Scurr v Brisbane City Council [1973] HCA 39

High Court of Australia Barwick C.J. McTiernan, Menzies, Gibbs and Stephen JJ. Scurr v Brisbane City Council [1973] HCA 39

ORDER Appeal allowed with costs. Order of the Full Court of the Supreme Court of Queensland set aside and in lieu thereof order that the appeal from the Local Government Court be allowed with costs, and further order that the appeal to the Local Government Court be allowed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 24 Barwick C.J.

In this matter I have had the advantage of reading the reasons for judgment of my brother Stephen. I am in agreement with them and in my opinion the appeal should be allowed.

McTiernan J.

I agree with the reasons for judgment which Stephen J. will hand down and would therefore allow the appeal.

Menzies J.

I have had the advantage of reading the judgment prepared by Stephen J. I agree with it.

In determining an appeal brought to it under s. 22 of the City of Brisbane Town Planning Acts, the Local Government Court should, I think, include in its consideration the question whether the application for consent has been made in accordance with the procedure laid down by the section. It is not my view that any departure from the provisions of the section would, of itself, require that an appeal against a proposal of the council to give its consent should be upheld. In his reasons, however, Stephen J. has, I think, demonstrated that the departure from the requirements of the section which he considers did occur here was of a critical character. Indeed, as I read the judgments in the Local Government Court, and the Supreme Court, the judges of the State Courts would have thought it proper to allow the appeal had it not been their conclusion that the advertisement which had been published did comply with the requirements of the section. With regard to that matter, I have, with respect, come to a different conclusion for the reasons stated by Stephen J.