Permewan Wright Consolidated Pty Ltd v Attorney-General (NSW) (Ex rel Franklins Stores Pty Ltd)

High Court of Australia Stephen, Mason, Jacobs, Murphy and Aickin JJ. Permewan Wright Consolidated Pty Ltd v Attorney-General (NSW) (Ex rel Franklins Stores Pty Ltd)

ORDER Appeal allowed with costs, cross-appeal dismissed with costs. Orders for injunctions made in the Supreme Court both at first instance and in the Court of Appeal set aside and plaintiff's action dismissed with costs. Order for costs made in the Court of Appeal to stand.

Judgment reserved.

Dec. 22. Stephen J.

I am wholly in agreement with the reasons for judgment of Jacobs J. and with the order which he proposes.

Mason J.

I am in agreement with the reasons for judgment prepared by Jacobs J. I would therefore allow the appeal with costs, dismiss the cross-appeal with costs, set aside the orders for injunction made in the Supreme Court and dismiss the action.

Jacobs J.

In order to determine this appeal and cross-appeal it is not necessary, on the view to which I have come, to relate the whole of the complex history of the matter which engaged the attention of Helsham J. at first instance and the New South Wales Court of Appeal on appeal from his decision. The case concerns the permitted use of land and buildings at Taren Point in the Shire of Sutherland. After the decision at first instance and just before the hearing of the appeal in the Court of Appeal the Minister for Planning and Environment made and notified an interim development order ("Interim Development Order No. 32") in respect of the subject land which provided in par. 3 as follows:

The lands may be used for the purpose of the sale of foodstuffs and general consumer products of a non-electrical nature by way of sale by cartons, half-cartons, and multiple and bulk packages.

The Court of Appeal applied the evidence of the use to which the appellant had previously put the land and buildings to the use permitted under this new order and concluded that a continuation of that use would be contrary to the use so permitted. It may be mentioned that any use other than that permitted by the order would infringe the prohibition in s 342U of the Local Government Act, 1919 (N.S.W.) as amended from time to time. An injunction, presumably quia timet, was granted in the following terms: