Drummoyne Municipal Council v Lebnan [1974] HCA 34

High Court of Australia Barwick C.J. Menzies, Gibbs, Stephen and Mason JJ. Drummoyne Municipal Council v Lebnan [1974] HCA 34

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Sept. 25 Barwick C.J.

In this matter I have had the advantage of reading the reasons for judgment prepared by my brother Gibbs. I agree entirely with what he has written. I agree that the appeal should be dismissed.

Menzies J.

In a judgment which I have had the advantage of reading Gibbs J. sets out, in a manner to which I do not wish to add anything, the circumstances giving rise to this litigation, the matters in issue to be decided in it and the course that it has taken. Moreover I am in agreement with his resolution of all the matters now in issue except one, that is, the date of the Council's approval of the respondents' application of 23rd September 1971.

In my opinion approval was given to that application on 5th October 1971. The minute book of the Council recording its proceedings on 5th October 1971 was not in evidence. However, in conformity with its statutory duty the Council did on 18th October 1971 inform the applicant that it had on 5th October 1971 approved the application subject to stated conditions. This was a notice given by the Council itself (s. 314 (2)). It was signed for the Council by the Town Clerk and s. 620 of the Local Government Act, 1919 N.S.W., as amended, applies to it. That letter has been rightly accepted as evidence of the Council's decision on the application. The letter makes it clear that the application was considered by the Council on 5th October 1971 and, in my opinion, was then approved subject to conditions.

Although I do not doubt that there may be cases where there would be no effective approval of an application without notification to a person making it and there are no doubt many cases where no effective consent would be given for what has been requested without notification, it does seem to me that s. 314 (1) of the Act provides for something to be done by the Council which would be complete upon its decision being formally taken. I consider that s. 314 itself expressly differentiates between the decision of the Council under sub-s. (1) and the notification of that decision under sub-ss. (2) and (3).