The Northern Territory Planning Authority v Murray Meats (NT) Pty Ltd & Ors [1983] FCA 112

Federal Court of Australia|1983-05-31|Before: Fitzgerald JJ, McGregor J

Town Plan - appeal against order for declaratory relief - zoning before 1981 - Alice Springs Town Plan 1981 - limited to land physically shown on plan - Aboriginal land - Land Raghts Act - substantial completion of use of abattoir in non-abattolr area - continuation and completion not contrary to any planning law of the Northern Territory or in any other respect unlawful - effect of Planning Act 1979 - existing use provisions not to be qualified by insertion of word "lawful".

Cross Appeal - By-products section not integral part of abattoir

structure - no substantial, or any, commencement of by-products section - alternative method of disposal intended - Planning Act 1979 s.69(1) - "work" includes something erected or "works",

Aboriginal Land Rights (Northern Territory) Act 1976 (Cth.) ss.19, 66 70.

Crown Lands Act. Abattoirs & Slaughtering Act, Fourth Schedule.

Town Planning Ordinance 1964 ss.5, 39(1) Regulations Second Schedule interpretation Act ss.15 AA, 18, 52. Crimes Act 1914 s.86(1). Local Government Act 1949 s.5 (Vic.) Local Government (Amendment) Act 1971 (N.S.W.) s.3(6).

THE NORTHERN TERRITORY PLANNING AUTHORITY v. MURRAY MEATS (N.T.)

PTY. LIMITED, AMOONGUNA COMMUNITY INCORPCRATED, AMOONGUNA ABORIGINAL LAND TRUST

MURRAY MEATS (N.T.) PTY. LIMITED AMOONGUNA COMMUNITY INCORPORATED AMOONGUNA ABORIGINAL LAND TRUST

WHERE MADE : Brisbane THE COURT ORDERS THAT:

The appeal be dismissed.
The cross appeal be dismissed.
The appellant pay to the resrondents three quarters

BETWEEN: THE NORTHERN TERRITORY PLANNING AUTHORITY ANCL: MURRAY MEATS (N.T.) PTY. LIMITED AMOONGUNA CCMMUNITY INCORPORATED AMOONGUNA ABORIGINAL LAND TRUST Respondents Coram: McGregor, Lockhart and Fitzgerald Ju. Date: 31 May 1983 REASONS FCR JUDGMENT McGregor J. THE NORTHERN MJERRITORY PLANNING AUTHORITY

(defendant) 1s a body corporate constituted by the Planning Act 197S. Its functions include the submission tc the Minister of proposals or policies for the use or development of land, or wath regard to planning; considering and reporting to and advising or making recommendations to the Minister upcon any such proposal or policy, whether prepared by it or not (s.22). lt has appealed against certain orders set out below made by a judge of the

Supreme Court cf the Northern Territory. The orders were sought

an an action brought by three plaintiffs viz. MURRAY MEATS (N.T.) PTY. LiMITED (Murray Meats), a company incorporated in the

Northern Territory, AmMCCNGUNA COMMUNITY INCORPORATLL (Amconguna

Community) a bedy incorporated under the Associations Incorporation Ordinance 1963 (as it then was) of the Northern Territory, AMOONGUNA ABORIGINAL LAND TRUST {Land Trust) a bedy constituted under the provisions of the Aboriginal Land kights

The three plaintiffs had sought declaratory relief that the continued use by Murray Meats on certain land at Amoonguna in the Northern Territory and at the existing buildings and works thereon; and the continuation and completion of a certain abattoir structure undertaken by the said Murray Meats on the said land and largely completed was net contrary to any planning law of the Northern Territory including the Alice Springs Town

Following the hearing on 25, 26, 27, 28 and 29 Cctcber 1982 and 15 November 1982, decision was reserved. On 6 Lecember

1982 judament was delivered wherein it was adjudged and declared

"l. That the continued use by the First Plaintiff of the lang being the land described in the Schedule hereto and cf the existing buildings and works therecn for the purpose of yarding ard killing

feral horses and chilling, boning, packing, freezing and shipping their carcasses does not contravene the

That the continuation and completion by the First Plaintiff on the land being the

land described in the Schedule hereto of an abattoir consisting of yards, raceways, a killing floor, chillers,

boning room, packing room and freezers, does not contravene the provisions of the Alice Springs Town Flan 1981." Amconguna 1S an area south east of Alice Springs which

was for many years an Aboriginal reserve, created under the

provisions of the Crown Lands Act. Certain relevant history,

which dces not appear to be disputed and which leads up to

critical matters, is set out in the Reasons for Judgment.

On 22 July 1975 the Amoonguna Community was incorporated with a constitution defining it as "the group of Aboriginals who for the time being are resident at Amoonguna and includes all members of the Association wherever residing". The objects of

the Association include, inter alia, the promotion of the welfare

On 26 January 1977 the Land Raghts Act came into force

whereby there was created a categery cf land described as "Aboriginal land", in effect an inalienable fee simple, subject to various prohibitions and controls on dealing. It provided, inter alia, that land may beccme Aboriginal land as the result of a recommendation by the Abcriginal Land Commissioner, accepted by the Minister for Aboriginal Affairs, and made the subject of a Grant by the Covernor-Generaél. 'That Act identified areas of

Aboriginal land to be the subject of a grant by the

Governor-General, one of which areas was of 53C.5 hectares, more particularly referred to in the judgment of the learned trial

Cn 3C August 1975 the Governor-General, pursuant to the provisions of the Land Rights Act, executed a deed cf grant to the Land Trust of the land or a greater part thereof and not precisely identical with it. Nothing is said to turn on the difference between the particular land referred to in the said

Act and that referred to in the deed of grant. It is referred to

Some time before September 1980, Murray Meats investigated various proposals to establish an abattoir in the Northern Territory. On 9 September 1980 the Australian Meat and Livestock Corporation wrote to Murray Meats giving certain information about its policy as to the method of killing ct cattle and buffalo to provide meat for export for human consumption; in view of which Murray Meats looked around for a

site which would be suitable for the construction of an abattoir.

In September 1986 there was correspondence between Murray Meats and the Minister for Lands and the Department of Transport and works wherein Murray Meats manifested an intention

to establish an export horse éebattoir and by-products plant in

Late in 1960 Mr. David Douglas Murray, a Director of Murray Meats, acting on its behalf, made an approach intended to be to the Amconguna Community with a proposal to buila an abattoir on the Amoonguna land in return for which that company would train and emplcy Aboriginal people in the meatworks. The land upon which Murray Meats sought to construct this abattoir was Abcriginal land held by the Land Trust. lhe initial discussions were with a Mr. Bookie, the chairman of the Community Council, and Mr. Freeney, 1ts community adviser. For the purpose of its abattoir, Murray Meats required an area of 5-10 acres; and such an area was pointed out to Mr. Murray by Messrs Bookie and Freeney, as being land known as the Old Orchard on the Amoonguna land. Before February 1981, Mr. Murray met with councillors of the Amoonguna Community. An agreement was reached on the part of the councillors that Murray Meats might build, construct and bring on to the land that had been viewed a mobile abattoir. It was not until later that Mr. Murray became aware of the existence of the Land Trust and of the position of a certain

On 6 February 1981, Mr. Murray wrote to the Lepartment

of Primary Production, referring to discussions with that

Amoonguna Council to lecate my Abattoir on the Community."

Accompanying the letter was a plan of the proposed slaughtering facility, comprising a loading bay, storeroom, washroom, snap freezer, boning reom, chiller and quartering room and washing bay. There was also included a plan of "Froposed Bi (sic) Products Section". There was a reply to that letter from the department under the hand of Mr. B.R. Abel, a meat inspector, which his Honour said could be taken to have been written on 10 February 1981. It acknowledged Mr. Murray's letter and referring to the plans, commented:-

though in the letter Mr. Abel pointed out that that area was outside the Alice Springs Township and so the appropriate licence would be "for an abattoir in a non abattoirs area as per Fourth Schedule of the Abattoirs and Slaughtering Act". The Fourth Schedule to Regulations made under that Act does, in fact,

provide standards for an abattoir not in a licensed abattoirs

It is necessary to refer to certain legislation which

The Town Planning Ordinance 1964, the predecessor of and repealed by the Planning Act 1975S, was expressed to be "an Ordinance relating to the planning and development of towns and land in and near towns." By s.5, Regulations under that Ordinance may prescribe that a specified area of land shall be subject to the provisions of the Ordinance as 1f 1t were a town; or prescribe that land adjacent to a town shall be part of that town. However, there had been no exercise of regulation making power pursuant to s.5 to incorporate by specific reference land

Pursuant to the Town Planning Crdinance 1964 as emended,

(1) Subject to this Ordinance, land represented in a town planning scheme by a portion of the plan of the scheme shown in the manner specified in Part 1 cf the legend set out in the Second Schedule to this Ordinance as the manner in which a

zone, site or reserve is shown in the plan may be used for a purpose indicated

by the words set cut in the last columr of Part 1 of the legend opposite the name of that zone, site or reserve.

the Alice Springs Town Flan was produced, being approved con 10

July 1972. It was the Exhibit 29 referred to by the trial judge.

The second schedule refers, inter alia, tc the Amocnguna land

i Part 1 - Items having effect tc regulate the use of land

ITEM NAME CF MANNER IN PURFOSE FOR WHICH NO ZONE WHICH ZONE LAND IN ZONE SITE CR SITE OR SITE OR RESERVE RESERVE RESERVE IS MAY BE USED SHOWN 1N TOWN PLAN 61 Welfare Yellow Edge Social welfare Reserve with Green purposes Hatch

Pursuant to s.5 of the Town Planning Ordinance 1964,

Town Planning Regulations were made on 22 December 1978 by which various areas of land "being adjacent to the town specified in

respect of that area of land in that Schedule" were prescribed to

be subject to the provisions of the Ordinance if it were part of

that town. The area so prescribed included the Amconguna land portions 461 and 568. However Town Flanning controls were not applied to it. The Plan on its extreme eastern side shows a

small part of the western edge of the Amconguna reserve; but not including that on which the abattoir was constructed; and the yellow edging of the Amoonguna land 1s incomplete, extending to the right hand or eastern edge of the Flan with no closure in a

north south direction indicating, as the first judge found, that it was not intended to include any more of the Amconguna land

Ordinance 1964 as amended. It came into force on 3 August 1979. However a Town Planning Scheme in force immediately before the Act came into operation was deemed to be a planning instrument mage under the Planning Act 1979 (s.171(1)); and the Second Schedule to the repealed Ordinance was deemed to form part of each planning instrument, deemed to be a planning instrument by the prior sub-section, s.171(2). Thus the 1972 Alice Springs

Town Plan became a planning instrument made under the Planning

Act 1979. Regulation 5 of Planning Regulations made under that Act specified areas which "are to be treated as towns". The land so described included the abattoir site; but no legislation

extended the controls of the Plenning Act 1979 to the said areas. It seems that the mere prescription of land including the

abattoir site as land to be treated es a town did not extend the

On 10 April 1981 there came into force the Alice Springs

Town Plan 1981, a planning instrument under the Planning Act

This brought into existence the Town Plan 1961 which applies to the abattoir site. its effect is, as the trial judge found, to zone the Amccnguna land including the abattoir site as cone of special purposes zones. It does not permit development of land as an abattoir. His Honour, after referring to this

Plan, summed up the position which then obtained as follows -

"The plaintiffs then are faced with this situation. Whatever the lamitations of the Town Planning Ordinance 1964 and the Alice Springs Town Plan 1972, 1f the Alice Springs Town Flan 1981 1s valid, then, subject to the existing works and existing use provisions of the Planning Act, development of an abattoir 1s contrary to the scheme."

In his Reasons for Judgment, and after referring to the

evidence, the judge at first instance summarised his findings and

"h. As at 10 April 1981 the abattoir teaing constructed by Murray Meats on _ the Amoonguna land had been substantially

As at 16 April 1981 the abattcir had been used for the slaughtering of horses for export for human consumption.

As at 10 April 1981 the abattoir did not include a by-products section nor had

there been any use of the abattoir for by-products.

When the Alice Springs Town Plan 1972 came into operation, it did not extend beyond the boundary of the town of Alice Springs and 1t did not extend to N.T. portion 461 or 566. .

The Town Planning Regulations made pursuant to the Town Planning Ordinance on 22 December 197& aid not have the effect of extending the Town Plan 1972 to the lana on which the abattoir stanas.

not fall within the concept of social welfare purposes in the Second Schedule to the Town Planning Crdinance.

Regulation 5 of the Planning Regulations made pursuant to the Planning Act 1979 specified the Amccnguna land as land to be treated as part of the town of Alice Springs. Of itself that did not extend the scope of the Town Plan 1972.

The specification of Planning Area & by notice published in the Gazette of 7

August 1979 did not extend the scope of the Town Plan 1972.

The Town Plan 1972, the subject cf Exhibit 29, did not extend' beyond the land therein shown. In particular it did not purport to include portion 461 or

portion 565 except as shown on that plan. It did not purport to extend to the

The evidence failed to demonstrate that Exhibit 29 was intended to relate to any land other than that shown on the exhibit itself and failed to demonstrate that the land as shown on the exhibit extended

beyond those sections of portions 461] anc 568 actually depicted.

The effect of s.171 of the Planning Act was to deem the Town Plan 1972 to be a planning instrument under the Flanning Act. It did not bring a new town plan into existence.

The Alice Springs Town Plan 1981 zoned the Amoonguna land including the abattoir

site as Sl, limiting the development of the land to institutional purposes.

comply with s.44 of the Planning Act; if there was such a failure it was not

The distinction in the Planning Act between an existing building or work and an existing use in the present case may

not be vital because s.69(3) permits an existing building or work to be used for the purpose for which it was erected."

Neither the consent of the Central Land' Council nor the

consent of the Minister was given to any transaction between the

The argument for the defendant, and repeated before us by senior counsel for the appellant, was that the 1972 plan is not merely a plan, it is legislation; what he describes as a "jJuristic concept" and that the words ""Amoonguna Reserve" appearing on the plan indicate that the whole of the reserve including the portion not depicted by 1t falls within the scheme.

The effect of counsel's argument would be that quite apart from

the Amoonguna Reserve other land of a particular category not shown on the plan would be regulated by it, Just as what was shown on it was regulated. So for example, the whole Tedd River Recreation keserve, part of which was shown on the Plan, would be controlled no matter how much further it extended. In my opinion this proposition 1s net acceptable. it would appear to make the plan a mere- token, which when 1t 1S examined in its entirety, 1t is not. However it has to have limits. [ accept, as did the trial judge, that the plan, Exhibit 29, was not intended te refer

to any land not physically shown cn it. The appeal on this

construction and interpretaticn of the Land Rights Act. Counsel

submitted that notwithstanding there were no planning ccntrols

the plaintiffs were precluded from obtaining the relief sought; that the use of the land for the purpose of an abattoir and the

construction of it on the said land was in contravention of the

provisions of the Land Rights Act, illegal and contrary to public policy and therefore, in the eyes of the law a "nullity". He

"(1) Except as provided by this section or section 20, a Land Trust shall not deal with or dispose of, or agree to deal with or dispose of, any estate or interest in land vested in it.

(4) With the consent, in writing, of the Minister and at the direction, in writing, of the relevant Land Council, a Land Trust may -

(a) grant a lease or licence in respect of the whole, or any part of, the land vested in at to any person for any purpose; and

(be) transfer to another Land Trust, or surrender to the Crown, the whole of its

estate or interest in the whole, or any part of, the land vested in it.

(5) A Land Council shall net give 4 direction under this section for the grant, transfer or surrender of an estate or interest

in land unless the Land Council is satisf1ed that -

(a) the traditional Aboriginal owners (1f any) of that land understand the nature and purpose of the proposed grant, transfer or surrender and, as a group,

(b) any Aboriginal community or group that may be affected by the proposed grant, transfer or surrender has been consulted and has had adequate opportunity to express its view to the Land Council; and

lease or licence - the terms and conditaons ot that lease or licence are reasonable.

(6) Where a Land Council, in giving a direction for a proposed grant, transfer or surrender of an estate or interest in land, fails to comply with sub-section (5), that failure does not invalidate that grant, transfer or surrender unless the person to whom the grant, transfer or surrender was made procured the direction of the Land Council by fraud.

and to Part V1ll cf that Act including ss.66 and 70 ~

"66. A reference in this Part to an estate or interest in Aboriginal land includes a reference to -

(b) an interest arising out of the operation cf the Atomic Energy Act 19535 or any other Act authorizing maining for

use of land in accordance with section 12A, 14, 18, 18A or 1&B."

"FO (1) Except in the performance of functions under this Act or otherwise 1n accordance with this Act or a law of the Northern Territory, a person shall not enter or remain on Aboriginal land.

Trust, has an estate or interest in Abcriginal land -

(a) a person 1s entitled to enter and remain on the land for any purpose that 15 necessary for the use or enjoyment cf that estate or interest by the owner of the estate or interest; and

(b) a law of the Northern Territory shall not authorize an entry or remaining on the land of a person if his presence on the land would interfere with the use or enjoyment of that estate or interest by the owner of the estate or interest.

and to ss. 67, 68 and 163 of the Planning Act 1979 ~

"67.(1) In this Part, "former planning instrument", in relation to any land to which a planning instrument applies, means' the planning instrument which applied to that land immediately before the date of commencement of

(2) For the purposes of this Act, in relation to any planning instrument -

building or existing work, as the case may be, if -

(1) 12t was ain existence immediately before the date of commencement of the planning instrument; or

(b) the existing use of any land, building or work is the use of the land, building cor work, as the case may be, for the purpose for which it was used immediately before the date of commencement of the planning instrument.

(1) Subject to sub-section (2), a perscn shall not be held to contravene the provisions of a planning instrument by reason only that he continues to use any land, existing building or existing work after the date of commencement of the planning instrument for its existing use.

permit the use of any land, existing building or existing work to which a former planning

instrument applied for a purpose which was not authorised - (a) by or under this Act; or

Senior counsel for the appellant submitted that on the evidence there had been an agreement to deal or a dealing with the land on which the abattoir was sighted, that there had been a disposal of an estate or interest or lease of the land contrary to s.19 cf the Land Rights Act; that the scheme of the Act was tc regulate what use and objects may be carried out on such land; that the use and occupation of the land was to be reserved solely for Aboriginals unless the Act expressly permits other use or occupation. Further, he argued that Murray Meats did not come within the category of persons so permitted; that the purpose of the use of the land by the first plaintiff was not a purpose or use for the benefit of Aboriginals but for a commercial operation. He said, on the evidence, no direction had been given

by the Central Land Council allowing use by Murray Meats.

Counsel then referred to Yango Pastoral Co. Pty. Limited v. First

Chicago Australia Limited (1978) 139 C.L.R. 416 at p.429 per Mason J. and to the Planning Act 1979 s.6&. he submitted that

the declaratory relief sought should have been refused because the activity of Murray Meats was illegal and forbidden by the Land Rights Act, or that, as a matter of discretion, relief should have been refused. He contended, further, that there was an abattoir construction activity and use by the first plaintiff relied upon under the existing use provisions of the Planning Act 1979 s.68; yet the only use protected was a legal use; that insofar as their purported operation and effect would be

inconsistent with regulation of Aboriginal land by the Land

Rights Act, that building and the use was illegal; ss. 68 and 69 should be read down so that the existing use would not include a use prohibited under the laws of the Northern Territory including the Land Rights Act. No use which was illegal could be relied on as an existing use within the meaning of s.68; being illegal, it

was a "nullity". He referred to s.163 of the same Act.

Senior counsel for the respondents submitted that there was no contravention of the Land Rights Act by the building or use of the abattoir; the continued use or existing use which s.68 of the Planning Act 1979 permitted was not to be qualified

by the insertion of "lawful" before ""use" - as he contended the

He referred to H. & W. Hurdis Pty. Ltd. v. Lane Cove Municipal Council (1956) 2C L.G.R. (N.S.W.) 322 at p.325; Bourne

v. Marrickville Municipal Council (1954) 19 L.G.R. (N.S.W.) 216;

Parramatta City Council v. Brickworks Ltd. (1972-73) 126 C.L.R.

at p.25 per Gibbs J. as he then was. Re submitted the argument was stronger against any qualifying or weakening of the existing use provision where the illegality relied on was in a different Act on a different subject matter. (p.192). He referred to

Vumbaca v. Baulkham Hills Shire Council (1978-79) 141 C.L.R. 614;

Parramatta City Council v. Prickworks Ltd. (supra) at p.6. He submitted that no authority supported that the Land Rights Act or

like provision concerned with a subject matter other than land use can be said to avoid the effects of a land use in fact which

was lawful under the land use legislation then in force; that aided by s.67(2), s.68 was concerned with a factual determination

as to the existence of, as I understand him, building work or

use; that s.67 and s.68 can give rise to protection though not

referred to Ferrum Metal Exports Proprietary Limited v. Lang (1960-61) 105 C.L.R. 647 at pp.654,655. As to the significance

of s.70 of the Land Rights Act, he contended that the provisions of the Act relate to entry and remaining on Aboriginel land, not to what the entrant does when cn the land; nor was there any evidence of breach; if there was then the penalty provided for

such breach may be sufficient. As to the argument by the

appellant relying on s.19, counsel submitted that the trial judge

had reached the correct conclusion; the section was concerned with estates and interests in land. Re contrasted the language with "occupation or use" in sections 14 and 15; and s.19 did not

concern itself with permission to enter or dc what would otherwise be a trespass; and the breach of s.19 would be by the person to whom the command was addressed i.e. the Land Trust. As to the argument that the actions of the first plaintiff was against the policy of the Land Rights Act, he contended that the Act was concerned specifically with the granting of traditional Aboriginal land for their benefit; and not a general purpose Act intended to benefit Aboriginals. Section 163, he submitted, was concerned with planning; it did not affect applications under other acts and regulations relating to use and development of

land; that a law of the Territory meant an enactment and not,

e.g. the law of torts. He referred to the Interpretation Act

(Northern Territory of Australia) ss.15, 18 and 52 as assisting

to discern the meaning of a law of the Territory. There was no

basis for saying s.163 struck down the existing use provision in

It will now be convenient to consider the arguments raised in the appeal, bearing in mind that on the view already expressed the Alice Springs Town Plan 1961 Cid not regulate or control the part of the Amoonguna reserve not shown on Exhibit

2S. As to the argument cf a contravention by constructing and

using an abattoir as contrary to the Land Rights Act I suggest,

its policy may be inferred from its short title. Some further expansion or commentary on this is to be found in R. v. Toohey & Crs; Ex parte Attorney-General for the Northern Territory (1979-80) 28 A.L.R. 27 per BarwickC.J. at p.32 (dissenting though not relevantly on this subject) and per Stephen, Mason, Murphy and Aickin JJ. at p.37. They considered the mest important provisions were ss.11 and 12 enabling Crown Land to be granted to Land Trusts to be held for the benefit of those Aboriginals entitled by Aboriginal tradition to the use or occupation of that Land. the thrust of the provisions, I consider, is in granting of land to be so held. Nothing in the use which has occurred at the Amconguna Reserve in relation to the abattoir 1s inconsistent with or against any such policy. In my view the argument in this area 1S unacceptable. None of the respondents' actions were in opposition to or inconsistent with ss.19 or 70; or contrary to the granting of such land, even if it could be said that

thereafter there was a misuse or an impermissible use of it.

I do not accept that anything dcne here by the Land Trust is contrary to s.19 of the Land Rights Act. It did not deal with or dispose of an estate or interest 1n land vested in

Section 163 cof the Planning Act 1979 was referred to briefly. Negative in form, 1t has no application here. It saves or preserves the operation of other Acts of the Territory; at

dces not qualify at all the operation cf Part 1V of that Act.

The Land Rights Act is not a law of the Territory, cf. Crimes Act

1914 s.86(1) and the discussion in Sankey v. Whitlam (1978) 142

The Land Trust may, in conformity with s.19(2), (3) and (7), grant a lease or license. On the evidence there has been no lease or license granted by the Land Trust; in fact, the arrangement 1s, with respect, aptly described by the learned trial judge as "very loose". The trial judge found that this was between the Amoonguna Council and Murray Meats. The Land Trust had not yet entered into an arrangement with interested parties. Though not satisfied that there is any reason to depart from the finding of the trial judge adverse to the appellants 1.e. that the Land 'Irust has not dealt with or disposed cf an estate or interest in this land to Murray Meats, I prefer not to express

this view, as did the trial judge, in terms of "no evidence".

The appellant has argued that any existing use upon

which the plaintiffs might rely for a continuation of the

abattoir operation by both use and additions to buildings would

require that the previous (existing) use or erection was "lawful". The word "lawfully" was used by the draftsman in equivalent legislation: See e.g. Local Government Act 1949 s.5 (Victoria); Local Government (Amendment) Act 1971 (N.S.W.) s.3(6). However, the terms of s.68(1) and (2) of the Planning Act 1979 are explicit: they de not indicete, imply or require

any insertion of the word "lawful" or "lawfully"; and perhaps

even an earlier use or erecting which was unlawful does not thereby fall outside that which by s.6& 1s permitted to continue

cf. Parramatta City Council v. Brickworks Ltd. (supra) per

Gibbs J. (as he then was) at p.26 with whose reasons other

members of the Trust agreed; per Walsh Jd. at p.6. The effect of the Parramatta case is that in the particular not dissimilar legislation a previously "unlawful" use was yet permissible under later legislation. If the legislature was not intending to permit continuation unqualified of existing use it would easily have said so; particularly when one must assume that the draftsman of s.66 was aware of legislation elsewhere on such

During argument, reference was made from time to time to Ramsden _v. Dyson (1866) L.R. 1 H.L. 129. Even though, so the

argument ran, there was no illegality, the Land Trust could not

give Murray Meats a notice to quit because it had agreed, thovgh not yet by any formally concluded dccument, that Murray Meats should have exclusive use and occupation of the relevant land, and erect and conduct an abattoir there (which has been done), and employ persons associated with the Land Trust; and there 1s an agreement to pay rent; thus, it was argued, Murray Meats has legal rights an relation to the land and to remain in occupation

of it; that this was some evidence that the Land Trust had disposed of an estate or interest in land contrary to s.19 of the Land Rights Act. The argument was not limited to Ramsden v.

Dyson (supra) which was, of course, an action for compensation

and to stay ejectment, for a declaration that the appellant was entitled to have a lease granted or lien on the property. A more explicit summary of that case than was offered in argument was expressed by Jordan C.J. (with whom Long Innes and Davidson JJ.

agreed) in The N.S.W. Trotting Club Ltd. v. Council of the

Municipality of the Glebe (1937) 37 S.R. (N.S.W.) 266 at pp.306,309 -

"What 1s usually referred to as the principle un Ramsden v. Dyson (of which that case was not itself an illustration) or equitable estoppel by acquiescence, becomes applicable where a person improves land in the mistaken assumption that 1t 1s his own, the true owner

being aware of the mistake and deliberately doing nothing to undeceive the other; in such a case a Court of Equity, so far as it can, will prevent the owner from profiting by the

Wensley ydale oy in Ramsden Wy Dyson and Michaud v. Montreal -(P.C.) "161) supplies an

At a glance

Court

Decision date

Before

Source

Judgment (497 paragraphs)