Belcaro Pty Ltd v Brisbane City Council [1963] HCA 35

High Court of Australia Kitto, Taylor, Menzies, Windeyer and Owen JJ. Belcaro Pty Ltd v Brisbane City Council [1963] HCA 35

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:

Sept. 18 Kitto, Taylor and Owen JJ.

This appeal is against an order of the Full Court of the Supreme Court of Queensland discharging an order nisi for a prerogative writ of mandamus commanding the respondent Council to complete the construction of what was described as the trunk line stormwater drainage through certain land the subject of a registered plan of subdivision.

The appellant as the owner of the land applied to the respondent Council in January 1961 requesting that a proposed subdivision might be approved by the Council Registration Board under Pt II of Chap. 8 of the Ordinances made under the provisions of The City of Brisbane (Town Plan) Act of 1959 Q.. That Part by ord. 2 prohibits the subdivision of land otherwise than in accordance with an approval granted by the Board, and by ord. 15 it empowers the Board to approve an application, or disapprove it, or approve it subject to conditions.

By letter of 8th March 1961 the Town Clerk informed the appellant that the Board had given approval to the amended proposal, subject to a number of conditions. They included a condition (iv) that the appellant carry out at its expense the construction of inter alia all necessary drainage works to the requirements and satisfaction of the Chief Engineer and Manager, Department of Works, and another (v) that prior to proceeding with the construction of the drainage works the appellant should submit to the Chief Engineer and Manager, Department of Works, for his approval full working plans prepared by a qualified engineer. Other conditions contemplated that a system of stormwater drainage would or might be necessary. In fact an open water-course or open drain ran through the area, or estate as it may be called, for a distance of some 350 feet. This made the construction of a main or trunk drain there a necessary part of the system. One of the conditions relating to stormwater drainage in the estate dealt with the question of cost, and in particular with the manner in which, as it said, the cost should be apportioned between the appellant and the Council. This condition, numbered (xii), was almost precisely in the terms of certain provisions contained in ord. 26 of Pt II. It departed from those provisions by making the opinion of the Council or of the Chief Engineer and Manager, Department of Works, decisive of certain matters of fact, but for present purposes nothing turns upon the departures and we may go at once to ord. 26, pausing only to mention that the Town Clerk's letter ended by saying: "It is pointed out, however, that the Council has not the funds to contribute towards the construction of the trunk line drainage through the estate". This referred, of course, to the construction of the stormwater drain.