Cooney v Municipality of Ku-ring-gai [1963] HCA 47

High Court of Australia Dixon C.J. Kitto, Taylor, Menzies and Windeyer JJ. Cooney v Municipality of Ku-ring-gai [1963] HCA 47

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 31 Dixon C.J.

This is an appeal from an order of the Full Court of the Supreme Court of New South Wales allowing an appeal by the plaintiff from a decree of the Supreme Court in its equitable jurisdiction. The plaintiff is the Council of the Municipality of Ku-ring-gai. By s. 587 of the Local Government Act, 1919 N.S.W. it is provided that in any case in which the Attorney-General might take proceedings on the relation or on behalf or for the benefit of the Council for or with respect to enforcing or securing the observance of any provision made by or under this Act, the Council shall be deemed to represent sufficiently the interest of the public and may take proceedings in its name. It seems that the suit was brought in pursuance of this provision although in places the statement of claim uses language which might suggest that the Council was suing in its own right and, as will be seen, reliance was placed upon the County of Cumberland Planning Scheme Ordinance.

The defendants to the suit are three in number, a husband and wife named Cooney and a third person who together are alleged to use a dwelling-house situate at and known as 140 Pentecost Highway, Turramurra, within the boundaries of the plaintiff municipality, for the purpose of what is described in the statement of claim as the trade or business of providing at cost refreshments and entertainment at social functions held therein. The statement of claim bears no date but it would seem that the suit was commenced some time early in 1962. Injunctions were claimed against the defendants restraining them from using the land and premises for the purposes of "the trade or business of providing at cost refreshments and entertainment at social functions held therein" and engaging in any trade or business on the land and premises without the consent of the plaintiff. The relief sought appeared to be based on two allegations which may have been considered, and certainly have been treated, as alternative. The first is that the land and premises already described are within an area which is zoned pursuant to the County of Cumberland Planning Scheme Ordinance as a living area and that no permission has ever been given by the plaintiff to use the land and premises for purposes other than as a dwelling-house. The alternative allegation is that the land and premises are within an area proclaimed pursuant to s. 309 of the Local Government Act as a residential district and the use of the premises for the purposes of any trade, industry, manufacture, shop or place of public amusement is prohibited by the said proclamation. The date of the "said proclamation" is not specified. It appears that the clause (31 (b) (ii)) provides that nothing in the relevant prohibitory provisions shall be construed as restricting or prohibiting the practice by any occupant of a dwelling-house or residential building of a profession or occupation which does not involve the use of the dwelling-house or residential building for the purpose of an industry. In his judgment Jacobs J., who heard the suit at first instance, says: "The word "industry" is defined in the Ordinance, and it is not disputed that the use now challenged does not come within that definition. On behalf of the first-named defendant it has been submitted that she is the occupant of the dwelling-house and that she practises the occupation of providing entertainment, refreshment and a place of assembly for persons wishing to hold receptions and the like functions." His Honour held that the restrictions in the County of Cumberland Planning Scheme Ordinance were inapplicable to what was complained of. The word "industry" is defined in the County of Cumberland Planning Scheme Ordinance, Pt 1, cl. 3, to mean any manufacturing process within the meaning of the Factories and Shops Act, 1912-1950, and certain other physical operations not material to this case. Clause 3 occurs in Pt 1 of the Ordinance and it is in Pt 3 that cl. 31 (b) occurs excluding prohibitions upon the occupant of a dwelling-house or residential building of the practice of any occupation or profession which does not involve the use of the dwelling-house or building for the purpose of an industry. Clause 3, however, applies to the whole Ordinance, that is unless the context or subject matter otherwise indicates. I agree entirely with the conclusions of Jacobs J. that the prohibitions and restrictions in the Ordinance do not apply to the use to which Number 140 Pentecost Highway, Turramurra, is put by the defendants.