Tooth & Co Ltd v Council of the City of Parramatta [1955] HCA 21

High Court of Australia Dixon C.J. McTiernan, Webb, Fullagar and Kitto JJ. Tooth & Co Ltd v Council of the City of Parramatta [1955] HCA 21

ORDER Appeal dismissed as incompetent. Special leave to appeal refused. The appellants to pay to the respondent the costs incurred by the respondent limited to the costs which would have been properly incurred in opposing the application for special leave to appeal.

The following oral judgments were delivered:—

April 15 Dixon C.J.

This is an appeal instituted as of right from an order of the Supreme Court of New South Wales discharging an order nisi for mandamus. The mandamus sought was directed to the respondent council. It was to command the respondent council to approve of plans and specifications for an hotel to be erected and to consent to its erection or, in the alternative, to reconsider, according to law and free from irrelevant and extraneous considerations, the application for approval of the plans and specifications for the hotel, and for consent to the erection of the hotel.

The hotel which it was proposed to erect was to stand upon certain land situated at the corner of Woodville Road and Guildford Road in the municipality of the respondent council. An application had been made to remove a licence to this piece of land, and the Licensing Court had made a conditional order for removal. That conditional order of removal was opposed by the council. The appellant who is the prosecutor then submitted to the council an application for consent and approval of the plans for the building. In fact it was in substance an application for two or three different things. There was an application under s. 312 of the Local Government Act 1919-1952 for the approval of the plans and specifications of the building and consent to the erection of the building. There was also an application in effect under cl. 41 of the County of Cumberland Planning Scheme Ordinance, and it is said there was also an application under s. 342R of the Local Government Act. The council refused the application, and gave some reasons.