Nancy Shetland Pty Ltd v Melbourne & Metropolitan Board of Works

High Court of Australia Menzies, Gibbs and Mason JJ. Nancy Shetland Pty Ltd v Melbourne & Metropolitan Board of Works

ORDER Appeal dismissed with costs. Oct. 8. Menzies, Gibbs and Mason JJ.

THE COURT delivered a joint judgment.

This is an appeal by the unsuccessful plaintiff in an action for a declaration which was heard and dismissed by Gowans J. in the Supreme Court of Victoria. The appellant sought a declaration that it was entitled under the Town and Country Planning Act 1961 Vic, as amended, and by virtue of the Melbourne Metropolitan Interim Development Order—Extension Area No. 1 made pursuant to the Act, to use certain land for the purpose of subdivision and sale in accordance with the provisions of the Shire of Lilydale Planning Scheme 1958.

The facts are fully set out in his Honour's reasons for judgment. They may be shortly summarized. The appellant acquired a parcel of land comprising 732 acres zoned as rural land under the planning scheme of the shire council. It was acquired for the purpose of subdivision and sale. The appellant, in accordance with an approval granted by the shire, subdivided 168 acres into sixteen allotments. Sales were made and houses erected on the allotments.

Subsequently in June 1971 the appellant applied for approval of a subdivision of the balance of the land. Tentative approval was granted. A road was laid out, formed and graded along a ridge running through the balance of the land. Before any further work was undertaken the interim development order to which reference has been made and which affected the land came into operation on 2nd December, 1971. Clause 4 of this order prohibited "the use or development of any land or the carrying out of any works on land" within the interim development area, subject to certain provisions contained in the order which need not be mentioned as the appellant here relies exclusively on the protection which it submits is accorded to it by s 17 (1D) of the Act. Section 17 (1D) provides: "Nothing in any interim development order or in any modification or amendment thereof shall prevent the continuance of the use of any land for the purposes for which it was being lawfully used immediately before the coming into operation of the order. "