Delta Properties Pty Ltd v Brisbane City Council [1955] HCA 51

Refd to

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95 CLR] OF AUSTRALIA.

[HIGH COURT OF AUSTRALIA.]

DELTA PROPERTIES PROPRIETARY uF LIMITED se eee } APPELLANT ; PLAINTIFF,

AND

BRISBANE CITY COUNCIL . . . . DEFENDANT.

DEFENDANT,

ON APPEAL FROM THE SUPREME COURT OF QUEENSLAND.

ll

Local Government (Q.)—Public Health—Drainage of land—Low-lying area—City H.C. or A.

of Brisbane—Prohibition against erection of dwellings on land in council's opinion not " capable of being drained "—9pinion of council—Formation of opinion—Matters relevant for consideration—Party affected—Right to be heard— The City of Brisbane Acts 1924 to 1951, s. 33 (2)—Irdinances, Chap. XII, PUN aot

Section 7 of Pt. IX (drainage of lands and premises other than under The Metropolitan Water Supply and Sewerage Acts 1909 to 1924) of Chap. XII (Health Ordinance) of the Ordinances made under s. 36 (2) of The City of Brisbane Acts 1924 to 1951 (Q.) provides: "It shall not be lawful for any person upon land which is so situated as not, in the opinion of the council, to be capable of being drained to erect any building to be used wholly or in

part as a dwelling or to adapt any building to be used wholly or in part as a dwelling ".

Held, (1) that the words " capable of being drained" contemplate the practicability, in view of the local topography, and not the physical possibility, of drainage of individual premises, by gravitation through its own pipes and conduit, to council drains (or in relation to draining with other than rainwater, from houses erected on land suitable for sub-surface irrigation) to works of sub-surface irrigation. In considering whether land is so capable the council is not concerned to consider the likelihood or unlikelihood of its baing able, having regard to its own financial resources and works programme, to provide