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

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:

1. The appeal be dismissed.
2. The cross appeal be dismissed.
3. 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

1979. 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

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

3. 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.

4. 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. .

5. 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

16. 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

(c) an interest arising out of the taking possession, ming or occupation of land by

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.

68. (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

illustration of the application of the rule. There 1s also the other principle, of which Plimmer v. Mayor of Wellington (9 A.C. 699) affords an illustration, which 1s referred to by Lord Kingsdown in Ramsden v. Dyson, that if a person lays out money in improving land which he knows to belong to another, and does so, to the knowledge of the other, on the faith of an express or implied promise from that other that he is to have some interest in the land, a Court of Equity, so far as it can, will compel the other to give effect to the

promise. It 1S pointed out in Canadian Pacific kailway Co. v. The King ((1931) A.C.414 at 428) that this type of case depends on contract express or implied. Neither of

these principles can, however, be applied if the interest sought to be established éegainst the owner of the land 1s an interest which he has no power lawfully to create: Attorney-General v. Municipal Council of Sydney (20 $.R.46; 6 Austn. Digest 255)."

However, even if a court might consider a case had been made out for compelling conveyance of title, it would not necessarily do so, but give some lesser relief. See generally Equity Loctrines & Remedies, Meagher, Gummow and Lehane para.171s suggesting that the equity in such cases might be to strip a profit, not complete a gift. It may be a matter for debate whether in the hypothetical situation of an action e.g. ejectment by the Land Trust against Murray Meats, the latter could compel the Land Trust to make good an informal arrangement for a ten year licence; or whether it would be appropriate to "strip" the Land Trust of any profit, if there were any, unconscionable cr otherwise. This subject 1s discussed with detailed reference to

current authority in Cases and Materials on Equity and Trusts (1982), Heydon, Gummow and Austin at pp.300,30l.

The transfer of even an interest in Aboriginal land is not achieved without co-operation of persons who are not parties to this litigation, and precedent steps. See s.19(4). See also Halsbury's Laws of England 4th Ed. para.1515 and cases cited at note 5. So if a court intervened in a hypothetical action by the Land Trust to remove Murray Meats it would, I suggest, not be obliged, or even be likely, to attempt to -procure a grant of any interest where the other persons named in s.19(4) Gid not co-operate. These matters were not fully argued before us. 1 mention them merely because I am by no means satisfied, if it were necessary to say so, that the Land Trust on the evidence and

findings here could, by recourse to Ramsden v. Lyson principles,

be said to have disposed or could be compelled to dispose of any estate or interest in the Amoconguna land; or to perfect any

incomplete disposal - cf. Kennedy v. Vercoe (1960-61) 105 C.L.R.

521; Brown v. Beffer (1966-67) 116 C.L.R. 344 per the majority at

In my view, the Plan, Exhibit 29, did not regulate or

control the use of the land on which the abattoir was erected. There 1s no basis for reading into s.19(1) and (2) the word

"lawfully". There 1s nothing contrary to the policy of the Land

Rights Act by the erection or use of the abattoir structure were such an order sought in an appropriate case. There has not been any disposal of an estate or interest in the relevant land, nor would a court compel such an action were that contention advanced. The existing use provisions are sufficient to avoid the impact of the Alice Springs Town Plan of 1981.

Senior counsel for the respondents argued only one ground in support of the Cross Appeal, i.e. as to the conclusion of the trial judge that the building or work which had substantially commenced by 10 April 1981 did not include a by-preducts section. He submitted that the trial judge was in error in his conclusion; that having regard to the findings of fact made, interpreted in the light of the correct legal test, the consequence would be that the by-products section was part of that which gained the protection of section 6&. Re submitted that the effect of the reasons for judgment was there was an

intention in acquiring the land to erect, even if not immediately, the by-products section; it did not cease to be

part of what gained the protection of s.68 because not commenced

at once. The meaning of "work" in s.69(1) was "works" (as in e.g. "steel works") "or complex", there being a contrary intention to ""work" being used in the defined sense. work is something erected as well as used. He referred to Dawson v.

Hoffman Brick and Potteries Ltd. 1924 V.L.R. 208 at pp.210,211;

Merri Creek Quarry Pty. Ltd. v. Foletta (1950-51) 62 C.L.R. 347 per Latham C.J. at p.351; Parramatta City Council v. Brickworks

Ltd. (supra). He argued that the purpose for which the land was put or intended to be put, and as I understand him there was in that sense an existing user, was one which inclides' the

establishment of a by-products section. He argued that the

correct view was as stated in Council cf the City of Newcastle v.

Royal Newcastle Hospital (1956-57) 96 C.L.k. 493 py Taylor G. at

p-515. He submitted, on evidence to which he referred, that work

including the by-products section was embarked upon prior to 10

April 1981; the mere fact, there being no abandonment, that it was not intended to commence erection of the by-products section at once did not mean 1t was not part of the complex of buildings; that, in effect, the trial judge may have addressed himself to the wrong issue. The real question was: what had been substantially ccmmenced or included, there being no change in intention or finding that the intention had ceased to exist. He submitted that whether the by-products section was really part of the abattoir structure; or part of "work" which the plaintiff was then entitled to complete, the result was the same - an entitlement to complete. Accordingly, he submitted that his clients were entitled to the declaration which as to an entitlement to complete the abattcir building included the

Senior counsel for the appellant, in reply, said that in

view of the findings of fact, no issue remained = for determination; there had been no_- substantial, Or any, commencement of a by-products plant. He referred to e.g. Bourne

v. Marrickville Municipal Council (1954) 19 L.G.R. (N.S.W.) 218

at p.223. He argued that an abattoir complex does not necessarily, in that concept, include a by-preducts plant; that it was a correct approach to look at what had been done on 10 April 1981, in the effect he argued the trial judge had found there was no intention in March or April 1961 to build the

by-products section; that the respondents had failed to show the

trial judge had fallen into an error in his findings.

section was not an integral part of an abattoir was not

challenged before us but, as I have said, claimed to be irrelevant. The finding was one open to his Honour and, in my view, 1s not irrelevant. He referred to Mr. Murray as "adamant"

from the outset that the abattoir was to include a by-preducts

section. His Honour was satisfied that Murray Meats "contemplated" a slaughtering facility which included a by-products section. These are not findings that it was always

intended to construct such a section as part of the abattoir; the finding of intention is that in the early stages viscera was to be buried, as has taken place. It 1s, in my view, significant that, having referred to the evidence of a Mr. Fox, Mr. Murray had been told of a departmental objection to one aspect of a

by-products section. His Honour quoted from Mr. Fox's evidence

that Mr. Murray had said he "wanted nothing to do with a by-products section". So in the result, the findings do not

include an intention to construct the by-products section which,

as has been found, is not anyway, an integral part of an abattoir; but there 1s a positive finding that an alternative method of disposal was intended. 1 do not accept that in the light cof the findings made and omitted to be made, the reference

to Taylor J.'s statement in the Council of City of Newcastle v.

Royal Newcastle Hospital case (supra) 1s of assistance to the

respondents' argument which requires there tc be a "purpose" even 1£f not fully immediately to be fulfilled; ne relevant purpose

has been found except perhaps in relation to an abattoir.

In the result, the order I propose 1s that the appeal

and cross appeal be dismissed. The appellant should pay to the

respondents three quarters of their costs of the appeal and cross

| coreif that this and the 2 ® precesing paces sre a true copy of Lhe reasons for

NORLHERN TERRIGORY CF AUS' RALIA NO. NIG 30 of 19b6

ON APPEAL FROM THE SUPREML COURT OF THE NORTHERN TERRITORY CF AUSTRALIA

Appellant AND: MURRAY MEATS (N.T.) PTY. LIMITLD AMOCNGUNA COMMNULITY LNCORPCORKATED AMOOhGUNA ABORIGINAL LAND TRUST Rkespcnaents LOkAK: McGregor, Lockhart and Pitzgeralu Jd. DATL: 31 MAY 1983

Lockhart g.: Amconguna is just south-east of Aiice Springs. I1t covers an area of about 530 hectares and was for many years an Aboriginal reserve. The fee simple to Amoonguna is vested in the

third respondent, Amoonguna Aboriginal Land Trust, pursuant to

the provisions of the Aboriginal Land kights (Northern Territory)

Act 1976 ("the Land Rights Act"). The second respondent,

Amoonguna Community Incorporated, 1s a body incorporated under

8 me em - Me etarhatdd lewettal| ete Ethan am ee ee ee alae Lae meee

the Associations Incorporation Ordinance 1963 of the northern

Territory. it is not a land holding body and has no statutory powers or duties with respect to the Aboriginal lend at

Late in 1980 David Douglas Murray a Girectcr of the first respondent, Murray Meats (N.T.) Pty. Limited, approached the Aboriginal community at Amooncguna with a proposal to build an abattoir on their land and to train and employ sboriginal people in the abattoir. the first respondent needed an area of 5 to 10 acres for its abattoir. Mr Murray discussed the proposal with various pec. le including Government officials. Corresponaence was exchanged. Letween February and April 1961 the first respondent enterea upen the amoongunz lard, cleared portion of it anu

The learned primary Judge ('loohey J.) held that by 1u April 1981 the construction of the abattoir had been substantially commencec and that it had been used for the

slaughtering of horses for export for human consumption. These

His Honour also found that as at 10 April 1981 the abattoir being constructed by the first respondent gid not include a by-products section. 'This finding is challenged by the

eee ne te - -~ meen b heat opal ott Atedal 2b mere ten ee

The significance of the date 10 April 19%b1 as that on that day the Alice Springs Town Plan 1981, a planning instrument under the Planning Act 1979 (N.T.) "the Planning Act" came into force and it provides (by section 68 and 6%) for the protection of certain existing uses. Those two sections are central to the ecutcome of the appeal ancé crcoss-appcal. They provide as

"68. (1) Subject to sub-section (2), a person shall not be held to contravene the provisicns of a planning anstrument 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.

(2 Lub-secticn (1) does not apply te permit the use ci any land, existiny burlding o2 eyisting work to which a former planning instrument applied for a purpose which was not authorized -

69. (1) Subject to sub-section (2), a person shall not be held to contravene' the provisions of a planning instrument by reason only that he continucs ana "completes the erection of a builaing or work after the date of commencenent of the planning instrument 1f the erection of a building or work was substantially commenced before that date.

(2) Sub-section (1) does not apply to permit the continuation end completion of the erection of a building cr work on lana to which a former planning instrument applied if the erection of that building or work was not authorized -

(3) A building or work erected under this section may be used for the purpose for which it was erected."

conveniently under three headings which 1 shall deal wath ain

The appellant relied on sub-s. 68(2) in support of its contention tuat the Amoonguna land could not be usea as an »Matltorr., fhe appellant contended that the 1972 Alice Springs Jowr Plan, the predecessor of the 1951 Town Plan, was "a former planning instrument" which applied to the Amoonguna land by classifying it as a "welfare reserve" so that 1t could be used solely for "social welfare" purposes, that the use ct part of the land as an abattoir was not for "social welfare" purposes, so that sub-s. ©8(2) of the Planning Act applicd to prevent the existing use protection that might otherwise have been atforaed

The Planning Act repealed its predecessor, the Town

Planning Act 1964, previously called "the Town Planning Ordinance

1964". For convenience 1 shall refer to it as "the Town Planning Ordinance 1964". The Long title to the Yown Planning Ordinance

1964 describes 1t as "an ordinance relating to the planning and

i - Weed are 6 eae ee bret Branatenne Be ot eet me ee

developing of towns and the use of land in or near towns."

Sub-section 39(1) of the Town Planning Ordinance 1964

(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 lL of the legend set out in the Second Schedule to this Oraininee as the manner 2n which a Zone, Sitc or reserve is shown in the Elan may be used for a purpose indicated by the worus set out in the last colunn

of Part 1 cf the legend opposite the name of that zone, site or reserve."

The legend in Part 1 of the Second ochcdule included item 61 which stated that land bearing that Item number, being a "Welfare Keserve", may be used for "Social Welfare" purposes, an

expression that 1s not defined. The manner in which such land

was to be shown in a Town Plan was "Yellow Edge with Green

prohibitea the use of land to which a town planning scheme

applied for a purpose other than a purpose permitted by or under

The relevant town planning scheme for the purposes of this case was the 1972 Jown Plan. It was constituted by a plan and a legend. The plan has a number of curious features. For

example, 1t does not delineate the western boundary of the Town

of Alice Springs. lts boundaries 1n some cases Go not coincide with the boundaries of a particular "Zone Site cr heserve" or with the boundaries of particular lana. Notwithstanding that the legend in Part 1 of the Sccond Schedule to the 'lown Planning Ordinance 1964 provided that the manner in which a "Zone Site or Leserve" vas te be shown 1n a Town Plan was by an Ldge cf a particular cclour with Hatching of another cclour, the 1972 Town Plan slows gone land as a "Zone Site or keserve" and depicts it by en Lace ci @ perticulal: colour with latching of another

coleur, but the coloured Edge is not conpleted aleng the relevant

side of the Plan. This applies to both private and public land.

The Amoonguna land comprises two portions: 461 and 566. It 1s shown on the 1972 Tovn Plan as being outside the boundaries of the Town of Alice Springs. the 1972 Town Plan shows only a small part of portion 461 namely, part of the north-west corner of the portion on the northern side of the Todd hiver. It also shows a small rectangular strip of portion 568 south of the lodd River along the western edge of the portion. The abattoir 1s on portion 461 but well south-east of the part shown on the Plan. Only a small segment of each portion is depicted in the 1972 Town Plan. The two small segments of the Amoonguna land defined on the Plan are shown as linked by a symbol known to surveyors as a vincuLum. The primery Judge found that the vinculum "serves no purpose other than to indicate to the viewer that the Amoonguna reserve includes portions 461 and 566." 'lhe Plan shows such of

the Amoonguna land as is there depicted as being hatched in green

with a yellow edge but not along its eastern boundary which is the edge of the Plan. It describes the land as "Amoconguna Reserve". It was argued bcfore the primary Judge that the abattoir on the Amoonguna Land answered the Gescription of a "social welfare" purpose. lls Honour rejected that contention

the primary argument cf the appellant was that, although only a small portion ot the Amoonguna land is physically yeprusentean on the Plan, there are clear indications that the whole Of the Amoonguna land fell within the Plan. Particular reliance was placed on the matters to which 1 have alrecdy referred. 'the appellant conterded that the 1972 Town Plan is not

merely a visual concept, but a "Juristic" concept. J P

The primary Judge held that the onus of showing that the 1972 Town Plen extended to the abattoir site lay on the appellant, that on its face it does not do so, that the evidence failed to demonstrate that the Plan was intended to relate to any part of the Amoonguna land except that actually depicted there and that the notation "Amoonguna Reserve" was "descriptive of

The matters relied on by the appellant in challenging these findings of the primary Judge fail to convince me that the fandings were crroneous. A town planning scheme must clearly

define the uses to which land included in 1t may be put. This is

especially so where, like the present case, the scheme consists solely of a plan and a legenaG. Lancowners rights and powers are vatally affected by town planning schemes. Penalties are inposed for the unauthorised use of land to which a town planning schere applies (for present purposes s.44 of the own Planning Urdinance 1964). 1t would be wrong to deprive landowners of vested rights

of ownership by doubtful] implications drawn from town plans.

Section 39 of the Town Planning Ordinance 1964 itself emphasised that for land to be included an a town planning scheme

"represented" in a town planning scheme by a portion of the plan of the scheme shown in the manner specified in Part 1 of 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..."

Part 1 of the legend sct out in the Second Schedule seseribed the "mannet in which zone, site or reserve is shown 1n Lown Plan." he emphasis is rine. This demonstrates that a town planning scheme under the Town Planning Ordinance 1964 was dependant upor visual representation or depiction of the land

The appellant conceaed that 1t was ambiguous whether the land on which the abattoir stands was included in the 1972 Plan, but contended that the ambiguity should be rcsolved in favour of

the view that it was included, relying on the matters mentioned

Notwithstanding the presence of some curious features to

the 1972 Plan, 1 do not find any ambiguity in the Plan relating to the question whether that part of the Amoonguna land on which the abattoir stands is ancluded in it. Lven if there were ambiguity I would resolve it against the inclusion of the abattoir. This contention of the appellant fails.

The appellant contended, alternatively to its first contention, that the protection of existing uses affordea by sub-s. &(L) did not extend to uses of land involving contraventions cf the law, thet the use of the relevant portion

tT the Amocicguna lana as an abattoir was prohibited ain the .ircumslances by the Land hights Act, so that sub-s. 68(1) afforded no pretection to the respondents. 1t was contendea also that the prohibition imposed by the Land Rights Act had effect independently of sub-s. ©8(1) to prevent the use of the land as

an abattoir namely, by reason of the provisions of s. 163 of the

It 1S convenient to consider the scope and operation of sub-s. 68(1) and s.163 before turning to the question whether the

The argument based on s.163 may be dealt with briefly.

"163. Nothing in this Act permits a person to use or develop any land in contravention of a law of the Territory other than this Act." Section 163 appears in Part VIII of the Planning Act 1979 entitled "Miscellanecus". There ais no discernible

connection between it and Part IV (which includes ss. 6% and 69)

In my opinion the only work done by s.163 1s to provide that a person who uses or develops lard in conformity wath the Planning Act 1s not exempted f:cm complying with the requirements

of other laws of the horthern Tcrritery proviacd tlose laws are not necessarily incorsistent with the Planning Act. kor example, a person must comply with licensing, registration, health and

hygiene requirements of other laws ot the Territory.

I agree also with the primary Judge that the Lana Rights Act, being an enactment of the Parliament of the Commonwealth, 1s

not "a law of the Territory" for the purposes of s.163.

At the heart of the appellant's contention is the proposition that if any Law renders illegal the prior use by a

person of the land falling within a planning scheme, s.08 gives

Grozier v. Tate (1946) 64 W.n. (N.S.W.) 1 and Mash Vv.

Stielow (1950) V.L.R. 39 are two cases referred to in axrgument where a by-law or proclamation that made a specified use of lana illegal was repealed by another by-law or proclamation under which that use remained illegal. It was held in those cases that a provision permitting the continuance of Galsting uses did not

permit the continuance of a use that had been ana still remained

The correctness of these judgments was challenged before

the High Court in Ferrum Metal Lxports Pty. Limited v. Lang (1960) 105 C.L.R. 647 but the Court (Dixon C.J., Taylor and Menzies JJ) found it unnecessary to review them. (See p.653). Gibbs J (as the Chief Justice then was), with whose judgment Barwick C.J., Menzies, Owen and Walsh Jd agreed, took the same

view 1n Parramatta City Council v. Brickworks Limited (1972) 1268

In the Brickworks Case the Ordinance (the County of Cumberland Planning Scheme Urdinance) which preserved an existing use, repealed or suspended a statutory provision that had made the use unlawful and did not re-enact the prohibition contained in the earlier provision. 'he High Court held that the use which had previously been illegal was permissible under the latet statutory provision. Gibbs J. (at p.2¢) approved similar

conciusioens capresscd by Sugerman J. in Lourne v. Marrickville

Lumicaipal Council (1954) 19 L.Geh. (N.beW.) 218 (at p.225); by

Hardie J. in H & W. Hurdis Pty. Limited v. Lane Cove Municipal

Council (1956) 20 L.G.R. (N.S.W.) 322 (at p.325) and ky Manning

J. in Harris v. Tom Byrne Pty. Limitea (1957) 2 L.G.R.A. 257 (at

The present case 1s markedly different from those cases. All of them were concerned with the legality of the existing use by reference to prohibitions imposed by planning legislation. Neither the research of counsel, nor my own research, revealed any case in which existing use provisions were held to be unavailable by reference to laws other than planning laws. hor can 1 discern any scund reason why s.68 of the Planning Act should be construed as the appellant would have ws construe it. The language of sub-ss. 67(2) and 6©8(1) and the fact that sub-s. 68(2) expressly excludes from the application of sub-s. o&6(1) the use of land not authorised by the Planning Act itself cr the former planning instrument strongly support the conclusion that any contravention of the Land Kights Act 1s not within the scope or operation of s.6& of the Planning Act. Treo conclusions Lead to the rejection ot the ppellzut's contentiors. It 1s therefore unnecessary for me to consiacr whether there has been a breach of any relevant

provision of the Land Rights Act, 1n particular s.19.

13.That leaves the respondents' contention on " the cross-appeal. 'Ihe starting point of the respondents' argument 1s

s.69. It was argued that prior to 10 April 1981 and at all material times it was the intention of the first respondent to incorporate a by-products section into the akattoir on the amoonguna land at some suitable time in the future. The argument proceeded that the word "work" in s.09 was used 1n a sense different to its defined sense of an "operation in relation to land" (sub-s. 4(1)) and encompassed for present purposes the abattoir complex including a by-products section. In these circumstances sub-s. 69(1) was said to permit the incorporation at some future time of the by-products section in the abattoir complex and that sub-s. 69(3) woula then permit the use of the

entire abatto1r complex including the by-products section.

loam prepared to assune in considering this question

hat the corctreetion of the word "work" in s.69 contended for by

bho pesponurnts 1S correct. it 1S not necessary to finally

cetermine trat question, but the contention has considerable

The nection that any intention of the first 1espondent subsisting prior to and on 10 April 1981 to incorporate a

by-products section in its abattoir at some future time, operated

to extend the protection of s.69 to the addition of that by-products section and its use thereafter was said by the

respondent to be derived from the notion of use referred to in

the Brickworks Case in particular the judgment of Gibbs J. 1 have some reservations whether the Judgment of Gibbs J- can be relied on by the respondents to support this contention, but do

It 1s the primary Judge's finaings of fact that are destructive of the respondent's cross-appeal. His Honour accepted Mr Murray as a generally credible witness, and he expressly accepted his evidence as to what had in fact been done by 10 April 1981 except on some matters of detail which 1 gather concerned an amenities building. His lonour found that Mr Murray, as early as 9 September 1950 and as recently as 6 February 1961, said that the abattoir on the Amoonguna land was bo anctude a by-products section. Althcugh his Honour did not in terms hold that Mr Murray or the first respondent did not retain 'his anterdaicn om 1G April 1961, 1t 18 clear that his Honour /cee.-ted the evidence of two officers of the Health Department (Mx Fox and Mr Harris) who from 4 March 1981 onwards objected strongly to the first respondent having a by-products section on the Amoonguna land and would not approve such a project and

Mx Fox gave evidence that Mr Murray told him, also before 10 April 1981, that he wanted nothing to do with a by-products section on the Amoonguna land, but hoped to establish one at Corkwood Eore, north of Alice Springs and that in the

meantime the first respondent would dispose of viscera by burial

it was plainly open to his Honour to conclude that any intention of Mr Murray or the first respondent to erect a

by-products section as part of the abattoir at Amconguna had ceased by 10 April 1981. A fair reading of his honour's reasons for judgment shows that he must have drawn that conclusion. The respondents placed considerable recliance upon his Honour's

"lL am satisfied that Murray Meats contemplated a slaughtering facility that would include a by-products oferaticn, but that such an operation might well ke long term and that initially offal wOLlu pe disposea of Ly being buried in pits." veut this passege must be reaa in 1ts context and when it is so reaG it 1s reasonably clear that it relatea to the initial intention of the first respondent, before the objections to a by-products section were voiced to Mr Murray by officers of the Department of Health.

The primary Judge imay have formed the view that on this guestion Mr Murray's credibility was suspect or that he was truthful but unreliable. Whatever the correct analysis be it is plain that his Honour did not accept that on 10 April 1981 Mr

Murray ana the first respondent still intendea to construct a

His Honour considered the question of the application of

5.69 also by reference to the objective fact whether a by-products section was an integral part of an abattoir or slaughtering facility and concluded that 1t was not. Thus his Honour considered the possibility of s.69 affording protection to the anclusicn of a by-products section in the abattoir at Amoonguna with reference to both subjective and objective

The respondents bore the onus of establishing that the first respondent had the necessary intention on 10 April 1981. lt failed to do so. It has not been established that the primary Judge fell into error in finding against the respondents on this

I would dismiss both the appeal and the cross-appeal. The appellant should pay three-quarters of the respondents' costs

• o - awe - I coma that ius ad tie ARPTERN (15) preceding pages a12 a tue copy ¢* the Reasons fer Jatgn.-rt Rertia ct. 1 encur Nir Justice tLockha-!.

a) 2a HESS ORE AAD WBGb Be Beata eh pitg nae Wi und dete Uimarciea ns aeete + ia Rete athe wel ed haber atts oe Teadive He Sebati RR de

• L ' t

IN THE FEDERAL COURT OF AUSTRALIA ) NORTHERN TERRITORY OF AUSTRALIA )

ON APPEAL FROM THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA

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

Fitzgerald J.: The appellant, the defendant in proceedings No. 279 of 1982 in the Supreme Court of the Northern Territory of Australia, has appealed from a judgment pronounced by the Honourable Mr Justice Toohey on

6 December 1982. The formal judgment was as follows:

1. That the continued use by the First Plaintiff of the land being the land described in the Schedule hereto and of the existing buildings and works thereon for the purpose of yarding and killing feral horses and chilling, boning, packing, freezing and shipping their carcasses does not contravene the provisions of the Alice Springs Town Plan 1981.

2. 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 kalling floor, chillers, boning room, packing room and freezers, does not contravene the provisions of the Alice Springs Town Plan 1981.

1. That the Defendant pay the Plaintiffs' costs of the action to be taxed save that as to the Plaintiffs' application dated the lst day of July 1982 the costs of which were reserved by His Honour Mr Justice Muirhead on the 5th day of August 1982 there be no order as to costs and that the Plaintiffs pay the Defendant's costs of the Plaintiffs' application dated the 23rd day of September 1982."

The appellant seeks to have the judgment set aside. The respondents, the plaintiffs in the Supreme Court, have lodged a notice of cross-appeal seeking the following

"(3) ... that the Alice Springs Town Plan 1981 is wholly, or to the extent that it purports to restrict the use of the land described in the Schedule hereto, unlawful.

(4) ... that the Alice Springs Town Plan 1981 1s wholly, or to the extent that it purports to restrict the use by the Second Respondent of the land described in the Schedule hereto, unenforceable against the Second Respondent and against the Third Respondent.

(5) ... that the Alice Springs Town Plan 1981 is wholly, or to the extent that it purports

to restrict the use of the land described in the Schedule hereto, void and of no effect."

However, those claims have not been pursued. The respondents have confined themselves to challenging

the omission from the declarations of a reference to a

The appellant is a body corporate constituted by .

the Planning Act 1979 of the Northern Territory ("the 1979

Planning Act"). Its relevant function for present purposes

involves the regulation of land use in the Territory.

Tribunal ("Land Trust"), 1s a body constituted under

the provisions of the Aboriginal Land Rights (Northern Territory) "Act 1976 of the Commonwealth ("the Land Rights Act"). The Land

Rights Act created a category of land described as "Aboriginal land" which is in effect, an inalienable fee simple subject to various prohibitions and controls on dealings. An area

near Alice Springs known as "Amoonguna", which had for

Many years been an Aboriginal Reserve created under the

Crown Lands Act of the Northern Territory was granted

30 August 1978. Amoonguna consists of Portions 461 and

568 and is freehold land except for two special purpose

Crown leases upon which townships are situated. Part of the Amoonguna land which is vested in the Land Trust (the "Amoonguna

abattoir site") is the site of the activities which have

Qn 22 July 1975, the second respondent, Amoonguna Community Incorporated ("Amoonguna Community"), was

incorporated under the Associations Incorporation Ordinance

1963 of the Northern Territory. The constitution of the

Amoonguna Community defines it as "the group of aboriginals who for the time being are resident at Amoonguna and includes all members of the Association

The remaining respondent, Murray Meats (N.T.) Pty Ltd, is a company incorporated in the Northern Territory. It has constructed and operates on Amoonguna the abattoir referred to in the declarations made by the learned primary judge. His Honour found, and the finding has not been challenged, that construction of the abattoir had been substantially commenced as at 10 April 1981 and that the abattoir had then been used for the slaughtering of horses for export for human consumption. His Honour also found that, as at that date, the abattoir did not include a by-products section. The significance of the date 10 April 1981 is that,on that day,the Alice Springs Town Plan 1981 ("the 1981 Town Plan") came into force under the 1979 Planning Act. It is common ground that, subject to the possible effect of sub-s. 68(1) of the 1979 Planning Act, the 1981 Town Plan precludes the use of the abattoir on Amoonguna. |

Sub-s. (1) of s.68 of the 1979 Planning Act provides that the 1981 Town Plan is not contravened by reason only that a person continues "to use any land, existing building or

existing work for its existing use". However, sub-s. (1)

is subject to sub-s. (2), the effect of which, so far - as presently material, is that an existing use is not protected if it was not authorised by whatever planning scheme was previously in force. The appellant's primary submission was that the use of the Amoonguna abattoir site for an abattoir was not so authorised prior

Prior to the 1979 Planning Act, the relevant Northern

Territory legislation had been the Town Planning Act 1964,

("the 1964 Town Planning Ordinance"). The 1964 Town Planning Ordinance was expressed to be "an Ordinance relating to the planning and developing of towns and the use of land in or near towns".

Sub-s. 39(1) and s.44 of the 1964 Town Planning Ordinance

"39. -(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 of 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 out in the last column of Part 1 of the legend opposite the name of that zone, site or reserve.

a town planning scheme applies for a purpose other than a purpose permitted by or under this Ordinance."

The Second Schedule referred to was, so far as now relevant,

Part 1 - Items having effect to regulate the use of land

ITEM NO NAME OF ZONE MANNER IN PURPOSE WHICH SITE OR WHICH ZONE LAND IN ZONE RESERVE SITE OR SITE OR RESERVE RESERVE IS MAY BE USED SHOWN IN TOWN PLAN 61 Welfare Yellow Edge Social welfare Reserve with Green purposes Hatch

The relevant planning scheme under s.39(1) of the 1964 Town Planning Ordinance for present purposes was the Alice Springs Town Plan 1972 ("the 1972 Town Plan").

It consisted of a plan bearing markings to give effect

to the Second Schedule to the 1964 Town Planning Ordinance.

The 1964 Town Planning Ordinance was repealed by the

1979 Planning Act. However, by s.171 of the 1979 Planning Act,

the 1972 Town Plan was deemed to be a planning instrument

under the 1979 Planning Act and the Second Schedule to the

1964 Planning Ordinance was deemed to form part of the

The debate before this Court extended to whether the 1972 Town Plan validly included, or might have validly included, Amoonguna. Questions were raised as to the meaning and effect of a number of provisions of the 1964 Town Planning Ordinance, especially the definitions of "town", and "zone" in s.3, sub-ss (1) and (2) (e) of s.28, and ss. 37, 39 and 44, as well as to regulations made under s.5 on 22 December 1978. I am satisfied that there

made under s.5 of the 1964 Town Planning Ordinance on

under the 1979 Planning Act when it came into force in August 1979. It is clear that, by virtue of those Regulations and a notice gazetted under s.10 of the 1979 Planning Act on 7 August 1979, the whole of Amoonguna

was, in law, part of the town of Alice Springs for planning purposes from 22 December 1978 and, more importantly,

for the purposes of the 1979 Planning Act. There 1s no doubt that land use on Amoonguna could have been

regulated under the 1979 Planning Act. Exhibit 62 is

a plan of the area which was relevantly liable to planning control under the 1979 Planning Act and includes the whole

Exhibit 62 stands in marked contrast to Exhibit 29.

which is the plan which comprised the 1972 Town Plan.

presently significant, land physically included in Exhibit 62 1s not wholly included in Exhibit 29. More particularly, not all of Amoonguna is physically included on Exhibit 29. Only a small section of Amoonguna, stretching from north to south near its western boundary,

is included. The Amoonguna abattoir site 1s not included.

Exhibit 29 1s a large rectangular linen plan, about 12 to 13 feet long and 3 to 4 feet wide, drawn at a scale of 600 feet to 1 inch. Although it was the only town plan for Alice Springs under the 1964 Town Planning Ordinance, it does not physically include the whole of the town of Alice Springs. Conversely, some land outside the town of Alice Springs, even after its notional extension for planning purposes by regulation, is included. No attempt is made in Exhibit 29 to have the extremities of the plan expressly coincide with the boundaries of a particular zone, site or reserve, to use the language of the Second Schedule to the 1964 Town Planning Ordinance, or with the boundaries of particular properties. The plan simply uses the available space on the linen paper on which the plan is marked. The colouring or hatching which the Second Schedule provides as the manner in which zones, sites and reserves are to be

shown extends to or close to the edge of the plan and the

edge of the paper. In cases in which a zone, site or reserve included in the plan extends to the edge of the plan and the Second Schedule provides for coloured edging to be used as, or as part of, the manner in which such a zone, Site or reserve is to be shown, the coloured edging is not closed off along the relevant edge of the plan. The plan includes some identification of the land included, e.g. by portion number or other description such as the name of a reserve. The same scheme is adopted in respect of both private and public land, such as recreation reserves including the Todd River and the Heavitree Range, both of which extend far beyond the area physically included in the plan. The part of Amoonguna included in the plan has the description "Amoonguna Reserve" attributed to it, is hatched in green, and has a yellow edge along its northern, western and southern boundaries but not along its eastern boundary which is the edge of the plan. Green hatching with a yellow edge is the manner provided in the' Second Schedule for showing that land is a

Welfare Reserve and may be used for social welfare purposes.

The learned primary judge held that the abattoir did not meet the description of a social welfare purpose. That has been accepted before us. He also held that the 1972 Town Plan did not show the abattoir site.

The appellant's entire argument that the abattoir was

not an authorised use of the abattoir site under the

town planning legislation prior to the 1981 Town Plan . rested upon a submission that his Honour's finding in that respect was erroneous. The appellant submitted that the plan showed not only the area which it physically included but also all other land which met the various descriptions used on the plan, such as portion numbers or names of reserves, and that, in order to determine the land shown in the plan, regard was to be had not only to the plan but also to the various instruments from which boundaries could be ascertained. Thus, for example, it was submitted that not merely the part of the Todd River Recreation Reserve included on the plan was regulated by the plan but all of that reserve, however far it extended. Similarly, on the appellant's argument, the whole of Amoongona, including the abattoir site and, presumably, the townships, is shown on the plan and is restricted to use for social

In my opinion, the appellant's argument is unsustainable. The only land in the Welfare Reserve zone site or reserve relevantly shown in the 1972 Town Plan by "Yellow Edge with Green Hatch" is that

part of Amoonguna in fact physically included in the plan.

The appellant's alternative argument was that, nonetheless, the use of the abattoir was outside the

protection of s.68 of the 1979 Planning Act because it

involved a contravention of the Land Rights Act or at . least a disobedience of its underlying policy. I have found no need to consider these matters and I think that, in the circumstances, it is better not to do so since similar questions may fall for decision in other proceedings involving parties who are not party to this litigation. The argument fails at the outset because,

in my opinion, it is founded on an erroneous view of s.68

The purpose and effect of s.68 appear more clearly when it 1s seen in the context of certain of the surrounding provisions. Sections 63, 67, 68 and 69 of the 1979

"63. Subject to this Act, land to which a planning instrument applies shall not be used or developed otherwise than in accordance with that instrument.

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 the planning instrument which applies to the land.

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

(a) a building or work is an existing building or existing work, as the case may be, if -

(i) it was in 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 or work, as the case may be, for the purpose for which it was used immediately before the date of commencement of the planning instrument.

68.(1) Subject to sub-section (2), a person 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.

(2) Sub-section (1) does not apply to permit the use of any land, existing building or existing work to which a former planning instrument applied for a purpose which was not authorized -

69.(1}) Subject to sub-section (2), a person shall not be held to contravene the provisions of a planning instrument by reason only that he continues and completes the erection of a building or work after the date of commencement of the planning instrument if the erection of

a building or work was substantially commenced before that date.

. (2) Sub-section (1) does not apply to permit the continuation and completion of the erection of a building or work on land to which a former planning instrument applied if the erection of that building or work was not authorized -

(a) by or under this Act; or (b) by or under the former planning instrument.

(3) A building or work erected under this section may be used for the purpose for which it was erected."

Nash v. Stielow (1950) V.L.R. 39 it was held that an

existing use which had been illegal under a planning provision which was repealed by new planning legislation

and which continued to be illegal under the new planning legislation was not protected by a provision in the new planning legislation protecting existing use. The correctness of those decisions has been left open: see Ferrum Metals

Council (1979) 141 C.L.R. 614. In the Brickworks Ltd case,

it was held that the position was different when the repealed planning prohibition which had previously rendered the use illegal was not repeated in the new planning legislation which included protection for existing uses. In that case, the use which had previously been illegal was lawful with the local authority's permission under the new planning legislation. Those cases are very different from the present in a number of respects. For example, the illegality relied on to deny that the prior use was entitled to protection arose out of the previous planning legislation and the provisions protecting existing use which were said to provide the protection were couched in materially different terms from sub-s. 68(1) of the 1979 Planning Act and positively provided that an existing use might be continued. The matters with which those cases were concerned are substantially © covered in the 1979 Planning Act by sub-s. 68(2). Those cases provide no

(i) that the use of the abattoir site as an abattoir after 10 April 1981 would be prohibited by s.63 of the 1979 Planning Act and the 1981

Town Plan were it not for s.68 of the 1979 Planning

(ii) the use of the abattoir site as an abattoir up to 10 April 1981 was not prohibited by planning

contravened the Land Rights Act both up to and after

The terms of sub-s. 67({2), the qualified protection afforded by sub-s. 68(1), the express exclusion from that protection of use for a purpose not previously authorized by either the 1979 Planning Act itself or other prior planning legislation, and the terms of s.163 of the 1979 Planning Act (which provides that nothing'in that Act permits a person to use or develop any land in contravention of a law of the Territory other than that Act), all lead inexorably in

my opinion to a conclusion that sub-s. 68(1) is concerned

with use in point of fact and not with the legality of the prior user by reference to considerations extraneous to planning. Sub-section 68(1) provides no more than that the use to which it applies does not "contravene the provisions of a planning instrument". It 1s not unimportant that the only declarations sought by the respondents and made by the trial judge are expressly and appropriately Limited to non-contravention of the 1981 Town Plan. The question of whether or not the

Land Rights Act had been or is being contravened remains open for resolution in other proceedings on another occasion. There is, of course, nothing inconsistent with this view in s.74 of the Land Rights Act, a provision referred to in argument but far removed

No separate challenge was mounted to the second declaration made by the primary judge, which was

founded on s.69 and not s.68 of the 1979 Planning Act.

It remains to consider the respondents' contention, the substance of which was that each of the declarations, or at least the second declaration, should be expanded to include reference to a proposed by-products section

of the abattoir. If the reference was included only

1979 Planning Act would permit the use of the by-products section after it was erected. However, notwithstanding the form of the relief asked in the respondents' final Statement of Claim, it was my understanding of the argument addressed on behalf of the respondents that they submitted that, prior to 10 April 1981, their use of the abattoir site had included use for the production of by-products, relying upon a broad notion of use which they said was to be derived from the Brickwork's Case, supra. The respondents did not challenge findings by the primary judge that the abattoir did not include a by-products section at 10 April 1981 or that a by-products section is not an integral part of an abattoir or slaughtering facility. They submitted that the latter finding was irrelevant. In the respondents' submissions, they were entitled to suckeed in relation to the by-products section if, as they contended, it was established that it was the first respondent's intention at 10 April 1981 to include such a facility in the abattoir. The respondents' case in relation to this aspect of the matter focussed on the construction of ss. 68 and 69 of the 1979 Planning Act. They argued that "work" as

sub~-s. 3(1) but meant the entire abattoir complex.

Reference was made to Dawson v. Hoffman Brick and .

We were referred at length to the findings and the evidence. It is clear that Mr Murray did swear that it was at all material times the first respondent's untention to incorporate a by-products section into the

abattoir. It is equally clear that there was no finding

accepting this part of his testimony and that there was a body of evidence to the contrary, including evidence of statements made by Mr Murray that a by-products operation was not to be incorporated at Amoonguna but that the offal from the abattoir there was to be buried unless and

until a by-products section was established elsewhere,

Whilst there 1s room for some debate as to the exact nature of the findings, I am satisfied that they are consistent with non-acceptance of Mr Murray's evidence on this aspect of the matter. His Honour's express acceptance of Mr Murray's evidence related only "to what had been done" by 10 April 1981. Further, in context,

a sentence "I am satisfied that Murray Meats contemplated

a slaughtering facility that would include a by-products

be long-term and that initially offal would be disposed of by being buried in pits..." related to

the initial contemplation of the first respondent prior to objections to a by-products section being expressed by health officers. It is by no means insignificant that those objections were an impediment

to the first respondent obtaining a license under the

Abattoirs and Slaughtering Act of the Northern Territory.

The first respondent obviously bore the onus of establishing the necessary intention and it failed to do so. In my opinion, his Honour's rejection of the notion that a by-products section is an integral part of an abattoir was of considerable importance.

His Honour was obviously considering that question as a possible alternate basis on which the respondents might have succeeded in view of their failure to prove

that the first respondent had the requisite intention.

In the circumstances, the respondents' argument on this aspect of the matter lacks any factual

In my opinion, the appeal and cross-appeal should - be dismissed. The appellant should pay to the

of the appeal and cross~appeal. P ° Pages are a tra copy of the reasons for

jucgment herein of His Honour Mr Justice Fitzgerald