Eaton & Sons Pty Ltd v Warringah Shire Council [1972] HCA 33

High Court of Australia Barwick C.J. McTiernan, Walsh, Gibbs and Stephen JJ. Eaton & Sons Pty Ltd v Warringah Shire Council [1972] HCA 33

ORDER Appeal allowed with costs. Decretal Order of the Supreme Court set aside and in lieu thereof order that the Originating Summons be dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

June 6 Barwick C.J.

The appellant appeals against a decretal order of the Supreme Court of New South Wales in Equity (Helsham J.) [1] whereby that Court declared that

the use of such part of the land known as lot 2 in Deposited Plan Number 207700 as is zoned Residential 2 (a) under the Shire of Warringah Planning Scheme Ordinance (other than that part edged red on the plan being the plan prepared by Messrs. F. P. Wallis & Moore and marked Ref. No. 10550/1 and dated 27th August 1970 which said plan has been initialled by the said Judge and placed with the papers) for the purpose of timber storage, timber distribution, hardware storage or hardware distribution is a breach of the Shire of Warringah Planning Scheme Ordinance and whereby the Court restrained the appellant from so using the said land. 1. (1971) 22 L.G.R.A. 244.

The essential facts of the case are that the appellant has carried on business as a timber and hardware selling merchant at a location in the Forestville area of the Warringah Shire since the year 1956. Before purchasing at that location three lots of land known as lots 5, 8 and C1, having frontages to Cook Street, Forestville, the appellant sought and obtained from the respondent Council its approval of the establishment on that land of a timber and hardware reselling business, involving amongst other activities the storage of building timber. In 1956 and until 5th June 1963, the land was covered by the County of Cumberland Planning Scheme (the County Scheme), under which the respondent Council was the responsible authority to give such a consent as it did give to the proposed use of the land by the appellant. An ineffectual attempt was made by the respondent in July 1956 to revoke its approval of the use of lot C1 for the business of timber reselling; but in fact, on 5th June 1963, the appellant was both carrying on the business of timber and hardware reselling at the said location and physically using part of lot C1 for the storage of timber. Meantime lot C1 had been subdivided into two lots known in the case as lots 1 and 2. The decretal order and this appeal are concerned with lot 2, part of lot C1, but I will find it convenient throughout to refer simply to lot C1.