H.C. or A. 1917. = SyDNey, August 23. Barton, Isaacs and Rich JJ. HIGH COURT ar, [HIGH COURT OF AUSTRALIA.) THE COUNCIL OF THE MUNICIPALITY OF KATOOMBA : 5 E a ee AND THE KATOOMBA AND LEURA GAS an PANY LIMITED AND ANOTHER . ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES. Local Government—Rental charge—Pipes laid under streets—Statutory avi Permission of council—Local Government Act 1906 (N.S.W.) (No. 56 of 1 Katoomba Lighting Act 1890 (N.S.W.), sec. 2. By sec. 209 of the Local Government Act 1906 (N.S.W.) it is provided "(1) A council" of a municipality "may make a fair rental charge persons who have laid or erected, or may, with the couneil's permissi or erect, pipes, wires, cables, or rails, on, under, over, or through the and other places under the control of the council." By sec. 2 of the Katoomba Lighting Act of 1890 (N.S.W.) certain p (called " the promoters") and their assigns were authorized and empow from time to time to erect and construct certain buildings and app for the purpose of making and supplying gas, and for all such purposes to and break up the soil of the streets within a certain municipal district, lay pipes thereunder. Held, that the Council were not empowered by sec. 209 of the Local @ ment Act 1906 to impose a rental charge upon the respondents, who followed and applied. OF AUSTRALIA. 293 cision of the Supreme Court of New South Wales: Katoomba Municipal H. C. or A. cil vy. Katoomba and Leura Gas Co., 17 8.R. (N.S.W.), 139, affirmed. 1917. SS = Z Karoon L from the Supreme Court of New South Wales. cai juant to the authority and powers conferred by the Katoomba beer g Act 1890 the Katoomba and Leura Gas Co., who were the pea of the persons designated in that Act " the promoters," Gas Co. Lr. pipes under the streets within the Municipal District of oomba. Eleven miles of such pipes were laid before 1st January sec, 209 of the Local Government Act 1906 made a rental charge on the Company in respect of the pipes laid by them under the -ts within the Municipality. The Company disputed the amount ental charge on the ground that it was excessive. The dis- vas referred under sec. 209 to Thomas Bailey Clegg, a Police te sitting at Katoomba as a Court of Petty Sessions. The Magistrate held that the Katoomba Lighting Act of 1890, and 3 conferred by it, ousted his jurisdiction. The Council there- ybtained a rule nisi for a mandamus directed to the Police to finally settle the dispute between the Council and the The Full Court having discharged the rule nisi Municipal Council v. Katoomba and Leura Gas Co. (1)), K.C. (with him Hammond), for the appellants. The tralian Agricultural Co, v. Newcastle Municipal Council (2) shable from the present case, and, if not distinguishable, reconsidered. In that case the appellants had laid rails own land, and before the Local Government Act 1906 came ition shad dedicated, to the pablo as roads part of the land S.R. (N.S.W.), 139. (2) 10 C.L.R., 391. H.C. or A. 1917. na KaroomBa Monicrpan Couner, v Karoompa AnD Leura Gas Co. Lap. HIGH COURT * not apply to such a case. In their judgments Griffith OJ. O'Connor J. did not go further than to hold that sec. 209 id apply to a case where rails were laid in the exercise of the propriets rights subject to which the streets were dedicated to the p Isaacs J., however, went further and held that the section wou apply to a case where rails were laid under a paramount aut] created by Statute. The words " with the 'council's perm in sec. 209 do not apply to the case of pipes laid before the Government Act 1906 came into operation, and there is no re restricting the general words "laid or erected " to cases whi a permission was necessary. Prior to that Act municipalit no power to give permission to lay pipes under streets. 175 of the Municipalities Act 1897 dealt with the powers of mun councils over roads and streets within their districts and gay power to them to grant permission to others to lay pipes un¢ streets, so that, if the words "laid or erected" in sec. 209 hi restricted meaning, there would be nothing for them to opera upon. [Knox K.C.—That section gives power to councils to adopt su means as may seem to them desirable for lighting and to contracts for lighting. That would give them power to grant pe mission to lay pipes under the streets, and so would afford of operation for the words "laid or erected" if these wo limited to acts which require the permission of the council.] Under the Municipalities Act 1897 persons who had laid | under streets under statutory authority were ratable as occu in respect of those pipes (Borough of Glebe v. Lukey (1)). Un Local Government Act 1906 rates could be levied only upon and such persons were no longer ratable in respect of these Sec. 209 was intended to enable a council to make a rent ch lieu of a rate in respect of such charge. By sec. 189 of the Mr cipalities Act 1897 power was given to councils to lay pipes 1 their streets, and that indicates that they had no power to give mission to others to do so. In that view, the words " laid or erecte in sec. 209 would be so limited in their operation that their would almost vanish. (1) 1 C.LR., 158. OF AUSTRALIA. 295 ] nor K.C. and Watt, for the respondent Company, were not H- ©. oF A. ; 1917. ~ KaroomBa aRTON J. In this case the Supreme Court dismissed a rule nisi ape 1 1 mandamus to a Police Magistrate to settle a dispute as to the igs unt of the fair rental charge made by the appellants, in assumed an Leura nce of sec. 209 of the Local Government Act 1906, in respect as pipes of the respondent Company, which dispute he would ve had jurisdiction to settle if the matter had properly come before The Supreme Court held that to use its discretion in favour iting a mandamus would be a useless, in fact a futile, act in of the decision of this Court in the case of the Australian wal Co. v. Newcastle Municipal Council (1), for they held that he present case is concluded by that decision. On this appeal it was argued on behalf of the appellants that this Court should with ller Bench reconsider that decision. I see no reason for doing so. hose two judgments. If they are accepted as aes a case » this, where parliamentary authority has been given by a private ; before the institution of the particular municipal council, it to me there is no more to be said, except this, perhaps, that Leverrier has called attention to the words " who have laid or " in sec. 209 and has said that there is nothing for them to te upon if the view taken by the Supreme Court is adopted, rather, that the necessity for giving some force to those words ot been fully considered. I think that those words do not in the way of a judgment for the respondents in this case. In sec. 175 of the Municipalities Act 1897, the concluding part of first paragraph gives a sufficient field of operation to the words 209 to which I have referred. On the whole, therefore, I that the appeal should be dismissed with costs. (1) 10 G.LR., 391. H.C. or A. 1917. Sw KaroomBa Mounicrean Counc, v. Karoomsa anp Leura Gas Co. Lrp, Isaacs J. HIGH COURT Isaacs J. I am of the same opinion. I do not desir anything to the reasoning that is found in my j the Australian Agricultural Co's Case (1). That case has now for several years and Parliament has not thought fit to the law as it was there declared. I would add that if Mr. were right this result would follow :—By sec. 2 of the Kat Lighting Act the promoters are authorized and empowered time to time to make and erect certain plant, &c., for supply and for such purposes to open and break up streets withi municipality and to lay gas-mains and pipes thereunder. not in any way qualified by the Local Government Act 1906, that purpose the Company do not require the permission Council. Not only is it clear that they could put down gas-pij after 1906, but it appears that they have done so and withot permission of the Council. For the pipes laid down after 1906, t supposed that they are made liable for the pipes laid down that time under precisely the same authority? As I said judgment in the previous case, the spirit of the thing would tell in favour of a decision preserving their freedom for pip down before that time. That consideration seems to sti the former decision very much. Ricx J. I agree. Appeal dismissed with Solicitors for the appellants, Hughes & Hughes. Solicitor for the respondents, C. 4. Coghlan. () 10 G.LR., 391.