Vumbaca v Baulkham Hills Shire Council [1979] HCA 66; (1979) 141 CLR 614 (19 December 1979)

HIGH COURT OF AUSTRALIA

VUMBACA v. BAULKHAM HILLS SHIRE COUNCIL [1979] HCA 66; (1979) 141 CLR 614

Town Planning (N.S.W.)

High Court of Australia
Barwick C.J.(1), Stephen(2), Mason(3), Aickin(3) and Wilson(3) JJ.

CATCHWORDS

Town Planning (N.S.W.) - Planning scheme - Use of land in contravention of scheme - Application by authority for injunction to restrain continued use - Suspension of planning scheme - Substitution of interim development order prohibiting development of land without consent - Development - Use for purpose different from purpose for &which land last used - Whether continued unlawful use development - Local Government Act, 1919 (N.S.W.), ss. 342T (1), 342U, 342Y.

HEARING

Sydney, 1979, November 12, 23; December 19. 19:12:1979
APPEAL from the Supreme Court of New South Wales.

DECISION

Dec. 19.
The following written judgments were delivered: -
BARWICK C.J. In this appeal I have had the advantage of reading the joint with their reasons and with my brothers' conclusion that this appeal should be allowed, the appeal to the Court of Appeal dismissed so as to reinstate the order of Holland J. (at p615)

2. In my opinion, the appeal should be allowed. (at p615)

STEPHEN J. Since 1976 the Vumbacas have lived in Kellyville, one of Sydney's outer suburbs, on a property where they carry on the business of supplying the needs of landscape and home gardeners. They sell a wide range of materials, tools and garden plants. (at p615)

2. Because their commercial use of the land contravened the Planning Scheme of the Baulkham Hills Shire Council, the Council made application to the Supreme Court for declarations and injunctions to prevent further contravention. (at p616)

3. There would have been no answer to the Council's application had the Minister for Planning and Environment, acting under s. 342Y of the Local Government Act, 1919 (N.S.W.), not subsequently suspended the provisions of the Planning Scheme as to portion of the Scheme area, a portion which happened to include the Vumbacas' land. Upon the Planning Scheme being suspended, an interim development order took its place and thereafter the position of the Council as plaintiff was, in the words of the primary judge, that "for present injunctive relief the plaintiff must now show a contravention of the interim development order". (at p616)

4. The making of an interim development order in respect of the land affected by the suspension of a planning scheme is, under s. 342Y (3) of the Local Government Act 1919, a necessary consequence of the suspension. Unlike the Shire's Planning Scheme, which followed the now conventional Australian pattern, the interim development order did not operate by imposing restraints upon the purposes for which land might be used or buildings or works might be erected or carried out on land. Instead, it simply prohibited all "development" other than those particular instances which it specifically permitted, sometimes unconditionally, in other cases subject to consent. (at p616)

5. It appears to be beyond argument that, for the reasons stated in detail by the primary judge, the use being made of the Vumbacas' land would not qualify as permitted development of the land in terms of the interim development order. However the Vumbacas have throughout contended that with the suspension of the Planning Scheme the Council ceased to have any entitlement to the relief it sought. This is so, they say, because the mere continuance of their previously unlawful use of the land does not amount to any "development" of it: for there to be "development" within the meaning of the order there must be a change from one use to another. (at p616)

6. The primary judge upheld this submission and denied the Council the relief it sought but he was reversed on appeal to the Court of Appeal, from which this appeal now comes. (at p616)

7. The meaning of "development" in the interim development order is critical. The order says of "development" that it "has the meaning ascribed to it in s. 342T of the Act". That section says this of "development":
"'Development' in relation to any land includes the erection of any building, the subdivision of the land and the carrying out of any work, and any use of the land or building or work thereon for a purpose which is different from the purpose for which the land or building or work was last being used.".
In strictness this involves no ascription (which I take here to have the sense of attribution) of a meaning, unless "includes" in the section is to be read exhaustively as "means", as to which see the discussion in the various judgments in Y.Z. Finance Co. Pty. Ltd. v. Cummings [1964] HCA 12; (1964) 109 CLR 395 . Because of the view which I have formed concerning the outcome of this appeal, I need determine neither the true effect of the order's reference to "the meaning ascribed" nor whether or not "includes" in s. 342T should be read exhaustively. I assume, in favour of the Council, that "development" bears its widest possible meaning, having both its ordinary meaning according to common usage together with the additional meanings given to it by s. 342T. There was in this case nothing which could be described as within the ordinary meaning of "development"; this the primary judge appears to have recognized and in the Court of Appeal both Reynolds. J.A. and Hutley J.A. so held. The debateable question is whether by giving additional meanings to "development", s. 342T has sufficiently extended the meaning of the word so as to include a mere continuation by the Vumbacas of their previous unlawful use of their land. (at p617)

8. The relevant additional meaning is conveyed by those words of s. 342T which include in "development" "any use of the land . . . for a purpose which is different from the purpose for which the land . . . was last being used". These words have been differently interpreted in the courts below. The primary judge regarded them as "looking back to the purpose for which the land was being used immediately before the change" and concluded that because the prohibition of development effected by the interim development order "cannot begin before the date on which the order takes effect", this meant that the purpose of use as at that date must be compared with its current use. If that comparison showed no change in the purpose of use, as in the present case, there was no development. (at p617)

9. In the Court of Appeal Hutley J.A. took a different view. His Honour regarded the phrase "last being used" as referring to the use of land immediately before the occurrence of what he described as some "gap in the user"; but because he thought that "all land privately owned is used for some purpose", so that "there cannot in fact be land which is not used for a purpose", his Honour was obliged to seek for some alternative to what he thought could not exist, a gap in fact. That alternative he found in the concept of a gap in lawful use. Lawful use, unlike use in fact, was not, he thought, a necessary concomitant of ownership: a gap in lawful use would occur "when the use is for a prohibited purpose". Applying this reasoning to the present case and treating "last being used" as meaning "last lawfully being used", his Honour compared the Vumbacas' existing use with the last lawful use of the land, found them to differ and accordingly concluded that here was an instance of "development" of the land. (at p618)

10. The reasoning of Reynolds J.A. concerning the phrase "last been used" is not elaborated to the same degree as is that of Hutley J.A. It may be that he decided the appeal exclusively on the basis that "the preservation of existing use rights should not be founded in illegalities", a view upon which Hutley J.A. had also placed some reliance, rather than upon the particular train of reasoning which appealed to Hutley J.A. However, Moffitt P. expressly agreed with the views of Hutley J.A. I am, with respect, unable to accept those views. I do not read s. 342T as referring to any "gap in the user". Even were it thought to do so, this would not seem to me to justify recourse to any concept of non-use in law, to be equated with unlawful use, leading to the conclusion that it is the last lawful user which is to be compared with current use. "Last being used" suggests a succession of purposes of use, but periods of non-use, whether in fact or in law, play no part in the concept. If any occur it is not they but the purposes of use which they separate which are material and which require to be compared, the one with the other. Those purposes of use may equally well succeed one another without any temporal gap, being recognizable as distinct purposes because different from each other. (at p618)

11. Moreover, were the defining of "development" to be thought, contrary to my own view, to involve the concept of a "gap in the user", this would not of itself lead me to conclude that it was instances of non-user in law which the legislation contemplated as providing such gaps. Section 342T, in describing the additional meanings of "development", speaks in factual terms, not in terms of legal concepts. If non-user in fact can readily enough occur in the case of land, as I believe it can, and if the words of the section are thought to involve some reference to a gap in user, it is factual non-user, rather than any artificial concept of non-user in law, equated to unlawful user, to which it should be understood to refer. (at p618)

12. The case of Newcastle City Council v. Royal Newcastle Hospital (1957) 96 CLR 493 bears on the question of non-user of land. In their judgments the majority were at pains to stress those special circumstances which led them to regard land which was not physically used by the hospital as nevertheless being used by it because its purposes were peculiarly served by its passive use: (1957) 96 CLR, at pp 499-500, 503 , per Williams J., and (1957) 96 CLR, at p 515 , per Taylor J. These judgments in no way suggest that, in the absence of these quite special circumstances, their Honours would have regarded the land as being used by the hospital simply because it was owned by it, indeed quite the contrary. In the minority judgments of Fullagar J. (1957) 96 CLR, at p 506 , and of Kitto J. (1957) 96 CLR, at pp 509-510 , their Honours expressly held that the land was in fact unused. In dismissing the subsequent appeal their Lordships (1959) 100 CLR 1 held that land not being physically used by its owner might nevertheless be being used if the owner's "own special purposes" were served by the absence of physical use (1959) 100 CLR, at p 4 . Only because the hospital derived special advantages from the retention of the land in its pristine state did their Lordships regard it as being used by it. The case is authority for the view that land in private ownership may indeed be the subject of no use at all. Moreover this appears to me to accord both with common experience and with the common usage of the word "use". (at p619)

13. The difficulty to which the words of s. 342T have given rise lies in the fact that although they call for a comparison between present and past purpose of use, the only description which they give of the particular past purpose of use which is to be looked at, that given by the words "last being used", is not as clear as it might be. One asks "Last before what?". The primary judge would reply "The last purpose of use before the coming into operation of the interim development order", whereas Hutley J.A. would say "The last lawful purpose of use before the present unlawful purpose". (at p619)

14. In my view the question should be answered by saying "The last purpose of use prior to, and differing from, the current purpose of use and occurring no earlier than immediately before the coming into operation of the interim development order". This reflects the substance of what I would take to be the primary judge's response, but, as a matter of completeness, allows for the possibility of a succession of uses occurring after the coming into operation of the order. Were there any such uses different from the current use the change to the latter would, of course, in any event involve "development" according to the ordinary meaning of that word, as well as falling within the additional meaning introduced by s. 342T. If after the interim development order came into operation there was a period when no use was made of the land, followed by the current use, this would not fall within the additional meaning but would involve "development" according to its ordinary meaning, with which I am not presently concerned. (at p620)

15. I have already said why it is that I do not accept the view that the concept of last lawful use should be introduced into the process of comparison which s. 342T contemplates. In the Court of Appeal, the reasoning of Hutley J.A., beginning with a discerned "gap in the user" and leading to the conclusion that it was the last lawful purpose of use to which s. 342T referred, was supported by reference to the "basic assumption of planning law that illegal user is not regarded as giving rise to rights which are given to users". I regard this assumption as irrelevant to the case in point. There is here no question of rights being conferred upon the Vumbacas; the only question is whether they have breached the prohibition of the order. The authorities which are said to proceed upon and to establish this "basic assumption" are concerned with the quite distinct situation of a prohibition upon particular uses coupled with an exception in favour of the continuation of any such uses as antedate the prohibition itself. It has been held that only lawful prior use can be thus relied upon: Grozier v. Tate (1946) 64 WN (NSW) 1 ; Nash v. Stielow (1950) VLR 39 ; Glamorgan County Council v. Carter (1962) 3 All ER 866 . However the Vumbacas do not rely upon user, lawful or otherwise, prior to the interim development order as bringing them within any exemption: they simply deny the existence of any prohibited "development". If it is only "development", and not particular uses of the land, at which the order's prohibition is aimed, the above authorities and the assumption which they are said to support are of no present relevance. (at p620)

16. One further matter should be noted. Section 342U (4) of the Act expressly prohibits development of land otherwise than in accordance with the terms of any applicable interim development order. A proviso to that sub-section excludes from the scope of this prohibition the case of a continuing use of land for a purpose for which it was "lawfully used" immediately before the coming into operation of the interim development order. It is said by the respondent that the terms of this proviso provide strong support for the view of the meaning of development adopted by the Full Court. Hutley J.A. himself relied upon s. 342U (4) in this way, although Moffitt P. thought, on the contrary, that it rather pointed in the opposite direction but might be disregarded in an Act "not renowned for its consistent use of language". For my part I find such inferences as might be drawn from the terms of the proviso to s. 342U (4) as offering little clear guidance to the meaning of "development". It cannot affect the meaning which I regard the terms of s. 342T as placing upon "development". (at p621)

17. I would allow this appeal and would restore the order of the primary judge. (at p621)

MASON, AICKIN AND WILSON JJ. This is an appeal from the Court of Appeal of the Supreme Court of New South Wales which allowed an appeal by Baulkham Hills Shire Council ("the Council") from a decision of Holland J. in favour of the present appellants ("the appellants"). The Council had proceeded against the appellants in the Equity Division seeking an injunction to restrain them from carrying on a business consisting of the sale of landscape supplies, plants, shrubs and other goods on land located in the shire. The use which they were then making of their land was alleged to be contrary to the provision of the Baulkham Hills Planning Scheme Ordinance. It is no longer in dispute that the actual use was contrary to that planning scheme. (at p621)

2. After the proceedings had been instituted but before the hearing, a notification under ss. 342Y and 342U of the Local Government Act 1919, (N.S.W.) ("the Act") was gazetted by the Minister for Planning and Development on 13th May 1977 which affected part of the land in the Shire which included the subject premises. That notification suspended the Baulkham Hills Planning Scheme Ordinance and brought into force an Interim Development Order (I.D.O. No. 118). The Council claimed a declaration and an injunction on the basis that the use of the premises which had continued after the making of I.D.O. No. 118 was contrary to that I.D.O., as well as contrary to the suspended planning scheme. It was common ground that no consent had been granted by the Council under the suspended planning scheme or under I.D.O. No. 118. (at p621)

3. It is convenient at this point to deal with the relevant provisions of the Act. Part XIIA of the Act, which deals with town and country planning schemes, provides for the preparation of "schemes" by councils established under the Act with respect to land, or any land, within their areas. By s. 342KD the Governor may on the recommendation of the Minister make an ordinance prescribing a scheme prepared in accordance with Pt XIIA. Such a scheme is then referred to as a "Prescribed scheme". (at p622)

4. There are detailed provisions with respect to the manner in which schemes are to be prepared, the hearing of objections and like matters which are not material to the present case. There is also provision for the preparation of schemes by the Authority. (at p622)

5. Division 7 of Pt XIIA comprising ss. 342S to 342Z deals with "interim development". Section 342T (1) contains definitions of development and interim development which are as follows:
"'Development' in relation to any land includes the erection of any building, the subdivision of the land and the carrying out of any work, and any use of the land or building or work thereon for a purpose which is different from the purpose for which the land or building or work was last being used."

'Interim development' means -
(a) where an interim development order, not being an interim development

order referred to in paragraph (b) of this definition, has taken effect, development of land, to which that interim development order relates, after the date upon which that interim development order took effect and before the date upon which the scheme referred to in subsection (1) of section 342U and relating to that land is prescribed or before the date on which the Minister notifies in the Gazette that he has decided not to proceed with that scheme, as the case may be; or
(b) where an interim development order made as required by subsection (3) of section 342Y, or by subsection (5A) of section 342U, has taken effect, development of land, to which that interim development order relates, after the date upon which that interim development order took effect and before the date of the coming into operation of the prescribed scheme which, under subsection (8) of section 342U, causes that interim development order to cease to have effect in relation to that land."
Section 342U provides as follows:
"(1) Where the council or councils conerned has or have, or the Authority has, commenced to prepare a scheme under this Part and such scheme, with or without amendment, has not been prescribed, the Minister may, . . . make an interim development order permitting, regulating, restricting, or prohibiting, or conferring on the council powers, authorities, duties and functions with respect to permitting, regulating, restricting or prohibiting, interim development on any land which may be included in the scheme pending the coming into operation of the scheme or the varying scheme.
(1A) Where an interim development order is required to be made under subsection (3) of section 342Y, the Minister shall make such an order permitting, regulating, restricting or prohibiting, or conferring on the council powers, authorities, duties and functions with respect to permitting, regulating, restricting or prohibiting, interim development on any land as respects which the notification, made under that section and consequent upon which the interim development order is so required to be made, is expressed to have effect.

. . .
(4) Interim development of any land to which an interim development

order applies shall not be carried out except as may be permitted by or under the authority of the interim development order and subject to such conditions and restrictions as may be imposed by or under the interim development order and to such provisions as may apply by virtue of the interim development order:
Provided that nothing in any interim development order shall prevent the continuance of the use of any land or building for the purposes for which such land or building was lawfully used immediately before the coming into operation of the interim development order.
(5) The Minister may at any time, after consideration of a report thereon by the Authority, by notification published in the Gazette, alter or rescind any interim development order.
(5A) Notwithstanding the provisions of subsection (5), the Minister shall not rescind an interim development order made as required by subsection (3) of section 342Y or by this subsection, unless at the same time he makes another interim development order relating to the land to which the rescinded interim development order related or the ordinance by which the planning scheme, the provisions of which have been suspended under section 342Y as respects the land to which the interim development order relates, is rescinded under section 342M."
Section 342Y provides as follows:
"(1) The Minister may, after consideration of a report furnished by the Authority, notify that the provisions of a prescribed scheme, that is specified in the notification, are suspended as respects the whole of the land to which the prescribed scheme applies or as respects such part of that land as may be specified or referred to in the notification.

(2) A notification under subsection (1) -
(a) has effect according to its tenor and, as on and from the date on

which it is published and in relation to the land as respects which it is expressed to have effect, has effect so as to suspend all of the provisions of the prescribed scheme that is specified in the notification; and
(b) remains in force in relation to the land as respects which it is expressed to have effect only until the interim development order, made as required by subsection (3) as a consequence of the making of that notification, or by subsection (5A) of section 342U, and relating to that land, ceases to have effect in relation to that land.
(3) The Minister shall, by any notification referred to in subsection (1), make an interim development order relating to the land as respects which that notification is expressed to have effect.
(4) Where the provisions of any prescribed scheme are, pursuant to subsection (1), suspended after the commencement of the Local Government (Amendment) Act, 1971, then -
(a) except to the extent to which they may be revoked or modified by or under the authority of the interim development order referred to in subsection (3) or any subsequent interim development order -
(i) any approval, permission or consent given or granted in accordance with, or in force under, the provisions of the prescribed scheme and in force at the date of the suspension of the prescribed scheme or the provisions of any order, notice or direction made or given under or pursuant to the provisions of that scheme and in force as aforesaid shall, subject to anything contained in the provisions of that scheme providing that the approval, permission or consent shall be void or cease to have effect after the expiration of any specified period, continue in full force and effect; and
(ii) all conditions and restrictions imposed or applied under any approval, permission or consent referred to in subparagraph (i) and which were in force at the date of suspension of the prescribed scheme shall continue in full force and effect; and
(b) the suspension shall not affect any right, liability, obligation, penalty or legal proceedings accrued, incurred or instituted by virtue of or in relation to or under the prescribed scheme the provisions of which were so suspended." (at p624)

6. It will be seen from these provisions that interim development orders serve two quite distinct purposes. The first is where an interim development order precedes a planning scheme. The intention appears to be that the Minister may make an interim development order while a council proceeds with the preparation of a planning scheme and that such an interim development order may itself permit, regulate, restrict, or prohibit interim development on any land which may be included in the scheme pending the coming into operation of the scheme. Its general purpose may be described somewhat broadly as "freezing" development of the land, i.e. subdivision or the carrying out of any work or the change of any use of land, i.e., use for a purpose which is different from the purpose for which the land or building was "last being used". While such an interim development order is in operation the Minister may make orders permitting, regulating, restricting or prohibiting interim development and indeed an interim development order may suspend either generally or in any particular case the operation of any provision of the Act or any other Act or any rule regulation by-law ordinance etc. to the extent to which the provision is inconsistent with any "interim development permitted under this provision". Accordingly interim development cannot be carried out except as permitted by or under the interim development order. (at p625)

7. Thus an interim development order prohibits change without permission and in this context may properly be regarded as preparatory to the production by the relevant council of a planning scheme properly so called. (at p625)

8. The second provision under which the Minister may make an interim development order is s. 342Y. The Minister may suspend the operation of a prescribed scheme in respect of the whole or part of the land affected by that scheme, but sub-s. (3) provides that the Minister "shall" make an interim development order in relation to the relevant land. Section 342U (1A) provides that when such an interim development order is made under s. 342Y (3) the Minister shall make an order conferring on the council power to permit, regulate, restrict or prohibit "interim development" on any relevant land. (at p625)

9. The significant difference between a prescribed planning scheme and an interim development order is that they are concerned with different kinds of things. An interim development order is concerned generally to "freeze" the situation as it stands and thus to prohibit "development", save in so far as such development is expressly permitted under the order itself. On the other hand a prescribed planning scheme is concerned with the use of land and such use may involve change or mere continuation of that which had previously been in operation. Thus a prescribed planning scheme may permit particular uses in the future and may prohibit existing uses subject to certain limitations. It is thus not concerned with change as such, although some changes may be prohibited and some may be permitted. This distinction is made quite clear by the definitions of "development" and "interim development" as set out above. A planning scheme however is governed by s. 342G (2) which provides that "A scheme may contain provisions for regulating and controlling the use of land and the purposes for which land may be used". (at p626)

10. The appellants' land was designated "non-urban A" under I.D.O. No. 118. By cl. 3 certain "interim development" was permitted without the Council's consent and other "interim development" was permitted only with the Council's consent and otherwise all development was prohibited. The use to which the appellants put their land was not within the list for which permission of the Council was not required, and no consent was granted by the Council. If what the appellants were dong constituted "development" it would be contrary to I.D.O. No. 118. In the Court of Appeal and in this Court that was the only question argued. (at p626)

11. The appellants' argument was that I.D.O. No. 118 did not prohibit a use of land which was current at the time when it came into effect, but controlled only development, i.e. new kinds of use beginning after it had come into operation. For the appellants it was said that although the proviso to sub-s. (4) of s. 342U prevented an interim development order from prohibiting the continuation of an existing lawful user, neither that section nor I.D.O. No. 118 contained a prohibition against the continuation of an existing user which was previously unlawful. (at p626)

12. Holland J. at first instance said that I.D.O. No. 118, both by reason of s. 342U (4) and by its own terms prohibited "development" but not "use". He referred to the definition which speaks of "use . . . for a purpose which is different from the purpose for which the land . . . was last being used" and said that that necessarily involved a change of the purpose for which the land was being used. He concluded that the expression "last being used" referred to the purpose for which the land was being used immediately prior to the coming into operation of an interim development order (whether lawful or not) and that what the interim development order prohibited was any change from that use. (at p626)

13. Holland J. rejected the argument that the sections and the interim development order were concerned only to protect an existing lawful user. He was not prepared to imply from the proviso to s. 342U (4) that the definition of "development" precluded the continuation of an existing use which was unlawful. (at p626)

14. The Council appealed to the Court of Appeal which upheld the appeal, substantially on the ground that they regarded the expression, the "purpose for which the land . . . was last being used", as meaning "last lawfully used". The views which the Court of Appeal expressed were urged in argument before this Court and we refer to them in dealing with the argument. (at p627)

15. It was argued for the Council that the definition of the word "development" was not exhaustive because it used the word "includes" in contrast with the word "means" as used in other definitions. It was however acknowledged that the ordinary meaning of the word "development" involved the notion of change and that accordingly no assistance could be derived from that reference to the ordinary meaning. This point was referred to by Hutley J.A. but he concluded that no useful reliance could be placed on the ordinary meaning and with respect we agree with Hutley J.A.'s view on this point. The point was however relied on by Moffitt P. without conceding that the ordinary meaning necessarily involved change. (at p627)

16. It was then argued that the proviso to s. 342U (4) demonstrated that the legislature did not intend to validate existing prohibited user because otherwise there would be no purpose in having the proviso. Accordingly it was urged that the words "last being used" meant "last being legally or lawfully used". This however is to treat a "precautionay" proviso as overriding the definition of "development". This argument appears to us to assume the answer and not to provide a reason for it. (at p627)

17. Moreover it is difficult to suppose that the insertion of sub-s. (4) in s. 342U in 1962 was intended to alter the meaning and operation of the definition of "development" in s. 342T, a definition which governs the use of the word throughout Pt XIIA. An intention to produce such a result indirectly is not readily to be attributed to the legislature when a more likely intention, i.e. that it is precautionary only, is available and when one would expect so significant a change in the general scheme of the legislation to be made directly and expressly. (at p627)

18. For the Council it was also argued that the use as commercial premises was totally prohibited under both the suspended prescribed scheme and under I.D.O. No. 118, and that there should be no hiatus between one set of controls and the next. However this argument overlooks the critical fact that the suspended prescribed scheme prohibited "use" of the land for certain purposes, and that I.D.O. No. 118 prohibited "development" which is not use per se, but change of use. It was then argued that the definition of development assumed that there could be gaps in the user because otherwise there could be no last user. With due respect we are unable to see why this should be so. Hutley J.A. said "Though there cannot in fact be land which is not used for a purpose, there can be periods of nonuser inlaw and this occurs when the use is for a prohibited purpose. Last user should be read, in our opinion, as last user which is legitimate in the eye of the law." (at p628)

19. We are unable to agree that unlawful user of land can be regarded as "nonuser" so as to enable the court to disregard actual user. We can see no basis for treating the actual use prior to the coming into operation of I.D.O. No. 118 as if it had not occurred at all. Moreover this view appears to be a self-defeating exercise for it would, if applied logically, involve the consequence that there was no user (or merely "non-user") of the land after I.D.O. No. 118 came into operation. Accordingly no offence would have been committed and there would be nothing to prohibit. (at p628)

20. With due respect we are unable to agree that this approach provides a basis for the conclusion reached. (at p628)

21. Moffitt P. said "that the construction contended for defeats the obvious overall purpose of the legislation" and that the words "last being used" should relate back not to the last user prior to the interim development order but to the last lawful user however remote in time "in order to determine whether there has since been a development" and this argument was pressed before this Court. (at p628)

22. With due respect this appears to us to mistake the problem, because the real question is whether there had been development contrary to I.D.O. No. 118 (since its promulgation), and not whether development had occurred during some earlier period prior to the making of I.D.O. No. 118. (at p628)

23. The proper construction of the definition of "development" was considered by Sugerman J., with whom Herron C.J. agreed, in Ex parte Arnold Homes Pty. Ltd.; Re Blacktown Municipal Council (1962) 9 LGRA 268 . The question there arising was whether the definition included mere subdivision in a case where no new road was to be constructed and no drainage or other works were carried out. The definition of "development" at that time did not contain the words "the subdivision of land" but was otherwise identical with the present definition which is set out above. The words "the subdivision of land" which are in the present definition were inserted by the Local Government (Amendment) Act 1970. The Court was divided on the question of whether subdivision was included in the existing definition but in the end the point was not decided because the same ultimate result followed on either view. Sugerman J. said (1962) 9 LGRA, at p 271 :
"The mere 'subdivision' of land in the defined sense is not the doing of any of those things which are specifically mentioned in the definition of 'development' under s. 342T (1). It is not, that is to say, the erection of a building, or the carrying out of a work, or a use of the land either for a purpose which is different form (sic) the purpose for which it was last used or at all. It is something done, no doubt, in contemplation that ultimately there will be a new use of the several lots for a purpose (residential) which will be different from the purpose (rural) for which the entirety was last used. But it is not in itself a putting of the land to any such new use, or to any use. The definition of 'development' in s. 342T (1) embodies the same basic concepts as are to be found in similar definitions in English town and country planning legislation (see Town and Country Planning Act, 1932, s. 53, and Town and Country Planning Act, 1947, s. 12 (2)), that it (sic), new use or change of use. This accords with the general purpose of schemes, in whose interest while in preparation the control of interim development is imposed, which is to make 'provisions for the use of land and the purposes for which land may be used' (s. 342G (2)). It is, therefore, a definition adopted as appropriate to this particular context of town and country planning, from which it may be concluded that it was intended to 'afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to' the word 'development' (Dilworth v. Commissioner of Stamps (1899) AC 99, at p 106 ). It is in any event questionable whether mere subdivision consisting of no more than a division into lots and sale of the individual lots, without road construction or other works, is development in the natural sense of the term, which seems to envisage some improvement upon the natural condition of the land so as to enable it to be put to some better use." (at p629)

24. That discussion of the meaning to be attributed in this context to the word "development" supports the view which is expressed above that it is concerned with change of use occurring after the making of an interim development order. (at p629)

25. Section 342U as originally enacted comprised only sub-ss. (1) and (2) but a new section containing sub-ss. (1) to (9) (including sub-ss. (1) and (2) in their previous form) was enacted by the Local Government (Town and Country Planning) Amendment Act 1962 s. 5 (1) (l) assented to on 21st May 1962 but which came into force on 1st July 1962. Those dates were prior to the hearing of Ex parte Arnold Homes Pty. Ltd. but later than the grant of the order nisi for a mandamus. Whether or not it was prior to the refusal of the application for approval depends on the matter not resolved in the judgments concerning what may have been a re-submission of the application in July 1962. However no mention is made in the judgments of s. 342U (4). Consistently with the reasoning of Sugerman J. it is proper to regard the provisio to that sub-section as having been inserted by way of precaution, bearing in mind that his judgment would not have been available to the draftsman of the amending Act. (at p630)

26. The Council placed some reliance on the observations of Gibbs J. in Parramatta City Council v. Brickworks Ltd. [1972] HCA 21; (1972) 128 CLR 1, at pp 25-26 and of Dixon C.J., Taylor and Menzies JJ. in Ferrum Metal Exports Pty. Ltd. v. Lang [1960] HCA 7; (1960) 105 CLR 647, at p 653 , but we are unable to derive any assistance from those cases or from Grozier v. Tate (1946) 64 WN (NSW) 1 or Nash v. Stielow (1950) VLR 39 . Those cases are concerned with a situation where a planning scheme which had prohibited a certain use was repealed by a later scheme which itself prohibited the same use. That situation is very different from the present one where a planning scheme which prohibited a specified use is superseded by an interim development order which prohibits "development", i.e. change of use. (at p630)

27. On the facts of the present case it is clear that there has been no "development" in the defined sense, unless continuance of a previously unlawful use is development. The definition of development demonstrates that it cannot bear this meaning without impermissible distortion of the words used. (at p630)

28. In the result we agree with the view adopted by Holland J. that the definition of development controls the extent of the operation of an interim development order. It was however submitted that this view frustrated the general operation of the Act. This is to assume a general purpose into which the express provisions with respect to interim development orders do not fit. Speculation about the purpose of the legislature in providing for the suspension of prescribed schemes by interim development orders is unlikely to be profitable. In so far as the effect of such provisions may be to make what may be called a fresh start, ignoring the operation of the suspended scheme, that would not appear to be an intention either more or less likely than any other. (at p630)

29. We would therefore allow this appeal and restore the decision of Holland J. (at p630)

ORDER

Appeal allowed with costs.

Order that the judgment of the Court of Appeal of the Supreme Court of New South Wales be set aside and that in lieu thereof it be ordered that the appeal to that Court be dismissed with costs.