Eaton & Sons Pty Ltd v Warringah Shire Council [1972] HCA 33; (1972) 129 CLR 270 (6 June 1972)

HIGH COURT OF AUSTRALIA

EATON & SONS PTY. LTD. v. WARRINGAH SHIRE COUNCIL. [1972] HCA 33; (1972) 129 CLR 270

Town Planning (N.S.W.)

High Court of Australia.
Barwick C.J.(1), McTiernan(2), Walsh(3), Gibbs(4) and Stephen(5) JJ.

CATCHWORDS

Town Planning (N.S.W.) - Planning Scheme - Right to continue existing use of land - "Use" - Protection of right or privilege acquired under previous scheme.

HEARING

Sydney, 1972, April 11, 12;
Brisbane, 1972, June 6. 6:6:1972
APPEAL from the Supreme Court of New South Wales.

DECISION

June 6.
The following written judgments were delivered:-
BARWICK C.J. The appellant appeals against a decretal order of the Supreme that Court declared that

"the use of such part of the land known as lot 2 in Deposited
Plan Number 207700 as is zoned Residential 2 (a) under the
Shire of Warringah Planning Scheme Ordinance (other than
that part edged red on the plan being the plan prepared by
Messrs. F.P. Wallis & Moore and marked Ref. No. 10550/1
and dated 27th August 1970 which said plan has been initialled
by the said Judge and placed with the papers) for the purpose
of timber storage, timber distribution, hardware storage or
hardware distribution is a breach of the Shire of Warringah
Planning Scheme Ordinance"

and whereby the Court restrained the appellant from so using the said land. (at p271)

2. The essential facts of the case are that the appellant has carried on business as a timber and hardware selling merchant at a location in the Forestville area of the Warringah Shire since the year 1956. Before purchasing at that location three lots of land known as lots 5, 8 and C1, having frontages to Cook Street, Forestville, the appellant sought and obtained from the respondent Council its approval of the establishment on that land of a timber and hardware reselling business, involving amongst other activities the storage of building timber. In 1956 and until 5th June 1963, the land was covered by the County of Cumberland Planning Scheme (the County Scheme), under which the respondent Council was the responsible authority to give such a consent as it did give to the proposed use of the land by the appellant. An ineffectual attempt was made by the respondent in July 1956 to revoke its approval of the use of lot C1 for the business of timber reselling; but in fact, on 5th June 1963, the appellant was both carrying on the business of timber and hardware reselling at the said location and physically using part of lot C1 for the storage of timber. Meantime lot C1 had been subdivided into two lots known in the case as lots 1 and 2. The decretal order and this appeal are concerned with lot 2, part of lot C1, but I will find it convenient throughout to refer simply to lot C1. (at p272)

3. The Shire of Warringah Planning Scheme Ordinance (the Warringah Scheme) became effective on 5th June 1963. This scheme superseded, so far as concerns the subject land, the County Scheme. Under the Warringah Scheme, part only of lot C1 could be used for industrial purposes, the balance being zoned for residential purposes, though permission could be given by the respondent council for other not prohibited uses. The storage of timber was not a prohibited use. (at p272)

4. At the time of the inception of the Warringah Scheme, according to the findings of the Supreme Court, the appellant was carrying on its business pursuant to the approval by the respondent in 1956, and in the course of its business had placed timber on portion of that part of lot C1 which, according to the zoning, ought only to be used for residential purposes as well as upon that part which could be used for industrial purposes. Earlier a fence had divided the lot but at the relevant time the stacking of timber was not confined within this fence. The balance of the portion of C1 included in the residential zoning, i.e. the part on which in June 1963 timber had so far not been stacked, was to a large extent uncleared land and constituted a substantial part of the total area of lot C1. The appellant in the course of its business, apparently about 1969, placed timber on parts of the land within the residential zone beyond that part within such zone on which it had placed timber before 5th June 1963. An application made in 1969 by the appellant for approval of a proposed development of lot C1 was refused by the respondent Council. (at p272)

5. The respondent Council, in a suit commenced by originating summons in the Supreme Court in Equity on 23rd July 1970, sued the appellant for declarations and injunctions. It succeeded in its contention that the placing of timber on the parts of lot C1 upon which timber had not in fact been stacked before June 1963 was a breach of the Warringah Scheme. The appellant's submission that on 5th June 1963 it was relevantly using the whole of lot C1 for the purpose of its business, and thus, by virtue of cl. 30 of the scheme, entitled to continue that use, was rejected. The appellant in this appeal, amongst other submissions, challenges this rejection. Clause 30 of the Warringah Scheme is in the following terms:

"An existing building or an existing work may be maintained
and may be used for its existing use and an existing use of land
may be continued." (at p272)

6. This Court, after the decretal order had been made in this case, delivered judgment in the appeal of Parramatta City Council v. Brickworks Ltd. [1972] HCA 21; (1972) 128 CLR 1 . This Court there decided in relation to a clause in a planning scheme which, in terms identical with those of cl. 30, allowed an existing use of land to continue, that that use must be a present use, but not necessarily a physical use, either of the whole or of part of the land. Mere acquisition of land with the intention of using it for a particular purpose in the future would not make the possession of the land an existing use of it for the purposes of the planning scheme. What was said by the Court in that case in point of construction is applicable in this case. Further, the facts of that case may usefully be considered as an illustration of the application of that construction of the words common to the two planning schemes. Factors which were seen to be significant in that case in deciding that there had been an existing use, though not a physical use, of land were that the land had been acquired for and been devoted to the purpose of quarrying and brickmaking, though only part of it was being physically used at the relevant date. Though there were various lots, held under separate certificates of title, the Court concluded that the whole should be regarded as one piece of land used for the purpose of quarrying and brickmaking. The physically unused part of that land was considerable in area. The extraction of clay from it in the course of the owner's business of brickmaking would occupy a very long time indeed. (at p273)

7. There was no evidence, in the present case, that the total area acquired was disproportionate to the nature of the business intended to be conducted. True, the demands of its business had not so far required that the appellant physically use the whole of that land. Though part of lot C1 had been fenced, this was for the purposes of security. Nothing in the evidence suggests that it was fenced off so as to segregate the balance from the business and its purposes. Nor, in my opinion, was the fencing off indicative of a conclusion by the appellant to place in reserve for future use the portion not then physically used for the stacking of timbers, its introduction into current use to be the result of a further decision on the part of the appellant. Further, by the relevant date, the fence no longer set the limit of the physical use of the lot. Timber had been stacked beyond the fence to a significant extent. The surveyor's plan referred to in the decretal order represents an attempt to fix the outer limits of the physical use of the lot at that time according to the evidence produced at the hearing of the suit. It did not represent or correspond to any subdivided boundary or any limit of ownership or occupation. It is clear, in my opinion, from this Court's decision in the case to which I have referred, that physical use is not an indispensable element in an existing use of land for the purposes of such a provision as cl. 30 of the Warringah Scheme. Land which is kept vacant for use as the needs of a business demand is not of necessity properly designated, in my opinion, as land not in existing use, but merely intended for future use. Much will depend on the extent of its integration with land in actual physical use and the nature of the business being conducted. The title boundaries of parcels will not be, of themselves, definitive. But, particularly in the case of suburban allotments, it will be a rare case, in my opinion, in which that part of an allotment not in actual physical use will not have the same existing use as the other part of the allotment used for the purposes of a business. But, of course, all the relevant facts need to be known and interrelated before a conclusion as to existing use in the relevant sense is drawn. No doubt there will be cases, particularly in relation to expanding businesses, where the line between a reserve of land intended only for future use and the present use in a business of vacant and physically unused land may be extremely fine. But I cannot think that it will be often that a line can properly be drawn within a suburban allotment confining the existing use of the allotment to the area of physical use, treating the balance of the allotment as land intended only as a reserve for future use. Progressive physical use of the allotment, even though the progress be at irregular and long spaced intervals, would mean, if such a line were drawn, that the existing use of such an allotment as lot C1 would always be coterminous with its physical use. But it seems to me that the relevant use of land in the situation of lot C1 will not vary from time to time as its physical use varies according to the exigencies of the business to whose purposes the land as a whole has been devoted. (at p274)

8. Whilst the purpose for which land was purchased will not, of itself, determine its existing use at any subsequent time, that purpose coupled with the integration of the land with land in undoubted business use will, in my opinion, be an important factor tending towards the conclusion that the land is currently used for the purposes of the business carried on on the land with which it is integrated. (at p274)

9. In the present case, the fencing off of part of lot C1, leaving the part not physically used uncleared (and in an uncleared state scarce usable for the purposes of the business) is undoubtedly a matter of importance in considering whether the physically unused part of the lot had an existing use. But there are factors which to my mind are counteracting and cogent. C1 was a suburban allotment having boundaries marked out by subdivision and title. A substantial part of it was in physical use for the purposes of the business. It was integrated with the other two lots, undoubtedly used for the purposes of the business. All these lots were purchased at the one time to form the site of those business operations. The fence was evidently but a security measure; and in any case, at the relevant date, physical operations were carried on beyond it. From the description of the scrub growing on the physically unused part of the lot, its clearance was not a matter of difficulty or likely to occupy much time. It might well be said that there was no point in clearing it, with the probability of regrowth, until actual physical use was imminent. (at p275)

10. In my opinion, applying this Court's decision in Parramatta City Council v. Brickworks Ltd. [1972] HCA 21; (1972) 128 CLR 1 the land to which regard should be had for the purpose of applying cl. 30 of the Warringah Scheme, is the whole of the land occupied in lots 5, 8 and C1 acquired by the appellant for the purpose of establishing theron its business of timber reselling. As I have indicated, lot C1 should be regarded as integrated into that whole for the current purpose of the business. At the very least, lot C1 should itself be regarded as a whole and not divided into doubtfully definable parts related to current physical use. Of course, the nature of the business and of the use of the land there in question was different from the circumstances of this case. But I can find no significant difference for present purposes between the use of land for quarrying and brickmaking and the use of land for the business of timber reselling, involving as it does the storage of timber. No doubt in the one case the land is progressively consumed, so that a void is created and in the other it remains, though progressively covered by stacks of timber. But in each case, at any given time, there may well be areas physically absorbed, wholly or partially, or covered. I am unable to conclude that only those parts of a timber yard have an existing use which are covered by timber. I would regard the evidence in this case as indicating that the whole of lot C1, or to be precise of lot 2 therof, would properly be described, as of June 1963, as a timber yard, none the less so because all of it had not been cleared and only part of it bore timber. (at p275)

11. Having regard to all the circumstances to which I have referred, I have formed the clear opinion that the right conclusion is that the whole of lot C1 should be held to have been in use within the meaning of the scheme for the purposes of the timber reselling business as a timber stacking area. Consequently, in my opinion, the Supreme Court was in error in not so concluding. Indeed, that Court's conclusion was influenced by the judgment of the President of the Court of Appeal Division of that Court in Brickworks Ltd. v. Parramatta City Council (1970) 92 WN (NSW) 701 , with whose reasons this Court, in the subsequent appeal, did not agree. (at p276)

12. The appellant also sought to rely on cl. 65 (1) of the scheme which, amongst other things, provides that the provisions of the scheme should not affect "any right, privilege, obligation or liability acquired, accrued or incurred" under the County of Cumberland Planning Scheme in respect of land covered by both schemes. The appellant's claim was that the removal, by the respondent Council's consent if 1956, of the limitation then imposed by the County Scheme on the use of the whole of the land then purchased by the appellant constituted a right or privilege acquired under that scheme within the meaning of cl. 65 (1). As I am of opinion that the appellant should succeed in this appeal for the reasons I have given, I find no need to decide whether or not the appellant's submission as to the effect of the respondent Council's consent, given in 1956, is correct. (at p276)

13. In my opinion, the use by the appellant of any part of lot C1 for the purposes of its business of timber and hardware selling, and, in particular, for the purpose of timber stacking in the course of that business, is not in breach of the Warringah Planning Scheme Ordinance. Consequently, in my opinion, the decretal order in the Supreme Court should be wholly set aside and in lieu thereof an order should be made dismissing with costs the respondent's suit. (at p276)

McTIERNAN J. I agree in the judgment of Stephen J. for the reasons stated by him. (at p276)

WALSH J. In a suit instituted by the respondent in the Supreme Court of New South Wales a decretal order was made by which the Court (Helsham J.) declared that the use of a specified part of certain land of the appellant for the purpose of timber storage, timber distribution, hardware storage or hardware distribution was a breach of the Shire of Warringah Planning Scheme Ordinance and an injunction was granted restraining the appellant from using the specified part of the land for such a purpose without the prior consent of the respondent (1971) 22 LGRA 244 . The specification of the part of the land the use of which for those purposes was declared to be a breach of the Ordinance was made by reference to a plan on which a marking appeared to show the area to which the declaration was to apply. (at p276)

2. An allotment known as lot 2 owned by the appellant is partly within and partly outside a residential zone. The Court found that there had been at the relevant time an existing use of a comparatively small portion of the part of that allotment which lay within the residential zone for the purposes of the storage and distribution of timber and it was held, therefore, that it was lawful for the appellant to continue to use that portion of the land for those purposes. But as to the remainder of the area which lay within the residential zone, its use for those purposes was held not to be lawful. (at p277)

3. In this appeal from the decision of the Supreme Court the appellant claims upon two grounds that it was entitled after 5th June 1963 (this being the "appointed day" for the purposes of the provisions of the Ordinance relating to existing use) and is still entitled to use the whole of the land for the said purpose. The first ground of that claim is that the appellant had obtained in 1955 from the respondent, in accordance with the provisions of the County of Cumberland Planning Scheme, an approval of the use of the whole area for the establishment of a timber reselling yard and, when the Ordinance came into operation in 1963, the appellant had an accrued right which was not affected by the revocation of the County Scheme. That claim is based upon cl. 65 (1) of the Ordinance. In my opinion the claim fails. I agree with the reasons given by Stephen J. for rejecting it. (at p277)

4. The other ground upon which the appellant relies is that there was an existing use of all the land to which the contest between the parties relates and that the continuance of that use is authorized by cl. 30 of the Ordinance. The facts found by the learned judge who heard the suit are sufficiently stated in the reasons for judgment prepared by Gibbs J. and by Stephen J. The question is whether of not the learned judge was right in concluding that within the meaning of cl. 30 there had been an "existing use" of that portion only of the allotment which had been physically used by the appellant for the purposes of its business. In considering that question, the decision and the reasons of the majority of this Court in Parramatta City Council v. Brickworks Ltd. [1972] HCA 21; (1972) 128 CLR 1 which had not been published when the present case was before the Supreme Court, are of great importance. Clause 32 of the County of Cumberland Planning Scheme Ordinance which was there considered is in the same terms as cl. 30 of the Ordinance with which we are now concerned. In that case I felt some hesitation about concurring in the views which the other members of the Court took as to the meaning and operation of the clause. As I was able to decide the case on a different ground, I refrained from expressing an opinion on the questions which arose under cl. 32. But accepting now the reasoning approved by the majority of the Court in the Brickworks Ltd. Case [1972] HCA 21; (1972) 128 CLR 1 I have come to the conclusion that, although there are differences between its facts and those of the case now before the Court, it should be held that there was an existing use by the respondent for the purposes of its business of the allotment known as Lot 2 (formerly known as lot C1) and that cl. 30 entitled the respondent to continue to use for those purposes any part of that allotment. I agree with the reasons given by Gibbs J. for that conclusion but I shall add a few observations to what he has written. (at p278)

5. As Gibbs J. states, the problem is to identify the land to which the existing use can be said to have attached. If the allotment may rightly be regarded as one piece or parcel of land which was used for the respondent's business, then cl. 30 permits the respondent to continue that use of that parcel of land and that means it is entitled to use every part of it: see Kismet Engineering Pty. Ltd. v. Brisbane City Council [1959] HCA 49; (1959) 102 CLR 574, at p 580 . (at p278)

6. For the practical working out of the provisions of the Ordinance it is important that the area of land which should be regarded as brought by an existing use within the operation of cl. 30 should be capable as far as is possible of being identified in a way which avoids detailed investigations and complicated disputes of fact. It is clear, in my opinion, that it will not be possible in all cases to avoid the difficulty of resolving questions of fact and of degree or to avoid the necessity of drawing a line to mark off one area from another within land within the same ownership. It seems plain that in some cases the physical use for a particular purpose of a small portion of a large holding would not warrant a finding that the whole area was used for that purpose. But I am of opinion that where a relatively small area is held by one owner and none of it has been used in fact for any purpose different from that for which a part of it has been used, it should generally be regarded as being all one parcel for the purpose of determining what land has been put to that use. It would not be right to lay down rigid rules as to how the problem of identification is to be solved. There may be circumstances in a particular case which would warrant a finding that a part only of a holding, even when it is a relatively small block of land, has been used for a particular purpose. For example, if one part has been fenced off completely from another part and the use which the owner claims to be entitled to continue has been confined entirely to that one part, it may be proper to treat the land as consisting of separate parcels when applying cl. 30. In the case now before the Court there was a fence, upon one side of which most of the appellant's business activities were carried on. But the fence did not enclose completely that portion of the appellant's land which lay to the west of the fence and the actual physical use for business purposes of the land extended beyond the fence and was not confined to the western side upon which the activities were mainly conducted. In those circumstances the fence cannot set the boundary of the land to which the existing use can be treated as having attached. (at p279)

7. The fact that a substantial portion of the allotment was not cleared and was not actually used for the storage of timber is, in my opinion, a fact properly to be taken into account in determining whether the whole allotment should be treated as one parcel of land for the purpose of applying cl. 30. But I am of opinion that it is not a fact which, when weighed against the other circumstances of the case, warrants a conclusion that the allotment should not be regarded as one parcel. (at p279)

8. Finally, I think that the fact that in 1955 the appellant applied for an approval for the use of the whole of the land as one unit for a specified purpose and that the respondent granted that approval is a fact which, although not decisive, tends to support the conclusion that the allotment should be treated as one piece of land. (at p279)

9. In my opinion the appeal should be allowed. (at p279)

GIBBS J. I have had the advantage of reading the reasons for judgment prepared by my brother Stephen J. Although I am unable to agree with his conclusion, his discussion of the case enables me to state my own views more briefly than would otherwise have been possible. (at p279)

2. By cl. 30 of the Shire of Warringah Planning Scheme Ordinance (to which I shall refer as "the Ordinance"), which took effect on 5th June 1963, it was provided as follows:

"An existing building or an existing work may be maintained
and may be used for its existing use and an existing use of land
may be continued".

"Existing use" was defined in cl. 4 of the Ordinance to mean (interalia) "a use of a building, work or land for the purpose for which it was used immediately before the appointed day ..." By cl. 4, "appointed day" means "the day upon which this Ordinance takes effect". (at p279)

3. The decision of this appeal, in my opinion, depends on the question whether immediately before 5th June 1963 (the "appointed day" for the purposes of the Ordinance) the appellant's land at Forestville, formerly comprised in lot C1 but now described as lot 2, was used for the purpose of the storage and distribution of timber. If so, that use was an "existing use" within cl. 4 and its continuance is permitted by cl. 30, notwithstanding that under the Ordinance part of the land is in a residential zone and that no consent to its use for the purpose of the storage and distribution of timber has been given under the Ordinance. (at p280)

4. Lot C1, which contained an area of a little over two acres, was, together with two other parcels, lots 5 and 8, acquired by the appellant in May 1955 for the purposes of its business of timber merchant. In 1961 lot C1 was subdivided into lots 1 and 2. Lot 1 was a small block, about thirty perches in area, on which a house was built as a residence for the manager of the appellant's business. The remainder of lot C1 became lot 2. It was never in dispute that immediately before 5th June 1963 the appellant used lots 5 and 8 and part of lot 2 as a timber reselling yard (that is, for the purpose of storing and distributing timber) in connexion with its business. Lots 5 and 8 and part of lot 2 are included in a light industrial zone under the Ordinance. The balance of lot 2 is included in a residential zone. However, the learned primary judge found that immediately before 5th June 1963 the appellant's use of the land as a timber reselling yard was not confined to that part of lot 2 which is zoned for light industrial use. The appellant used also (that is, physically used) a triangular area immediately to the east of what is now the light industrial zone, which area, together with other parts of the timber yard, was enclosed on its eastern side by a cyclone wire fence, and a further area which extended to the east of the fence for about sixty feet, and which, in the judge's words "had no defined boundaries in the sense of being fenced or otherwise". No challenge was made to these findings. The parts of lot 2 which together were used for the purposes of the timber yard amounted to roughly one-third of the whole of the lot. The remaining area of lot 2 was mostly covered with ti-tree growth and scrub. Of this area the learned primary judge said:

"Possibly it was occasionally travelled over, perhaps fire
breaks were made from time to time; some unwanted timber
may even have been dumped there on occasions, although the
evidence does not satisfy me that this was so. But it was not
used for timber storage as part of the business of the defendant,
nor in any real sense in any other way as part of that business."

Regarded as a finding of primary fact, this means that before 5th June 1963 this part of the land was not put to any actual physical use for the purpose of storing timber or otherwise for the purpose of the business of the appellant. So regarded this finding also is unchallenged. (at p280)

5. Having regard to these findings, there can be no doubt that immediately before 5th June 1963 part of lot 2 was used for the purpose of a timber reselling yard and part was not physically and actually used for that purpose. If, in the application of cl. 30 of the Ordinance, it is permissible to regard lot 2 as comprising two different pieces of land, then it will be right to hold that immediately before 5th June 1963 one of those pieces was used for the purpose of a timber reselling yard whereas the other piece, although perhaps intended to be so used, was not in fact put to use for that purpose. On this view, the learned primary judge was correct in holding that the appellant is entitled to use part of the land, but not the whole, for the storage and distribution of timber. If, on the other hand, lot 2 ought to be regarded as a whole, it seems to me that it should be held that the whole was used for the purposes of a timber reselling yard immediately before the appointed day. It is clear since the decision of this Court in Parramatta City Council v. Brickworks Ltd. [1972] HCA 21; (1972) 128 CLR 1 that the whole of an area of land may be held to have been used for a particular purpose although only part of it was physically used for that purpose. If the land is rightly regarded as a unit, and it is found that part of its area was physically used for the purpose in question, it follows that the land was used for that purpose. (at p281)

6. The problem in the present case is to identify the land to which the existing use can be said to have attached. In Parramatta City Council v. Brickworks Ltd. [1972] HCA 21; (1972) 128 CLR 1 this Court considered a somewhat similar question which arose under cl. 32 of the County of Cumberland Planning Scheme Ordinance, whose terms are identical with those of cl. 30 of the Ordinance in the present case, namely whether the whole of the land there in question (the old land and the new land) had been used for the purpose of quarrying and brickmaking, although only part of it (the old land) had been physically so used. The majority of the Court held that the old and the new lands together formed one entire area and that the whole had been used for quarrying and brickmaking. Of course, the use of land as a quarry may be distinguished from its use as a timber yard on the ground that the former use does, and the latter does not, necessarily involve a progressive use of the site. However, in my opinion the significance of Parramatta City Council v. Brickworks Ltd. [1972] HCA 21; (1972) 128 CLR 1 for present purposes is that the majority of the Court held that when a provision such as cl. 30 speaks of an existing use of land it refers to land which from a practical point of view should be regarded as one piece of land. In that case, the land in question comprised different parcels acquired at different times, and it was in relation to those facts that I then said (1972) 128 CLR, at p 23 :

"It is commonplace that in Sydney land which is devoted
to one purpose, and generally treated as being in fact one piece
of land - whether it be the site of a commercial building or
industrial enterprise or the grounds of a dwelling house -
frequently comprises various parcels which remain shown or
separate title deeds. There is however nothing in the provisions
of the Planning Scheme Ordinance that suggests a concern with
conveyancing details rather than with actual use". (at p282)

7. In the present case, lot 2 forms one parcel of land. In other words, we are concerned with land all of which is entirely within the boundaries of one subdivision. No doubt, in accordance with the reasoning in Parramatta City Council v. Brickworks Ltd. [1972] HCA 21; (1972) 128 CLR 1 land within one subdivision might in appropriate circumstances be regarded from a practical point of view as including more than one piece of land. Nevertheless, the fact that all the land under consideration forms one parcel - one unit in a subdivision - tends to support the view that all the land should be regarded as one piece, or as the "land" to which cl. 30 of the Ordinance applies, at least if the area in question is not very large. (at p282)

8. The facts relevant to the present question may be summarized as follows. The appellant in 1955 purchased lots 5, 8 and C1 for the purpose of establishing a timber reselling yard thereon. Approval was given by the respondent Council under the County of Cumberland Planning Scheme Ordinance to the use of all three lots for that purpose. Lot C1 was subsequently subdivided into lots 1 and 2, but, as counsel conceded, nothing turned on this fact. Immediately prior to 5th June 1963 lots 5 and 8 and part of lot 2 were physically used for the purposes of the timber reselling yard. Lot 2 comprised an area of about two acres and the part of it which was physically used for the purposes of the timber reselling yard was not separated by any fence or other defined boundary from the part not physically so used. The part of lot 2 which was not physically so used was not used for any other purpose. In the circumstances, it seems to me that it is not right to treat lot 2 as comprising two different areas of land. In a practical sense it comprised one piece of land, used for one purpose, that of a timber reselling yard, although the use did not physically extend to the whole of the land. (at p282)

9. I hold therefore that the use of the land in question for the purposes of a timber reselling yard was an existing use which the appellant is entitled to continue under cl. 30 of the Ordinance. In reaching the contrary conclusion, the learned primary judge was influences by views expressed by Sugerman P. in Parramatta City Council v. Brickworks Ltd. (1970) 92 WN (NSW) 701, at pp 713-714 which were not accepted when that case was brought on appeal to this Court; our judgment had not however been delivered when the learned primary judge gave his decision. (at p283)

10. I would allow the appeal. (at p283)

STEPHEN J. Since about 1956 the appellant has carried on business at Forestville near Sydney as a timber merchant on land owned by it and fronting on to Cook Street, Forestville. This land is in three lots, including lot C1 which has a frontage to Cook Street of rather less than 200 feet, its width increasing to some 240 feet about one-third of the way back from its frontage. It has a depth of over 450 feet. This lot contains about two and one half acres. (at p283)

2. For some years before and after 5th June 1963, a date the relevance of which will become apparent, a cyclone wire fence ran in a generally north-south direction across most of the width of lot C1 some distance back from its frontage to Cook Street. Most of lot C1 to the west of that fence, together with a strip about sixty feet in depth lying immediately to the east of the fence, was cleared land and was physically used by the appellant, together with its two other lots, in its business of timber merchant and, in particular, for the stacking and storage of timber. (at p283)

3. The rest of lot C1, to the east again of the sixty foot strip to the east of the fence, and which I shall refer to as the eastern two-thirds of lot C1, was, until some years after 1963, covered in quite dense ti-tree scrub and until about 1967 or 1968 was put to no physical use in connexion with the appellant's business. It was occasionally travelled over by vehicles and fire breaks were perhaps made in it but the learned trial judge found that it was not used for the storage of timber nor, indeed, "in any real sense in any other way as part of that business". There was no evidence suggesting that it served any useful present purpose of the appellant's business during the period from 1956 to 1968. (at p283)

4. In 1968 the appellant cleared much of the scrub on the eastern two-thirds of lot C1 and began to store timber on it. It was in consequence of this action on the appellant's part that, in due course, these proceedings were instituted by the respondent seeking to prevent such use. (at p283)

5. The whole of the Forestville area is within the Shire of Warringah and was, until June 1963, subject to the provisions of the County of Cumberland Planning Scheme (the County Scheme), the Warringah Shire Council being the relevant local responsible authority under that Scheme, and it is common ground, for reasons that will appear hereafter, that from February 1955 until June 1963 the appellant was entitled to use the whole of its three lots for the purposes of its business. (at p284)

6. On 5th June 1963 the Shire of Warringah Planning Scheme (the Warringah Scheme) came into force; the County Scheme was on that date revoked as to the municipal district of the Shire of Warringah and under the Warringah Scheme the eastern two-thirds of lot C1 was within a residential zone as was the sixty feet strip and also some portions of lot C1 to the west of the cyclone fence. This residential zoning restricted the use of land to the erection of dwelling houses and such other purposes as the responsible authority might consent to, not being prohibited purposes. The appellant's activities were not a prohibited purpose and in 1969 it sought but was refused permission to use that part of its land zoned residential for the purposes of its business. Most of the western portion of lot C1, fronting onto Cook Street, and the whole of the appellant's two other lots fell within a light industrial zone under the Warringah Scheme and no question arises as to them. (at p284)

7. Following its refusal of consent, the respondent, in January 1970, required the appellant to cease its non-residential activities on that part of its land zoned residential; the appellant failed to do so and, after some correspondence between the legal advisors of the parties, the respondent instituted the present proceedings seeking a declaration that the appellant's use of land zoned residential for the specified purposes of its business was in breach of the Warringah Scheme Ordinance and unlawful. An injunction was also sought. (at p284)

8. Before the learned trial judge the appellant justified its non-residential use of those portions of lot C1 which were zoned residential on three grounds but one of these grounds, based upon the terms of cl. 33 of the Warringah Scheme, was only faintly pressed before us. There is, I think, no substance in that ground and I do not propose further to consider it. (at p284)

9. Of the two remaining grounds the first was that there was an existing commercial use of the whole of lot C1 immediately before 5th June 1963, when the Warringah Scheme came into operation, which existing use cl. 30 of the Scheme protected and permitted to be continued; the second ground was that the appellant had an acquired or accrued right or privilege under the County Scheme in relation to the use of the whole of lot C1 as a timber reselling yard, which right or privilege was preserved by cl. 65 (1) of the Warringah Scheme notwithstanding that its coming into operation served to revoke pro tanto the County Scheme. (at p285)

10. I turn first to the "existing use" argument involving cl. 30 of the Warringah Scheme Ordinance. That clause reads as follows:

"An existing building or an existing work may be maintained
and may be used for its existing use and an existing use of
land may be continued."

When expanded by reference to the definition of "existing use" in cl. 4 of the Ordinance the relevant portion of cl. 30 provides that a use of land for the purpose for which it was used immediately before the appointed day, 5th June 1963, may be continued. (at p285)

11. Five propositions which appear to me to be of importance in considering the "existing use" argument may usefully be stated at the outset. First, what cl. 30 protects is confined to the particular purpose for which the land was used during a particular period, namely the period "immediately before the appointed day"; neither the purpose of initial acquisition of land nor the purpose for which land has been used before or since the particular period is controlling, although both may be of evidentiary value in determining what was the purpose of use during the particular period. (at p285)

12. Secondly, the noun "use" in cl. 30 must involve:

"a present use; it does not include a contemplated or
intended use. It is not enough to bring cl. 32" (the equivalent
of the present cl. 30) "into operation that land has been
acquired with the intention of using it for a particular purpose
in the future."

- per Gibbs J. in Parramatta City Council v. Brickworks Ltd. [1972] HCA 21; (1972) 128 CLR 1 . The holding of unused land for future business use, whether because no business has yet been commenced or because the existing business has not yet been commenced or because the existing business has not yet increased sufficiently to justify expansion onto an extended site, is not "use" for the purposes of cl. 30. Two cases illustrate the operation of this principle. In Rosenblum v. Brisbane City Council [1957] HCA 98; (1957) 98 CLR 35 , a case concerned with existing use in the context of a planning scheme ordinance, the appellant Rosenblum had paid three months' rent in advance in respect of premises once used as a social club but which had subsequently remained empty for some time, was planning to use them as a catering lounge and had, with that in view, consulted an architect and was proposing the incorporation of a company; nevertheless he was held not to have used the building in any sense. The Court said (1957) 98 CLR, at pp 46-47 ,

"Rosenblum was not using the premises as a catering lounge,
for though he had paid three months' rent he had not entered
into possession or taken any overt step concerning them,
except that he had had a sketch prepared ... as the building
had not been measured up the preparation of the sketch was
only a step towards interesting persons in the proposed company
or in starting a user through a company to be incorporated and
was not itself a user of the premises ... Rosenblum was
genuinely considering ways and means of using the premises
for the purposes of a catering establishment, but it would be
impossible to make a finding that he had already commenced
to use them for those purposes. His acceptance of the terms
offered by the trustees and the payment he had made had
merely gained him a period of time in which to float his company
to alter the building, and to make the staffing and other
arrangements without which the intended future use could not
be commenced ... (the premises) were, in plain fact, unused
for any purpose whatever."

In Barrs v. Sydney City Council (1956) 1 LGRA 301 , Hardie J. considered an argument that there had been a prior use of premises as an office. He said (1956) 1 LGRA, at p 304 :

"It is true that at the relevant date a table or desk had
been placed in the main room on the first floor, that a telephone
had been installed in that room, and that certain office papers
and records had been placed in portions of the premises covered
by this application. However, in my view, what the appellant
had done was merely to take preliminary and preparatory steps
with a view to subsequently using the subject premises for
office purposes.
I do not think, having regard to the evidence, that at the
date of the application the material portion of the premises
was being used, in any real sense for the purposes of the business
of the appellant or his company. The residential use which
had come to an end when the tenant had left some months
earlier had not, in my view, at the relevant date been replaced
by any other form of user." (at p286)

13. Thirdly, present "use" is not limited to actual physical use - per Gibbs J. in the Brickworks Case [1972] HCA 21; (1972) 128 CLR 1 ; there may be passive use as well as active use. An instance of land being passively used is supplied by Council of the City of Newcastle v. Royal Newcastle Hospital (1957) 96 CLR 493; (1959) 100 CLR 1 . That case was not concerned with the question of "existing use" in a town planning context but illustrates that there may be land uses which, in the words of Williams J., amount to no more than "the passive use of leaving the land in its virgin state with the resultant benefits that are derived from the presence of plenty of fresh air and the avoidance of over-crowding" (1957) 96 CLR, at p 499 as distinct from uses which his Honour described as "active use in the physical sense" (1957) 96 CLR, at p 504 . As Taylor J. said (1957) 96 CLR, at p 515 , there may be a variety of forms of user by an occupier of land "some of them, no doubt, contemplate a use which is synonymous with actual physical occupation and enjoyment. Others contemplate a use in a less direct form." (at p287)

14. Fourthly, the particular use claimed will be of great significance in determining whether or not apparently unused land is in fact being used. Again the Royal Newcastle Hospital Case (1957) 96 CLR 493; (1959) 100 CLR 1 provides an instance; until the use of the 291 acres of virgin bushland as an area having "natural therapeutic qualities of providing plenty of fresh air and a suitable environment for a particular class of patients" (1957) 96 CLR, at p 504 was appreciated this large area might appear to be unused. Once this rather special use is appreciated it is seen that all of this land was being used passively by the hospital. Many similar instances will occur to the mind and their Lordships supplied examples in that case when they said (1959) 100 CLR, at p 4 :

"An owner can use land by keeping it in its virgin state for
his own special purposes. An owner of a powder magazine or
a rifle range uses the land he had acquired nearby for the
purpose of ensuring safety even though he never sets foot on it.
The owner of an island uses it for the purposes of a bird
sanctuary even though he does nothing on it, except prevent
people building there or disturbing the birds."

Likewise, what may appear at first sight to be only an infrequent and intermittent use, abandoned prior to the relevant period, "immediately before the appointed day", may, once the purpose of use is properly identified and understood, be seen to be a continuous use; I have in mind such purposes as use for the purpose of the seasonal storage of primary products, the use of land for the purpose of a country racecourse having an annual programme of only one or two meetings a year or the use of paddocks to the rear of bathing beaches as caravan parks during holiday periods. (at p287)

15. So too a particular type of business may have inherently fluctuating demands for space and may only occasionally physically use the whole of its site for the purposes of its business, yet it cannot be doubted that in that state of facts the whole site is used for the purpose of that particular business at all times. In Rosenblum's Case (1957) 98 CLR, at p 46 it was said that most forms of use of land or buildings involve not continuous activity but recurring activities. The periodicity of recurrence may, of course, vary greatly. (at p288)

16. A rather special case is that of extractive industry and of rubbish disposal activities. Neither activity uses land simply as a site for its operations; the first employs a suitable site by winning the clay, stone or minerals underneath the surface and removing them; in effect it consumes the site, regarding it or much of it as a raw material; the second, if it involves the depositing of rubbish into quarry holes, employs the site as a waste receptacle. In each case the process of consuming, or replacing with fill, the original site is necessarily a progressive one; when a site is selected it will only be used physically bit by bit but the use of the whole is predicated from the start and is not contingent upon any future expansion of trade; the whole of the land within the site constitutes in a very real sense land used for the purpose of the business. The same may be said of an underground mine which requires an ever increasing area as a spoils dump or slag heap. The rather special features of these two activities were recognized in the now repealed Town and Country Planning Act 1932 (U.K.) where, in s. 53, in defining "existing use", a proviso to the definition was included so that, in the case of a person who on the material date was using land for extractive industry or for the deposit of waste materials or rubbish and was also then entitled to use neighbouring land for similar purposes, that person's use of that neighbouring land under that title for that purpose was deemed to be an existing one. (at p288)

17. Fifthly, "land" when used in cl. 30 and in the relevant definition in cl. 4 is not necessarily concerned with notions of title boundaries or lot boundaries; the identification of relevant land to which use for a purpose is to be assigned may disregard such artificial delineations. Gibbs J. made this clear in the Brickworks Case when he said of the ordinance there in question (1972) 128 CLR, at p 23 :

"There is however nothing in the provisions of the Planning
Scheme Ordinance that suggests a concern with conveyancing
details rather than with actual use."

The proper approach was laid down by his Honour when he earlier said (1972) 128 CLR, at p 23 , of the equivalent of the present cl. 30,

"... when cl. 32 speaks of 'an existing use of land' it
refers to land which from a practical point of view should be
regarded as one piece of land and not to land contained within
the boundaries of one sub-division, or described in one certificate
of title."

A similar approach is evident in the judgment of Dixon C.J. in Kismet Engineering Pty. Ltd. v. Brisbane City Council (1959) 102 CLR 574, at p 580 . (at p289)

18. In the Brickworks Case [1972] HCA 21; (1972) 128 CLR 1 Gibbs J. found Brickworks Ltd. to be, immediately before the appointed day, the owner of one tract of land all acquired for the purposes of its quarry and brickworks; some of the land was then physically used for buildings and for the gradually extending brickpit; much of the rest would be eaten into piecemeal by the extension of the brickpit and was the repository of the clay which would eventually be converted into bricks. Having found this there was no ground for distinguishing between one part of the land and another, all of which had become "an entire area which was wholly devoted to the purpose of quarrying and brick-making"; it followed that it was proper to treat all of the land as so used immediately before the appointed day. The reasoning behind this conclusion emerges from a passage from his Honour's judgment where he said (1972) 128 CLR, at p 22 :

"Obviously where an expanse of land has been acquired for
the purpose of quarrying it cannot, because of practical considerations,
be excavated all at once, but this does not mean
that the part which has not been actually dug up is not used
for the purpose of quarrying. Similarly a farmer, who has
acquired land for the purposes of an orchard, may be said to
use the whole of it for that purpose, although only part has been
planted with trees."

This passage illustrates the importance of a proper appreciation of the particular nature of the use claimed when determining whether land has in fact been used for that purpose at a particular time. The extractive industry there in question had as a characteristic of the present use of its site the existence of as yet unconsumed supplies of clay remaining in situ within the site on areas having the external appearance of unused land, just as the very different activities of an orchardist involve the existence of apparently unused land between each row of trees which, to thrive, must be sufficiently separated the one from the other. Thus only with knowledge of the claimed purpose of use can evidence concerning the relevant land at the relevant time be meaningful. (at p289)

19. In the present case the claimed existing use was use for the purpose of a timber reselling yard; such a use is essentially an active physical use, as are most ordinary industrial and commercial uses. The appellant carries the onus of establishing by evidence the existing use which is claimed, Morris v. Woolahra Corporation [1966] HCA 65; (1966) 116 CLR 23 , but nothing in the evidence suggested either that use for such a purpose inherently involved the retention of substantial areas of land in a physically unused condition or that any passive use was made of those areas. Seasonal or other fluctuations in the quantity of timber to be stored would scarcely account for so much of lot C1 being, for some seven years, left wholly unused in any physical sense as the learned trial judge found, the eastern two-thirds of lot C1 was, throughout the seven years, "unused, not used for any purpose". It may be that this land was being held for possible further expansion of the appellant's business; the terms of the appellant's unsuccessful application in 1969 for the respondent's approval of its "proposed development" of lot C1 suggests that this was the case. If so, the matter is governed by what was said in the Brick-works Case (1972) 128 CLR 1 , that a contemplated or intended use cannot amount to use for the purposes of an Ordinance such as the present; there must be present use, not merely intended future use. If not, the result is the same; the sort of use involved in using land for the purpose of a timber reselling yard was not shown to have been made of what I have defined as the eastern two-thirds of lot C1. (at p290)

20. Accordingly I conclude that cl. 30 cannot assist the appellant as to that area of lot C1. On the other hand, the findings of fact by the learned trial judge as to the relatively small remaining portion of the eastern part of lot C1, which is also zoned for residential purposes, point quite clearly to it having been used at the relevant date for the purposes of the appellant's business as a timber merchant operating a timber reselling yard and cl. 30 will, as the learned trial judge held, apply so as to entitle the appellant to continue that use thereon. The limits of the two areas are clearly defined in the decretal order appealed from and call for no further elaboration. (at p290)

21. Counsel for the appellant placed considerable reliance upon the decision of this Court in the Brickworks Case [1972] HCA 21; (1972) 128 CLR 1 in his argument based upon cl. 30. As will already have appeared, I regard that decision as being to the contrary effect; not only are the general propositions stated in the judgment of Gibbs J. directly opposed to the appellant's submissions but any analogy sought to be drawn between the facts in the two cases disregards the important distinction between the nature of the purpose of use claimed in the two cases; in the Brickworks Case [1972] HCA 21; (1972) 128 CLR 1 it was extractive industry, with all the consequences which that entails and to which I have referred, whereas this case is one in which the common commercial feature of active physical use must be the hallmark of present use at the relevant date. (at p290)

22. Where a claimed existing use is of a kind which involves active physical use nice questions of fact and degree may arise when the claimant's land contains some areas of apparently unused land. In many instances commercial and industrial sites will no doubt contain small areas of unused land. Only by first ascertaining the characteristics of the particular purpose of use claimed and comparing that with the evidence concerning the relevant land, regard being had to the absolute and relative sizes, locations and, perhaps, pattern of distribution of unused land, will it be possible to conclude whether all the land should be viewed as one whole, used for the claimed use or, on the contrary, as distinct portions, some of which have not shared in the claimed use. However, in the present case no such nice question arises on the facts as found; the eastern two-thirds of lot C1 was of substantial relative size, formed one entire area of land and was distinguished from the rest of the site by its total lack of physical use and by its growth of ti-tree scrub, which served to emphasize its character as virgin bush in contrast with the rest of the site. (at p291)

23. The appellant's second argument is based upon cl. 65 of the Warringah Scheme Ordinance which so far as relevant provides that

"(1)... the revocation, pursuant to paragraph (d) of sub-section
(2) of section 342L of the Act, of the County of Cumberland
Planning Scheme to the extent to which it applies in
respect of all land within the Shire of Warringah shall not affect
...
(b) any right, privilege, obligation or liability acquired, accrued
or incurred under that Scheme or under the Act in relation
to that Scheme: ..." (at p291)

24. The County Scheme, which applied to the land until June 1963, contained provisions which resulted in the land not being permitted to be used for the purpose of timber storage without the consent of the responsible authority, the Warringah Shire Council. By letter dated 16th December 1954 a Mr. C.D. Eaton applied to that Council for approval to establish on the land both a timber and building materials storage and reselling yard and a joiner's shop with moulding machines and circular saws. The Council replied by letter dated 16th February 1955 stating that it was prepared to approve the establishment of a timber reselling yard only, and was not prepared to approve the installation of a joiner's workshop or any moulding machines or circular saws. It is agreed that the Council, by this letter, consented to the appellant's land, including the whole of lot C1, being used for the storage and re-selling of timber. (at p291)

25. The coming into effect of the Warringah Scheme on 5th June 1963 had the effect of revoking the County Scheme in its application to this land but the appellant asserts that the existence of the council's consent, given under the County Scheme, gave rise to an acquired or accrued right or privilege under the County Scheme in relation to the whole of lot C1 which, by virtue of cl. 65 (1), remained unaffected by the revocation of that scheme. Accordingly the question is whether, as a consequence of the Council's consent, the appellant had, as at 5th June 1963, a right or privilege which had been acquired or had accrued under the County Scheme. (at p292)

26. The learned trial judge concluded that the appellant had no such right or privilege and, as I read his reasons for judgment, did so primarily because of the light thrown on cl. 65 (1) (b) by its context and, in particular, by cl. 66. Clause 66 provides, inter alia, that nothing in the Warringah Ordinance shall prevent the erection of a building or the carrying out of work, and the use of such building or work, in accordance with any consent under the County Scheme if erection or carrying out was commenced but not completed within twelve months of the appointed day. This portion of cl. 66 thus deals with development, limited to buildings and work, pursuant to a consent granted under the County Scheme but which remains incomplete at the commencement of the Warringah Scheme and would be unnecessary if cl. 65 (1) (b) had the effect contended for of preserving rights under permits granted under the County Scheme. (at p292)

27. I agree, with respect, with the conclusion reached by the learned trial judge as to the guidance to be derived from cl. 66 in the interpretation of cl. 65 (1) (b). It does, I think, strongly suggest that the latter is not effective to preserve in operation so-called rights conferred by permits granted under the County Scheme. (at p292)

28. Counsel for the appellant sought to overcome the effect of cl. 66 by reference to such of its terms as were concerned with town planning controls other than the County Scheme and argued that its working, and in particular its opening phrase "Nothing in this Ordinance shall prevent ...", was to be explained by reference to the particular form of these controls. He said that, properly understood, cl. 66 carried with it no implication that, but for it, the revocation of the County Scheme would, despite cl. 65 (1) (b), make consents under the County Scheme inoperative if not acted upon so as to become existing uses protected by cl. 30. I am unable to adopt that view of cl. 66; its terms appear to me to require that cl. 65 (1) (b) be given a restricted meaning, such as was assigned to it by the learned trial judge, who pointed out that as so restricted it nevertheless had useful work to do in several fields where rights acquired by individuals under the County Scheme were preserved by it. (at p292)

29. The position is, then, that where permits have been acted upon so that an existing use was in being on the appointed day cl. 30 permits of its continuance; where development involves buildings or works and they had been commenced but not completed, and hence not used, on the appointed day cl. 66 permits of their completion and subsequent use. But here there was, as I have concluded, no existing use for the purposes of cl. 30 and neither cl. 65 (1) (b) nor cl. 66 is applicable. (at p293)

30. There are, I think, other reasons for not giving to cl. 65 (1) (b) the operation for which the appellant contends. (at p293)

31. It may be a matter for debate whether the term "right" is used in cl. 65 (1) (b) in its wide sense as including any advantage or benefit which is in any manner conferred upon a person by a rule of law or in its narrower, stricter meaning as the correlative of a legal duty - Salmond on Jurisprudence, 10th ed. (1947), pp. 220 et seq. If given its wider meaning, "right" would include the jurisprudential concepts of liberties, powers and immunities and there is some authority for the view that in a context such as the present the term should be given a wide meaning - Yorkshire Dyeware and Chemical Co. Ltd. v. Melbourne and Metropolitan Board of Works (1968) VR 277, at p 282 ; Boyce v. Hughes (1970) 91 WN 171 ; but see also Clyne v. McDonald (1965) NSWR 161 . (at p293)

32. Be that as it may, there are two features of consents granted under schemes such as those here in question which appear to me to make it inappropriate to speak of them as conferring either a "right" in the narrow or wide sense or a "privilege". First, although a consent will no doubt result from an application by an individual it is essentially impersonal in the sense that it does not concern itself with and is not limited to the applicant but is a consent to the world at large in relation to the land which is its subject. Once granted it makes lawful, in a town planning context, what would otherwise be unlawful but does so by reference to the acts done and not to the identity of the actor; I would think that a mere trespasser could justify his use of land in terms of town planning controls by reference to some prior consent successfully applied for by a prior lawful occupier. For this reason it appears to me to be inappropriate to regard such a consent as conferring rights or privileges in the sense in which I understand those words to be used in cl. 65 (1) (b). It is well established that in provisions such as cl.65 (1) (b) no alleged right can be protected so long as it is one common to the community as a whole. As it was said in Abbott v. Minister for Lands (1895) AC 425, at p 431 , there must be an "act done by an individual towards availing himself of that right" before it can be said to be "a 'right accrued' within the meaning of the enactment". What are protected are rights which have been acquired by or have accrued to an individual; consents under the present schemes do not confer rights of this character. (at p294)

33. Secondly, I doubt whether it is proper to regard as a "right" or "privilege" acquired or accrued under the County Scheme what is no more than the relaxation of a prohibition imposed by that very Scheme. The Scheme took away the liberty at general law of occupiers of land to use their land as they saw fit but in relation to the appellant's land enabled the renewed exercise of that liberty in a very qualified way if a consent from the responsible authority was first sought and obtained. To describe that situation as one in which a right or privilege had accrued to or been acquired by the appellant under the Scheme appears to me to be a misuse of language; the effect of the Scheme when a permit is issued under it is merely that users of relevant land are in part remitted to their former liberties at general law. (at p294)

34. For the foregoing reasons I reject the appellant's second argument, based upon s. 65 (1) (b). (at p294)

35. In my opinion this appeal should be dismissed. (at p294)

ORDER

Appeal allowed with costs. Decretal Order of the

Supreme Court set aside and in lieu thereof order
that the Originating Summons be dismissed
with costs.