Parramatta City Council v Brickworks Ltd [1972] HCA 21;

Parramatta City Council v Brickworks Ltd [1972] HCA 21; - HCA 1972 case summary — Zoe

[14]

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)

[21]

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)

[23]

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)

[38]

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)

[77]

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)

[78]

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)

[81]

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)

At a glance

Court

Decision date

Before

Source

Judgment (85 paragraphs)

Parramatta City Council v Brickworks Ltd [1972] HCA 21; (1972) 128 CLR 1 (14 March 1972)

Parties

Legislation Cited (2)

Cases Cited (5)