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. " It is submitted for the appellant that the intended subdivision and sale of the balance of the land was a continuation of the use of the land for the purpose for which it was being lawfully used immediately before the interim development order came into operation within the meaning of s 17 (1D). The submission encounters a number of difficulties, but it is sufficient for us to say that in our opinion it should be rejected for the reason given by the learned primary judge. The appellant's case in essence is that the expression "use of any land" in s 17 (1D) comprehends development of land including subdivision and ultimately sale. However, reference to other provisions in the Act makes it clear that the word "use" in the subsection does not extend to development or subdivision, let alone sale. The provision, it will be noted, permits continuance of the use of land but makes no reference to development or subdivision. The omission is significant for in other parts of the section, notably sub-ss (1), (1B) and (1C), the word "use" appears in association with the word "development" in the expression "use or development". The absence of any reference to "development" in sub-s (1D) is particularly significant in the light of its inclusion in sub-s (1C). That subsection prohibits the commencement of the "use or development" of any land after the coming into operation of an interim development order. Subsection (1D), a saving provision, is limited to "use", thereby exposing "development" to the force of a prohibition contained in a development order. Although his Honour stated that no reliance was placed on the extended statutory definition of "use", the appellant here endeavoured to gain some support from it. Section 3 defines the word in relation to land so as to include "use or proposed use for the purpose for which the land has been, is being, or may be developed". "Development" is also defined by s 3 so as to include "the subdivision of land". When these definitions are read together it is apparent that development and subdivision do not as such fall within the statutory definition of "use"; what the statutory definition does is to include use for the purpose for which the land is being developed or subdivided, e.g. use for residential purposes. The definition suggests, in conformity with what has already been said, that neither development nor subdivision by itself constitutes a "use" in the sense in which that word is used in s 17 (1D). If subdivision falls outside the concept of use as it is expressed in the subsection, it follows that sale of land also stands apart from that concept. "Use" does not extend to the mere entry into contracts or transactions relating to land. For these reasons we would dismiss the appeal.