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High Court of Australia |
COONEY v. KU-RING-GAI CORPORATION [1963] HCA 47; (1963) 114 CLR 582
Local Government (N.S.W.)
High Court of Australia
Dixon C.J.(1), Kitto(2), Taylor(3), Menzies(4) and Windeyer(5) JJ.
CATCHWORDS
Local Government (N.S.W.) - Proclamation declaring residential districts - Validity - Prohibition on use of premises for trade or industry - Use of dwelling-house for social functions for reward - Whether "trade" or "industry" - Breach of prohibition - Threatened continuance - Remedy of injunction - Availability at suit of municipal council to ensure observance of prohibition - Local Government Act, 1919 (N.S.W.), as amended, s. 309 (1).
HEARING
Sydney, 1963, March 29, April 1, 2, 8, 9;DECISION
October 31.2. The defendants to the suit are three in number, a husband and wife named Cooney and a third person who together are alleged to use a dwelling-house situate at and known as 140 Pentecost Highway, Turramurra, within the boundaries of the plaintiff municipality, for the purpose of what is described in the statement of claim as the trade or business of providing at cost refreshments and entertainment at social functions held therein. The statement of claim bears no date but it would seem that the suit was commenced some time early in 1962. Injunctions were claimed against the defendants restraining them from using the land and premises for the purposes of "the trade or business of providing at cost refreshments and entertainment at social functions held therein" and engaging in any trade or business on the land and premises without the consent of the plaintiff. The relief sought appeared to be based on two allegations which may have been considered, and certainly have been treated, as alternative. The first is that the land and premises already described are within an area which is zoned pursuant to the County of Cumberland Planning Scheme Ordinance as a living area and that no permission has ever been given by the plaintiff to use the land and premises for purposes other than as a dwelling-house. The alternative allegation is that the land and premises are within an area proclaimed pursuant to s. 309 of the Local Government Act as a residential district and the use of the premises for the purposes of any trade, industry, manufacture, shop or place of public amusement is prohibited by the said proclamation. The date of the "said proclamation" is not specified. It appears that the clause (31 (b) (ii)) provides that nothing in the relevant prohibitory provisions shall be construed as restricting or prohibiting the practice by any occupant of a dwelling-house or residential building of a profession or occupation which does not involve the use of the dwelling-house or residential building for the purpose of an industry. In his judgment Jacobs J., who heard the suit at first instance, says: "The word 'industry' is defined in the Ordinance, and it is not disputed that the use now challenged does not come within that definition. On behalf of the first-named defendant it has been submitted that she is the occupant of the dwelling-house and that she practises the occupation of providing entertainment, refreshment and a place of assembly for persons wishing to hold receptions and the like functions." His Honour held that the restrictions in the County of Cumberland Planning Scheme Ordinance were inapplicable to what was complained of. The word "industry" is defined in the County of Cumberland Planning Scheme Ordinance, Pt 1, cl. 3, to mean any manufacturing process within the meaning of the Factories and Shops Act, 1912-1950, and certain other physical operations not material to this case. Clause 3 occurs in Pt 1 of the Ordinance and it is in Pt 3 that cl. 31 (b) occurs excluding prohibitions upon the occupant of a dwelling-house or residential building of the practice of any occupation or profession which does not involve the use of the dwelling-house or building for the purpose of an industry. Clause 3, however, applies to the whole Ordinance, that is unless the context or subject matter otherwise indicates. I agree entirely with the conclusions of Jacobs J. that the prohibitions and restrictions in the Ordinance do not apply to the use to which Number 140 Pentecost Highway, Turramurra, is put by the defendants. (at p587)
3. The second ground is governed by s. 309 of the Local Government Act, 1919. That section forms the commencement of Div. 3 of Pt XI of the Local Government Act, 1919. Division 3 is headed "Residential Districts". Section 309 (1) provides that the Governor may on the application of the council "(a) declare by proclamation any defined portion of an area to be a residential district". Paragraph (b) follows with the words "by proclamation alter or abolish a residential district". Paragraphs (c), (d), (e) and (g) then mention various subjects of prohibition, that is to say, matters or things the Governor may prohibit in such district, for example, the erection of any building for the use of such trades, industries, manufactures, shops and places of public amusement as may be described in the proclamation, the use of any building in the district for any such purposes, the erection or use of advertisement hoardings in the district, the use in the district of any land for the use of any trade, business, avocation (scil. "vocation") or calling described in the proclamation. It appears to me that anyone reading this sub-section and the series of powers it confers would understand that it was intended to authorize the Governor in Council to mark out in a municipality (by definition (s. 4) the word "area" means city, municipality or shire) a defined portion of any extent that might be thought fit as a district for residence. Having thus established a part of the city, municipality or shire to be used for residence the Governor might proceed in the exercise of his discretion to prohibit the erection, or use, of any premises for the purposes of trade, industry and manufacture. It will be noticed, however, that in conferring the powers of prohibition of trades and the like, the statute employs forms of expression which, literally read, enable the suppression of one trade only or of one industry only in a residential district. It was assumed, I think, that everything could be suppressed by a universal prohibition, leaving, if desired, let us suppose one exception. This was held to be a mistake in Dyer v. Luckett [1928] HCA 24; (1928) 41 CLR 44 , though the result perhaps made it necessary to prohibit trade after trade nominatim. A little later in the same year the Local Government (Amendment) Act, 1928 (No. 41 of 1928) was passed and to s. 309 there was added what now is s. 309 (1A). That, put briefly, enables the applying of a prohibition or bar in a district to trades etc. generally or particularly and in such a case absolutely or subject to exception. It appears that advantage was taken of this fact to use the power in a way which I should have thought was turning the whole provision upside down. It was used for the purpose of requiring exactly where in the municipality or in a locality a shop of a specified kind should be situated, where a trade of a specified kind should be carried on and where an industry should be situated and so on. A comparatively small block of land with perhaps no more than an eighty-feet frontage to a road was declared to be a residential district, absurd as that denomination appears to be. And then all trade, industry, etc. was prohibited upon it except a specific activity. Next to it another block was dealt with in an analogous way and so on right down a street. Thus on each block a specific trade or industry or the like has been made the only possible use except, of course, actual residence. The basic notion of the proclamation or declaration was to declare a block a residential area not for the purpose of using it as a residential area but for the purpose of prohibiting all but one use of the block. In other words, nobody wanted to make it a residential area. What was wanted was a block of land the use of which could be dictated. This appears to me to be a misapplication of the power, or in other words to be outside the scope and purpose of the power and therefore to be void. (at p589)
4. An exception of actual residence was not expressed. But it must be made for by no manipulation could the statutory power be employed to forbid the use of land as a place to live on. However small you could make a residential area it must remain a place to reside on. The necessity of making it lends point to the objection that the scheme is foreign to the power. In the language of the learned counsel for the plaintiff who supported such a use of the power, "the power extends to the declaration of residential districts related in the sense that the probable effect of the declarations, and the apparent purpose of them, is the town planning of the municipality into residential neighbourhoods with regional shopping centres and separate, admittedly small, industrial areas". In my view such an attempt to legislate is outside the power conferred by s. 309. The introduction of sub-s. (1A) into s. 309 would not suffice to justify it. Section 309 remained a "residential district provision". It appears that before Jacobs J. the statement of claim was dealt with as based upon a proclamation framed upon s. 309 and made on 19th June 1930, published in the Government Gazette (N.S.W.), No. 80 of 27th June 1930. If it matters, that seems to have been the proclamation that abolished the proclamation dealt with by Dyer v. Luckett (1928) 41 CLR 44 . The proclamation purported to abolish certain residential districts in Ku-ring-gai municipality, then to declare to be residential districts those portions of the municipality defined in certain schedules to the proclamation, next to prohibit in the residential districts, as so defined, first the erection of any building for the use of the purposes of any trade, industry, manufacture, shop or place of public amusement except such trades, industries, manufactures, shops or places of public amusement as may be described in schedules 1-81 to the proclamation and the use of any building for the purposes of any trade, industry, manufacture, shop or place of public amusement whatsoever except as aforesaid. (at p589)
5. An examination of the plans and documents which formed the schedules and in particular the areas of the so-called residential districts and the operations of the exceptions severally and respectively attaching to the blocks satisfied me that this was no exercise of the power. But in any case it appeared bit by bit that the proclamation had long since ceased to be in force. It is unnecessary to follow the somewhat intricate course of subsequent proclamations but the proclamation of 16th January 1952 published in Government Gazette (N.S.W.), No. 11 of 25th January 1952, adopting the descriptions in the old proclamation of residential districts and the alterations by subsequent proclamations as a basis prohibiting in Residential District No. 1 Ku-ring-gai as so altered the erection of any building for certain specified purposes the material portions of which are "for the purposes of any trade, industry or manufacture", went on to prohibit the use of any such building for any such purposes. Having unravelled the case to this extent during the argument in this Court, we continued to hear the appeal on the basis that it is upon this material that the plaintiff's cause of action depends - namely upon the proclamation of 25th January 1952, including the proclamations to which it refers. It may be said that the plaintiff ought not to have been allowed to support its case on new ground, as perhaps it may be not improperly called, in a final court of appeal. Indeed, if the statement of claim had more precisely complied with the requirements of pleading it might not have been possible. True it is that the proclamation of 25th January 1952 was in the documents "before" the judge at the hearing. But if for that reason it was not "new" when it was brought to light it was as good as new. Be that as it may, it appears once again that the proclamations are based upon a use of the powers conferred by s. 309 which I think cannot be supported. (at p590)
6. To piece together various subordinate powers of a general power to create residential areas in order to give effect to some plan of municipal industrial planning may show ingenuity but it involves simply an attempt to extend power. The defendant's premises are situated upon a part of the land which does not form a small block. It was not dealt with at that place by taking the block and calling it a residential district. The portion of land was identified as a residue of the municipality after deducting large numbers of such blocks so identified and called residential districts. But the residue simply represented the portion of land not regularly identified and not necessarily intended as a residential district in any true sense. However, the scheme seems to me to depend entirely upon the successful creation of the blocks said to form residential districts. Unless that is properly done one cannot identify the residue by the process of deducting the blocks from the area. The scheme is conceived as one whole and it appears to me to be invalid as a whole. At all events, the method of turning the appellants' land into a residential district and forbidding the business done upon it cannot, as it seems to me, stand. An alternative view is that even if the scheme were otherwise effective it would mean that the whole municipality became one residential district - a whole area or aggregate of residential districts - and that would be outside the scope of s. 309 as I understand its provisions. (at p591)
7. The defendants' case, however, does not depend on the invalidity of the control which it is attempted to impose upon their activities. For in my opinion what they do does not amount to the use of a building for the purpose of any trade, industry or manufacture, and unless it be so, is not infringing the proclamation. The purpose for which they conduct the business is well known in most capital cities of Australia but such a business has not yet acquired any formal designation. But I cannot think that the word "trade" can apply to the activity. The language of the injunction against which the appeal is brought appears to me to show what a stretch of meaning is involved in applying the word "trade" to what the defendants have been doing. They are, it is claimed, to be restrained from using the premises by way of carrying on the trade of allowing, for reward, the use thereof for social functions and providing for that purpose accommodation and refreshment. It does not appear to me to be English to describe that as a trade. Of course the word "business" can usually be used to include "trade" but they are not convertible terms. I am aware in its history the meaning of the word "trade" has undergone generalization and specialization more than once; but it is not my understanding of the word to include the use of a dwelling-house for the purpose of the entertainment of guests and the giving of receptions and parties and dances. (at p591)
8. In my opinion the suit was rightly dismissed by Jacobs J. (at p591)
KITTO J. I agree generally in the judgment of my brother Menzies and would make only one or two observations on particular points. (at p591)
2. At the hearing of the suit before Jacobs J. the appellant made a formal admission that the subject property is not within the areas described in schedules 2 to 81 of the proclamation of 27th June 1930. Schedule 1 of the proclamation comprises "the residue of the Municipality after deducting thereout the portions of the Municipality comprised in Residential Districts Nos. 2 to 81, and so much of the said Municipality as consists of public reserves". Residential Districts Nos. 2 to 81 are the areas comprised in schedules 2 to 81. The defendants contend that schedule 1 does not comply with s. 309 of the Local Government Act, 1919 (N.S.W.), because it does not describe a "defined portion" of the Municipality. Three contentions are made. One is that the description leaves it uncertain whether public reserves are included or excluded. It seems to me to be plain enough that they are excluded. The description cannot mean to take anything out of Residential Districts Nos. 2 to 81. The reason for excluding them obviously is that since the uses to which public reserves may be put are governed by special provisions of the law the proclamation is not concerned to deal with them. The second contention is that "the residue" is an uncertain description because some of the descriptions in schedules 2 to 81 are themselves uncertain, notwithstanding that they are sufficient to show that the subject property is not within any of them. Various answers to the contention have been suggested. I would not myself rely upon s. 648. The answer which I prefer is that "the residue" to which schedule 1 refers is the residue after deducting from the whole Municipality not the portions of it which schedules 2-81 to define but the portions which they succeed in defining. The portions of the Municipality "comprised in Residential Districts Nos. 2-81" are the portions which the proclamation by its operation in respect of the descriptions in schedules 2-81 converts into residential districts. If any schedule is so indefinite that no residential district is created with a number corresponding with the number of that schedule, there is no portion of the Municipality comprised in such a residential district, and the portion which the draftsman intended should be so comprised remains part of the residue to which schedule 1 applies. (at p592)
3. Thirdly, it is objected that the power under s. 309 to declare "any defined portion" of an area (municipality) to be a residential district is not well exercised by describing a portion of the Municipality as the residue remaining after deducting other portions. The learned judge of first instance, Jacobs J., upheld the objection, being of opinion first that a description of the whole of the residue of a municipality was not a selection of a part of the municipality "suitable to form a district", and secondly that a description of the residue remaining after deducting portions was not the kind of definition contemplated by the section. This opinion was based upon a passage in the judgment of the majority of the Court in Vitosh v. Brisbane City Council [1955] HCA 52; (1955) 93 CLR 622, at p 628 , but with respect I do not think that the passage really supports it. The judgment contains a statement that to take as a criterion the existence or non-existence on land on a given date of buildings of certain descriptions, or the absence of buildings on the land, involves no selection of a part of the city suitable to form a district; but the point, I think, was that a selection of a part of the city suitable to form a district requires a reference by some means to the boundaries of a tract of land - what the judgment calls a definition "by metes and bounds or by streets or by some other sufficient topographical description of an area forming part of the city". This test seems to me to be fully satisfied in respect of a residue by describing a number of areas by metes and bounds and by this means selecting the residue, provided the residue be one area and not several separated areas. The fact that the residue is irregular in shape is, I think, immaterial. (at p593)
4. I agree in the opinion of Menzies J. that the appellant's activities of which the respondent complains constitute a use of the building on the subject property for the purposes of a "trade", within the meaning of the proclamation of 16th January 1952 and s. 309 (1) (c) of the Act. I should not be prepared, however, to hold that the word "industry" also is appropriate, there being no enlarged meaning given to the word by means of a definition or suggested by the context or the subject matter of the section and proclamation. (at p593)
5. I desire particularly to express concurrence in the observations of Menzies J. as to the jurisdiction of the Supreme Court to grant injunctions in such cases as the present. (at p593)
6. I would dismiss the appeal. (at p593)
7. There is no cross-appeal, and I do not wish to be taken as expressing any opinion in relation to the County of Cumberland Planning Scheme Ordinance. (at p593)
TAYLOR J. Except as to one matter which may appear to be comparatively trivial I am in agreement with the reasons prepared by Menzies J. in this appeal. The matter upon which I differ from him is in relation to the use which can be made of s. 648 (2) of the Local Government Act for the purpose of preserving the operation of the proclamation of 19th June 1930 in relation to schedule 23 thereto. This schedule was said to be defective inasmuch as the descriptions which it contained were incapable of identifying any parcel of land. But in answer it was said that, at the most, the schedule contained a misdescription of the land intended to be affected and that the misdescription was curable by the application of the provisions of the section in question. I find difficulty, however, in treating a description of a parcel of land by metes and bounds merely as an inaccurate description unless, in some way or other, the parcel sought to be affected is otherwise identifiable with some degree of precision. It is, of course, the contention of the appellant that the specification of the land merely as "part of Lot 11 d.p. 3725" together with the admeasurements which appeared and which did not correspond with the boundaries of that lot, or any identifiable portion thereof, did not permit of this being done. However, it does appear that a small portion, constituting a corner, of Lot 11 was resumed for road-widening purposes and careful examination of the material which was put before the Full Court leaves it uncertain whether the resumption actually took place before or after the making of the Proclamation of 19th June 1930. Having regard to all the known facts, such as they are, it would seem reasonably clear that the description contained in Schedule 23 was intended to cover the whole of Lot 11 other than the small portion affected by the resumption. If, therefore the resumption took place before the Proclamation was made, as seems probable, then it was appropriate to define the land affected by the Proclamation as "part of Lot 11 d.p. 3725" and the minor discrepancies in the measurements of the land may be disregarded as falsa demonstratio, or, pursuant to the special provisions of s. 648 (2), treated as not affecting the operation of the Proclamation. On the other hand if it be sought to establish that the description was uncertain by showing that the resumption took place after the making of the Proclamation it was incumbent upon the appellant to show that this was the fact but, in my view, the evidence falls short of showing that this was so. (at p594)
2. In the result I also agree that the appeal should be dismissed and the order of the Full Court varied in the manner proposed by Menzies J. (at p594)
MENZIES J. The respondent Council took proceedings against the appellant Olga Melanie Cooney to restrain her and two others from using premises in the Municipality of Ku-ring-gai at 140 Pentecost Highway, Turramurra, known as Stow-on-the-Wold "for the purpose of the trade or business of providing at cost refreshments and entertainments at social functions held therein" and "from engaging in any trade or business on the said premises without the consent of the plaintiff". The claim for the former injunction was based upon the Local Government Act and a residential district proclamation made thereunder; the claim for the latter injunction was based upon the County of Cumberland Planning Scheme Ordinance which was made under legislation that is now to be found in the Local Government (Town and Country Planning) Amendment Act, 1962. The Ordinance was made on 27th June 1951. The suit was heard by Jacobs J. who dismissed it upon the grounds that the proclamation was invalid and the use complained of was permitted by the Ordinance. The Full Court upon appeal reversed this decree, holding that the proclamation had sufficient validity to prohibit the use which it was found two of the defendants were making of the premises. The injunction granted prohibited Olga Melanie Cooney and N. W. McGilvray from using the premises "by way of carrying on the trade of allowing for reward the use thereof for social functions and providing for that purpose accommodation entertainment and refreshment". The Court agreed with Jacobs J. that the use to which the premises were being put was not prohibited by the Ordinance. This appeal by Olga Melanie Cooney challenges the Full Court's judgment in three respects; (1) that the proclamation was valid, (2) that the proclamation was infringed, and (3) that there was jurisdiction to grant an injunction for breach of the proclamation. The respondent contends that so much of the Full Court's decision holding that the use to which the premises were put was not prohibited by the Ordinance was incorrect. (at p595)
2. It is convenient in the first place to refer to the use of the premises of which the Council complained. The appellant, according to an admission in her statement of defence, "was and is using the said land and premises for the purpose of providing for friends and other persons requesting her so to do refreshments and entertainment at social functions held therein without the consent of the plaintiff and she was and is reimbursed the cost of food and other outgoings incurred by her in providing such refreshments and entertainment and an amount for her own services". She also deposed that since 8th September 1961 there had been conducted at Stow-on-the-Wold ten functions without charge and seventeen functions in respect of which moneys were paid. Her affidavit also showed that food for receptions was prepared on the premises at a charge of 1 pounds per hour for time occupied. A statement of admitted facts was as follows: - "1. That immediately before 27th June 1951 the land and premises known as 140 Pentecost Highway, Turramurra were used as a dwelling-house. 2. That since 27th June 1951 no approval has been given by the plaintiff pursuant to the County of Cumberland Planning Scheme Ordinance to any change in the use of the said land and premises. 3. That the functions referred to in the affidavit of Olga Melanie Cooney of 29th March 1962 were each of a duration of at least four hours. 4. That the defendants will unless restrained continue to hold functions of the type described in the said affidavit. 5. That the subject property is not within the areas described in Schedule 2 to 81 (inclusive) of the Proclamation dated 27th June 1930 and is not within any of the alterations or amendments of the area described in Schedule 1 thereto. 6. The plaintiff admits that no prosecutions have been launched against the defendants or any of them in respect of the alleged breaches referred to in the statement of claim and that no notice has been given pursuant to s. 342P in relation to the said land." (at p596)
3. Coming now to s. 309 of the Local Government Act and the proclamations thereunder, it should first be observed that proceedings in the Supreme Court were conducted on the footing that the relevant proclamation was one made on 19th June 1930 and published in the Government Gazette on 27th June 1930. Before us it was discovered that this proclamation had been amended from time to time and that it was necessary to go to a proclamation of 16th January 1952 published in the Government Gazette on 25th January 1952 to find out the area comprised in Residential District No. 1, Ku-ring-gai - the district in which the Council contended Stow-on-the-Wold was situated - and the prohibition of the use of buildings in that district. What was prohibited was the use of any building "for the purposes of any trade, industry, manufacture, shop or place of public amusement, other than buildings being recreation ground club houses or appurtenant thereto". Whether there is to be found any sufficient definition of the area comprised in Residential District No. 1, Ku-ring-gai, is one of the major problems in these proceedings and to consider this it is necessary to go back to the 1930 proclamation. (at p596)
4. There, those portions of the Ku-ring-gai Municipality defined in Schedules
1 to 81 were declared to be residential districts.
Schedules 2 to 81 purported
to define particular areas of land. Schedule 1 was as follows: -
"The residue of the Municipality after deducting thereout theAmended proclamations purported to add other areas to that defined in Schedule No. 1 as aforesaid but the effectiveness of the definition of Residential District No. 1 depends upon whether what, in addition to public reserves, has to be deducted in conformity with the schedule is sufficiently defined by Schedules 2 to 81. Before examining these schedules, it is desirable to advert to the scheme of prohibition adopted in the 1930 proclamation in respect of all residential districts. It was to impose a blanket prohibition against use for any trade, industry, manufacture, shop or place of public amusement whatsoever except those described in the particular schedules with reference to the land defined therein. Such a scheme of prohibition is permitted by the Local Government Act, s. 309 (1A), which is a provision which was introduced in consequence of the decision of this Court in Dyer v. Luckett [1928] HCA 24; (1928) 41 CLR 44 that prohibited trades had to be specified by proclamation. The only material departure from the general scheme adopted in 1930 which has been brought to our notice is the prohibition already quoted from the 1952 proclamation with reference to Residential District No. 1. (at p597)
portions of the Municipality comprised in Residential
Districts Nos. 2-81, and so much of the said Municipality as
consists of public reserves. Permitted Buildings, Trades,
etc. Buildings being recreation ground club houses or
appurtenant thereto."
5. Turning now to Schedules 2 to 81, it is apparent that in some of them the
only land defined is a single block in use for a particular
purpose and the
relaxation of the blanket prohibition is confined to a continuance of use for
that purpose. Instances of this can
be found in Schedules 19, 21, 23, 34, 43,
44 and 54, but it will probably suffice to quote Schedule 23, to which
reference will have
to be made in detail to consider a further objection
thereto. It is as follows : -
"The following land situate at Killara, and having frontageFrom what I have said it is reasonably clear that what has been done is to use the power conferred by the Local Government Act, s. 309 (1), not merely to establish areas primarily for residences but to specify land throughout the Municipality upon which particular trades, etc. were being carried on in 1930, to proclaim them as "residential districts" and prohibit their use for non-residential purposes except for existing trades, etc. and, in some cases, what may be described as similar activities. It is necessary to consider whether or not what was done was a legitimate use of the power conferred by s. 309 (1). (at p597)
of 80 feet to Lane Cove road (south-western side) by a depth
of 259 feet, and being part of lot 11, d.p. 3,725.
Permitted Buildings Trades, etc.
Buildings for the purposes of a public motor garage."
6. What s. 309 authorizes, upon the application of a council, is that : - "(1) The Governor may on the application of the council" (inter alia) - "(a) declare by proclamation any defined portion of an area to be a residential district ; . . . (c) prohibit the erection in such district of any building for use for the purposes of such trades, industries, manufactures, shops, and places of public amusement as may be described in the proclamation ; and (d) prohibit the use of any building in the district for any such purposes ; and . . . (g) prohibit the use in the district of any land for the purposes of any trade, business, avocation or calling described in the proclamation." The use of the phrase "residential district" does, of course, suggest that the prime object of the grant of power was to select neighbourhoods for houses and maintain good living conditions therein by prohibiting particular non-residential uses which, if they were permitted, would be likely to interfere with such conditions. Again, provisions such as those to be found in s. 326 relating to fixing the density of houses per acre and fixing building units not exceeding five acres in residential districts do indicate that it was contemplated that some residential areas would be large areas, although they give no ground for concluding that there is some minimum size for a residential district. These things do not, I think, require the power itself to be limited to the proclamation of areas of a substantial size primarily for residences in which the location of non-prohibited trades, etc. cannot be controlled. To proclaim some area a residential district without more has no real significance, for no limitation upon what may be done therein results therefrom. To make such a proclamation is really no more than the starting point for imposing restrictions upon the trades, etc. which may be carried on therein. In the context of s. 309 "residential district" is nothing more than a name given to an area so proclaimed and, as any defined portion of a municipality may be proclaimed a residential district and as prohibitions as set out may then be imposed upon use, it does not appear to me an abuse of power to do what has been done by the proclamation in question. To revert to Schedule 23, I do not consider that it was outside power to proclaim a small area of land upon which a public motor garage was being carried on as a residential district and to prohibit that land from being used for the purposes of any other trade, etc. The Governor's power under s. 309 is, of course, dependent upon an application by a council, which could, without jeopardizing the ensuing proclamation, consider the municipal area as a whole and put forward to the Governor a scheme which would fit particular trades, etc. into the desired pattern of residential development. A municipality requires a certain number of shops, factories, bakeries, garages, dairies and perhaps even quarries or dairy farms in convenient situations, and I regard s. 309 as conferring sufficient power to determine where such activities will be located in the municipal area rather than as being restricted to defining districts of a substantial size reserved for houses among which any trades, etc. which are not prohibited may be established anywhere. I conclude, therefore, that it was within power to proclaim residential districts such as I have been discussing and that, in determining what is comprised in Residential District No. 1, any area defined in the other schedules by reference to particular lots should be deducted. (at p599)
7. It was argued, however, that some of the Schedules 2 to 81 did not sufficiently define any portion of the municipal area so that the deduction to be made for the ascertainment of Residential District No. 1 was impossible, with the consequence that Schedule 1 did not define any portion of the municipal area. The schedule against which most criticism was levelled was Schedule 23 and, apart from a reference to one other schedule, it seems possible to test the argument by reference to Schedule 23. This has already been quoted and uncertainty is said to arise from the description of an area of land having a frontage "of 80 feet to Lane Cove Road . . . by a depth of 259 feet, and being part of lot 11 . . .". The prima facie uncertainty arising from such a description is said to have been reinforced by evidence admitted in the Full Court that originally Lot 11 had a frontage of 85 feet to Lane Cove Road and that at some date subsequent to the date of the proclamation of 1930 a resumption of part of the lot for the purpose of widening the road increased that frontage to 87 feet 1 3/4 inches. The subdivisional plans admitted in the Full Court to prove the frontage measurements, however, also showed that the depth of the block was not exactly 259 feet but 259 feet 8 3/4 inches along one boundary and 259 feet 11 inches along the other boundary. To the appellant's objection based upon the inaccuracy in the description of the frontage of the land there are, however, a number of possible answers. In the first place, it was not proved that the resumption of part of Lot 11 for road widening was at a date subsequent to 19th June 1930 when the proclamation was made. A close examination of the material which was put before the Full Court indeed suggests that the resumption preceded the proclamation and it could be that what it was intended by the schedule to describe was the whole of the land remaining in Lot 11 after the resumption. If, however, the proclamation was earlier than the resumption, it would not appear that in strictness there would have been any error in the use in the schedule of the words "being part of lot 11" even if it had been intended to state the measurement of the full frontage to Lane Cove Road because the depth of the land did exceed 259 feet. It seems that there is some inaccuracy in the description of the measurements of the land in the schedule, but I have come to the conclusion that whether the resumption preceded the proclamation or vice versa, the uncertainty is not fatal to the efficacy of the schedule. I think s. 648, sub-s. (2), of the Local Government Act, which provides inter alia that an inaccurate description in a proclamation shall not affect the operation of the proclamation, can and should be applied to Schedule 23. This sub-section governs the case where measurements reveal that there is an inaccurate description of land in a proclamation and provides that in such a case the proclamation shall take effect as if the correct figure instead of the inaccurate figure appeared in the proclamation. At least this is how I read the sub-section. As Schedule 23 would be free from any inaccuracy or ambiguity if the correct frontage of Lot 11 were substituted for the figure of 80 feet appearing in the schedule, and I am satisfied that that was intended, I am prepared to read the schedule as if it had referred to the original frontage, i.e. 85 feet. Had I not come to this conclusion I would have had to consider whether, if Schedule 23 should be regarded as ineffectual for uncertainty, the consequence would not merely be it should be disregarded in ascertaining what had to be deducted to determine the land comprised in Residential District No. 1, but in the view I have taken it is not necessary to do this. The other schedule to which I think it necessary to refer is Schedule 12, which was also the subject of criticism and in which land is described as having a frontage to Lane Cove Road (south-western side) - Lot 1 and part of Lot 2, d.p. 4,195. The uncertainty is said to reside in the lack of definition of part of Lot 2 that has a frontage to Lane Cove Road, but I can imagine circumstances in which Schedule 12 would constitute a perfectly accurate description of a particular piece of land, e.g. if Lot 2 had been subdivided so that one part had a frontage to Lane Cove Road and the other part a frontage to some other road. The factual position was not proved and, if the description as it stands could possibly be applied to define a portion of the municipal area with certainty, it rests upon anybody asserting that it does not do so to establish this. In my opinion, therefore, the various attacks upon the proclamations on the ground that the land comprised in Residential District No. 1 has not been defined, fail. (at p601)
8. It was also contended that the land comprised in Schedule No. 1, being the whole of the municipal area less pockets of public reserves and areas comprised in Residential Districts 2 to 81, cannot be described as a district notwithstanding that, like the ocean, it is possible to go from any one part to every other part without leaving it. That this was so was admitted. Again I think that the argument places too much weight upon the understanding of what is normally meant by a "district". Here, as I have already said, "district" means no more than one area of land and Residential District No. 1 is one area of land notwithstanding it is a very oddly-shaped area. In support of the argument that the area comprised in Schedule No. 1 could not be regarded as a residential district, reliance was placed upon the decision of this Court in Vitosh v. Brisbane City Council [1955] HCA 52; (1955) 93 CLR 622 but it does not assist the argument because what was decided there was that it was not an exercise of a power to declare any part of the City of Brisbane to be a residential district to declare that all land vacant or upon which there are residential buildings shall be a residential district or districts. This throws no light upon the validity of the proclamations here in question. (at p601)
9. Because I think the various attacks upon the validity of the proclamation fail, it is necessary to go on and determine whether what the appellant was doing was prohibited. The prohibition now to be found in the proclamation of 16th January 1952 has already been stated but the question really arises upon the terms of the Local Government Act, s. 309, itself, of which the relevant parts (1) (a) (c) (d) and (g) have already been set out. The problem is simply whether the use to which the appellant was putting the premises falls within the description of a trade or industry. (at p601)
10. "The word 'trade'", said Lord Reid in Griffiths v. J. P. Harrison (Watford) Ltd. (1963) AC 1 , "is more indefinite than most words used in Acts of Parliament" (1963) AC, at p 16 and here it is not necessary to set out the gradations whereby the meaning has developed from a "track" or "trail" to cover, inter alia, some occupation or business habitually carried on, but I have reached the conclusion that in this developed sense - which, as will be seen, is well recognized - it does cover what the appellant has been doing at the premises. She can be said with accuracy to have been trading there because the evidence shows that for the period between 11th November 1961 and 17th March 1962 she conducted upon the premises seventeen functions for which payment was received and at which there was provided food bought by the appellant and prepared on the premises, drinks, decorations and music. Typical of the functions were wedding receptions. It may be said that the word "business" would describe more accurately than the word "trade" the appellant's activities upon the premises, but the line between "trade" and "business" is not hard and fast and it is to be observed that in the Oxford English Dictionary one meaning of the word "trade" is: "The practice of some occupation, business, or profession habitually carried on, especially when practised as a means of livelihood or gain". In the same way, a meaning of the word "business" that is given is: "Stated occupation, profession, or trade". It is not, I think, a departure from ordinary usage when in the Income Tax Assessment Acts the word "business" is defined to include "trade". In opposing the adoption of the meaning of the word which would cover a business, counsel for the appellant naturally pointed out that in s. 309 (1) (g) the word "business" as well as the word "trade" is used as is also the case in s. 314 (1) (a), but these are both provisions introduced by way of amendment and words are used so loosely throughout the Act and with so much overlapping that little can be extracted from the occasional use of both words in particular provisions. It can hardly be gainsaid that sometimes when the word "trade" is used without the word "business" it would cover activities which would also be properly described as businesses, e.g. the conduct of a service station, a warehouse, a laundry or a dairy. My conclusion that the use which the appellant was making of the premises falls within the description "trade" makes it strictly unnecessary to decide whether the premises were being used for industry but I am disposed to think that even without resort to the authorities upon the meaning of the words "industrial disputes" in s. 51 (xxxv.) of the Commonwealth Constitution, it could be said without extravagance that the appellant was using the premises for systematic work of a productive character for reward - a description which I think would bring her activities within the common understanding of what is meant by an industry. (at p602)
11. Upon this part of the case my conclusion is, therefore, that the use of the premises in question did constitute a breach of the proclamation dated 16th January 1952 which seemingly is punishable as an offence under the Local Government Act carrying a penalty not exceeding 100 pounds - see ss. 632 and 633. (at p602)
12. Although questions were debated before us about the applicability, as distinct from the validity of the County of Cumberland Planning Scheme Ordinance, it seems to me that in the absence of any crossappeal and because of the course of proceedings in the Full Court and of the conclusion I have already stated it is unnecessary to decide whether the Ordinance upon its proper construction applied to the appellant's activities. (at p603)
13. There remains for consideration the problem whether the Court had jurisdiction to grant an injunction restraining such breaches of the Local Government Act and the proclamation thereunder as I have found to have occurred. I put the question in this way for, if an injunction can go, there can hardly be any question whether it should go because it is admitted "that the defendants will unless restrained continue to hold functions of the type described in the said affidavit" - that is, Mrs. Cooney's affidavit to which I have already made reference. (at p603)
14. The authority relied upon to show that the jurisdiction to grant injunctions is not available in such a case as this was Attorney-General (ex relatione Lumley) and Lumley v. T. S. Gill & Son Pty. Ltd. (1927) VLR 22 where the Full Court of the Supreme Court of Victoria decided that the advantage to the general public at large resulting from a by-law which made it an offence punishable by fine for a person to build a factory on land within a residential area was not such an advantage as a Court of Equity would protect by injunction. The basis of this decision was that, whereas to warrant an injunction for its protection some positive interest analogous to a right of property had to be established, the benefits or advantages to the public arising from the by-law were equated with those arising from a restrictive convenant in gross not enforceable by injunction rather than with those arising from a covenant restricting the use of land and creating something in the nature of a servitude appurtenant to other land enforceable by injunction. This decision was referred to by this Court in Ramsay v. Aberfoyle Manufacturing Co. (Australia) Pty. Ltd. (1935) 54 CLR 230 but, except in the judgments of Starke and McTiernan JJ., the question was not decided whether the limitation recognized in Gill's Case (1927) VLR 22 should be accepted. Starke J. thought the principle asserted "confines the jurisdiction within too narrow limits and runs counter to a body of authority that ought not to be disregarded" (1935) 54 CLR, at p 247 . McTiernan J. said the principles there stated "are unexceptionable" (1935) 54 CLR, at p 261 and that the decided cases "exhibit no tendency to make equity the handmaid of the criminal law" (1935) 54 CLR, at p 260 . Whatever was the position in 1927, it is now apparent from a line of cases in New South Wales and in England that courts have granted injunctions or mandatory orders to protect benefits or advantages of the kind considered in Gill's Case (1927) VLR 22 and even any benefits or advantages that could not be regarded as having any resemblance at all to proprietary rights. Some of the New South Wales cases are Council of the Shire of Hornsby v. Danglade (1929) 29 SR (NSW) 118 (mandatory order to compel demolition and removal of buildings erected contrary to Council's orders and ordinances under Local Government Act); Warringah Shire Council v. Moore (1942) 15 LGR (NSW) 44 (injunction to restrain defendant carrying out alterations to a building not approved by Council as provided by Local Government Act); Lake Macquarie Shire Council v. Morgan (1948) 17 LGR (NSW) 22 (injunction to restrain defendant's breach of cl. 13 (d) of Local Government Ordinance 48 by engaging in trade or business in a public reserve without Council's permission); Ku-ring-gai Municipal Council v. Edwards (1957) SR (NSW) 379 (injunction to restrain defendant from erecting a building not in conformity with the Council's approved plan and conditions attached thereto); Greater Wollongong City Council v. Jones (1955) 1 LGRA 342 (injunction to restrain defendant's user of land in a way the Local Government Act prohibits); Waverley Municipal Council v. Parker (1960) 5 LGRA 241 (injunction to restrain defendant altering a building in contravention of Local Government Act); and Cumberland County Council v. Corben (1960) 77 WN (NSW) 650 (injunction to restrain defendants' user of land contrary to prohibitions contained in Planning Scheme Ordinance). Some of the English cases decided since 1927 are Attorney-General v. Sharp (1931) 1 Ch 121 (injunction to restrain defendant from plying for hire of omnibus without licence contrary to statute); Attorney-General v. Premier Line Ltd. (1932) 1 Ch 303 (declaration of plaintiff's entitlement to an injunction to restrain defendant running road service without licence as required by statute); Attorney-General v. Bastow (1957) 1 QB 514 (injunction to restrain defendant's user of land as caravan site contrary to notice served under Town and Country Planning Act); Attorney-General v. Smith (1958) 2 QB 173 (injunction to restrain defendants from developing land as caravan site without permission pursuant to Town and Country Planning Act); and Attorney-General v. Harris (1961) 1 QB 74 (injunction to restrain defendant from selling flowers from stalls near cemetery in manner constituting a statutory offence). It would, I think, be contrary to the trend of authority since 1927 to accept now the limitation adopted in Gill's Case (1927) VLR 22 upon the jurisdiction of a Court of Equity to grant injunctions. Prohibitions and restrictions such as those under consideration are directed towards public health and comfort and the orderly arrangement of municipal areas and are imposed, not for the benefit of particular individuals, but for the benefit of the public or at least a section of the public, viz. those living in the municipal area. It seems to me that one object of endowing municipal councils with the capacity to take proceedings which the Attorney-General, representing the public generally, might take to secure the observance of provisions made by or under the Local Government Act (see s. 587) was to enable councils to take the kind of proceedings which the Council has taken here and in proper cases to obtain injunctions to ensure the observance of such laws. A proper case is, I think, made out when it appears that some person bound by what may be described as a municipal law imposing a restriction or prohibition upon the use of land in portion of a municipal area for the public benefit or advantage has broken, and will, unless restrained, continue to break that law for his or her own advantage and to the possible disadvantage of members of the public living in the locality. The wide discretion of the Court is an adequate safeguard against abuse of a salutary procedure: see Ramsay's Case [1935] HCA 75; (1935) 54 CLR 230 . (at p605)
15. As I have come to the conclusion that the Full Court was right in granting the injunction that it did, I would dismiss the appeal. (at p605)
WINDEYER J. I have had the advantage of reading the judgment prepared by Menzies J. and I agree generally in his conclusions and his reasons for them. (at p605)
2. As to the proclamation: At first sight it may seem to go beyond what, on reading s. 309 of the Act, one might think to be the intent and purpose of the power to proclaim residential districts. But, on examination, it appears to me to be an ingenious use of the statutory power, not an abuse of it. The proclamation apparently embodies a scheme of planned development of the Municipality of Ku-ring-gai, for residential use, with various ancillary trades and services confined to separate and specified localities. The way in which it accomplishes this result is somewhat surprising. The scheme has been in existence for over thirty years, although modifications have been made from time to time. The question raised by the argument that it is wholly invalid is therefore of some general importance. It is contended that it is invalid either as beyond the statutory power or as an uncertain exercise of the power. (at p606)
3. I do not think that anything in the proclamation on its face goes beyond what the provisions of the Act, literally read, would authorize, although its result, taken as a whole, is unexpectedly complex. The size and the permitted uses of some of the parcels of land called "residential districts" may seem to belie the name. But even if there can be any objection to describing a particular small parcel of land as a residential district, I do not think that there is any objection to the proclamation as a residential district of the residue of an area after subtracting defined parcels of land, large or small, for whatever purpose they were defined. The allegation that there was not sufficient certainty in the description of one "residential district", and that therefore the residual residential district in which the appellant's land lies was not defined, was not established. (at p606)
4. As to the nature of the appellant's use of her premises: I think that what she was doing, and proposed to continue to do, was the carrying on upon the premises of a "trade" within the meaning of those words in the proclamation. It seems that the present controversy arose out of an application to the Council for permission to alter the house to provide lavatory and cloak-room accommodation and other facilities to enable her the better to pursue the activities she was carrying on there. That those who availed themselves of her catering undertaking were all either persons known to her or introduced by persons known to her, and that sometimes charity functions were held upon her premises without any remuneration to her, are not, I think, matters that really alter the character of the use she was making of the building. The evidence shewed that she was there conducting a business, an increasing business apparently, of catering for wedding receptions and similar gatherings. Such enterprises are common to-day. It seems to me that the habitual conduct of such an undertaking at a particular place involves that place being used for the purposes of a "trade" just as much as it would be if a restaurant were carried on there. That the place was not used every night, or with frequent regularity, means only that the trade was not a large one. (at p606)
5. In the view I take, it is unnecessary to decide whether or not the activities of the appellant amounted to an "industry" either within the ordinary meaning of that word or within the definition in the County of Cumberland Planning Scheme Ordinance. (at p606)
6. I agree that it is within the competence of the Supreme Court in its equitable jurisdiction to grant an injunction in cases of this sort. It has, as Menzies J. has shown, often been done, and I think properly done. Whether or not in a particular case an injunction should be granted at the suit of a Council, or whether it should be refused on the ground that a prosecution for a penalty would be a more appropriate remedy, is largely a matter of discretion. I do not dissent from the view that, in the circumstances of this case, proceedings for an injunction were properly taken. (at p607)
ORDER
Appeal dismissed with costs.
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