of Pt III, "a building designed for use as a dwelling for a single family ". Whether or not a building is a "dwelling-house" therefore falls to be determined by reference to design rather than use: see South Sydney Municipal Council v. James [11] . Prima facie, the reference in cl. 31(b)(ii) to an "occupant of a dwelling-house" is a reference to an occupant of a building designed for use as a dwelling for a single family. It is common ground that the appellants are occupants of such a building. 1. (1977) 35 L.G.R.A. 432.

The effect of cl. 31(b)(ii), for present purposes, is to require that the provisions of Pt III (cll. 26 and 29 and the definition of shop in cl. 24) which would prohibit the use, without consent, of the appellants' land for the purpose of a shop ("any place used for the purpose of exposing or offering goods for sale by retail") or of a roadside stall not be construed so as to prohibit the "practice" of a "profession, or occupation" which does not involve the use of the dwelling-house for the purpose of an industry. The question at the heart of the present case is whether the carrying on by the appellants of their flower-selling activities constitutes the practice of a profession or occupation for the purposes of the clause. If to "practise an occupation" is construed, for the purposes of the clause, as meaning "the habitual doing or carrying on" of "that in which one is engaged; employment; business" (definitions of "practice" and "occupation" in the Shorter Oxford English Dictionary), cl. 31(b)(ii) would plainly require that the prohibitions and restrictions contained in Pt III be construed as not prohibiting Mr. and Mrs. Lizzio's flower-selling activities which do not involve the use of their dwelling-house for the purpose of an industry. Such a construction of cl. 31(b)(ii) would mean that any occupant of a dwelling-house on land zoned "Living Area" under the provisions of the Ordinance could carry on any sort of business, or commercial or trading activities on his land provided that so doing neither affected the character of his occupation of the dwelling-house nor involved the use of the dwelling-house for the purpose of an industry: the Ordinance would offer an ineffective barrier against a quiet residential street being transformed into a Paddy's Market or Petticoat Lane. It is arguable that such a construction of cl. 31(b)(ii) would misconceive its purpose and function and that, when viewed in their context in the Ordinance, the provisions of the clause should be seen as directed not to permitting the carrying on of a business, such as a shop or roadside stall, on land whose use for such a purpose was otherwise prohibited but to precluding a construction of the prohibitions and restrictions contained in Pt III in a way which would restrict or prohibit the type of personal activity which the practice of a profession or other occupation may involve the occupant of a dwelling-house in doing at his home. According to that argument, the word "occupation" in cl. 31(b)(ii) should be seen as deriving colour from the words "practice" and "profession" and as importing an element of personal qualification or skill in the sense of being in the nature of a calling.

In Ku-ring-gai Municipal Council v. Cooney [12] , Jacobs J. rejected such a restricted construction of the referrence to an "occupation" in cl. 31(b)(ii). His Honour said:

The words "practice of a profession" are usual and well known; but the words "practice of an occupation" are somewhat unusual. I do not see how, by the use of the word "practice", which is more appropriate to the word "profession", the word "occupation" can be limited in its meaning to something which can be practised, similar to a profession so that the word "practice" becomes approximately appropriate. It seems to me that it is necessary to ignore the limitation implicit in the common restriction of its use to the phrase "practice of a profession" and to regard it in its primary meaning of "carrying on regularly" or "pursuing". It then becomes appropriate to the word "profession" and to the word "occupation". When the case went on appeal to the Full Court [13] , his Honour's refusal to give a restricted meaning to the word "occupation" was confirmed. In the course of a joint judgment the Full Court (Sugerman, Walsh and Hardie JJ.) observed [14] : The next submission to be considered is that in the clause, the word "occupation" should be limited in its meaning to something to which the use of the word "practice" is appropriate, that is, to something akin to a profession. It was submitted that the word "occupation" should not be given the extended meaning by which it would include any employment, business or calling but should be limited to what might be described as a calling, using that word to denote that by reference to which a man may be described. We are of opinion that the language of the clause does not justify adopting the limited meaning of the word "occupation" for which the appellant contends. The presence in the clause of the words beginning "which does not involve" suggests that the word "occupation" has a meaning which is capable of including the carrying on of an industry. There is an express exception from the ambit of the clause, in relation to use for the purpose of an industry, but no express exception in relation to use for the purpose of a trade or business. In our opinion, it is not necessary, because of the use of the word "practice", to give a restricted meaning to the word "occupation". The word "practice" is used as the object of "restricting or prohibiting" and in its context, seems to be the equivalent of "practising" or "pursuing" or "carrying on" or "engaging in". 1. (1962) 8 L.G.R.A. 8, at p. 15. 2. (1962) 8 L.G.R.A. 144. 3. (1962) 8 L.G.R.A., at pp. 148-149.

In Cooney's Case, both Jacobs J. and the Full Court held that the activities of the occupant of a dwelling-house in using and permitting it to be used for social functions in respect of most of which she received payment, including a charge for her own services, were within the protection of cl. 31(b)(ii) in that they constituted, in the particular circumstances of the case, the practice by the occupant of an occupation which did not involve the use of the dwelling-house for the purposes of an industry. The case came on appeal to this Court but only Dixon C.J., who dissented, found it necessary to consider the applicability of cl. 31(b)(ii). The Chief Justice expressed his entire agreement with the conclusion of Jacobs J. that, in the light of that clause, the prohibitions and restrictions in the Ordinance did not apply to Mrs. Cooney's activities: see Cooney v. Kuring-gai Municipal Council [15] .

The question of the construction of cl. 31(b)(ii) arose directly for consideration in this Court in Morris v. Woollahra Municipal Council [16] which was an appeal from a decision of the Supreme Court of New South Wales in its equitable jurisdiction. At first instance, Else-Mitchell J. indicated disagreement with the wide operation which some of the comments in the judgment of the Full Court in Cooney's Case would give to cl. 31(b)(ii). Speaking of Cooney's Case, his Honour said (Woollahra Municipal Council v. Morris [17] ):

That case concerned the use of an ordinary private dwelling house for activities of a personal though commercial nature such as could be comprehended within the concept of the practice of an occupation; the analysis of the text of cl. 34(b)(ii) made by members of the Court does not seem to me to have envisaged the implications of one occupant of a residential building, such as a guest house, block of flats or hotel, conducting commercial activities of a non-industrial nature In this Court, the wide construction of the reference to "practice of [an] occupation" which had been accepted by Jacobs J. [18] and the Full Court [19] in Cooney's Case was plainly rejected. The relevant passage in the joint judgment of Taylor, Menzies and Owen JJ. is a lengthy one and, since it is set out in the judgment of Gibbs C.J., I refrain from repeating it in full. Their Honours [20] approached the clause through, and in the context of, the provisions comprising the relevant prohibitions and restrictions recognizing that the function of the clause was directed to the construction of those provisions [20] : It seems to us that the relevant words of cl. 31 should not be so widely construed as to enable the occupant of a dwelling house, or for that matter an occupant of a residential building, to carry on upon the premises any sort of trade or business in any manner he chooses so long as it does not involve the use of the premises for the purpose of an industry. If it were so construed it would mean of course, the premises could be used, for example, as a shop or as commercial premises or professional chambers notwithstanding that such a use without consent is explicitly prohibited by cl. 28. That comment of their Honours can, of course, be applied to the use of the land in the present case for a shop or a roadside stall. There then follows the sentence which Cripps J. and the members of the Court of Appeal, in my view correctly, regarded as of critical importance to the judgment: What the exception permits, it seems to us, is the use of the premises by an occupant for the "practice" of some personal skill which is a qualification of his profession or occupation. The importance of that sentence is emphasized by their Honours' use of the word "moreover" to introduce the requirement, which follows, that "the practice must be ancillary only to the occupation of the occupant in question". 1. (1966) 116 C.L.R. 23. 2. (1966) 12 L.G.R.A. 359, at p. 368. 3. (1962) 8 L.G.R.A. 8, at p. 15. 4. (1962) 8 L.G.R.A., at pp. 148-149. 5. (1966) 116 C.L.R., at p. 32. 6. (1966) 116 C.L.R., at p. 32.

The judgment in Morris' Case [21] is not without difficulty. In particular, their Honours did not refer, in their insistence on a "use which does not operate to transform the character of the dwelling-house", to the fact that, as has been mentioned, "dwelling-house" is defined, for the purposes of Pt III, by reference to architectural design as distinct from use or intended use. The reference, in the judgment, to "the "practice" of some personal skill which is a qualification of his profession or occupation" borders on the obscure. The rationale and effect which it attributes to cl. 31(b)(ii) are however clear enough. In the context of prohibitions and restrictions on use of land, the occupant of a dwelling-house is not to be obliged to draw an impossible barrier between the practice of his profession or occupation and his domestic life. He may "practice" in his home those personal skills which are involved in his profession or his occupation, be it that of barrister or dressmaker, provided that what he does is ancillary to his occupation of the dwelling-house and does not involve the use of the dwelling-house for the purpose of an industry. As regards the reference to "personal skills", I agree with the comment of Mahoney J.A. in the Court of Appeal, that the emphasis should be seen as being on the word "personal".

The considered statement of this Court that what cl. 31(b)(ii) excluded from the prohibitions and restrictions contained in Pt III of the Ordinance was "the use of the premises by an occupant for the "practice" of some personal skill which is a qualification of his profession or occupation" [22] was naturally accepted in New South Wales as settling the construction of cl. 31(b)(ii). Some sixteen years have elapsed since Morris' Case. In that period, councils, framers of new planning scheme ordinances, and occupiers and purchasers of land have, no doubt, acted on innumerable occasions in relation to land within the County of Cumberland on the basis that cl. 31(b)(ii) meant what this Court had said it meant. The Ordinance itself has been frequently amended without any amendment being made to the clause. The Court's construction of the clause has not, so far as I am aware, attracted any published adverse criticism. To the contrary, it would seem to have been accepted as an appropriate construction of the relevant words. Thus, in another case involving the present respondent (Ryde Municipal Council v. Wagemaker [23] ), in rejecting a submission that activities of an earthmoving contractor in maintaining and repairing vehicles and machinery on its land came within the protection of cl. 31(b)(ii), Else-Mitchell J. observed:

The first reason is that the conduct of a business of this character is not the practice of a profession or occupation, for it is the word "practice" which provides the significant key to the content of the exception, the scope of which seems to me properly defined by the statement of the High Court that it permits "the use of the premises by an occupant for the "practice" of some personal skill which is a qualification of his profession or occupation" (Morris v. Woollahra Municipal Council [24] ). I should add that to extend the exception to include businesses of any sort which can be conducted by one person would do irreparable violence to the whole conception of a living area as defined in the County of Cumberland Planning Scheme Ordinance. 1. (1966) 116 C.L.R., at p. 32. 2. (1970) 19 L.G.R.A. 327, at p. 329. 3. (1966) 116 C.L.R., at p. 32.

It was suggested in argument on the present appeal that the ratio of the decision in Morris' Case is to be found in the last sentence of the relevant passage where their Honours commented that "the point" which they wished to make was that the premises should continue to be used essentially as a dwelling-house and that that consideration was not satisfied where the premises were primarily used as business premises and the owner's occupancy was merely incidental to the conduct of the business. I incline to the view that that comment was directed to the requirement, introduced by the word "moreover", that the practice must be ancillary only to the occupation of the occupant in question and not to the prior explanation of what was involved in the concept of "practice" of a profession or occupation. Be that as it may however, I can see little point in analyzing the passage for the purpose of determining which of their Honours' comments should be described as ratio and which should be described as obiter. Where this Court has ruled upon the construction and scope of a particular clause in a particular planning instrument, the Court should be more than ordinarily reluctant, in a subsequent case involving the construction and scope of that clause, to disregard views expressed in considered comments made in reaching that decision. The provisions of a planning scheme ordinance constitute a reference point for persons apart from those involved in any particular case. The applicability and scope of such provisions are of importance to government, town planners and councils in framing and administering planning instruments. They are also of importance to the people who live in a relevant area and whose lives and property can be drastically affected by what they and their neighbours can do on particular land. It would, in my view, require extraordinary circumstances to warrant the Court, in a case involving the scope of a particular clause of a local planning scheme ordinance, to depart from the considered views which it had expressed years previously in a unanimous judgment in a case concerning the scope of that very clause of that very ordinance: cf. Reg. v. Williams; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation [25] . No such extraordinary circumstances have been shown to exist in the present case. That being so, I can see no proper basis for disagreeing with the approach of Cripps J. and the members of the Court of Appeal that, in conformity with what was said by this Court in Morris' Case the appellants' use of their land for their flower-selling activities would only enjoy the protection of cl. 31(b)(ii) if it was a use for the practice of some personal skill which was a qualification of his or her occupation. It is again at least arguable that the finding of Cripps J. and of a majority of the Court of Appeal, that the appellants' use of their land for their flower-selling activities was not such a use, constituted concurrent findings on a question of fact. Again however, it is unnecessary that I decide the question by reference to that consideration since I agree with the conclusion which their Honours reached. As Mahoney J.A. pointed out in the Court of Appeal, the appellants were not using the land for the practice of an occupation in the sense explained in Morris' Case but were simply carrying on the business of a roadside stall or shop (as defined) on te land. Their use of the land corresponded with what the Court expressly indicated in Morris' Case was not within the protection of cl. 31(b)(ii), namely, use, "for example, as a shop notwithstanding that such a use without consent is explicitly prohibited ".

It was argued on behalf of Mrs. Lizzio that her appeal should be allowed in any event for the reason that the respondent Council was estopped from denying, as against her, that her use of the land for flower-selling activities came within the protection of cl. 31(b)(ii). The alleged estoppel is said to have arisen as the consequence of the finding by a magistrate on the hearing of an information, laid on behalf of the respondent Council against Mrs. Lizzio, alleging that on or about 26 October 1978 she had used the subject land for the sale of flowers contrary to the provisions of cll. 29 and 59 of the Ordinance. The magistrate dismissed the information on the ground that Mrs. Lizzio's use of the land was within cl. 31(b)(ii).

The issue between the Council and Mrs. Lizzio, on the hearing before the magistrate, related to the flower-selling activities on the land on or about 26 October 1978. The issue before Cripps J. related to the flower-selling activities on the land immediately before the Ryde Ordinance came into force on 1 June 1979. The evidence before the magistrate indicated that, at the time of the alleged offence, Mr. and Mrs. Lizzio had been growing their flowers on their own land and had only been selling from the table or stand the surplus flowers which remained after sales to a shop. The evidence before Cripps J. was to the effect that the flowers were grown both on their own and adjoining land and that, immediately prior to 1 June 1979, all the flowers grown were being sold from the table or stand. These differences in the relevant circumstances may not be of great significance. They do however tend to demonstrate the difference between the issue before the learned magistrate and the issue before Cripps J. The question whether the use of the land at a particular time was within cl. 31(b)(ii) must, once this Court's construction of the clause in Morris' Case [26] is accepted, involve consideration of the use being made of the land at the particular time in the context in which that use took place. A finding that what was being done on the land in October 1978 does not found an estoppel in relation to what was being done on the land immediately prior to 1 June 1979. That being so, the learned magistrate's finding that what was being done on the land in October 1978 was within the protection of cl. 31(b)(ii) did not estop the respondent Council from denying that what was being done immediately prior to 1 June 1979 was within the protection of that clause: see O'Donel v. Commissioner for Road Transport and Tramways (N.S.W.) [27] .

1. (1966) 116 C.L.R. 23. 2. (1938) 59 C.L.R. 744.

It was also submitted on behalf of the appellants that an injunction should have been refused as a matter of discretion. If Mrs. Lizzio had succeeded in her appeal on the estoppel issue, there would plainly have been great force in a submission that, as a matter of discretion, injunctive relief should not be granted against Mr. Lizzio alone. In the context of Mrs. Lizzio's failure on that issue however, there is no proper ground for interfering with the decision of a majority of the Court of Appeal that relief by way of injunction was appropriate.