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

High Court of Australia Dixon C.J. Webb, Fullagar, Kitto and Taylor JJ. Delta Properties Pty Ltd v Brisbane City Council [1955] HCA 51

ORDER Appeal allowed. Order of the Full Court of the Supreme Court of Queensland discharged. In lieu thereof, order that the appeal to the Full Court be allowed, that the order and judgment of Mansfield S.P.J. be set aside and that in lieu thereof there be judgment in the action declaring that the resolution of the defendant council of 25th September 1951 mentioned in the statement of claim does not express any such opinion as is referred to in s. 37 (10) of The Local Government Acts 1936 to 1949 or in s. 7 of Pt. IX of Chap. XII of the Ordinances made in pursuance of the provisions of The City of Brisbane Acts 1924 to 1951.

Cur. adv. vult.

The Court delivered the following written judgment:—

Sept. 27 Dixon C.J., Webb, Fullagar, Kitto and Taylor JJ.

The substantial question in these proceedings is whether the erection of a dwelling house on any part of certain land of the plaintiff within the City of Brisbane is unlawful by reason of the fact that on 25th September 1951 the Brisbane City Council passed a resolution declaring it to be the opinion of the council that a specified tract of land, which includes the plaintiff's land, was so situated as not to be capable of being drained.

The council, in contending for an affirmative answer to this question, relied in the Supreme Court and to some extent in this Court upon sub-s. (10) of s. 37 of The Local Government Act 1936 Q. as amended, which provides: "It shall not be lawful for any person upon any land which is so situated as not, in the opinion of the local authority, 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". The Act, however, contains in s. 3 a definition of "local authority" which restricts its meaning, unless the context otherwise indicates or requires, to a local authority constituted under the Act, and the Brisbane City Council is not constituted under the Act. It owes its constitution to special legislation contained in The City of Brisbane Acts 1924 to 1954 Q.. There is nothing in the context of s. 37 (10) to extend the meaning of "local authority" in that provision so as to include the Brisbane City Council. Section 36 (3) of The City of Brisbane Acts provides that the council shall be deemed to possess all the powers, rights, privileges and authorities of a local authority under any Act; but s. 37 (10) of The Local Government Act can hardly be regarded as conferring a power, right, privilege or authority. There seems to be no ground for considering that the provision has any application in the present case.