Swan Hill Shire v Bradbury [1937] HCA 15; (1937) 56 CLR 746 (7 April 1937)

The Shire President, Councillors and Ratepayers of the Shire of Swan Hill Respondent, Appellant; and Bradbury Applicant, Respondent.

The question which arises upon this appeal from the Full Court of Victoria is whether a certain by-law made by the council of the shire of Swan Hill under sec. 198 (1) (a) of the Local Government Act 1915 is valid. Gavan Duffy J. held that it was valid and he was supported in this opinion by Macfarlan J. in the Full Court. The majority of the Full Court, however, Mann C.J. and Lowe J., held that the by-law was invalid. An appeal is now brought to this court by special leave.

The by-law was made under sec. 198 (1) (a) of the Local Government Act 1915 which (so far as relevant) is in the following terms:—

Purporting to act under this power, the council made a by-law containing the following clause:—

It was contended on behalf of the present respondent that this clause cannot be justified as a provision regulating and restraining the erection and construction of buildings.

The by-law provides that no persons shall erect or cause to be constructed any building &c. unless with the approval of the council. It therefore appears that the council may, by withholding approval, completely control, to the point of prevention, the erection of buildings in the shire unless they conform to the ideas of the council as those ideas may vary from time to time. The by-law, so construed, was said by the respondent to be invalid as going beyond both "regulating" and "restraining," but the appellant argued that the power to restrain went beyond the power to regulate and that the by-law was supportable on that ground. As an alternative argument, the appellant contended that, if the by-law construed in the manner stated was held to be invalid, it should be interpreted in such a way as to empower the council to withhold approval of a proposed building only where the provisions of the by-law (including all the other clauses thereof) had not been complied with. It is desirable to deal with the latter question first.

The argument in support of this limited construction of the by-law substantially depends upon the word "other" in par. e. It is pointed out that clause 4 requires certain particulars (a, b, c and d) to be given to the council or its surveyor together with e:—"(e) Such other particulars in writing as shall be necessary to enable the council or its surveyor to determine if all the provisions of this by-law have been complied with."

Doubtless the object of inserting par. e is to enable the council to determine whether the provisions of the by-law will probably be observed in the case of the proposed building. The provisions of the by-law relate to the construction and position of buildings and they can be complied with only when the building is actually erected. Clause 4 requires a notice of intention to build before any person "shall proceed to erect" a building. It is impossible for the council at such a stage to determine whether "all the provisions of this by-law have been complied with." Leaving this point on one side, however, I think that the initial words of the clause are absolute and are quite clear, and that they do not warrant the adoption of the limited construction suggested. The words are "no person shall proceed to erect" &c. The other provisions of the clause are separate and independent and the language does not justify any reading down of the clause by reference to the words of par. e.

Clause 4 (to which I refer hereafter as the by-law) must therefore be considered upon the footing that it requires the approval of the council before any building can be erected. In the first place it is pointed out that the word "prohibiting" does not appear in the relevant words of sec. 198 (1) (a). The words are "regulating and restraining." If the word "prohibiting" were present the appellant could found an argument upon Country Roads Board v. Neale Ads Pty. Ltd.[1]. But that decision, depending as it does on the distinction between regulating and prohibiting, cannot be used to support the by-law in this case.

In the next place it is contended on behalf of the respondent that the by-law cannot be supported as a by-law regulating the construction of buildings. In the case of Melbourne Corporation v. Barry[2] the court considered a by-law for the purpose of "regulating traffic and processions." The by-law provided that, with some exceptions, no processions of persons or of vehicles should pass through any street unless with the previous consent of the council given under the hand of the town clerk. It was held by Isaacs and Higgins JJ. that the by-law was invalid as it had the effect of allowing the council "to make its own unfettered and unregulated will at the moment the test of legality or illegality"[3] and it was held that "a council having the power of regulating by by-law should state its requirements in the by-law as explicitly as circumstances reasonably permit" (per Isaacs J.[4]). Higgins J., after examining the various provisions of sec. 197 relating to regulating, prohibiting, suppressing, &c., said that "the contrasts in the words of these several purposes show clearly that processions are not to be prohibited, only regulated"[5]. The result of this and similar decisions is that, under a power to make a by-law regulating a particular subject matter, a municipal council has no power to prescribe that the subject matter shall not be allowed to come into existence unless the council from time to time grants its approval in each particular case. It follows that the by-law cannot be supported under the power to make by-laws regulating the erection of buildings.

Is the by-law valid under the power to make by-laws restraining the erection of buildings? A distinction is drawn in the judgments of the Supreme Court in the present case between restraining a person from a course of action and restraining a particular activity. I find myself unable to appreciate the distinction. Where the restraint which is under consideration is a restraint to be imposed by a by-law, the restraint can operate only upon the acts of human beings and not upon physical objects. It is possible to restrain a river by building an embankment, but it is not possible to restrain anything by means of a by-law otherwise than by restraining persons from a course of action. The power which is relevant in this case is a power to make by-laws restraining the erection and construction of buildings &c. A by-law can restrain such erection or construction only by operating by way of restraint upon the acts of persons in erecting or constructing buildings. It therefore appears to me that in the relevant connection there is no ground for the distinction suggested between restraining an activity and restraining a person from an activity.

Authority is lacking with respect to the precise meaning of the word "restrain" in this connection. The case of Levingston v. Shire of Heidelberg[6] has been referred to, but, when the decision is carefully examined, it will be seen that the judgment of Madden C.J. does not depend upon any specifically stated meaning of the word "restrain" and that the judgments of the other members of the court depend upon the nature of the subject matter (hoardings) then under consideration.

Many words of more or less similar significance are used in the Local Government Act 1928 in secs. 197 and 198. Among them are such words as—regulating, preserving, preventing, extinguishing, suppressing, restraining, compelling, controlling, managing, providing for, prescribing, requiring, and authorizing. In my opinion it is impossible to assign separate and distinct meanings to all these words—the meanings overlap to quite a considerable extent. Each of these words should be construed in relation to the subject matter to which it is applied. If the legislature had intended that a municipal council should have power to prohibit the erection of any building of which it did not approve, many words were available for the expression of such an intention. I am unable to construe the word "restraining" as going as far as the word "suppressing," particularly when the word is used in connection with building, which is, prima facie, a lawful activity. I agree with the Full Court of Victoria in what was said in King v. City of Footscray[7]: the reasoning in Barry's Case[8] "seems ... to be just as applicable to a power to restrain as to a power to regulate." Upon the basis of Barry's Case[9], which has been accepted without question by both parties to this appeal, I am of opinion that the decision of the Full Court is right and that the appeal should be dismissed.

The question in this appeal is confined to the validity of a single clause in the by-law. The clause takes the form of a general prohibition of what, I may, for shortness, call building subject to an exception of building with the approval of the shire council. The power relied upon in support of the by-law is contained in sec. 198 of the Local Government Act 1928 Vict.. Upon the construction of the clause of the by-law I am clearly of opinion that, if the clause were valid, a person proposing to build would be entitled to no more than an exercise of a general discretion based upon any consideration which affects the good rule or government of the shire. The contention that the discretion was of a quasijudicial character limited to judging in advance whether the by-law would be infringed if the proposed building were erected finds no support in the text of the clause. It is palpable that a clause of a kind I have described needs the authority of a very full and ample power. The by-law-making powers conferred upon municipalities by the Victorian law are enumerated in secs. 197 and 198 of the Local Government Act 1928 and in the Thirteenth Schedule to which sec. 197 (i.), (ii.), refers. In both sec. 197 and sec. 198 the power is expressed in relation to purpose. The purposes are described in very many cases by the use of such words as "preventing, suppressing, controlling, prohibiting, regulating, restraining." Looking through the list of powers I am inclined to think that these expressions were used by the draftsman or a succession of draftsmen without any nice discrimination between them. It is, I think, a mistake to ascribe to the legislature too much sensibility to the refinements of English terms. In the interpretation of each of these powers all that can be done is to weigh the entire assemblage of words which expresses the power and apply the sum of meaning which can be discovered in them to the subject matter described, not forgetting that the nature of the subject is likely to contain the key to the intention which might otherwise be but ambiguously disclosed by the mere words. The power chiefly relied upon in the present case is that to make laws for the purpose of regulating and restraining the erection and construction of buildings, erections or hoardings or for any purpose in connection therewith. The word "regulating" has been the subject of disquisition in the decided cases which do not tend in favour of a very wide authority under such an expression. The word "restraining" has received much less judicial discussion. For my part I think that the interpretation of by-law-making power is not made easier or more certain by the constant recourse to former decisions on powers on very different subjects which happen to contain some of the catch words and phrases belonging to the draftsman's vocabulary. I recognize that the desire to obtain consistency and continuity of decision—a desire highly commendable—naturally leads to an examination of former cases presenting analogies proximate or remote to the problem which happens to be in hand. But sometimes a greater certainty is actually obtained by the more direct course of natural and instinctive interpretation based upon ordinary experience of the use of English terms and due reflection upon the character and implications of the subject matter. In the present case the purpose or purposes described by sec. 198 (1) (a) appears to me to fall far short of prohibiting all building except that of which the council may approve. We are not here dealing with some evil practice or conduct, some trade or vocation obnoxious to the comfort, convenience and amenities of a neighbourhood, some objectionable or noxious condition which may arise where human beings dwell, some pest or pestilence. We are dealing with one of the essential services of human life—the provision of habitations and other buildings for human use. Everyone knows that the incidents attending the planning and construction of buildings need control. But no one would suppose that it was intended by the legislature to allow a municipality to suppress all building except that which in its uncontrolled discretion it should think fit to allow in individual cases. If, because of a growing policy of subjecting the ordinary activities of the individual to the administrative control of public bodies, it appeared wise to the legislature to entrust municipalities with so large a power it would not be done by the vague conjunction of the words "regulating and restraining." The power contained in sec. 198 (3) (f) would not cover so general a reservation as that of all buildings.

In considering the validity of any provision adopted in the supposed exercise of a limited power of a legislative nature, the first and often most decisive step is to ascertain the true scope of the measure impugned and the legal effect it would produce.

The appeal relates to one clause only of the municipal by-law governing building in the shire of Swan Hill, but probably it is the chief. The clause begins by forbidding any person, unless with the approval of the shire council, to proceed to erect or cause to be constructed any shop, house, building, tent, hoarding or addition to any existing building. It then goes on to direct that notice of intention to build shall be given to the council or its surveyor and that the notice shall be accompanied by plans of the building and particulars of the site, the cost, and materials to be used, together with such other particulars as are necessary to enable the council or its surveyor to determine if the proposal complies with the by-law. The clause ends with a statement that a permit to erect a building shall expire after twelve months, unless extended by resolution of the council.

There is no express qualification of the discretion which the clause appears to confer upon the council to approve or disapprove of a proposal to build. It is suggested, however, that properly understood the clause enables the council to do no more than to determine in advance whether the building would or would not comply with the conditions which the remaining clauses of the by-law prescribe. There is nothing to indicate that such a restriction upon the authority of the council was intended. The information which must be supplied with the notice of intention to build is not confined to what relates to compliance with the express requirements of the by-law. It extends to an estimate of the cost of the completed building. Thus the suggested restriction cannot be inferred from the fact that the clause, after prohibiting building except with the approval of the council, goes on to specify certain matters upon which information must be furnished and to give the council a general power of requiring other particulars for the purpose of ascertaining that the building would comply with the provisions of the by-law. But it does not follow that the by-law should be taken to mean that the council may withhold its approval of a proposal to build for any reason whatever or for no reason at all. The approbation of the council is made an essential condition of relief from a prohibition against building otherwise general and complete. But no one supposes that the object of so framing the clause was to make building an exceptional privilege lying in the special grace of the council. In the course of the modern attempt by provisions of a legislative nature to reconcile the exercise and enjoyment of proprietary and other private rights with the conflicting considerations which are found to attend the pursuit of the common good, it has often been thought necessary to arm some public authority with a discretionary power to allow or disallow the action of the individual, notwithstanding that it has been found impossible to lay down for the guidance of the individual, or of the public authority itself, any definite rule for the exercise of the discretion. The reason for leaving the ambit of the discretion undefined may be that legislative foresight cannot trust itself to formulate in advance standards that will prove apt and sufficient in all the infinite variety of facts which may present themselves. On the other hand, it may be because no general principles or policy for governing the particular matter it is desired to control are discoverable, or, if discovered, command general agreement. Whatever may be the cause, the not infrequent result has been a general embargo or fetter upon the exercise of the individual's private or proprietary rights unless he obtains the sanction of the public authority. When a provision of this kind is made, it is incumbent upon the public authority in whom the discretion is vested not only to enter upon the consideration of applications for its exercise but to decide them bona fide and not with a view of achieving ends or objects outside the purpose for which the discretion is conferred. The duty may be enforced by mandamus. But courts of law have no source whence they may ascertain what is the purpose of the discretion except the terms and subject matter of the statutory instrument. They must, therefore, concede to the authority a discretion unlimited by anything but the scope and object of the instrument conferring it. This means that only a negative definition of the grounds governing the discretion may be given. It may be possible to say that this or that consideration is extraneous to the power, but it must always be impracticable in such cases to make more than the most general positive statement of the permissible limits within which the discretion is exercisable and is beyond legal control. Two examples of administrative discretion conferred almost without definition to which these principles have been applied in this court may be seen in Victorian Railways Commissioners v. McCartney and Nicholson[10] and R. v. Trebilco; Ex parte F. S. Falkiner & Sons Ltd.[11].

The clause of the by-law now in question is of the same description. If it were valid, a person giving notice of intention to build would be entitled to insist that his application should receive the consideration of the council, and, if it were refused and he were able to show that the refusal was not bona fide or was actuated by motives or reasons which fell outside the scope and purpose of the by-law, then he would be entitled to insist on its reconsideration. But here his legal rights would stop. So often as he could show that the refusal of approval arose from reasons foreign to the discretion given to the authority, he might by mandamus enforce a reconsideration of his case. But he would never be able to compel the council actually to decide his application in his favour. And unless and until it should do so and give its approval, he would commit an offence against the by-law, supposing it to be valid, if he proceeded to build. To show that the reason for refusing his application was outside the discretion would be no easy thing. For, apart from the difficulty of establishing what in fact was the reason, no reason would, I think, be held outside the scope and purpose of the by-law unless it had no relation to municipal government. It is evident that the express directions and prohibitions contained in the other clauses of the by-law are concerned with a variety of objects and it would be difficult to discover any justification for excluding from the grounds upon which approval may be given or withheld, as foreign to the discretion intended to be given, any purpose or policy which might honestly be thought to contribute to the better development of the locality, to the safety, health, comfort or convenience of the inhabitants, or to the efficient administration of the municipality. In this view of the clause it must be treated in point of law as a complete denial of the individual's right to build, subject to a discretion of the council to permit him to build if, having regard to the general interests of the municipality, they may think fit to do so.

The validity of this attempted denial of the owner's liberty to build depends upon the question whether it does not go beyond the description, a by-law made for the purpose of regulating and restraining the erection and construction of buildings, erections, or hoardings or for a purpose in connection therewith. These are the terms in which sec. 198 (1) (a) of the Local Government Act 1915, now 1928, conferred the relevant power to make by-laws. Although no other power possessed by the council is wide enough to support the by-law, the nature and extent of some of the provisions affecting the authority to make by-laws should be taken into account in determining the scope of the power in question. For instance, the paragraph (sec. 198 (1) (b)) following that in which it is conferred is expressed to enable a council to make by-laws requiring the pulling down and removal of buildings, erections or hoardings. In the Supreme Court, Macfarlan J. directed attention to this power and suggested that it was sufficient to authorize a by-law requiring the destruction of a building erected without the prior approval of the council. Thus it appeared to him to support the view that the power to make by-laws for regulating and restraining building extended to imposing the necessity for such prior approval. I do not think that par. b should be so understood. It does not, in my opinion, give a power to require the pulling down of any building the council likes to include under any general description in a by-law. It is aimed at placing upon the owners or occupiers or persons concerned the duty of pulling down buildings, instead of the council or its officers being obliged in the first instance to undertake the work of demolition, and I doubt if the paragraph empowers the council to make unlawful the erection or maintenance of buildings which otherwise would be lawful.

Another provision that should be noticed is par. f of sub-sec. 3 of sec. 198, which provides that without restricting the generality of the powers conferred by any other sub-section for the making of by-laws for regulating and restraining the erection and construction of buildings, any such by-laws may leave any matter or thing to be from time to time determined, applied, dispensed with or regulated by the council by resolution, or by any officer authorized in that behalf by the council, either generally or for any class of cases, or in any particular case. This and similar provisions have been discussed in Cook v. Buckle[12] by Isaacs J.; Olsen v. City of Camberwell[13] by Cussen J.; Dewar v. Shire of Braybrook[14] by Mann J.; Meredith v. Whitehead[15]; and Munt, Cottrell & Co. v. Doyle[16].

It seems clear that the paragraph could not justify a by-law committing the whole subject matter of the power to a discretionary authority exercisable in each particular case and prohibiting the individual from acting at all unless with the council's prior approval. On the other hand, in view of the opening words of sub-sec. 3 no argument in favour of a narrow construction of sub-sec. 1 can be based on the presence in the enactment of par. f of sub-sec. 3, which must be treated as without significance in the interpretation of sub-sec. 1 (a).

There are, however, two other provisions of the Local Government Acts which may be considered significant. The first is contained in the Thirteenth Schedule, which, as a result of sec. 197 (1) and (2), amounts to a description of objects for which by-laws may be adopted. In clause 1 of Part V. there is a definition of a number of particular purposes for building regulations. The clause ends with a declaration that, "with respect to the several matters of of prohibition restraint and regulation" previously mentioned in the clause, a regulation may provide either absolutely or with relation to classes, rates, situations, distances and other like data to be laid down or referred to in general terms therein and with or without relation to a right of approval or disapproval or inspection to be vested in the council or some proper officer of the council.

The second provision which may be significant is that made by secs. 8-20 of the Local Government Act 1918, now contained in sec. 199 of the Local Government Act 1928 and the Fourteenth Schedule thereto. This enactment established a tribunal or body of reference or review to deal with any doubt, difference or dissatisfaction in respect of any matter as to which provision is made by or under any by-laws for regulating and restraining the erection and construction of buildings. It prescribed in detail the functions and authorities of the referees. It is clearly aimed at giving to persons affected by building by-laws a means of obtaining the review by an indifferent but expert tribunal of the otherwise conclusive determinations of the council or its officers as to non-compliance with the by-laws. Apparently if any council does not appoint its referee there is no means of putting the plan into effect in its municipality.

But both sets of provisions suggest that the framers did not conceive that a council could take under its by-laws a paramount discretion to withhold antecedent approval of a proposal to build and leave the owner subject to a complete prohibition against erecting any structure upon his land. However, the evidence afforded by such matters can be confirmatory only and the interpretation of the power upon which the by-law must rest depends in the end upon the language in which it is expressed and the nature of the subject matter to which it relates. Of these, the subject matter is no less important than the forms of expression adopted. For, although the erection and construction of buildings is regarded as a form of activity which, if completely unregulated, may be attended by abuses tending against the public advantage, it is not in itself a thing to be repressed and could not be so considered by the legislature. It is indispensable to the life of any community. Expressions found in a power to make by-laws in respect of things or conduct commonly regarded as in themselves an evil or at any rate as of a doubtful tendency, might well be interpreted widely enough to authorize the complete suppression or the conditional prohibition of whatever fell within the power; while the same expressions, if employed to describe a power to make by-laws in respect of a subject matter the discouragement of which could not have been intended, would naturally be understood in a very different sense.

The first word used in stating the end or purpose of the power now in question is one which may be said almost to have acquired in such a connection a prima facie legal meaning. For the force of the word "regulating" has been discussed repeatedly and the cases dealing with its application have grown only too familiar. Prima facie a power to make by-laws regulating a subject matter does not extend to prohibiting it either altogether or subject to a discretionary licence or consent. By-laws made under such a power may prescribe time, place, manner and circumstance and they may impose conditions, but under the prima facie meaning of the word they must stop short of preventing or suppressing the thing or course of conduct to be regulated (Municipal Corporation of City of Toronto v. Virgo[17]; Attorney-General for Ontario v. Attorney-General for Canada[18]; Londonderry Harbour Commissioners v. Londonderry Bridge Commissioners[19]; Co-operative Brick Co. Pty. Ltd. v. City of Hawthorn[20]; Shire of Tungamah v. Merrett[21]; Metropolitan Meat Industry Board v. Finlayson[22]; Melbourne Corporation v. Barry[23]; Williams v. Melbourne Corporation[24]; British Trawlers Federation Ltd. v. London and North Eastern Railway Co.[25]; Fox v. Allchurch[26]; Kerridge v. Girling-Butcher[27], per Smith J.).

The word "restraint" has not been the subject of the same judicial examination. But to restrain an activity or course of conduct usually means something less than its entire prohibition. To restrain a man from a course of conduct is to stop his pursuit of it. But to restrain the course of conduct is to moderate, check or restrict it. The expression "restrain" suggests the exercise of control during the progress of the activity to which it is applied, but not prevention. The meaning of such a word will depend very much upon the subject to which it relates and the context in which it occurs.

The compound expression "regulate and restrain" goes further than regulation. Perhaps it is used in order to describe an amount of control sufficient to restrict or hinder. But, unless context or subject matter contain indications of a larger meaning, such an expression would fall short of prohibition. Every prevention or suppression necessarily includes restraint because the greater includes the less. But, if a course of conduct were forbidden unless it were approved by an unfettered discretion vested in some authority, I should think to describe the result as a "restraint" would be a very considerable understatement. When the nature of the subject matter is considered, in my opinion, a power to regulate and restrain the erection of buildings cannot be regarded as authorizing the legal result produced by a general prohibition of building unless with the approval of the council. Once the legal effect is grasped of such an entire but conditional prohibition, it becomes difficult to resist the conclusion that to support it some wider power is necessary than one of regulation and restraint. Under an authority to regulate and restrain, restrictive conditions may be imposed upon the erection of buildings, the incidents may be provided for, the actual operations of building controlled, but it cannot be made prima facie unlawful to construct a building. If the power had been confined to hoardings, perhaps the words "regulate and restrain" might be susceptible of the wider interpretation they received in Levingston v. Shire of Heidelberg[28], but in the context I think that interpretation cannot be justified.

This appeal concerns the validity of a provision in a by-law made by the shire of Swan Hill to the effect that no person shall proceed to erect or construct any house, shop or building, unless with the approval of the council. The question turns upon the authority conferred by sec. 198 (1) (a) of the Local Government Act 1915, which gives the local council power to make by-laws for any purpose in connection with "regulating and restraining the erection and construction of buildings," &c.

Before referring to certain decisions with which the argument mainly concerned itself, it is better to consider the question independently of authority. The general intention implied in sec. 198 (1) would seem to be that, when the by-law has been made, it will lay down a general law or code or rule in relation to the purpose specified in the statute, and not merely attempt to reserve to the council itself discretions so wide that no general law or code or rule remains. Now, under sec. 198 (3) (f) of the Act, it is specially provided that a by-law may leave "any matter or thing to be from time to time determined applied dispensed with or regulated by the council by resolution or by any officer authorized in that behalf." At first glance this provision might appear to be inconsistent with the general intention that the by-law should provide a general rule or code for the purpose of carrying out one or more of the statutory purposes. But this is not the fair construction of sec. 198 (3) (f), which should, I think, be understood merely to lay down the principle that a by-law may permit of the intervention of the council or of its officer for the purpose of dealing with special situations which cannot be dealt with in advance or of determining the application to particular cases of general rules discoverable in the by-laws themselves. So regarded, sec. 198 (3) (f) does not permit of a complete reservation by the council itself of the power of dealing with the whole subject of the by-law, but refers to some particular "matter or thing" as to which intervention is required, in the way I have already indicated. In my opinion, sec. 198 (3) (f) does not, of itself, warrant that part of the by-law now challenged which authorizes the council to refuse permission to build houses. The granting or refusing of such permission is not a particular "matter" or "thing." The permission relates to every building, and is not limited to the consideration of special circumstances or to the application of general principles to a particular case.

But sec. 198 (3) (f) cannot be used for the purpose of inferring that no discretions other than those it specifically authorizes can lawfully be exercised by the council, for it is expressly provided that it is not to limit the general by-law-making power. In returning to the main question, it is to be remembered that the lawful purpose of the by-law power is, not the prohibition of building construction, but its "regulating and restraining." This phrase rather suggests that the by-law will merely lay down building "restrictions," and it is hardly possible to suppose that an absolute embargo upon building could be set up in furtherance of such power. Yet, under the terms of the present by-law, the council of the shire might, acting in perfect good faith and in accordance with some idea of shire advancement, refuse each and every application to erect buildings within its area. In accordance with a different policy, the same council might next decide to allow the erection of each and every building. Both policies might be practised by the council within the space of a twelve month. I think it would be almost absurd to suppose that, under the present power, the legislature intended to authorize a by-law which would entirely prohibit all building, yet the by-law as at present framed allows the same thing or something even worse, i.e., a very occasional and capricious permission to build. The legislature of the State of Victoria does not seem to have adopted any policy which would permit of the suppression of all building in a local area at the will of the council thereof; on the contrary, a different policy seems discoverable in the words used by the legislature, namely, the policy of enabling reasonable and proper restrictions in the construction of buildings. I would readily agree that, under sec. 198 (1) (a), even without the assistance of sec. 198 (3) (f), the council might, within the ambit of the present power, reserve to itself particular discretions and the right of determining particular matters within the general scope of building restrictions. But I am of opinion that it cannot lawfully arrogate to itself a general and uncontrolled power of refusing permission to build.

It was suggested as an argument of last resort that the present by-law might be interpreted so as to confine the exercise of the council's discretion to cases where the proposed building might either actually conflict with, or be thought by the council to conflict with, the other provisions of the by-law. But the plain language of clause 4 seems to make this impossible and it may be added that the four learned judges of the Supreme Court who considered the case were unanimously of opinion that the words of the clause could not yield to such an interpretation.

In spite of the argument of learned counsel for the appellant I think that past decisions upon particular by-laws in exercise of one power are seldom of assistance in determining the validity of a by-law made in exercise of another power. But I think that, in order to show the difficulty of laying down general principles in this type of case, some reference to the decisions is required.

In Levingston v. Shire of Heidelberg[29] Hodges J., in the course of a judgment with which Hood J. concurred, stated the general principle as follows:

Clearly the matters which Hodges J. mentions are of primary importance, and none of them should be overlooked in deciding the question as to the validity of any given by-law. But I am of opinion that any attempt further to elaborate the principles to be applied in making such decisions may lead to error. Courts naturally desire to have recourse to some broad principle in order to resolve these troublesome by-law cases. But it is hardly safe to lay down a more general rule than that stated by Hodges J. In considering the validity of Commonwealth legislation under sec. 51 of the Constitution, it is often necessary to consider matters of degree and sufficiency of proximity, because the inquiry is as to the degree or sufficiency of relationship between the constitutional power granted by reference to subject matter and the particular legislation under review. Similarly, the question of the validity of a by-law involves the consideration of the degree of relationship between the authorized purpose and the actual by-law promulgated.

A case in which the retention of a discretion by a local council was considered to invalidate a by-law was Miller v. City of Brighton[31]. Under the Health Act the council had power to make by-laws with respect to the regulation or the prohibiting of the keeping of animals, and with respect also to fixing the distances from a dwelling within which it should be unlawful to keep the animals. A by-law was passed providing that no person should (except with the written consent of the council) keep any guinea-pigs within the city of Brighton, unless (1) they were confined within a coop so as to prevent their escape therefrom, such coop to be approved by the council, and (2) such coop was situated at least 100 feet from any dwelling house. Under this by-law, a general rule was laid down as to the purpose of the coop in which the animals were to be kept, and the approval of the council to the coop was clearly intended to be given or withheld according to its sufficiency for the stated purpose. But the council reserved to itself permission to dispense with the requirements of the by-law. The Supreme Court of Victoria, however, reversing the decision of Irvine C.J., considered that the council could not, under the Act, pass a by-law involving "the removal of specified fields of action from the control of law and placing them under the control of executive discretion"[32]. For by-law-making purposes, the court treated the municipal council as corresponding to a legislative body, acting in which capacity the council was unable to give, either to itself or to any other person, executive control over the conduct of citizens "in relation to matters in which freedom is still unfettered by positive law"[33].

It would seem, however, that, having regard to the purpose of the by-law, the retention of a discretion to permit of non-compliance so as to favour the general liberty of the citizen was very different in character from the retention of an unfettered discretion in restriction of such law. Every person in the area of the municipality became entitled to keep the animals upon the conditions stated in the by-law, which were not only inherently reasonable in themselves but directly relevant to the stated purpose of the by-law. But the council also considered that the general rule might fairly be relaxed if strict compliance was harsh or oppressive in a particular case. For instance, the limits of the city might extend to an area in which it would be utterly unreasonable to require literal compliance. Thus, the power to grant an exemption was in aid of a wider liberty than was permissible under the by-law itself. Accordingly, the Supreme Court laid down too general a rule as to the by-law-making power. In certain circumstances a discretionary power to allow non-compliance with a general rule may be permissible. In other circumstances, the existence of a discretionary power may tell strongly, or even conclusively, against the validity of the by-law.

Subsequently, this court in Country Roads Board v. Neale Ads Pty. Ltd.[34], subjected the reasoning of Miller v. City of Brighton[35], to criticism, and the actual decision was, in effect, overruled. In Country Roads Board v. Neale Ads Pty. Ltd.[36] it appeared that the Country Roads Board was empowered by statute to make by-laws for the purpose of "regulating or prohibiting the erection and construction of hoardings," and of "regulating, restricting, preventing or controlling the exhibition of advertisements" in the vicinity of State highways. The board made a by-law under which the written consent of the board was required as a condition of the erection in the vicinity of any State highway of any hoarding for the exhibition thereon of advertisements, and the board was empowered, in its absolute discretion, to refuse its consent to the exhibition of advertisements in places where, in the opinion of the board, they would cause obstruction to the vision of persons using the highway, or would be likely to affect injuriously the amenities of a public park, or disfigure the natural beauties of the landscape.

An application of the principles enunciated by Hodges J. would have attached importance to the fact that the by-law-making power was vested in the road authority itself, and the obvious purpose of the power was to prevent (1) the erection of hoardings which might endanger traffic, and (2) the use of hoardings which were likely to lessen the amenities of road travelling. The power conferred might possibly have enabled the board to suppress all hoarding advertising, but, in actual fact, it merely laid down actual standards by which the discretion of the board had to be governed. These standards were expressed in general terms, but that was, in the nature of things, impossible to avoid. Further, it was out of the question to allow the question whether the particular advertisement conformed to the general standard to be determined, in case of dispute, by the ordinary courts, as would have occurred if the by-law itself merely laid down a standard without setting up a final determining authority. The matter was essentially one of good taste and right feeling.

This court held that the by-law was within the power granted. But emphasis was laid upon the fact that the by-law-making power was for the purpose, not only of regulating, but of prohibiting. Yet, if the authorized purpose of a by-law-making power is "prohibition" simpliciter, in the sense of suppressing something undesirable, the presence in the by-law of an undefined, discretionary power, according to the exercise of which suppression will or will not follow, may tell more strongly against its validity than in the case of discretions retained in a by-law made under a power to regulate. Suppression is usually far more onerous and restrictive of the general liberty of the subject than mere regulation, so it may appear that the scope of a by-law-making power is exceeded, if, aimed at suppression alone, it suppresses by reference to the uncontrolled discretion of a body or person, instead of by means of a broad general rule operating with "majestic quality." There will, of course, arise instances seeming to point in a different direction, e.g., a power to make by-laws "prohibiting the traffic of noisy vehicles," or "prohibiting the conduct of offensive trades." In such cases, an opinion as to "noisiness" or "offensiveness" may properly be the "factum" upon which suppression may follow, because questions of opinion and degree are necessarily involved.

But let us suppose that a municipality has power to make by-laws so as to "prohibit motor traffic in specified streets." In such a case it would be very difficult to appreciate how such a power could validly be exercised by a by-law which (1) prohibited motor traffic in certain streets (specifying them), but also (2) authorized an officer of the council, or the council itself, to allow either motor vehicles, or persons to be selected or approved by a council officer, to ignore the prohibition. For, under such circumstances, the result of the by-law would be, not to prohibit motor traffic in the specified streets, but to allow certain motor traffic to proceed there, whilst forbidding the passage of other motor traffic on the same streets. Yet, in the context suggested, the power would indicate, not only suppression, but undiscriminating and universal suppression at the specified places.

Similarly, if a public body which has the control and management of a public park possesses the power to make a by-law for the purpose of prohibiting the distribution of printed matter within the park, could such a power be validly exercised by a by-law which penalized the distribution of printed matter without the prior permission of an officer appointed by the body, or of the body itself? In such a case it would seem that, by the necessary operation of the by-law, there would be, not a "prohibition" of the distribution of printed matter, but prohibition of the distribution of some matter only, with nothing whatever to indicate upon what grounds distribution might be permitted.

Accordingly, the presence of a discretionary power to give approval or dispensation may tell against the validity of a by-law as much where its authorized purpose is "prohibition" in the sense of suppression, as where its authorized purpose is "regulation." Equally, the presence of a wide discretionary power may not operate against the validity of a by-law any more where the authorized purpose is "regulation" than where the authorized purpose is "prohibition." In the present case, for instance, if the power had been given for the express purpose of "prohibiting" building, I should still think that the by-law in its present form would be ultra vires, because so drastic a power could hardly be supposed to be validly exercised by allowing the council to constitute itself as the sole judge as to whether a building can be constructed, without any possibility of ascertaining the grounds upon which the judgment should, or might, proceed. On the same hypothesis, suppression of building by reference to some defined standard, even one involving opinion, could be more easily defended, and, of course, entire suppression of building by way of general rule would be clearly authorized.

Conversely, I should have thought that if the power discussed in Country Roads Board v. Neale Ads Pty. Ltd.[37] had been merely a power to make by-laws "regulating," instead of "prohibiting and regulating," the by-law passed would have been equally valid. All it did was to ensure that hoardings should not be erected at particular places, those places being fixed by reference to the likelihood of danger to traffic or actual interference with the amenities of travelling. The board remained the sole judge of the places of erection, but the standard upon which its judgment was to be given was clearly ascertainable in the by-law itself.

Therefore, the passage in the majority judgment in the Country Roads Board Case[38] to the effect that, if the by-law-making power authorizes prohibition, "what reason is there for denying that the condition may be the consent, or licence, or approval of a person or a body?"[39], is not intended to address itself to all cases of power to make by-laws "prohibiting," for the judgment also stresses "the danger which attends the formulation of principles and doctrines and all reasoning a priori in matters which in the end are governed by the meaning of the language in which the legislature has expressed its will"[40]. For the reasons given above, I would also dissent from the proposition stated by Jordan C.J. in Ex parte Cottman; Re McKinnon[41] that "where there is express power to prohibit, the prohibition may be absolute or sub modo." I would say that everything must depend upon the condition, limitation or qualification which the by-law places upon the prohibition, having regard to the subject matter dealt with. On the other hand, I think that Jordan C.J. makes the correct deduction in using Country Roads Board v. Neale Ads. Pty. Ltd.[42] for the proposition that "it is no necessary objection to a prohibition that it is made removable at the will of some person or persons"[43]. The essential word in this proposition is the word "necessary." In practice, the fact of removability at will may destroy the validity of the by-law. I would also agree that, in the case of a power to "regulate the use and enjoyment" of a public park, a by-law could prohibit unconditionally the use of the park for the distribution of printed matter, because "user generally" would remain unaffected, and such distribution might disturb "the public in their enjoyment of the park"[44]. But the power given to the Commissioner of Police to exempt any particular person from the prohibition would, in my view, entirely alter the situation, not because the by-law would lose its "regulatory nature"[45], but because it transforms the regulation from a regulation of enjoyment of the park into a regulation of the kind of printed matter which might be distributed there, the Commissioner of Police not being an officer of the park trustees and not being bound to pay the slightest regard to the public's user or enjoyment of the park, or to the effect that particular printed matter might have upon such enjoyment, and being quite at liberty to exercise his discretion by reference to his personal opinion of the character of the words contained in the printed matter or the personality of the proposed distributor.

The by-law in Ex parte Cottman[46], so far as it concerns the distribution of printed matter, would seem to be an excellent illustration of the proposition that a by-law made under a power to regulate may at times be invalidated by the inclusion within it of a discretionary power of exemption or dispensation from the regulation.

Accordingly, I think it is established by several of the leading Australian cases that, almost invariably, the problem arising for decision in this branch of the law of ultra vires is a particular problem, and, as is stated in Country Roads Board v. Neale Ads Pty. Ltd.[47], broad generalizations are both difficult and dangerous. The present by-law is invalid for the reasons already suggested, and the appeal fails and should be dismissed.

This appeal is concerned with the validity of clause 4 of a by-law made by the council of the shire of Swan Hill purporting to act under the power conferred on it by sec. 198 (1) (a) of the Local Government Act 1915 of Victoria, which is in the following terms:—"The council of every municipality with the approval of the Governor in Council may make by-laws for the following purposes or any of them or for any purpose in connection therewith:—(a) Regulating and restraining the erection and construction of buildings, erections, or hoardings or of fences abutting on or within ten feet of any street or road." The vice of clause 4, it is contended, is that it introduces a prohibition the material part of which is as follows: "No person shall proceed to erect, or cause to be constructed any shop, house, building, tent, hoarding, or addition to any existing building, unless with the approval of the council."

By clause 4 it is also provided that notice to build, together with the particulars which are specified, must be given to the council. The effect of this clause is to introduce a prohibition against any person proceeding to build unless the council approves of him doing so, and the discretion of the council to give or withhold its approval is entirely unregulated. I cannot see in the terms of the clause any sufficiently certain indication of an intention that the council's power to disapprove is restricted to the purpose of enforcing conformity with the building conditions specified in the clause.

The presence of the above-mentioned prohibition in the clause renders it incapable of being supported as an exercise of the power to regulate the erection and construction of building (Melbourne Corporation v. Barry[48]). It can be justified, if at all, only as an exercise of the power to restrain any such work. The power to restrain is in substance different from the power to regulate, although a degree of restraint may be incident to regulation. The word "restrain," as ordinarily used, has a more restricted application than the word "prohibit," although it is not infrequently used in that sense. The context upon which the council's powers depend does not require that the word "restraining" should be given its extreme application. In my opinion it should not be read as equivalent to "prohibiting." The powers of the council are not confined to regulating the matter in hand, but they do not extend to suppressing it. The powers are regulatory and restrictive, not regulatory and prohibitory. Prohibition may be incidental to the exercise of a power to restrain. But the substance of the present clause is prohibition. Its intention is to prohibit everyone desirous of building from proceeding to do so, and to reserve to the council the discretion of lifting the prohibition upon application by individuals. It is a matter entirely for the pleasure of the council whether the prohibition shall be removed or endure in any case. The approval of the council does not depend upon the satisfaction of any conditions demanded of the applicant. A command by an authority that something shall not be done unless it approves, is the assumption of a power to prohibit at will. The present clause postulates that the council is vested with a similar power to prohibit the matter at which it aims. Upon an examination of the language, subject matter and scope of sec. 198 (1) (a), in my opinion, the legislature did not intend to authorize the invasion of existing rights which the council has attempted.

[1] [1930] HCA 5; (1930) 43 C.L.R. 126.

[2] [1922] HCA 56; (1922) 31 C.L.R. 174.

[3] (1922) 31 C.L.R., at p. 197.

[4] (1922) 31 C.L.R., at p. 197.

[5] (1922) 31 C.L.R., at p. 205.

[6] (1917) V.L.R. 263; 38 A.L.T. 163.

[7] (1924) V.L.R., at p. 115; 45 A.L.T., at p. 107.

[8] [1922] HCA 56; (1922) 31 C.L.R. 174.

[9] [1922] HCA 56; (1922) 31 C.L.R. 174.

[10] [1935] HCA 28; (1935) 52 C.L.R. 383.

[11] Ante, p. 20.

[12] [1917] HCA 35; (1917) 23 C.L.R. 311, at p. 320.

[13] (1926) V.L.R., at pp. 64 et seq.; 47 A.L.T., at pp. 118 et seq.

[14] (1926) V.L.R., at pp. 204-206; 47 A.L.T., at pp. 146, 147.

[15] (1918) N.Z.L.R. 1041.

[16] (1904) 24 N.Z.L.R. 417.

[17] (1896) A.C. 88.

[18] (1896) A.C. 348.

[19] (1894) 2 I.R. 384, at pp. 390, 391.

[20] [1909] HCA 56; (1909) 9 C.L.R. 301.

[21] [1912] HCA 63; (1912) 15 C.L.R. 407, at pp. 423, 424.

[22] [1916] HCA 77; (1916) 22 C.L.R. 340, at p. 348.

[23] [1922] HCA 56; (1922) 31 C.L.R. 174.

[24] [1933] HCA 56; (1933) 49 C.L.R. 142, at pp. 148-149, 155-156, 157-158, 159.

[25] (1933) 2 K.B. 14, at bottom of p. 32 and bottom of p. 33.

[26] (1926) S.A.S.R. 384, at pp. 387, 388.

[27] (1933) N.Z.L.R. 646, at pp. 690, 691.

[28] (1917) V.L.R. 263; 38 A.L.T. 163.

[29] (1917) V.L.R. 263; 38 A.L.T. 163.

[30] (1917) V.L.R., at p. 275; 38 A.L.T., at p. 168.

[31] (1928) V.L.R. 375; 49 A.L.T. 249.

[32] (1928) V.L.R., at p. 383; 49 A.L.T., at p. 252.

[33] (1928) V.L.R., at p. 383; 49 A.L.T., at p. 252.

[34] [1930] HCA 5; (1930) 43 C.L.R. 126.

[35] (1928) V.L.R. 375; 49 A.L.T. 249.

[36] [1930] HCA 5; (1930) 43 C.L.R. 126.

[37] [1930] HCA 5; (1930) 43 C.L.R. 126.

[38] [1930] HCA 5; (1930) 43 C.L.R. 126.

[39] (1930) 43 C.L.R., at p. 135.

[40] (1930) 43 C.L.R., at p. 135.

[41] (1934) 35 S.R. (N.S.W.) 7, at p. 11.

[42] [1930] HCA 5; (1930) 43 C.L.R. 126.

[43] (1934) 35 S.R. (N.S.W.) 7, at p. 11.

[44] (1934) 35 S.R. (N.S.W.), at p. 12.

[45] (1934) 35 S.R. (N.S.W.), at p. 12.

[46] (1934) 35 S.R. (N.S.W.) 7.

[47] [1930] HCA 5; (1930) 43 C.L.R. 126.

[48] [1922] HCA 56; (1922) 31 C.L.R. 174.

High Court of Australia

Swan Hill Shire v Bradbury [1937] HCA 15; (1937) 56 CLR 746 (7 April 1937)

HIGH COURT OF AUSTRALIA