High Court of Australia Taylor, Menzies and Owen JJ. Morris v Woollahra Municipal Council [1966] HCA 65 ORDER Appeal dismissed with costs. By consent Order of the Supreme Court varied by substituting the 1st February 1967 for the thirtieth June next appearing in the first and second injunctions and for the 15th July next appearing in the third injunction. Cur. adv. vult. The Court delivered the following written judgment: Nov. 1 Taylor, Menzies and Owen JJ. This appeal is brought from a decree of the Supreme Court made in its equitable jurisdiction by which the appellants were restrained from using or permitting to be used certain premises in the Municipality of Woollahra as a place for providing catering and entertaining services for functions such as wedding receptions, club social functions and the like and from using or permitting the premises to be used as a boarding house or guest house, except in pursuance of a licence under Ordinance No. 42 made in pursuance of the Local Government Act, 1919 (as amended). The grounds upon which the injunctions were granted were that the appellants' user of the premises in question contravened both the provisions of the County of Cumberland Planning Scheme Ordinance and proclamations made pursuant to s. 309 of the Local Government Act and, further, that in so far as the premises were used by the appellants as a guest house or boarding house, they were not the holders of a licence issued pursuant to Ordinance No. 42. By cl. 26 of the Planning Scheme Ordinance it is provided that:— The purposes— (a) for which buildings may be erected or used without the consent of the responsible authority; (b) for which buildings may be erected or used only with the consent of the responsible authority; and (c) for which buildings may not be erected or used; in each of the zones specified in Part I or Part II of the Table to this clause are respectively shown in the third, fourth and fifth columns of the Table set out opposite thereto. The zone within which the appellants' premises were situated was classified as a "Living Area" and it is clear enough that, subject to one qualification, the only purpose for which they could lawfully be used without the consent of the respondent, as the responsible authority, was as a dwelling house. The expression "Dwelling house" is the subject of definition and its meaning does not include guest house or private hotel. However, it does appear that with the consent of the Council they could be used for a variety of purposes other than those specified in Column V of the Table. Use for the purposes specified in Column V was absolutely forbidden but they do not include the use of premises as a guest house or private hotel. This appears readily enough from cl. 26 and the provisions of the appended Table, but cl. 28 of the Ordinance explicitly provides that "a building shall not without the consent of the responsible authority be erected or used in any zone for any purpose shown opposite that zone in the fourth column of the Table" and, further, that "a building shall not be erected or used in any zone for any purpose shown opposite that zone in the fifth column of the Table". However, a qualification is introduced by cl. 31 which provides that "nothing in the foregoing provisions of this Part (Pt III) shall be construed as restricting or prohibiting or enabling the responsible authority to restrict or prohibit 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". "Residential building" means "a building, other than a dwelling-house, designed for use for human habitation together with such outbuildings as are ordinarily used therewith, a residential flat building, a hostel, an hotel designed primarily for residential purposes and a residential club". The evidence in the case shows that the appellants conducted on the premises in question what they chose to call an International Hotel Club Restaurant and that they have there catered extensively for wedding receptions, banquets, other social gatherings, and the like. It appears that they have built up a substantial business of this character and that they did, in addition, conduct a guest house on the premises. The learned judge of first instance described the appellants' activities in these words: The evidence tendered on the hearing of this suit established that the defendants have since June 1965 used the premises at Glen Ascham for the reception and accommodation of guests who resided there for one or more nights and who, for reward, are permitted to occupy well-appointed bedrooms (and annexed bathrooms) and are supplied with some or all of their meals. The evidence also established that from time to time since June 1965 the defendants had entered into engagements with persons who were not resident guests for the holding of social and business functions for the purpose of entertaining other persons who also were not resident guests; these functions included wedding receptions, 21st birthday parties, dinner dances, cocktail parties and an occasional fashion parade with afternoon tea. An attempt was made during the hearing to suggest that these activities were incidental to the conduct of a guest house or private hotel because upon the occasion of each function the person holding it or one or more of the guests resided for one or more nights upon the premises or were offered overnight accommodation there. In the case of wedding receptions this offer was made, generally without any extra charge, to the bride and bridegroom, neither of whom in most instances was a party to the contract made for the holding of the function. I think it clear that in most instances the provision of such overnight accommodation was incidental to the main purpose of the engagement which took the form of catering for reward for a social function and that each of these functions was, in truth and reality, a commercial engagement by which the defendants agreed to provide entertainment and meals, with or without drinks, for a total price determined primarily at a rate per capita of those attending. I should add that in some instances the provision or offer of overnight accommodation was in the nature of a mere device conceived by the defendants in the hope that the function might be characterized as the entertainment by a guest resident at Glen Ascham of his own invitees. It is not necessary, I think, at this stage to refer in any greater detail to the mass of evidence which was tendered to establish the activities being conducted on the premises by the defendants, because after the conclusion of the oral evidence the defendants, by their counsel, conceded that a catering trade has been carried on by the defendants, that trade consisting in catering for wedding receptions and other social functions for reward, and that the defendants are conducting upon the premises the activities of a guest house or private hotel. It was contended that for a number of reasons these activities did not constitute a contravention of the Planning Scheme Ordinance. In the first place, it was said that the appellants had, on 30th September 1963, made what was called a development application to the respondent Council whereby they sought its approval "to conduct a high-class Private Hotel". The application described the premises as having "15 units plus Reception Hall, Cloakroom, Dining/Lounge, Lounge Annex, open Sun Verandah area, Kitchen & Staff rooms, bathrooms and toilets" and it was stated that the building had been conducted as a high-class private hotel for approximately the past twenty years. This application followed a letter of 23rd September 1963 in which the respondent advised the appellants that before the premises could be used for any purpose other than a dwelling house a development application should be submitted to the Council for consideration. In the result the respondent, on 15th October, granted its consent to the application but it was pointed out that "the premises must not, at any time, be used other than for the purpose stated above without prior consent thereto" and that, since guest house premises "are the subject of a licence under the provisions of Ordinance 42" an application should be made to the Council before putting the premises to use as proposed. On the strength of these communications the appellants assert that they had the consent of the respondent to use the premises as a guest house and that, since the use of the premises for the purpose of the so-called International Hotel Club Restaurant was merely incidental to the conduct of a guest house, they were not in breach of the Planning Scheme Ordinance. In our view, this contention must be rejected, for it is impossible to assert that the business of the International Hotel Club Restaurant was involved in or even incidental to the conduct on the premises of a guest house. Next, it was said that the use of the premises for the conduct of the activities involved in the International Hotel Club Restaurant was merely, in the words of cl. 31 of the Planning Scheme Ordinance, the practice by the appellants, as occupants of a residential building, "of a profession or occupation" which did not involve the use of the residential building for the purpose of an industry; it was said that the first-named appellant's occupation was that of caterer and he was doing no more than "practising" his "occupation" as an occupant of a residential building. In our view this contention should also be rejected. What is contemplated as the use of a residential building is that it will have a number of occupants and the contention may be more simply tested by considering the simple case of an occupant of a dwelling house situated in a living area. The effect of cll. 26 and 28, together with the Table which is appended to the former clause, is that it may be used only as a dwelling house without consent. But it may not be used without consent for any of the purposes specified in Column IV of the Table which include such things as "Shops", "Commercial Premises" or any other purpose not referred to in Column III or Column V. Nor, even with consent, may it be used for any of the purposes specified in Column V. It is in the light of these specific and exclusive prohibitions that it is necessary to consider the scope of the exceptions created by cl. 31. It seems to us that the relevant words of cl. 31 should not be so widely construed as to enable the occupant of a dwelling house, or for that matter an occupant of a residential building, to carry on upon the premises any sort of trade or business in any manner he chooses so long as it does not involve the use of the premises for the purpose of an industry. If it were so construed it would mean of course, the premises could be used, for example, as a shop or as commercial premises or professional chambers notwithstanding that such a use without consent is explicitly prohibited by cl. 28. What the exception permits, it seems to us, is the use of the premises by an occupant for the "practice" of some personal skill which is a qualification of his profession or occupation. Moreover, the practice must be ancillary only to the occupation of the occupant in question and, therefore, a use which does not operate to transform the character of the dwelling house. In other words, the "practice" must be ancillary to his occupation of the dwelling house as such and the exception has no application to a case where a business is conducted in a dwelling house and the occupancy is merely incidental to the conduct of the business (cf. the situation which arose in Harnam Singh v. Jamal Pirbhai [1] ). It is difficult to frame a more precise test and in some cases there may be difficulties in drawing the line, but there is no difficulty in the present case for the trade which the appellants conducted cannot, in any way, be regarded as the "practice" of an occupation which is ancillary to an occupation of the premises as a residential building of the type for which they received approval. It is true, of course, that the first-named appellant was one of the occupants of a residential building of the type for which he had received approval but it is impossible to regard the substantial business which was conducted as the practice of his "occupation" incidentally to his situation as an occupant of the residential building. We appreciate that this may be thought to place a somewhat more limited meaning on cl. 31 than the Supreme Court was prepared to adopt in Ku-ring-gai Municipal Council v. Cooney [2] but we do not suggest that a practice must be carried on pursuant to the clause without the assistance of others. The point which we wish to make is that it is essential that, notwithstanding the "practice", the premises should continue to be used essentially as a dwelling house or, in this case, as a residential building, and this condition is not satisfied where the premises are primarily used as business premises and the owner's occupancy is merely incidental to the conduct of the business. 1. [1951] A.C. 688, at p. 703. 2. (1962) 8 L.G.R.A. 144. The next contention advanced by the appellant rests upon the provisions of cl. 32 of the Ordinance. That clause, which is contained in Pt IV, provides that "an existing building may be used for its existing use and an existing use of land may be continued". So far as is relevant to this appeal, "existing use" means a use of a building, work or land for the purpose for which it was used immediately before an appointed day, i.e. 27th June 1951. It was somewhat faintly suggested that the evidence showed that the premises in question were being used immediately before that day for the purpose for which they are now being used. But we are satisfied that there is no evidence capable of leading to this conclusion. However, it was further suggested that in proceedings such as these the onus lay upon the respondent, the plaintiff in the suit, of establishing that the premises were not being so used at the relevant time. The learned judge of first instance rejected this contention conformably with the consistent decisions of the Supreme Court to the contrary (see e.g. Bourne v. Marrickville Municipal Council [1] ; Forrester v. Marrickville Municipal Council [2] and Davis v. Pember [3] ) and in our view he did so rightly. It is, we think, unnecessary to say more than that his decision proceeded upon the principles reiterated in this Court in Vines v. Djordjevitch [4] and Nominal Defendant v. Dunstan [5] . 1. (1954) 19 L.G.R. (N.S.W.) 218. 2. (1954) 19 L.G.R. (N.S.W.) 232. 3. (1958) 5 L.G.R.A. 78. 4. (1955) 91 C.L.R. 512. 5. (1963) 109 C.L.R. 143. The second branch of the appeal is concerned with two proclamations made pursuant to s. 309 of the Local Government Act. The first of these, made on 30th June 1920, prohibited the use of any building in a defined area, within which the premises in question are situated, for certain purposes set out in Schedule B to the proclamation. Thereafter, on 13th November 1920, there was a further proclamation purporting to amend the earlier by omitting the words "such trades, industries, manufactures, shops and places of public amusement as are described in Schedule B hereto" and by substituting the words "any trades, industries, manufactures, shops or places of public amusement; and the erection or use in such district of advertising hoardings". However, the decision of this Court in Dyer v. Luckett [6] which held that a proclamation expressing a prohibition in such wide and general terms was not authorized by s. 309, led to the enactment of sub-ss. (1A) and (1B) of s. 309. The first of these sub-sections provides that any provision inserted in a proclamation in pursuance of the powers conferred by pars. (c), (d) or (g) of sub-s. (1) of s. 309 may apply (a) generally to all or any trades, industries, manufactures, shops and places of public amusement; (b) particularly to the trades, industries, manufactures, shops and places of public amusement mentioned in the proclamation; and (c) to all trades, industries, manufactures, shops and places of public amusement other than those mentioned in the proclamation; whilst sub-s. (1B) further provided that sub-s. (1A) should be deemed to have been in force since the commencement of the Act. 1. (1928) 41 C.L.R. 44. To the claim that the activities of the first-named appellant were in breach of the proclamation as so amended, a number of arguments are raised, including the contention that the amending proclamation, which contains the relevant prohibition, is invalid. For the purpose of considering this contention it is necessary to set out the provisions of s. 309 (1): The Governor may on the application of the council— (a) declare by proclamation any defined portion of an area to be a residential district; (b) by proclamation alter or abolish a residential district; (c) prohibit the erection in such district of any building for use for the purposes of such trades, industries, manufactures, shops, and places of public amusement as may be described in the proclamation; and (d) prohibit the use of any building in the district for any such purposes; and (e) prohibit the erection or use of advertisement hoardings in the district; and (f) prohibit the erection or use in the district of any building for the purpose of a residential flat building or prohibit the erection or use in the district or in such part of the district as may be defined in the proclamation of any building for the purpose of a residential flat building other than a building which conforms to the standard prescribed by this Act for the class of residential flat building defined in such proclamation: Provided that this shall not apply to a residential flat building which has been erected or the erection of which has been approved by the council before the date of the proclamation; and (g) prohibit the use in the district of any land for the purposes of any trade, business, avocation or calling described in the proclamation. In the first place it is said that s. 309 (1) (b) confers an express power of alteration but that it is confined to the alteration or abolition of a residential district. This, it is said, is a clear indication that the general provisions of s. 647 (1), which authorize the Governor by proclamation to rescind, revoke, amend or vary any order, proclamation or notification under the Act, has no application to the provisions of s. 309. In our view there is no substance in this argument; s. 647, prescribing as it does the manner in which proclamation-making powers given by the Act may be exercised, is clearly applicable to an exercise of power conferred by s. 309. Next it is said that sub-s. (1A) purports only to validate provisions inserted in a proclamation "in pursuance of the powers conferred by pars. (c), (d) or (g) of sub-s. (1)" and that it does not, therefore, validate provisions inserted pursuant to s. 647 (1). To this proposition the same answer may be made, that is, that s. 647 (1) merely prescribes the manner in which the exercise of the proclamation-making power may be exercised and the amending proclamation was therefore an exercise of the power conferred by par. (g), the scope of which was enlarged by sub-s. (1A) and, by sub-s. (1B), deemed to have been in force since the commencement of the Act. But even if, as was argued, the source of power for the amending proclamation is to be found in s. 647 (1) the decision of Millner v. Raith [1] answers the objection that no retrospective operation was given expressly to that sub-section. 1. (1942) 66 C.L.R. 1. The appellant's next answer to the complaint that there was a contravention of the prohibition erected by the amending proclamation is that he did not use the subject premises for the purpose of a "trade". It may be open to question whether the mere use of premises as what may be described as a private guest house, involving as it does the provision of accommodation for a limited number of guests and the serving of meals, constitutes a use of the premises for a "trade" although we observe that Hardie J., in Willoughby Municipal Council v. Bastida [2] , thought that it did. However, he merely purported to follow the decision of McLelland C.J. in Ku-ring-gai Municipal Council v. Pearl Wong Pty. Ltd. [3] where the business which the occupant carried on included activities of the kind restrained in Cooney v. Ku-ring-gai Municipal Council [4] . We observe also that Sugerman J. in Droga v. Waverley Municipal Council [5] considered that the conduct of an extensive "private hotel" capable of accommodating some seventy-five guests, constituted a trade within the meaning of s. 309. Our doubts on this point are not made any the less by the reluctance of the English courts to regard the keeping of a lodging house as a "trade" though no doubt it may be regarded as the conduct of a business (see e.g. German v. Chapman [6] ; Hobson v. Tulloch [7] and Thorn v. Madden [8] ). It may of course be a question of fact and degree in each case whether activities generally of this character constitute a trade, but it is unnecessary to pursue the question in this case for in this instance the appellants did more than this; quite clearly Cooney's Case [4] is authority for the proposition that they did in fact use the premises for the purpose of trade. 1. (1966) 12 L.G.R.A. 172. 2. (1965) 12 L.G.R.A. 1. 3. (1963) 114 C.L.R. 582. 4. (1952) 18 L.G.R. (N.S.W.) 160. 5. (1877) 7 Ch. D. 271. 6. [1898] 1 Ch. 424. 7. [1925] 1 Ch. 847. 8. (1963) 114 C.L.R. 582. The appellants also contend that the approval which the respondent gave to the development application constituted, within the meaning of sub-s. (2) of s. 309, a use which the Council thought "reasonable in the circumstances" and that, by virtue of that sub-section, they were entitled to use the premises for the purposes complained of. This contention is met by the fact that at no time was approval given to the conduct on the premises in question of the activities in which it is shown that they engaged and this circumstance disposes, not only of this contention, but also of the argument that the respondent's consent gave rise to some form of estoppel. Finally they raise in relation to the prohibition erected by the proclamation a similar answer to that which they raised with respect to the Planning Scheme Ordinance. They claim in effect that there is evidence sufficient to establish that the premises were used for the same purposes prior to the making of the second proclamation, that is 30th November 1920, and, alternatively, that the onus was on the respondent to establish that they were not so used at the relevant date. For the reasons which we have already given this argument must be rejected. It is clear that the appellant is also in breach of Ordinance No. 42 which provides, by cl. 8, that "after the expiration of six months from the day on which this Ordinance is applied to any area a person shall not within that area keep manage or control any premises as a boarding house or a house let in lodgings unless a current licence is held by him in respect of such premises". This clause provides a daily penalty for any contravention. We have no doubt that if all that was alleged in the case was that the first-named appellant was in contravention of this provision that circumstance would not warrant the granting of an injunction. However, in the circumstances of the case, we do not think we should interfere with the exercise of the discretion of the learned judge of first instance in relation to this matter. The appeal should, therefore, be dismissed but as the parties agreed that in this event the operation of the injunctions should be suspended for a period of three months from the delivery of judgment the order of the Supreme Court is varied accordingly.