Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council [1970] HCA 42

High Court of Australia Barwick C.J. McTiernan, Menzies, Windeyer and Walsh JJ. Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council [1970] HCA 42

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1970, Nov. 10 Barwick C.J.

In this appeal I have had the advantage of reading the reasons prepared by my brother Walsh. As I agree entirely with his conclusions and his reasons I have nothing which I would desire to add.

I agree that the appeal should be dismissed for the reasons which he gives.

McTiernan J.

I would dismiss this appeal on the ground that condition (f) of the council's consent to the appellant's development application was within the powers conferred upon the council as the responsible authority under the North Sydney Planning Scheme by the Local Government Act, 1919, as amended, and by the North Sydney Planning Scheme Ordinance.

In accordance with cl. 46 of the Ordinance the appellant submitted a development application and a building application for the land in question. The council, as the responsible authority, granted its consent to the development application, subject to a number of conditions which were stated to be imposed "in order to safeguard the present and future amenity of the neighbourhood". The relevant condition reads as follows:

(f) the hours of work being limited to between 7 a.m. to 5 p.m. Mondays to Fridays and 7 a.m. to 1 p.m. on Saturdays with no work on Sundays.

Clause 40 (1) of the Ordinance provides thus: Subject to the provisions of this Ordinance, the responsible authority may grant an application unconditionally or subject to such conditions as it may think proper to impose or may refuse to grant an application. Clause 36 of the Ordinance states that: In respect of any application for consent to erect or use a building or to carry out or use a work or to use land, the responsible authority shall take into consideration (e) the existing and future amenity of the neighbourhood The appellant contended that the above-mentioned condition was ultra vires the Ordinance and Pt XIIA of the Act which is headed "Town and Country Planning Schemes". But if the word "amenity" is given its usual meaning of "pleasantness", it is clear that the noise emanating from the work in question was a relevant consideration under cl. 36 (e).