Shire of Perth v O'Keefe

High Court of Australia|1964-07-01|Before: Owen JJ, Kitto J

For the reasons stated I am of opinion that the declaration made in the order now under appeal describes too widely the purpose for which the respondents' land was being used at the commencement of the by-laws, and it should be replaced by a declaration that the only purpose for which by-law 372 permits the land to continue to be used is the purpose of pottery making.

Special leave to appeal being granted, the appeal should be allowed and a declaration made accordingly.

The purpose for which the premises were being used at the relevant time was pottery making. It is conceded that pottery making falls within the description of light industry but it does not follow, either in logic or in town planning, that use for one purpose which falls into the category of light industry is to be regarded as use for any purpose which falls into that category.

It is true that in some of the Perth Road Board By-laws (e.g. by-law 354) "light industry" is named as "a purpose" but it is equally true that in other by-laws "purposes" are stated with much greater particularity (e.g. by-laws 337, 347, 349 and 351). All that can be gathered from a survey of the by-laws is that in some places the word "purpose" is used with greater particularity than in others. When it is necessary to determine whether a use of premises which would otherwise be prohibited is allowed by virtue of by-law 372, it seems to me necessary to look to use for a particular purpose such as an office or a shop and not to use for a general purpose such as industry or light industry simply because so many uses permitted by local government legislation are of a very particular description.

I agree with the judgment of Kitto J. which I have had the advantage of reading but I would prefer to express no opinion upon a question such as whether greater particularity than use for a shop is requisite. As at present advised, it seems to me that it may be, for instance, that premises used as a butcher's shop at the relevant time could subsequently be used as a small goods shop. It is, of course, common for shops in a shopping centre in a residential area to be used from time to time for the sale of different wares and I would not wish to say anything here to cast any doubt upon the lawfulness of such changes.

In my opinion the appeal should be allowed for the reasons given by my brother Kitto whose judgment I have had the opportunity of reading.

High Court of Australia Kitto, Menzies, and Owen JJ. Shire of Perth v O'Keefe [1964] HCA 37

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