Kismet Engineering Pty Ltd v Brisbane City Council [1959] HCA 49; (1959) 102 CLR 574 (15 September 1959)

HIGH COURT OF AUSTRALIA

KISMET ENGINEERING PTY. LTD. v. BRISBANE CITY COUNCIL [1959] HCA 49; (1959) 102 CLR 574

Local Government (Q.)

High Court of Australia
Dixon C.J.(1), McTiernan(2), Taylor(3) and Windeyer(4) JJ.

CATCHWORDS

Local Government (Q.) - Ordinances - Restrictions on use or erection of buildings for non-residential purposes - Exemption - Use for purpose for &which used at date of coming into force of ordinance - Building removed bodily from one part to another part of the same block of land and used for same non-residential purpose as at the date of the coming into force of the ordinance - Whether erected in breach of ordinance - Brisbane City Council Ordinances, Chap. 35, ord. 2, 5.

HEARING

Brisbane, 1959, June 25;
Sydney, 1959, September 15. 15:9:1959
APPEAL from the Supreme Court of Queensland.

DECISION

September 15.
The following written judgments were delivered:-
DIXON C.J. By the order from which this appeal is brought the Full Court of Kismet Engineering Co. Pty. Ltd. and Patrick William Moran, and each of them on or about 25th August as re-subdivisions 110 to 112 of the complicated designation of subdivisions, in breach of Chap. 35 of the ordinances of the plaintiff the Brisbane City Council. The declaration is followed by an order that on or before 7th July 1959 the defendants and each of them remove the building. The order of the Full Court made by Mansfield C.J. and Philp J., Matthews J. dissenting, was substituted for an order of Mack J. from which an appeal was allowed. Mack J. had dismissed the suit of the plaintiff Brisbane City Council. (at p578)

2. Chapter 35 of the Ordinances of the City of Brisbane bears the date 1st December 1955 and is entitled "Use of land and buildings and for other purposes". The second clause ordains that except as thereinafter provided no person shall use any land (whether having a building thereon or not) or use or erect any building or part of a building on any land within the city for any purpose other than residential purposes. The expression "residential purposes" is defined by the third clause to mean the purposes of a dwellinghouse. The definition goes on to make some distinctions as to what are the purposes of a dwelling-house but nothing turns on them and they may be passed by. Clause 5 of the ordinance provides that nothing therein contained shall prevent the use of any land or building or part of a building for the purpose for which such land or building or part of a building was used at the date of the coming into force of chap. 35 or for such other purposes as the Board may permit. The board referred to is the "Council Registration Board" a body authorised by ord. 4 to permit, notwithstanding ord. 2, the use of land or the use or erection of a building for any purpose stated in a resolution. (at p579)

3. The chief question for consideration is whether what the defendants did amounted to no more than a use of the land within the liberty preserved to them by ord. 5 or on the contrary amounted to an erection of a building outside that liberty and within the prohibition imposed by ord. 2. (at p579)

4. The land in question is situated in Camp Hill at the corner of Old Cleveland Road and Kismet Street. For many years an area of land extending west from that corner had been occupied and used by the proprietors of a light engineering business. A chief part of the business was the production of vices. The defendant the Kismet Engineering Pty. Ltd. was formed some years ago to take over the business and did so. It is a family company and the defendant Patrick William Moran is the managing director. The area of land upon which the business had been carried on was contained in one or perhaps two certificates of title but it comprised five allotments upon the plan of subdivision or re-subdivision, allotments numbered from west to east 108, 109, 110, 111 and 112. Mrs. Moran seems at one time to have been the registered proprietor but she transferred the land to the defendant company and it is admitted on the pleadings that at all material times the defendant company is and was the owner and occupier of allotments 110 to 112. There were certain buildings on the area and they were used in connexion with the engineering business. Among them was a timber framed single story building with a tiled roof. The dimensions were 52 feet 2 inches by 26 feet. This building had been removed from another site and placed on the land some ten years before the events with which we are concerned. It stood on allotment 110 and extended for about a distance of two feet upon allotment 111. It was used for engineering work in common with all else on the land. On 18th March 1958 the defendant company entered into a contract with Caltex Ltd. to sell portion of the land to the latter. It was to become the site of a service station. The land sold comprised allotments 108, 109, the southern part of 110 and a strip of the southern part of 111. The sale involved a re-subdivision which was made and accounts for the complication of the formal description contained in the order appealed from. It meant too that, among other things, it would be necessary to remove the building standing on allotment 110 and extending two feet upon allotment 111. Applications had been made to the Brisbane City Council for permission to erect certain buildings and to do what was described as "re-positioning" or "re-locating" the building in question; but no permission was forthcoming. At length in August 1958 the defendants caused the building to be raised on rollers and rolled bodily over eastward to allotment 112 where a concrete base had been prepared for it. It was placed on the concrete base where it rests on its own weight. The back of the building was placed five or six feet in front of an existing galvanized iron building. Subsecquently, if it matters, a short passage between the two buildings was made and roofed over. (at p580)

5. The question whether what was done in moving the building involves an offence against ord. 2 of the Chapter occasioned a division of opinion in the Supreme Court and it is unfortunately apparent that it presents the kind of problem as to the application of a general verbal formula to unexpected facts which admits of no very certain answer. The important consideration which forms the commencing point must be the identification of the land to which ord. 5 applies. It seems clear enough that it is the land comprising the whole five allotments 108, 109, 110, 111 and 112 considered as one area. It forms one piece of land owned occupied and used as an entire parcel. It was all used for the business. By reason of ord. 5 nothing in the Chapter is to prevent the use of that area, and that means the use of every part of it, for the purpose for which it was used when the Chapter came into force. The proposition applies also to the buildings upon the land. It may be that the preservation of existing rights thus effected does not extend to the "erection" of new buildings: it may be true too that to drag a ready-made building upon the area from elsewhere, as in fact was originally done with the structure in question, might be considered to amount to "erecting a building upon the land" within the fair meaning of ord. 2. But it does not follow that to move a structure already on the land from one part of it to another is to erect it upon the land. It does not put a new thing there: it moves an old thing from one position to another on the same land. The use of the building is protected and the use of the land is protected and there is a mere change in the exact position of the thing the use of which is protected within the area of land the use of which is protected. The fact that on 18th March 1958, five months before the operation, a contract for the sale of portion of the land had been made cannot affect the question. The protection to the entire area of land still enured. When ord. 5 speaks of the purpose for which land or a building was used it is supposing that that purpose will not be residential and is instituting a contrast between residential purposes and other specific purposes. The use of land having been established for some other specific or particular purpose it may go on. But every method of fulfilling the specific or particular purpose is allowable, that is to say it is outside the prohibition of the Chapter, so long as it amounts to a use of land or of a building. (at p581)

6. On the whole the course taken by the defendants seems fairly to fall under ord. 5 and not to be within the operation of the prohibition of ord. 2 of the Chapter. That means that the appeal should be allowed, the order of the Full Court of the Supreme Court discharged and the judgment of Mack J. restored. (at p581)

McTIERNAN J. From 1929 to the commencement of March 1958, the appellant conducted its engineering business on five allotments, numbered 108-112 (inclusive), in the Parish of Bulimba, Brisbane. From 1942, titles to all five allotments were registered in the name of Mrs. Moran, wife of the appellant's managing director. In March 1958, allotments 108, 109 and part of allotments 110 and 111 were sold to the Caltex Company. On the sections of allotments 110 and 111 which were sold, there stood a wooden building, measuring some 52 feet by 26 feet. It was a condition of sale that, until the appellant removed this building, it should be permitted to continue its engineering business therein, and upon the land sold. In August 1958, the building was duly removed; wooden rollers were placed under it, and it was drawn thirty-five feet on to the land still owned by the appellant, and connected to the appellant's main premises. No approval of this operation was sought or obtained from the respondent Brisbane City Council. The respondent Council contends that the appellant has thus contravened Chap. 35 of the Council Ordinances. Ordinance 2 of Chap. 35 provides: "Except as hereinafter provided, no person shall use any land (whether having a building thereon or not) or use or erect any building or part of a building on any land, within the City for any purpose other than residential purposes". Ordinance 4 of Chap. 35 empowers the Council Registration Board to grant exemptions from ord. 2. Ordinance 5 reads: "Nothing herein contained shall prevent the use of any land or building or part of a building for the purpose for which such land or building or part of a building was used at the date of the coming into force of this Chapter or for such other purposes as the Board may permit". Chapter 35 came into effect on 1st December 1955. As the appellant began its engineering business on the subject land many years before this date, it was clearly entitled to continue its business there, and to maintain its buildings as they stood on 1st December 1955. But it was not entitled, without the permission specified in Chap. 35, ord. 4, to "erect" any non-residential building on its land after that date. Thus it is necessary to decide whether, in drawing this building thirty-five feet across the land used for its business, and in joining it, by slight modifications, to its main premises, the appellant "erected" a building within the meaning of Chap. 35 of the council ordinances. (at p582)

2. In my view, it did not. The ordinary meaning of "to erect" is "to raise, set upright, build". Prima facie, the word has this meaning in the ordinance, and, indeed, there is nothing in the context to displace this presumption. (at p582)

3. In my opinion, it would be quite inappropriate to say that this building was in any ordinary sense "erected" in August 1958, when it was simply drawn bodily to a new site on the same parcel of land. It was originally set up on the appellant's land in or about 1946. It is difficult to see how it could again be "set up" or "erected" on the same land in August 1958, without first being either pulled down or removed bodily to a site outside that parcel of land. The sale of part of the land to Caltex is of no moment in this case. Since Chap. 35 bases itself upon user, not ownership of land, it is enough that the appellant at all material times enjoyed a right of user over the land where the building stood and over the site, on the same land, to which it was removed. (at p582)

4. It was argued - but I think it does not follow - that if the present operation is permissible under Chap. 35, it is also permissible to transfer a non-residential building from one parcel of land to another anywhere in the City of Brisbane, provided only that the same person uses the two parcels for the same purpose. This hypothetical case differs from the present one in this important respect, that it involves (while the present case does not involve) the removal of a building from one parcel of land to another, and its "setting up" or "erection" thereon, with the result that there is put upon the other land a building that was not on it before. (at p582)

5. In my opinion, the appellant did not contravene Chap. 35 of the council ordinances. I consider, therefore, that this appeal should be allowed. (at p582)

TAYLOR J. I agree that this appeal should be allowed. I agree with the reasons of the Chief Justice and have nothing to add. (at p582)

WINDEYER J. I agree that this appeal should be allowed. I have nothing to add to what has been said by the Chief Justice and McTiernan J. (at p582)

ORDER

Appeal allowed with costs. Order of the Full Court of the Supreme Court of Queensland discharged and in lieu thereof order that the appeal from the judgment of Mack J. to that Court be dismissed with costs.