MASON J. In an action commenced by the respondent council against the appellant and one Keft, Helsham J., sitting in the Equity Division of the Supreme Court of New South Wales, made a declaration that certain land near Gosford which had been purchased by the appellant in 1952 was being used for the purposes of an extractive industry without the consent of the respondent as responsible authority under the Shire of Gosford Planning Scheme Ordinance ("the Ordinance"). In conformity with the declaration his Honour restrained the appellant and Keft and each of them from using the land for the purpose of any extractive industry without the consent of the respondent. (at p85)

2. The appellant's case at first instance and before this Court is that the primary judge should have dismissed the action on the ground that the use to which the appellant was putting the land when the action was commenced, namely, the removal of topsoil and filling, was "an existing use" of the land on 24th May 1968, being "the appointed day" on which the Ordinance came into operation, and that therefore the use was one which could be continued under cl. 14 of the Ordinance without the consent of the respondent as the responsible authority. Subject to an argument based on cl. 15 to which I shall refer later, the respondent does not dispute that if the use sought to be restrained was an existing use on the appointed day it can be continued without consent. In the result, the appeal turns substantially on the correctness of a finding made by the primary judge that in 1972 there was a change in the use of the land so that the use sought to be restrained differed from the use to which the land had been put on the appointed day. (at p85)

3. I may say at once that in my opinion the ultimate conclusion reached by the primary judge cannot be sustained in the light of the specific findings of fact which he made. (at p85)

4. His Honour began by finding that the appellant started to use the land in 1952 for the purpose of removing topsoil and filling therefrom, this being a purpose for which he acquired it. At first there was little demand for the product and it was won by hand and loaded into trucks. The activity continued on a small scale for twenty years, the number of transactions in a year ranging for the most part from three to five, yielding an annual revenue which varied from $46 in 1958 to $1,011 in another year. This activity his Honour described as "a business of selling off soil and filling from the land to customers on a fairly regular basis" which "continued right through the period from 1952 to 1972". The use so described was held to be the "existing use" on the appointed day, 24th May 1968. (at p85)

5. However, the primary judge went on to find that in 1972 there was a change in the scale of removal of topsoil and filling with a consequence that, in that year and thereafter, production was greatly expanded. In 1972 revenue amounted to $3,514, increasing to $30,057 in 1973 and $13,686 in the first four months of the year 1974. At that time, according to the primary judge, there was "a full-scale quarry with bulldozers and trucks taking away very large quantities of filling from a full-scale extractive industry being carried on on the land". In addition there was "one or more quarry faces on the land". From these circumstances his Honour deduced, mistakenly as it seems to me, that there was a change in the nature of the use. (at p86)

6. To my mind the crux of the matter is that at all times after 1st January 1972, as before, the use to which the land was put was the removal of topsoil and filling for the purpose of sale. The nature of this use was not altered because there was an expansion in production by reason of increased demand or because efficient machines were employed in production in place of manual labour or because excavations made in the course of removal assumed the appearance of "quarry faces" whereas before they wore a different aspect. (at p86)

7. His Honour seems to have been diverted from what to my mind was the correct conclusion by the beguiling attractions of the definitions of "extractive industry", "extractive material" and "industry" offered by cl. 3, definitions which, although they have decisive effect in the application of cl. 10 and other provisions of the Ordinance, have no significance here where the appellant was using the land at all relevant times both before and after 1972 for the removal of topsoil and filling in the course of a continuing business regularly carried on. His Honour thought none the less that the post-1972 use differed from the pre-1972 use because in the later period, unlike the earlier period, the activity was so extensive and organized as to constitute an industry. This view extracts too much from the definition of "extractive industry" which is defined to mean "an (at p86)

winning of extractive material from the land upon which it is carried on". To the extent to which these words reflect a concept of industry they look to an activity of the particular kind, at least when it is carried on as a regular business. So regarded the definitions in cl. 3 provide no support for the distinction sought to be drawn. But this is by the way, for on the specific findings which were made the intrusion of the concept of industry was an unnecessary and, as it has transpired, misleading complication.

8. The respondent attempted to justify the decision of the learned judge by urging that a continuation of the present use would result in an enlargement of "an existing work", that is, the quarry or quarries on the appellant's land, without the consent of the respondent as responsible authority. Clause 15 permits the alteration, enlargement, rebuilding or extension of "an existing work" with the consent of the responsible authority "notwithstanding the provisions of Part III and Part VI". Part III deals with restrictions on building and use of land and Pt VI contains special provisions. Clauses 14 (which permits the continuation of an existing use of land) and 15 are within Pt IV. The inter-relationship which exists between the two clauses and their application to a work such as a quarry whose working surfaces move as the use of the land progresses is not without its difficulties - see Parramatta City Council v. Brickworks Ltd. [1972] HCA 21; (1972) 128 CLR 1 ; Eaton & Sons Pty. Ltd. v. Warringah Shire Council [1972] HCA 33; (1972) 129 CLR 270 . However, the primary judge found that the appellant had an intention to use the whole of the land for the purpose in question, removal of topsoil and filling, and concluded that in the circumstances of the case the land should be regarded in its entirety. Once the finding of fact is accepted, and it is not challenged, and attention is given to the manner in which the land has been used, his Honour's conclusion on this aspect of the case conforms with the approach taken by the Court in the two cases to which I have referred.

In strictness this argument was not open to the respondent on the hearing of the appeal. It was not reflected in the relief sought in the summons and, although advanced to the primary judge, it was rejected by him. As the argument, if successful, would entitle the respondent to an injunction different from that claimed under cl. 14 and granted, its rejection should have been made the subject of a crossappeal, yet no cross-appeal was filed. (at p87)

10. For these reasons I would allow the appeal and dismiss the action.

JACOBS J. I agree that the appeal should be allowed and the action dismissed for the reasons expressed by Mason J. (at p87)

Appeal allowed with costs. Order of the Equity Division of the Supreme Court of New South Wales (Helsham J.) set aside and in lieu thereof order that the summons be dismissed with costs.