Corporation of the City of Adelaide v Attorney-General (SA) [1931] HCA 48; (1931) 45 CLR 517 (10 December 1931)

The Corporation of the City of Adelaide Defendant, Appellant; against The Attorney-General for South Australia and Others Plaintiffs, Respondents.

The Council of a municipal corporation in South Australia may provide public urinals, water closets, privies and like conveniences in situations where it deems such accommodation to be required (Municipal Corporations Act 1923, sec. 253). The Corporation of the City of Adelaide proposed to erect public urinals and conveniences below the surface of the street in Gresham Place, Adelaide, but has been restrained from so doing by the Supreme Court of South Australia on the ground that the Corporation would thereby exceed its powers. No doubt the Corporation must keep within the limits of its authority. The discretion, however, given by sec. 253 is a very wide one, and when the Corporation resolves upon the necessity of a public convenience, and its situation, the Courts ought to show "great reluctance before they attempt to determine how, in their opinion, the discretion ought to be exercised" (Roberts v. Hopwood[1]). A dishonest, capricious or fantastic exercise of the discretion could not be supported, but apart from such extreme and rare cases, the Courts should not take upon themselves the functions of the Authority to which the discretion has been confided by the statute and substitute their judgments of what is prudent, necessary, expedient or reasonable, for that of the Authority (Westminster Corporation v. London and North-Western Railway Co.[2]. Compare Slattery v. Naylor[3]; Widgee Shire Council v. Bonney[4]). So far as the judgment below is based upon the view that the proposal of the Corporation to erect a public convenience in so narrow a street as Gresham Place was unreasonable, the Court has mistaken its jurisdiction, and exercised the powers rightly belonging to the Corporation. But a more formidable argument relied upon by the plaintiffs in the action is that based upon the decision of the House of Lords in Mayor &c. of Tunbridge Wells v. Baird[5]. Under a very similar power to that contained in sec. 253 of the Municipal Corporations Act it was held that an urban authority had no power to excavate the soil and erect lavatories below the surface of a street which had vested in it under the Public Health Act of 1875. The distinction suggested in the present case is that the freehold in the soil of Gresham Place vested in the Corporation of the City of Adelaide by virtue of sec. 154 of the Municipal Corporations Act 1923. The provisions of sec. 154 and sec. 159 (b) of the Act of 1923, coupled with a resolution of the Corporation in November 1929, were relied upon in the Court below as vesting Gresham Place in the Corporation. I set out, so far as relevant, sec. 154, sec. 159, and the resolution:—"154. The fee simple of every public street in the municipality shall be vested in the corporation of such municipality." "159. No street shall hereafter be set out or declared as a public street ... unless the width of such street ... is forty feet at the least: Provided— ... (b) If any land has been dedicated to the public by the owner thereof as a street previous to the twenty-third day of December, eighteen hundred and ninety, and used by the public as such for five years consecutively, the same may be set out or declared as a public street by the corporation if such a street has been formed, made, paved, or repaired by the corporation or at the cost of the owner or owners of land abutting on such street." "Resolved: That a certain street, to wit, Gresham Street—but known as Gresham Place— ... be and it is hereby declared to be a public street, pursuant to the powers contained in section 159 of the Municipal Corporations Act 1923." Now, it is said that this resolution is unauthorized because there was no request in writing of the owner or owners of the land abutting on such street, pursuant to sec. 158 of the Act. That section is as follows:—"158. If any street ... not being a public street at the time of the passing of this Act, has heretofore been or is hereafter formed ... by the corporation or at the cost of the owner or owners of land abutting thereon, the council may, by writing under their common seal, ... on the request in writing of the owner or owners of the land abutting on such street, ... declare the same to be a public street..."

Gresham Place was set out on private land sometime in the fifties if not before, and it has been a public highway or thoroughfare for many years. In 1869, the Corporation levelled, paved and macadamized Gresham Street (which name then included Gresham Place) either at its own cost or at the cost of the owners of land abutting on the street, and has ever since maintained and repaired Gresham Street and Gresham Place. Various changes have been made in legislation as to forming, paving and levelling streets, and they are a little difficult to follow; but they do not seem to assist the construction of the present Act. They may be traced in the Acts of 1861, No. 16, secs. 88 et seqq.; 1880, No. 190, secs. 89 et seqq.; 1890, No. 497, secs. 106 et seqq.; 1903, No. 833, sec. 4; and the present Act of 1923, No. 1558, secs. 153 et seqq. The consent of owners of land abutting on the street declared to be a public street was not always necessary (see Act of 1880, No. 190, sec. 91). But running through all the Acts is the prohibition against setting out or declaring public any street less than forty feet wide. It was not until 1903 that the Council was authorized to set out or declare as public such a street, and then only on three conditions, which now appear in the Act of 1923, as a proviso to the prohibition mentioned. (See sec. 159 (b), already set out.) But, though expressed as a proviso, this provision operates, I think, as an independent power and authority to the Corporation to that contained in sec. 158. It does not in so many words enlarge the powers of the Corporation under sec. 158 in the case of streets less than forty feet wide, but explicitly lays down the conditions on which a street less than forty feet wide may be set out and declared as a public street. In this view I agree with the opinion of the Court below. Gresham Place was thus declared a public street, and the freehold thereof vested in the Corporation. Another view, not presented to the Court below nor to this Court, may warrant the same conclusion. The Municipal Corporations Act 1880, sec. 93, provides: "The fee simple of every private road dedicated to the public and of every street, court, alley, thoroughfare, or cul de sac, which shall have heretofore been, or shall hereafter be, formed, made, levelled, paved, or drained by any corporation, shall become and be lawfully vested in such corporation." It may be a question whether Gresham Place was formed or made by the Corporation within the meaning of this section: the work in 1869 appears to have been done by the Corporation but charged to the abutting owners, pursuant to the statute then in force. But there is no doubt of the dedication of Gresham Place to the public as a highway or thoroughfare. The fact that it was a public highway or thoroughfare was not in contest at the hearing below: its long and uninterrupted user by the public and the fact that it has long been maintained and repaired at the public expense raises a presumption of dedication so strong that it is practically irrebuttable. I call attention to this aspect of the case rather than base any decision upon it; because if my construction of sec. 159 (b) be erroneous, there still seems sound reason for the conclusion that the fee simple of Gresham Place is vested in the Corporation. And if this is so, the Corporation as the owner of the soil would have authority to excavate the soil and erect public conveniences below the surface of the street. The case would then be analogous to cases governed by the Public Health (London) Act 1891, sec. 44, under which Westminster Corporation v. London and North-Western Railway[6] was decided. See also Barker v. Corporation of the City of Adelaide[7].

The Corporation, however, proposes to underpin the walls of all or some of the relators in this action. Such an act would be a trespass, without the consent of the relators or some statutory authority. The Building Act 1923, No. 1600, sec. 39, was referred to. But I cannot agree that the Corporation is a building owner within the meaning of that Act. The Council of the Corporation is a supervising Authority under the Act and not a building owner.

Finally, it was contended that the provisions of sec. 253 of the Municipal Corporations Act 1923 do not authorize the creation of any public or private nuisance. The question depends upon the construction of the Act (East Fremantle Corporation v. Annois[8]). It cannot be denied, I think, that the Act authorizes the Corporation to erect public conveniences in streets vested in it but not to create any public or private nuisance (Biddulph v. Vestry of St. George, Hanover Square[9]; Vernon v. Vestry of St. James[10]; Roberts v. Hopwood[11]). A permanent obstruction erected upon a highway and which renders the way less commodious than before to the public is no doubt a public nuisance at common law. But, in the face of the statute, the mere placing of a public convenience in a highway or in a street vested in the Corporation cannot be sufficient: something more must be proved; and, in my opinion, it is necessary that the plaintiffs should establish that a nuisance has in fact and in reality been created. (Compare Mudge v. Penge Urban District Council[12]; Mason v. Wallasey Local Board[13]). This is a question which the Court must determine for itself; and it cannot bind itself by the discretion or the decision of the Corporation. It is impossible, in modern times, that these public conveniences should not be provided in great cities. In the present case no suggestion is made, or at all events can be supported, that smells will proceed from the convenience: it is to be ventilated and sewered on modern lines. But, as in Mayo v. Seaton Urban District Council[14], it is said that it is objectionable, according to the ordinary habits of British people, to see men or women walking into and out of public conveniences. All this is merely false modesty. "It need not interfere, it ought not to interfere," as Kekewich J. rightly said in Mayo's Case[15] with the ordinary amenities of life of British people.

Other matters are more serious. They are thus stated in the judgment of the Court below[16]:—"Here the work proposed involves the making of four excavations in the footways of Gresham Place to give ingress and egress by means of stairways to and from a convenience underneath the roadway. The openings will take up a space of about 27 feet by 3 feet 6 inches on each footpath, and will reduce the width of the footpaths where the excavations will be made from 6 feet to 2 feet 6 inches. They will remain permanently open, and will be provided with railings on three sides to prevent the public from falling into them. The railings of course are clearly necessary if the excavations are permissible. There can be no doubt, in my opinion, that the excavations, if made, would be a public nuisance at common law. They would take away permanently from foot-passengers the use of a substantial portion of the footpaths. They would leave insufficient room for two persons to pass each other going either in the same direction or in opposite directions. They might cause a block at both ends while people were waiting to get through. Women with children resorting to the convenience might add to the obstruction by leaving perambulators on the footpaths because they could not take them down the stairways. Vehicles using the roadway would be in danger of breaking the railings and falling into the stairways, and a menace to foot-passengers, owing to the limited space for manœuvring in an emergency, and the closeness of the openings to the kerbs." These facts cannot be disputed. The Court below found, in substance, that an excessive, unreasonable and permanent restriction upon the use of Gresham Place by the public would be thereby occasioned; and that finding is, I think, right, and cannot be disturbed. It establishes the fact that the public convenience, as the Corporation proposes to erect and use it, will, in fact, constitute a public nuisance. Consequently the Attorney-General is entitled to the injunction claimed in the action, and the relators have a special and individual interest in the public right to the use of Gresham Place, entitling them also to the injunction sought (W. H. Chaplin & Co. v. Westminster Corporation[17]).

It is unnecessary, in the view I take, to decide whether the individual relators were entitled to complain of a private nuisance—some interference with their private rights. As I understood the argument, their right of access from their premises to Gresham Place would be obstructed (Fritz v. Hobson[18]) and there would be material interference with the ordinary enjoyment of their property (Leyman v. Hessle Urban District Council[19]). I cannot say that the argument on the part of the relators satisfied me that any private right of theirs would be infringed or threatened by anything the Corporation proposed to do, other than the proposed underpinning of their walls. But for the reasons already mentioned the appeal ought, in my judgment, to be dismissed.

The question upon this appeal is whether in virtue of sec. 253 of the Municipal Corporations Act 1923 S.A. the Council of the City of Adelaide may proceed with the construction of an underground convenience for women which it proposes to make in Gresham Place, according to plans which have been adopted. The frontagers to Gresham Place object because it is a narrow street with narrow footpaths and the work proposed is on such a scale and so designed that the footpaths will be blocked and the commodiousness of passage through the street very materially lessened, and, besides, the foundations of the walls of the buildings which front the street will be underpinned as a substitute for the support of the soil which will be withdrawn. Murray C.J., who heard the action, assumed, without deciding, that the Corporation had succeeded in obtaining the fee simple of the land constituting the highway, but held (i.) that sec. 253 did not authorize an interference with public rights amounting to a nuisance such as the proposed convenience would cause, and (ii.) that having regard to the width of the street and the character and design of the proposed work, and the effect it would produce, the proposal was unreasonable and not within the scope of the power conferred. Accordingly he granted a perpetual injunction restraining the execution of the work.

I am not prepared to proceed upon the assumption which the learned Chief Justice made, because I think that upon the facts proved it appears that the soil of Gresham Place is not vested in the Municipality. The history of the street and of the title to the land upon which it was set out is recounted in his Honor's judgment, and I agree with his conclusion that the facts established that up to 25th November 1929 the legal estate in the soil underlying Gresham Place was vested in one William Bentham Neales or, if he be dead, his real representative. On that day the Council of the Corporation resolved that Gresham Place be, and declared it to be, a public street, pursuant to the powers contained in sec. 159 of the Municipal Corporations Act 1923. Inasmuch as the fee simple of every public street vests in the Corporation of the Municipality, the consequence of this resolution, if it be valid and effective, would be to divest the owner of and invest the Municipality with the property in the soil. I am of opinion that the resolution was invalid and ineffective, because it was not made on the request in writing of the owners of the land abutting on Gresham Place. Sec. 153 (1) (v.) includes in the category of public streets all streets declared by the council under the power thereinafter (in the Act) contained to be public streets. Sec. 158 (1) confers a conditional power to declare public streets "on the request in writing of the owner or owners of the land abutting on such street," &c. As no such request was made, the Council could not avail itself of this power, and, therefore, had recourse to sec. 159, which was relied upon as conferring an additional power. In my opinion sec. 159 does not confer an independent power. It does no more than refer to and, to some extent, restate for its particular purpose the power conferred by sec. 158. Sec. 159 forbids the setting out or declaration of a public street of less than a certain width. Then, by a proviso, it authorizes the setting out and declaration of land dedicated to the public before a date in 1890, if used by the public for five years and formed, made, paved or repaired by the corporation. The alleged power is contained in a proviso and should prima facie be read as doing no more than relieving or excepting from the operation of the main provision. It is in a division headed "Width of Streets," and should not be understood as doing more than dealing with that subject unless the intention to do so appears. Unlike secs. 153 (1) (v.) and 158 (1) the procedure or form for declaring a public street is not prescribed, a fact which tends to confirm the view that it is not meant as an independent power. Further, sec. 153 (1) (v.) speaks of one power "hereinafter contained," not two. The substance of the matter is strongly against construing the provision as an additional authority to declare public streets. For it is absurd to restrict the power to declare wide streets public by the requirement of the request of adjoining owners but to give a power not so restricted in the case of narrower streets. Sec. 253 is based on the English legislation dealt with in Mayor &c. of Tunbridge Wells v. Baird[20], and it is, I think, clear that it confers no power to erect urinals in streets where the municipality has no property in the soil. I am further of opinion that sec. 39 of the Building Act 1923 does not authorize the underpinning of the adjacent buildings which the work would involve, because the Municipality is not an "owner" of the land where the work is to be done and the building is to be constructed. See the definitions of and in sec. 5.

In my opinion the appeal should be dismissed for the reasons stated by my brother Starke in his judgment.

In the view which I take, namely, that the resolution of the appellant Council which was passed on 25th November 1929 did not validly declare Gresham Place to be a public street, it is not necessary to decide a number of other questions which were argued at the hearing of this appeal. The resolution of the Council was in these terms: "Resolved: That a certain street, to wit, Gresham Street—but known as Gresham Place—running east and west off King William Street, Adelaide, and laid out on Part Town Acre No. 16, be, and it is hereby declared to be, a public street, pursuant to the powers contained in section 159 of the Municipal Corporations Act 1923, and that such declaration be entered amongst the proceedings of the Council and in the Register of Public Streets." The declaration which this resolution expresses was not made on the request in writing of the owner or owners of the land abutting on Gresham Place. Sec. 158 provides that this request is a necessary condition precedent to the making of a declaration pursuant to the power contained in that section. Sec. 159 however, contains no such express provision. Therefore, if the true effect of sec. 159 be that it vests in the Council a power which is separate from and independent of the power contained in sec. 158, the absence of any request in writing from the owner or owners of land abutting on Gresham Place that it be declared a public street would not alone be fatal to the effectiveness of the declaration to achieve the purpose which the above-mentioned resolution expresses. The question as to whether sec. 159 has this effect depends upon the construction of the Act. It will have been noticed that sec. 159 (b), under which the Council really acted, is in form merely a proviso to sec. 159. Sec. 159 is in these terms: "No street shall hereafter be set out or declared as a public street by the council unless the width of such street, to be ascertained by measuring at right angles to the course of such street from front to front of the building line on either side thereof, is forty feet at the least: Provided—(a) Existing streets may be continued if the continuation is at least of the same width as the street so continued: (b) If any land has been dedicated to the public by the owner thereof as a street previous to the twenty-third day of December, eighteen hundred and ninety, and used by the public as such for five years consecutively, the same may be set out or declared as a public street by the corporation if such a street has been formed, made, paved, or repaired by the corporation or at the cost of the owner or owners of land abutting on such street." This is the first section in Division III., which is entitled "Width of Streets." The creation of a power additional to those contained in secs. 157 and 158 does not appear to be germane to sec. 159. It will have been noticed that it does not contain any provision relating to the manner in which a parcel of land may be set out or declared as a public street. Having regard to the contents of secs. 157 and 158, this omission would be out of harmony with the plan of the legislation, if it were intended that the effect of sec. 159 (b) should be to vest an additional power in the council. It will be noticed that in secs. 157 and 158 the Legislature has expressly stated the method by which the power conferred by these sections respectively should be exercised. In fact in this case, although the declaration was not made on the request in writing of the owner or owners of land abutting on Gresham Place—a condition which sec. 158 expressly requires should be fulfilled—the provisions of that section were in other respects observed. In my opinion sec. 159 (b) is, as it is expressed to be, but a proviso on sec. 159, which is a provision relating to the width of streets and not to the declaration of public streets. Turning back to sec. 153, this section provides that public streets should be, inter alia, all streets vested in the Corporation by the Supreme Court or a Judge thereof "under the power hereinafter contained" (sec. 153 (1) (IV.)), and all streets declared by the Council "under the power hereinafter contained" by writing under their common seal and signed by the Mayor and Town Clerk, to be public streets (sec. 153 (1) (V.)). The section further provides that all other streets shall be private streets. The "power hereinafter contained" mentioned in sec. 153 (1) (IV.) is conferred by sec. 157, while that mentioned in sec. 153 (1) (V.) is conferred by sec. 158. In my opinion, therefore, sec. 159 (b) does not vest any power in the Council which is, in substance, separate from or independent of that conferred by sec. 158. In this view, in the absence of any request in writing of the owner or owners of the land abutting on Gresham Place, the declaration of Gresham Place to be a public street embodied in the resolution of 25th November 1925 is invalid. It follows that the fee simple of Gresham Place was not vested in the appellant, and that therefore the performance of the works which it proposed to execute there would be unlawful (Mayor &c. of Tunbridge Wells v. Baird[21]).

[1] (1925) A.C. 578, at p. 588.

[2] (1905) A.C. 426.

[3] (1888) 13 App. Cas. 446.

[4] [1907] HCA 11; (1907) 4 C.L.R. 977.

[5] (1896) A.C. 434.

[6] (1905) A.C. 426.

[7] (1900) S.A.L.R. 29.

[8] (1902) A.C. 213.

[9] [1863] EngR 577; (1863) 33 L.J. Ch. 411; 3 DeG. J. & S. 493; 46 E.R. 726.

[10] (1880) 16 Ch. D. 449.

[11] (1925) A.C., at pp. 605-606.

[12] (1916) 80 J.P. 441, at p. 442.

[13] (1876) 58 J.P. 477.

[14] (1903) 68 J.P. 7.

[15] (1903) 68 J.P., at p. 9.

[16] (1931) S.A.S.R., at p. 230.

[17] (1901) 2 Ch. 329.

[18] (1880) 14 Ch. D. 542.

[19] (1902) 19 T.L.R. 73.

[20] (1896) A.C. 434.

[21] (1896) A.C. 434.

High Court of Australia

Corporation of the City of Adelaide v Attorney-General (SA) [1931] HCA 48; (1931) 45 CLR 517 (10 December 1931)

HIGH COURT OF AUSTRALIA