* Sub-section (2) of s. 309 of the Local Government Act, 1919 (N.S.W.), as amended provides: "Nothing in this section shall preclude the continuance of the use of any building for any purpose for which the same was used immediately before the date of the proclamation aforesaid, or the alteration, enlargement, rebuilding, or extension of any building used for any such purpose whether or not such alteration, enlargement, rebuilding or extension involve the use of adjoining land which immediately before the date of the proclamation was in the same ownership or for such other purpose as the Council thinks reasonable in the circumstances."

BARWICK C.J. I have had the advantage of reading the reasons for judgment have nothing to add. In my opinion for those reasons the appeal should be dismissed and the cross-appeal allowed. (at p3)

MENZIES J. I have had the advantage of reading the judgment of Gibbs J. with which I entirely agree subject to one reservation of small importance. (at p3)

2. I am inclined to regard the quarrying that is now the matter of contention as but the continuation of an existing use of the land as a whole authorized by cl. 32 of the Planning Scheme Ordinance, rather than an existing work on the land the extension of which is authorized by cl. 33 of the Ordinance. In consequence I place no reliance upon cl. 33 in reaching the conclusion that the Ordinance authorizes what the Council seeks to stop. (at p3)

OWEN J. I agree that the appeal should be dismissed and the cross-appeal allowed. I have had the opportunity of reading the judgment of my brother Gibbs and I agree with it. (at p4)

WALSH J. The judgments given in this suit in the Supreme Court of New South Wales at first instance (1970) 18 LGRA 395 and on appeal (1970) 22 LGRA 200; 92 WN (NSW) 701 demonstrate the difficulties created by the legislation and by the instruments promulgated under statutory authority, which the Court was required to consider. It was no easy task to ascertain whether the respondent was entitled to carry on the activities which the appellant sought to restrain or was prohibited absolutely from doing so or required consent of the appellant to do so. Hardie J. considered that the Residential District Proclamation made in March 1932, by which the use of the land to which the suit related for quarrying and brickworks was absolutely forbidden, was operative. In the Court of Appeal the majority held that the respondent was entitled, under the provisions of cl. 33 of the County of Cumberland Planning Scheme (as amended), to carry on without consent the activities of which the appellant complained. The learned President of the Court of Appeal thought that the respondent was entitled to do so if it obtained the consent of the appellant as the responsible authority. (at p4)

2. In my opinion the prohibition of the use of the land for quarrying or brickworks contained in the Residential District Proclamation was not operative at the relevant time as to the land with which the suit is concerned. There are difficulties concerning the construction and effect of cl. 57(1) of the Planning Scheme Ordinance. These were discussed in the judgments in the Court of Appeal. But I agree with the conclusion of Gibbs J., whose reasons for judgment I have had the benefit of reading, that the absolute prohibition of the use of the land for quarrying and brickworks which the proclamation imposed was inconsistent with the provisions of the Planning Scheme Ordinance, which permitted such use with the consent of the responsible authority. I agree also with his Honour's conclusion that any effect, in relation to the operation of cl. 57 (1) upon the Residential Proclamation, brought about by the notification published by the Minister on 1st October 1954 notifying "the suspension of the provisions of the County of Cumberland Planning Scheme as respects all development on the land referred to in the Schedule hereto", did not continue after 2nd August 1957, when the County of Cumberland Planning Scheme (Amendment No. 1) Ordinance was proclaimed. I agree with the reasons given by Gibbs J. for both the conclusions to which I have referred. (at p5)

3. I agree also that when the last-mentioned Ordinance was proclaimed the provisions of Div. 7 of Pt XIIA of the Act, which had been made applicable by the 1954 notification and by s. 342Y of the Local Government Act, 1919 (as amended), ceased to apply to the development of the land. (at p5)

4. What remains to be considered is the question whether the respondent was entitled, either under the provisions of cl. 32 or under the provisions of cl. 33 of the Planning Scheme Ordinance, to do on its land, and in particular on what has been described as "the new land", what the appellant seeks to restrain it from doing. I have come to the conclusion that the decision of the Court of Appeal that cl. 33 operated to make it lawful for the respondent to do so was correct. (at p5)

5. In the Court of Appeal Jacobs and Holmes JJ.A. expressed the opinion that what they described as the whole complex, that is to say, a brickworks with a kiln and with equipment for extracting clay and with the excavation caused by extracting it, constituted a "work" within the meaning of cl. 33. They went on to say that when a complex includes a structure, the "work" is not limited to that part of it which consists of the structure. They considered that a surrounding area directly used for the purposes of the structure is part of the "work" and when that surrounding area is enlarged or extended then the "existing work" is enlarged or extended. Despite the considerations that have been put to the contrary, I am of opinion that the views expressed by their Honours as to the applicability of cl. 33 to the facts of this case should be accepted as correct. My understanding of the reasons of their Honours is that when they held that what they called the complex was a "work" they were not referring to processes or activities taking place on the land in the course of making bricks, but to physical objects and characteristics on and of the land. In my opinion it is to a physical thing or things and not to an activity or an enterprise that the expression "existing work" in cl. 33 refers. I think that in order to make the inclusion of that expression in cl. 33 serve any purpose, it is necessary to give it a meaning by which it is not confined to a structure, since it is associated with the expression "existing building" and by a definition which is, in my opinion, applicable to the construction of cl. 33, a "building" includes "any structure or any part thereof". But this does not mean, in my opinion, that a thing which includes a structure can never be a "work". I find nothing in the language of cl. 33 or in its context to preclude the view that the kiln and the brick pit taken together constitute a "work" within the meaning of cl. 33. It is of no consequence whether or not the equipment used for excavating the clay may also be regarded, as their Honours thought, as part of the "work". (at p6)

6. It has been suggested in argument that the conclusion which I have stated can be reached only by falling into the error of confusing the term "work" with the term "works", used as a noun to describe an aggregation such as may be found in a steelworks or in a brickworks. But in the context of the Ordinance it is difficult to maintain the distinction upon which this argument insists and I cannot agree that any such error is involved in adopting the view taken by the majority in the Supreme Court. (at p6)

7. In his reasons for judgment Gibbs J. has stated the conclusion that the brick pit itself was an existing work within cl. 33 and that the respondent had the right to extend it to "the new land", which was adjoining land. I do not wish to express dissent from that view. I do not regard his Honour's reasons for it as being in conflict with the opinions of the majority of the Court of Appeal. Their Honours left open the question whether the quarry or clay pit by itself was a "work" within the meaning of cl. 33 and stated that they were not to be taken as expressing any opinion that it was not. I am content to adopt the same course as did their Honours. (at p6)

8. Since I have reached the conclusion that cl. 33 is applicable, I refrain from dealing with the question whether or not it would be proper to conclude, having regard to the facts found by the learned judge of first instance, that there was at the relevant time an "existing use" of the respondent's land, including "the new land", within the meaning of cl. 32. (at p6)

9. I agree with the reasons given by Gibbs J. for rejecting the submission that the respondent could not rely upon cl. 32 or upon cl. 33 for the reason that (as it was claimed) the "existing use" of the land and the making and maintaining of the "existing work" were unlawful. (at p6)

10. I agree, also, with the reasons given by his Honour for his opinion that the cross-appeal should succeed. (at p6)

11. In my opinion, the appeal should be dismissed and the cross-appeal should be allowed. (at p6)

GIBBS J. The respondent Brickworks Ltd. is the owner of a number of contiguous parcels of land at Eastwood within the City of Parramatta. Some of that land, namely an area of approximately thirteen acres comprised in Certificates of Title Vol. 2424 Fol. 32, Vol. 2505 Fol. 77 and Vol. 2751 Fol. 12, which for convenience will be described as "the old land", has since about the year 1912 been used for the purposes of a brickworks. A kiln and other buildings were for these purposes erected on the old land and the necessary clay and shale were obtained from a quarry, known as the brick pit, which was made in the old land. The kiln and other buildings were used for brick-making, and the quarry was used to provide materials for that purpose, before 15th March 1932, the date of a proclamation (which will be called "the Residential District Proclamation") made by the Governor under s. 309 of the Local Government Act, 1919 (as amended) (N.S.W.) ("the Act") and notwithstanding the terms of that proclamation, to which I shall later refer, they have been continuously used for those purposes since that date. In November 1938 the respondent became the owner of the old land and also of some other parcels, including the land comprised in Certificate of Title Vol. 4792 Fol. 168. In March 1939 the respondent further acquired a parcel of land comprised in Certificate of Title Vol. 620 Fol. 68. The lands comprised in Certificate of Title Vol. 4792 Fol. 168 and Vol. 620 Fol. 68, which have a total area of about twenty-one acres and adjoin the old land on the north and west, will be referred to as "the new land". The new land had not at the respective dates of its purchase been put to use as a quarry or otherwise in connexion with brick-making and the respondent bought it with the intention of holding it in reserve for use at a later date when the materials on the old land had been exhausted. It has been estimated that the new land contains sufficient materials to supply the needs of the brickworks for about seventy-five years. (at p7)

2. The respondent first commenced to put the new land to actual physical use in connexion with its business of a brickworks in 1960. The new land was then used mainly as a means of access to the old land and for storage purposes, but in November 1964 the respondent obtained the approval of the appellant, the Council of the City of Parramatta, to erect an extension to its existing continuous kiln and soon afterwards, pursuant to that approval, extended the kiln so that part of it stood on the new land. It is not clear whether the appellant in granting its approval adverted to the fact that part of the extension would be erected on the new land. About two or three years later the respondent extended the face of the brick pit into the new land both to the west and to the north, and since that time has continued to expand the brick pit within the new land. (at p8)

3. The lands in question are situated within a residential area and the appellant, which has apparently received many complaints of the dust, smoke, noise, vibration and traffic nuisance which the brickworks allegedly cause, wishes to prevent any extension of the activities of the brickworks on the new land. After successfully seeking an undertaking from the respondent that it would not further excavate the new land, the appellant commenced against the respondent proceedings in the Supreme Court of New South Wales for an injunction to restrain the respondent from using any part of the new land for the purposes of brick-making. The learned primary judge gave judgment (1970) 18 LGRA 395 in favour of the appellant and, subject to certain conditions, granted an injunction restraining the respondent from using or causing or permitting to be used any part of the new land, save those parts thereof upon which the kiln building is situated and upon which concrete paving or driveways have been laid, for any purpose prohibited by the Residential District Proclamation and for the purpose of quarrying or brickworks or tile works or pipe works or pottery works. The ground of his decision was that the respondent's user of the new land contravened the provisions of the Residential District Proclamation made on 15th March 1932 under s. 309 of the Act. He was prepared to assume that the provisions of the Residential District Proclamation had been suspended by cl. 57 of the County of Cumberland Planning Scheme Ordinance (which I shall call "the Planning Scheme Ordinance") which took effect on 27th June 1951, but he held that all the provisions of the Planning Scheme Ordinance were themselves suspended by a notification made by the Minister on 1st October 1954 in intended exercise of the powers conferred by s. 342Y of the Act, and that the suspended provisions of the Residential District Proclamation were thereupon revived. However, the Court of Appeal of the Supreme Court, by a majority, allowed an appeal from the decision of the learned primary judge and set aside the injunction (1970) 22 LGRA 200 . All the learned members of the Court of Appeal held, on material which had not been placed before the learned primary judge, that the suspension of the Planning Scheme Ordinance ceased on 2nd August 1957, when the County of Cumberland Planning Scheme (Amendment No. 1) Ordinance was proclaimed, that the Residential District Proclamation then again became suspended and that the question of the legality of the user by the respondent of the land depended primarily on the effect of the Planning Scheme Ordinance. They differed, however, as to the operation of the Planning Scheme Ordinance in the circumstances of the case, the majority holding that the respondent was entitled under the provisions of the Planning Scheme Ordinance to extend and enlarge its brickworks onto the new land. From the judgment of the Court of Appeal an appeal has been brought to us by special leave. (at p9)

4. On this appeal we are not concerned with the question whether the brick-making activities of the respondent in any way amount to a nuisance or whether a further extension of those activities over the new land would or would not be desirable in the interests of the inhabitants of the City of Parramatta or in the public interest. We are only concerned with the question whether the Act or any instrument under it renders it unlawful for those activities to be carried on by the respondent on the new land. The contention of the appellant is that the provisions of the Planning Scheme Ordinance are suspended with the consequence that the provisions of Div. 7 of Pt XIIA of the Act, with regard to interim development, apply so that the respondent is not entitled to use the new land for the purposes of a quarry or brickworks without the requisite consent, which has not been obtained, and further, or in the alternative, with the consequence that such user would be a breach of the Residential District Proclamation. In the further alternative, the appellant contends that if the provisions of the Planning Scheme Ordinance are not suspended the user of the new land as a brick pit is only permissible with the consent of the responsible authority, which has not been obtained. (at p9)

5. The Residential District Proclamation was made under s. 309 of the Act by the Governor at the request of the Council of the Municipality of Dundas, in which municipality the land subject to the proclamation was at that time situated. Sub-section (3) (a) of s. 309, as it was at the date of the proclamation, read as follows:

"Where an application is made by the council to the

Governor under this section the Minister shall give the

prescribed notice of the proposal."

Sub-section 3 went on to give any person interested a right to lodge objections to the proposal and to empower the Minister to refer the proposal for inquiry and report and sub-s. (3) (d) provided:

"After considering any objections received to the proposal

or the report of the officer appointed to hold the enquiry, if

any, the Minister may submit the proposal to the Governor

for decision."

The provisions of s. 309 (3) now appear, in a somewhat different form, as s. 309 (1C) of the Act. The notice required by the sub-section was prescribed by Ordinance No. 21 made under the Act on 11th January 1929, the material parts of which read as follows:

"The notice of an application by the Council to the Governor,

under section 309 of the Act, shall be published in the Gazette

and a newspaper circulating in the area affected, and shall fix

a period being not less than one month from the later of such

publications during which objections may be lodged."

The only notices published by the Minister pursuant to s. 309 (3) (a) in relation to the Residential District Proclamation were notices published in the New South Wales Government Gazette of 31st December 1931 and in the Parramatta Cumberland Argus of 7th January 1932. The latter notice invited attention to the notification in the Gazette and went on to say: "A period of one month from the publication of the notice is allowed during which objections may be lodged by any person interested". On behalf of the respondent it was said that the prescribed notice of the proposal was not given because the period fixed for lodging objections was less than one month from the later of the publications. If the notice in the Parramatta Cumberland Argus had spoken of "one month from the publication of this notice" rather than of "one month from the publication of the notice" it would have complied with the prescribed requirements but on its proper construction it appears to have fixed as the period for lodging objections one month from the date of the earlier rather than from the date of the later notice. However, s. 648 (1) of the Act provides:

"A proclamation or notification of the Governor purporting

to be made under this Act and being within the powers conferred

on the Governor shall not be deemed invalid by reason

of any non-compliance with any matter required by this Act

as a preliminary to the making of the proclamation or

notification."

The respondent submitted that the requirement that the prescribed notice should be given was a limitation of the powers of the Governor and that unless s. 309(3) (a) (as it then was) was complied with, the Governor's proclamation was outside his powers and therefore not validated by s. 648. Such a construction of ss. 309 and 648 gives in my opinion no weight to the provisions of the latter section. Clearly s. 309 (3) (a) required the giving of notice as a preliminary to the making of the proclamation and on the construction of the notice that I have accepted that requirement was not complied with. However, the Residential District Proclamation purported to be made under the Act and was within the powers conferred on the Governor by s. 309 (1) of the Act. In this situation s. 648 applied and the Residential District Proclamation was validated. (at p11)

6. By the relevant parts of the Residential District Proclamation the Governor declared certain portions of the Dundas Municipality, respectively defined in the Schedule thereto, to be residential districts and prohibited in Residential Districts Nos. 1 and 2 - Dundas (which included the old and the new land):

"1. The erection of any building for the purposes of

any trade, industry, manufacture, shop or place of

public amusement;

2. The use of any building for any such purposes;

3. The erection or use of advertisement hoardings;

4. The erection or use of any building for the purpose of

a residential flat; and

5. The use of any land for the purposes of the following

trades, businesses, avocations or callings: Quarrying,

brickworks, tile works, pipe works, pottery works,

bottle depots, secondhand material or machinery depots,

timber yards, sawmills."

There is no doubt that the provisions of this proclamation, standing alone, prohibited the use not only of the new land, but also of the old land and the buildings thereon, for the purposes of quarrying and brick-making. However, the proclamation did not stand alone; its effect was mitigated by s. 309 (2) which provides as follows:

"Nothing in this section shall preclude the continuance

of the use of any building for any purpose for which the same

was used immediately before the date of the proclamation

aforesaid, or the alteration, enlargement, rebuilding or extension

of any building used for any such purpose whether or not such

alteration, enlargement, rebuilding or extension involve the

use of adjoining land which immediately before the date of

the proclamation was in the same ownership or for such other

purpose as the council thinks reasonable in the circumstances."

It is a difficult question whether this sub-section rendered it lawful for the respondent to continue to quarry the old land notwithstanding the Residential District Proclamation. Section 309 (2) does not expressly permit the continuance of the use of land for any purpose for which it was used immediately before the date of the proclamation. This omission may be explained by the history of the legislation. When the Act was first passed, and later, when s. 309 (2) was put in its present form by the Local Government (Amendment) Act 1927, s. 309 (1) gave the Governor power to prohibit the erection of a building for use for certain specified purposes and to prohibit the use of a building for any such purposes and also gave power to prohibit the erection or use of advertisement hoardings but it did not give any power to prohibit the use of land. It was at the date of those Acts unnecessary to preserve the right to continue an existing use of land which was not involved in the use of a building because such a right could not be affected by a proclamation made under the section. However, when par. (g), which gives the Governor power to prohibit the use of land, was added to s. 309 (1) by the Local Government (Amendment) Act, 1928, s. 309 (2) was not consequentially amended. In spite of this history, if the words of the sub-section are unambiguous we must give effect to the intention which they reveal and it is for the legislature and not for the courts to fill any gap that may unintentionally have been left in the statute (cf. Magor and St. Mellons Rural District Council v. Newport Corporation (1952) AC 189, at pp 191-192 ). Therefore it would not appear possible to construe s. 309 (2) as preserving a right to continue an existing use of land on which no building had been erected. Buildings had, however, been erected on the old land at the date of the Residential District Proclamation and it clearly remained lawful for the respondent to continue the use of those buildings for the purposes of brick-making, since they had been used for those purposes immediately before the date of the proclamation. The expression "building" is defined by s. 304 to include any structure or any part thereof but that definition is not wide enough to include a quarry. It might be said that the right to continue to use the buildings for brick-making purposes involved the right to quarry the land to obtain the material without which the bricks could not be made. On the other hand, although it was natural and convenient to obtain the material from a site adjoining the buildings, it was not essential that it should be obtained from such a site and in fact during the last few years material has been brought to the land from Duffy's Forest for the purpose of making cream bricks; it may therefore be thought that the right to continue to use the buildings did not include the right to quarry the land. However, for reasons which will appear, it is unnecessary to decide whether the making of the Residential District Proclamation had the apparently harsh result of rendering it unlawful for the respondent to continue to use the old land in the way in which it had been used for the preceding twenty years. It is, on the other hand, quite clear that while the Residential District Proclamation was in force it would have been unlawful either to use the new land as a quarry or to extend the buildings of the brickworks onto it, because the new land was not at the date of the proclamation in the same ownership as the old land. (at p13)

7. The Planning Scheme Ordinance was published as a schedule to the Local Government (Amendment) Act, 1951 and by s. 2 (2) of that Act was deemed to be an ordinance made by the Governor prescribing the scheme under s. 342K of the Act and took effect on 27th June 1951. Section 2 (3) of the Local Government (Amendment) Act, 1951 provided as follows:

"The scheme embodied in such ordinance shall be a

prescribed scheme to which the provisions of Part XIIA of

the Principal Act relating to prescribed schemes shall apply."

By s. 2(4) the Cumberland County Council was empowered by a subsequent scheme to vary the Planning Scheme Ordinance and it was provided that for the purposes of any such variation the provisions of Pt XIIA of the Act relating to variations of prescribed schemes should, mutatis mutandis, apply. (at p13)

8. The Planning Scheme Ordinance (inter alia) imposed restrictions on the use of land and the erection and use of buildings in the County of Cumberland. Its provisions operate by reference to a scheme map on which the land subject to the scheme is shown as divided into a number of zones. The old land and the new land are included in zone 8, which is described as "extractive industrial area". The restrictions imposed by cll. 26, 28 and 29 of the Planning Scheme Ordinance on the erection and use of buildings and on the use of land in such a zone are as follows. It is not permissible to erect or use buildings or to use land therein for any purpose without the consent of the responsible authority, which by cl. 6 is stated to be the council. With the consent of the responsible authority buildings may be erected or used and land may be used for the following purposes which are set out in col. IV of the table of zones:

"Any extractive industry; any industry directly associated,

connected with or dependent upon such an extractive industry

established or to be established in such zone; any other

purposes except those for which buildings may not be erected

or used under Column V."

An "extractive industry" means "an industry or undertaking not being a mine, which depends for its operations on the taking of extractive material from the land upon which it is situated" and "extractive material" means "sand, gravel. clay, turf, soil, rock, stone and similar substances" (cl. 3). The undertaking of the respondent on the old land was an extractive industry within this definition. In zone 8, buildings may not be erected or used, and land may not be used, for any of the following purposes which are set out in col. V of the table of zones:

"Any industry other than an industry referred to in

Column IV; dwelling-houses and residential buildings other

than those required for use or occupation by persons whose

residence is essential to the industry established or to be

established in the zone; places of public worship; places of

assembly other than amenity buildings; places of instruction;

hospitals; professional chambers; commercial premises,

except where directly associated with an industry permitted

under Column IV."

Under these provisions the respondent would have required the permission of the responsible authority to continue to use the old land and the buildings thereon for the purposes of its quarry and brickworks. However, cl. 32 provided that an existing building or existing work might be maintained and might be used for its existing use and that an existing use of land might be continued. The clause, before its amendment in 1957, contained a proviso, similar in effect to the present cl. 35 (2), which gave the responsible authority power, in certain circumstances and subject to certain conditions, in effect to prohibit the retention of a building or work or the continuance of the use of a building, work or land, but there is no suggestion that this prohibitory power was exercised in relation to any of the subject land. A qualified right to alter and extend existing buildings in certain cases was given by cl. 35, which was in 1957 replaced by the ampler provisions of the present cl. 33 of the Planning Scheme Ordinance. It will be necessary hereunder to continue the effect of cll. 32 and 33 of the Planning Scheme Ordinance, which has since been amended in an immaterial particular, provided as follows:

"In respect of any land included in zones numbered 4 to

9 inclusive shown in the Table to clause 26 the operation of -

(a) section 309 of the Act and any proclamation made under

that section;

(b) section 4D of the Housing Act, 1912-1949, and of any

notifications made under that section;

is hereby suspended to the extent to which such sections,

proclamations or notifications are inconsistent with any of the

provisions of those Ordinances or with any consent given

thereunder."

The effect of the concluding words of this clause, relating to consents given under the Planning Scheme Ordinance, may not be altogether clear, but there is no room to doubt that if the Residential District Proclamation was inconsistent with any of the provisions of the Planning Scheme Ordinance the operation of the proclamation was to the extent of the inconsistency suspended by the force of cl. 57. Further, it is clear that the Residential District Proclamation, in so far as it applied to such of the land in Residential Districts Nos. 1 and 2 - Dundas as fell within zone 8 of the scheme under the Planning Scheme Ordinance, was inconsistent with the provisions of that Ordinance. By the proclamation the use of land or buildings in the area that is now zone 8 for the purposes (inter alia) of quarrying and brickworks was prohibited, whereas under the Planning Scheme Ordinance such use was permitted with the consent of the responsible authority. In other words, the proclamation absolutely forbad what the Ordinance conditionally permitted and was in that respect inconsistent with the Ordinance. After 27th June 1951 the operation of the Residential District Proclamation was suspended in relation to the subject lands. (at p15)

9. On 14th August 1953 the Cumberland County Council passed a resolution for the preparation of a Town and Country Planning Scheme in respect of the whole of the County of Cumberland District to vary the Planning Scheme Ordinance by amending the provisions thereof relating to the regulation and control of the use of land and the purposes for which land might be used. On 16th October 1953 the Minister notified that approval had been given to that resolution and on 1st October 1954 the following notification by the Minister was published in the Gazette:

"WHEREAS a resolution of the Cumberland County Council

for the preparation of a town and country planning scheme

for the whole of the County District, under Part XIIA of the

Local Government Act, 1919, to vary the County of Cumberland

Planning Scheme, took effect on 16th October, 1953, the

date on which the notice of the Minister's approval of such

resolution was published in the Government Gazette; And

Whereas after consideration of a report of the Town and

Country Planning Advisory Committee, it appeared to me,

as Minister, expedient so to do for securing that development

prohibited by the County of Cumberland Planning Scheme may

be carried out notwithstanding the provisions of that scheme;

Now I, the Minister aforesaid, in pursuance of the provisions

of section 342Y of the Local Government Act hereby notify

the suspension of the provisions of the County of Cumberland

Planning Scheme as respects all development on the land

referred to in the Schedule hereto. The provisions of Division

7 of Part XIIA of the Local Government Act with respect to

the control of interim development shall apply, as from today's

date, to development to which this notification relates."

The land in the Schedule to the notification, although somewhat imprecisely described, included the subject land. (at p16)

10. This ministerial notification was made in intended exercise of the powers conferred by s. 342Y (1) of the Act and with an eye to the consequences provided by s. 342Y (2). Those sub-sections have since been amended on more than one occasion but at the date of the notification they read as follows:

"(1) In any case where -

(a) a resolution for the preparation of a scheme varying

a prescribed scheme has taken effect; or

(b) the Minister has directed the preparation of such a

scheme,

the Minister, if after consideration of a report furnished by

the Advisory Committee it appears to him expedient so to

do -

(i) for securing that any development prohibited by

the prescribed scheme may be carried out notwithstanding

the provisions of that scheme; or

(ii) for securing that any development permitted by

the prescribed scheme may be regulated,

may notify the suspension of the provisions of the prescribed

scheme pending the coming into operation of the varying

scheme and such provision shall be suspended accordingly;

and any such notification may suspend the provisions of the

scheme either as respects the whole of the land to which the

varying scheme is to apply or as respects any portion thereof

specified in the notification, and either as respects all development

or as respects development of any class specified in the

notification.

(2) Where the provisions of a prescribed scheme are

notified as suspended under this section, the provisions of

this Division with respect to the control of interim development

shall, as from the date of the notification, apply to

development to which the notification relates and shall so

apply as if the resolution of the council or the direction of

the Minister had taken effect on that date."

The efficacy of the notification has been challenged on the ground that it did not state that the suspension of the provisions of the Planning Scheme Ordinance was "pending the coming into operation of the varying scheme" and on the alternative ground that it did not specify with sufficient clarity the varying scheme whose coming into operation would bring the suspension to an end. It was further submitted that even if the notification did take effect under s. 342Y it did not suspend the operation of those provisions of the Planning Scheme Ordinance that defined the rights flowing from existing uses of land and buildings. It is not necessary for the decision of this case to consider whether the notification was validly made and if so whether its effect was to suspend some only of the provisions of the Planning Scheme Ordinance, nor is it necessary to consider whether if the notification was invalid it has been retrospectively validated by the provisions of s. 3 (1) of the Local Government (Amendment) Act, 1971 and must by s. 3 (2) of that Act be deemed always to have had effect so as to suspend all of the provisions of the Planning Scheme Ordinance as respects the land specified in the notification. It may be assumed that the notification was valid, that its effect was to suspend all the provisions of the Planning Scheme Ordinance in respect of the subject land and that in consequence the operation of the Residential District Proclamation in relation to that land was revived and moreover that the provisions of Div. 7 of Pt XIIA of the Act thereupon became applicable to all development on the subject land. By s. 342T (1) of the Act "development" in relation to any land is defined to include

"the erection of any building, and the carrying out of any

work, and any use of the land or building or work thereon

for a purpose which is different from the purpose for which

the land or building or work was last being used."

The consequence of the application of the provisions of Div. 7 of Pt XIIA was that interim development could not be carried out except as might be permitted by ordinance or except as might be permitted by the council under the authority of an ordinance and subject to such conditions, restrictions and provisions as might be contained in such ordinance (s. 342U). "Interim development" meant

"development of land to which a scheme applies between

the date upon which a resolution of the council to prepare a

scheme has taken effect and the date of the coming into

operation of the scheme or the date upon which the minister

notifies in the Gazette that he has decided not to proceed with

the scheme as the case may be" (s. 342T (1) ).

I have referred to these sections as they were in 1954; it is not necessary to discuss the amendments that have since been effected to them. (at p17)

11. On 25th November 1955 the minister published in the Gazette a notification which bore the heading "County of Cumberland Planning Scheme (Amendment No. 1)". The notification (inter alia) read as follows:

"The Cumberland County Council has submitted to the

Minister a Planning Scheme to amend the County of Cumberland

Planning Scheme prepared by the Council in pursuance

of a resolution of the Council, which took effect on 16th

October, 1953, the date upon which notice of the Minister's

approval of the resolution was published in the Government

Gazette.

The Minister has decided to proceed with the Scheme with

certain alterations deemed by him to be expedient, and in

accordance with the provisions of section 342J of the Act

hereby notifies brief particulars of the Scheme as set out in

the Schedule to this notification. The Scheme is in the form

of a draft Ordinance, copies of which will be available for

public inspection..."

Then were stated the places and times at which copies of the draft Ordinance might be inspected. The notification concluded by saying that interested persons might submit objections to the scheme. The draft Ordinance referred to in this notification was tendered in evidence. Its provisions are not identical with those of the County of Cumberland Planning Scheme (Amendment No. 1) Ordinance which was proclaimed on 2nd August 1957 but substantial parts of it correspond verbatim with the provisions of that Ordinance (which I shall call "the Amendment No. 1 Ordinance"). (at p18)

12. There can be no doubt that the Amendment No. 1 Ordinance was intended to be the scheme particulars of which the minister notified on 25th November 1955, that is, the scheme originally prepared by the Cumberland County Council in pursuance of the resolution which took effect on 16th October 1953. The latter resolution, which was mentioned in the minister's notification of 1st October 1954, was the "resolution for the preparation of a scheme varying a prescribed scheme" whose taking effect was under s. 342Y (1) (a) a condition precedent to that notification. The Amendment No. 1 Ordinance was therefore intended to be the varying scheme pending the coming into operation of which the provisions of the Planning Scheme Ordinance were suspended by the notification of 1st October 1954. (at p18)

13. On behalf of the appellant it was submitted that the Amendment No. 1 Ordinance was not a varying scheme within s. 342Y because it did not comply with the provisions of Pt XIIA which were by s. 2 (4) of the Local Government (Amendment) Act 1951 applied, mutatis mutandis, to any variation of the Planning Scheme Ordinance. The provisions of Pt XIIA which were so applied were those relating to variations of prescribed schemes. The only such provisions dealing expressly with variations were those of s. 342L which at the relevant time read as follows:

"A prescribed scheme may be varied by a subsequent

scheme.

Any such variation may supplement or amend (otherwise

than by extension of the land to which the scheme applies)

the prescribed scheme."

The argument for the appellant was that a prescribed scheme may be varied only by a scheme which complies with all the requirements of Pt XIIA, including the requirements of s. 342G (1) which provides that "a scheme shall in the prescribed manner define the land to which it applies", and of s. 342G (5) (a) which provides (inter alia) that a scheme shall contain provisions specifying the responsible authority or responsible authorities which shall be charged with the functions of carrying into effect and enforcing the provisions of the scheme. The Amendment No. 1 Ordinance does not define the lands to which it applies or specify the responsible authority or authorities, although the lands are defined and the responsible authorities are specified in the Planning Scheme Ordinance which the Amendment No. 1 Ordinance amends. The appellant accordingly submitted that the Amendment No. 1 Ordinance was not a scheme within the meaning of s. 342L and could not be regarded as a varying scheme within s. 342Y. Therefore, it was said, the event which was to bring the suspension of the provisions of the Planning Scheme Ordinance to an end, namely, the coming into operation of the varying scheme, had never occurred. It would follow from this argument, although it was not necessary to go so far, that the Planning Scheme Ordinance was never validly varied. (at p19)

14. The argument that every varying scheme, to be valid, must restate the definition of the land to which it applies, and repeat the provisions specifying the responsible authority, although it is intended that the definition of the land and the provisions specifying the responsible authority contained in the scheme to be varied should be continued unaltered, is quite untenable. This suggested construction would interpret the provisions of the Act in a spirit of dry literalism without any regard to their sense. A varying scheme must, by definition, be read with the scheme which it varies. When the schemes are read together the scheme as varied, to be valid, must comply with s. 342G (1) and s. 342G (5) . The provision that a scheme may be varied by a subsequent scheme does not mean that the varying scheme must repeat the provisions of the original scheme which are to remain unaltered in the scheme as varied. (at p19)

15. The Amendment No. 1 Ordinance was therefore a varying scheme within s. 342L and it was the varying scheme relevant for the purposes of s. 342Y (1) to the ministerial notification of 1st October 1954. When the Amendment No. 1 Ordinance came into operation the suspension of the provisions of the Planning Scheme Ordinance which it is assumed had been brought about by the ministerial notification of 1st October 1954 came to an end. Moreover, the provisions of Div. 7 of Pt XIIA ceased to apply to development of the land in question. (at p20)

16. Although the suspension of the provisions of the Planning Scheme Ordinance ended, and the application of the provisions of Div. 7 of Pt XIIA ceased to apply to the subject land, on 2nd August 1957, it may be that the effect of s. 3 (4) of the Local Government (Amendment) Act, 1971, which was assented to on 18th May 1971, after argument in this case had concluded, is that the operation of Div. 7 of Pt XIIA of the subject land must be deemed to have continued notwithstanding the making of the Amendment No. 1 Ordinance on 2nd August 1957. If this be assumed, however, the continued operation of Div. 7 of Pt XIIA is of no relevance in the present case because of the saving provisions of s. 3 (6) of the Local Government (Amendment) Act, 1971 which provide:

"A person who immediately before the commencement

of this Act was lawfully carrying out any development as

defined in subsection one of section 342T of the Local

Government Act, 1919, is not by reason of the enactment of

this section precluded from carrying out or continuing to

carry out that development."

Immediately before 18th May 1971 the respondent was carrying out on the new land its quarrying and brick-making activities which were development within the definition contained in s. 342T (1). If those activities were lawful immediately before the commencement of the Local Government (Amendment) Act, 1971, the effect of s. 3 (6) is that they may lawfully be continued. The question of their present legality must therefore be determined on the basis that the suspension of the provisions of the Planning Scheme Ordinance and the application of the operation of Div. 7 of Pt XIIA had both ceased, notwithstanding that for other purposes it may have to be deemed that the provisions of Div. 7 of Pt XIIA continue to apply. (at p20)

17. The crucial question that then falls for decision is whether under the provisions of the Planning Scheme Ordinance which was in force in respect of the subject land at least from 2nd August 1957 to 17th May 1971 it was lawful for the respondent without any consent to extend its quarry onto the new land and to use the new land for quarrying clay and shale and making bricks. This is the question upon which members of the Court of Appeal differed. The answer to it depends upon the effect of cll. 32 and 33 of the Planning Scheme Ordinance which, since 2nd August 1957, have provided as follows:

"32. An existing building or an existing work may be

maintained and may be used for its existing use and an

existing use of land may be continued.

33. Notwithstanding the provisions of Part III of this

Ordinance, an existing building or existing work may be

altered, enlarged, rebuilt, extended or added to by the

erection of new buildings or new works: Provided that -

(a) where the site is within a Special Uses Area Zone or

the Special Uses Area (University) Zone, the consent

of the responsible authority shall first be obtained, or

(b) where the site is not within a Special Uses Area Zone

or the Special Uses Area (University) Zone, the alteration,

enlargement, rebuilding, extension or addition is

restricted to land on which the existing building or

existing work is or was situated or to adjoining land

which immediately before the appointed day was and

has since remained in the same ownership as such

firstmentioned land."

Clause 3 of the Planning Scheme Ordinance contains definitions of certain expressions used in these clauses. "Building" includes any structure or any part thereof. "Work" is not defined, but "existing building" and "existing work" mean (inter alia) respectively a building or work erected, constructed or carried out before the appointed day. "Existing use" means (inter alia) a use of a building, work or land for the purpose for which it was used immediately before the appointed day. The day upon which the Local Government (Amendment) Act, 1951 commenced, that is, 27th June 1951, is the appointed day for the purpose of these definitions. (at p21)

18. The appellant contended that the new land was not used for the purpose of quarrying or brick-making immediately before 27th June 1951 and that therefore cl. 32 has no application in respect of the use of the new land. I would agree that the word "use" in cl. 32 means a present use; it does not include a contemplated or intended use. It is not enough to bring cl. 32 into operation that land has been acquired with the intention of using it for a particular purpose in the future. On the other hand, it is not necessary, to constitute a present use of land, that there should be a physical use of all of it, or indeed of any of it. Thus in Council of the City of Newcastle v. Royal Newcastle Hospital [1959] UKPCHCA 1; (1959) 100 CLR 1 it was held that land which was acquired by a hospital to keep the atmosphere clear and unpolluted, to bar the approach of factories and houses, to provide quiet and serene surroundings for patients and to give room for the expansion of the activities of the hospital was used for the purposes of the hospital although no physical use was made of it, and their Lordships said (1959) 100 CLR, at p 4 that "an owner can use land by keeping it in its virgin state for his own special purposes". In the same case, in this Court, Taylor J. said [1957] HCA 15; (1957) 96 CLR 493, at p 515 :

"The uses to which property of any description may be

put are manifold and what will constitute 'use' will depend

to a great extent upon the purpose for which it has been

acquired or created. Land, it may be said, is no exception

and s. 132" (of the Act) "itself shows plainly enough that

the 'use' of land will vary with the purpose for which it has

been acquired and to which it has been devoted ... But

where an exemption is prescribed by reference to use for a

purpose or purposes it is sufficient, in my opinion, if it be

shown that the land in question has been wholly devoted to

that purpose even though, the fulfilment of the purpose does

not require the immediate physical use of every part of the

land."

The facts of that case are of course distinguishable from those of the present, but those remarks support the view, which I accept as correct, that if the whole of the land in question was acquired for and devoted to the purpose of quarrying and brick-making, the whole may be held to have been used for that purpose although only part of it was physically used. Obviously where an expanse of land has been acquired for the purpose of quarrying it cannot, because of practical considerations, be excavated all at once, but this does not mean that the part which has not been actually dug up is not used for the purpose of quarrying. Similarly a farmer, who has acquired land for the purposes of an orchard, may be said to use the whole of it for that purpose, although only part has been planted with trees. (at p22)

19. In the present case, immediately before 27th June 1951 the respondent owned one tract of land, all of which had been acquired for the purposes of the quarry and brickworks, and all of which was devoted to those purposes. Some of the land was physically occupied by the buildings and by the brick pit which was in the process of gradual extension. It is beyond argument that some of the land was at the relevant date used for the purpose of quarrying and brick-making. In my opinion there is no justification for regarding the new land as separate from the old, or for saying that the old land was used, but the new land was not, immediately before 27th June 1951. The mere fact that an area of land comprises a number of parcels with separate titles and different histories does not mean that each parcel should be regarded separately for the purposes of cl. 32. If it were otherwise there would be no justification in the present case for treating the old land as an entity; each parcel comprising the old land would have to be separately regarded. However, when cl. 32 speaks of "an existing use of land" it refers to land which from a practical point of view should be regarded as one piece of land, and not to land contained within the boundaries of one subdivision, or described in one certificate of title. It is commonplace that in Sydney land which is devoted to one purpose, and generally treated as being in fact one piece of land - whether it be the site of a commercial building or industrial enterprise or the grounds of a dwelling house - frequently comprises various parcels which remain shown on separate title deeds. There is however nothing in the provisions of the Planning Scheme Ordinance that suggests a concern with conveyancing details rather than with actual use. In argument some reliance was placed by the appellant on the reference in cl. 33 (b) to "adjoining land", but that phrase does not indicate that "land" in cll. 32 and 33 primarily means land within one subdivision. When cl. 33 (b) speaks of "adjoining land", this plainly means land adjoining that on which the existing building or work was situated, provided it was and has remained in the same ownership, but whether it is within or beyond the boundaries of a particular subdivision is quite immaterial. The question in the present case is whether the whole land - the old and the new - was immediately before 27th June 1951 used for the purpose of quarrying and brick-making. The learned primary judge said that he could not accept the respondent's claim that the new land had become integrated with the old land as part of the site of the company's brick-making business as early as 1951. In the circumstances of the case, all that is meant by this finding is that before 1951 there had been no actual physical use of the new land for the purpose of that business. The evidence makes it abundantly clear that the new land was acquired and kept for the purpose of using it in conjunction with the old land. It became part of an entire area which was wholly devoted to the purpose of quarrying and brick-making and was used for that purpose immediately before the appointed day. It follows that in my opinion the respondent was entitled under cl. 32 to continue to use the whole of the land for quarrying and brick-making. (at p24)

20. Further, in my opinion, the brick pit was an "existing work" within cl. 33. The noun "work" in cl. 33 obviously enough refers to the physical product of labouring operations. It may be doubted whether "work", in its strict dictionary meaning, would nowadays include a quarry, but like the word "works" considered in Merri Creek Quarry Pty. Ltd. v. Foletta [1951] HCA 12; (1951) 82 CLR 347 , "work" is not of fixed connotation, but elastic or indefinite, and its meaning must depend on the actual language and context of the statutory provision in question (see per Dixon J. (1951) 82 CLR, at p 353 ). It is apparent from the context of cl. 33 and the definition of "existing work" contained in cl. 3 that the connotation of the word in cl. 33 must include something which has been carried out on land, and is situated on land, but is not a building or structure. Having regard to the wide meaning of the word "structure" it is impossible to resist the conclusion that "work" must be intended to refer to something done to the land itself, and that it therefore includes a quarry or mine. On behalf of the appellant it was contended that the Planning Scheme Ordinance contains a number of indications that "work" cannot include an excavation, such as a quarry. It was said that the words of cl. 33 itself show that a "work" means something which is capable of being "altered, enlarged, rebuilt, extended or added to by the erection of new buildings or new works", and that it cannot be said of an excavation that it can be enlarged by the erection of new works. The provisions of cl. 33 forbid certain things to be done to an existing building or existing work, but they do not mean that every existing building or existing work is capable of being dealt with in the forbidden way. Some earthworks could no doubt be added to by the erection of new works, but the fact that an excavation cannot be added to by the erection of new works does not mean that it is not within the clause. The phrase "by the erection of new buildings or new works" governs "added to" but does not govern the preceding participles, some of which can aptly apply to the case of an excavation. The appellant further submitted that cl. 33 (b) indicates that a work must be situated on land and that it would be inappropriate to refer to an excavation in this way, but I can see no abuse of language in saying that a quarry is situated on a particular piece of land. The appellant also pointed to cl. 41, which refers to the purpose for which a work is used, and submitted that although, if a quarry is dug in land, it is right to say that the land is used for the purpose of a quarry, it is not right to speak of the purpose for which the quarry is used. This argument is untenable. It may rightly be said in the present case that the quarry was used for the purpose of obtaining material for use in the brickworks. It was further submitted that cl. 53, which refers to "works" (here the plural is used) commenced but not completed before the appointed day, shows that the Ordinance contemplates a work that can be finished within a finite time rather than a continuous industrial process. I have already indicated that I regard the word "work" in cl. 33 as referring not to a process but to the physical result of labour done on land and the further argument that the work must be capable of coming to an end does not assist the appellant, because obviously the carrying out of the work on the land in question was capable of coming to an end. Finally the appellant drew attention to the fact that cll. 11 and 17 refer to "any permanent excavation" as well as to "work". This, it is true, provides some indication that not every excavation is a work within the meaning of cll. 11 and 17, but in my opinion these clauses do not justify a restriction of the meaning of the word "work" in cll. 32 and 33. Those clauses are designed to preserve and protect existing rights and ought to be liberally construed and not restricted by dubious implications drawn from words used in other clauses directed to a different subject matter. (at p25)

21. In my opinion, therefore, the quarry was an "existing work" within cl. 33 and the respondent had the right to extend it onto the new land, which was adjoining land which immediately before the appointed day was and has since remained in the same ownership as the old land. (at p25)

22. The final submission of the appellant was that if the use of the land for quarrying and brick-making purposes was an "existing use" within cl. 32, or if the brick pit was an "existing work" within cl. 33, the use or work as the case may be was nevertheless illegal and that cll. 32 and 33 should be construed as preserving the right to continue only an existing use that was lawful or to extend an existing work that had been lawfully carried out. (at p25)

23. We are not concerned to consider the situation that exists when a by-law or proclamation that makes a specified use of land illegal is repealed by another by-law or proclamation under which that use remains illegal. It was held in Grozier v. Tate (1946) 64 WN (NSW) 1 and Nash v. Stielow [1950] VicLawRp 10; (1950) VLR 39 that in those circumstances a provision permitting the continuance of existing uses did not permit the continuance of a use that had been, and still remained, unlawful. Like Dixon C.J. and Taylor and Menzies JJ. in Ferrum Metals Exports Pty. Ltd. v. Lang [1960] HCA 7; (1960) 105 CLR 647, at p 653 , I do not find it necessary to review those decisions and cast no doubt on their authority. However, the situation is different where an ordinance which preserves an existing use, or the right to extend an existing work, repeals or suspends a statutory provision that had made the use or work unlawful and does not re-enact the prohibition contained in the earlier provisions. In the present case the Residential District Proclamation, which it is assumed rendered the existing use or work unlawful, was expressly suspended so far as concerns the land in question by the Planning Scheme Ordinance, and the prohibitions imposed by the Residential District Proclamation were not repeated by the Planning Scheme Ordinance. In those circumstances it seems to me that when the Planning Scheme Ordinance permitted the continuance of existing uses and the extension of existing work it was intended that an existing use of land might continue or an existing work might be extended on land to which the Residential District Proclamation had formerly applied even if that use or work was unlawful under the Residential District Proclamation. I agree in substance with the conclusion expressed by Sugerman J. in Bourne v. Marrickville Municipal Council (1954) 19 LGR (NSW) 218, at p 225 (whose reasoning has been adopted by Hardie J. in H. & W. Hurdis Pty. Ltd. v. Lane Cove Municipal Council (1956) 20 LGR (NSW) 322, at p 325 and by Manning J. in Harris v. Tom Byrne Pty. Ltd. (1957) 2 LGRA 257, at p 262 ) that although cl. 32 does not authorize the continuance of a use which would contravene a proclamation under s. 309 which remains operative and applies to the land in question, the effect of cl. 57 is that in the zones therein specified, in respect of which the operation of any proclamation made under s. 309 is suspended, the authority given by cl. 32 to continue an existing use prevails over the prohibition resulting from the proclamation. In other words, the fact that a use may have been illegal while a proclamation was in force, does not take the use outside the protection of cl. 32 when the operation of the proclamation in relation to the land is suspended by cl. 57. (at p26)

24. For the reasons I have given the Court of Appeal was right in setting aside the injunction. (at p26)

25. However, the Court of Appeal made no order as to the costs either of the appeal or of the suit, because, in the view of that Court, the appeal was allowed on a ground not taken before the learned primary judge and as a result of evidence not placed before the learned primary judge. By cross-appeal the respondent seeks an order that the appellant should pay the costs both of the suit and of the appeal to the Court of Appeal. The proceedings before the learned primary judge were instituted by the appellant in reliance upon the Residential District Proclamation or in the alternative on the Planning Scheme Ordinance. As I have said, the learned primary judge held that the provisions of the Planning Scheme Ordinance were suspended with the result that if the provisions of the Residential District Proclamation had themselves been suspended, they had been revived. The Court of Appeal had placed before it new material in relation to the question whether the Planning Scheme Ordinance remained suspended, and rightly held that the land was subject to the provisions of the Planning Scheme Ordinance and that the Residential District Proclamation was suspended. It may seem regrettable and surprising that the Act and the instruments that have been issued under it should have left the law in such obscurity that an owner should not be able to discover, except after protracted litigation, whether the provisions governing the use of his land were to be found in the Residential District Proclamation or in the Planning Scheme Ordinance or in Div. 7 of Pt XIIA of the Act. However, the appellant, the local authority concerned, sought to subject the respondent to restrictions on the use of its land which could not lawfully be imposed, and the respondent ought not to be deprived of the costs of successfully contesting this ill-founded suit. (at p27)

26. I would dismiss the appeal and allow the cross-appeal. (at p27)

Appeal dismissed with costs. Cross-appeal allowed with costs.