Barringer v Nyngan Corporation [1953] HCA 4; (1953) 86 CLR 495 (5 March 1953)

HIGH COURT OF AUSTRALIA

BARRINGER v. NYNGAN CORPORATION [1953] HCA 4; (1953) 86 CLR 495

Buildings

High Court of Australia
Dixon C.J.(1), Webb(2) and Taylor(3) JJ.

CATCHWORDS

Buildings - Control and regulation - Dilapidated or unsightly - Alternative remedies - Demolition or re-erection and repair - Choice by council - Owner ordered to demolish building - Non-compliance - Validity of order - Local Government Act 1919-1951 (No. 41 of 1919 - No. 18 of 1951) (N.S.W.), s. 317B*.

HEARING

Sydney, 1952, December 8, 9.
Melbourne, 1953, March 5. 5:3:1953
APPEAL from the Supreme Court of New South Wales.

DECISION

March 5, 1953.
The following written judgments were delivered:-
DIXON C.J. This appeal is brought by the plaintiff in a suit from a decree motion by the defendant for a decree upon the facts alleged and admitted in the statement of claim, amplified in one respect by a letter passing between the solicitors. The plaintiff is the owner of a building in the Municipality of Nyngan and the defendant is the Council of that Municipality. The purpose of the suit was to obtain relief against an order made by the defendant council for the demolition of the building. In giving the order the defendant council purported to act under s. 317B of the Local Government Act 1919-1951 (N.S.W.). The order was given on 20th November 1951 and it ordered the plaintiff to demolish the building within ninety days of that date. The plaintiff attacks the validity of the order as beyond the authority conferred by the provision. The plaintiff says that s. 317B does not authorize a council to make an absolute order for the demolition of a building. The order which, according to the plaintiff, it authorizes is that the owner demolish the building or in the alternative, that is if the owner so chooses, re-erect the building or put the same into a state of repair and good condition to the satisfaction of the council. The policy of the provision, so it is said, is to allow the owner to put the building into proper shape, if he prefers to do that, and otherwise to require him to pull it down and if he makes default to empower the council to execute the order, a policy characteristic of similar legislation not only in New South Wales but in England and in other Australian States. (at p501)

2. The question raised by this contention is entirely one of construction, but the text to be construed, like so much of the legislation where it finds a place, is obscure and uncertain. The first sub-section confers the power to make an order. It begins by stating the events in which the power is exerciseable, viz., "if any building is in such a dilapidated or unsightly condition as to be prejudicial to the property in or inhabitants of the neighbourhood of such building". In any of those alternative events "the council may order the owner to demolish, or as an alternative, to re-erect such building or any part thereof or otherwise to put the same or any part thereof into a state of repair and good condition to the satisfaction of the council within a reasonable time to be fixed by the order". Does this describe various alternative orders any one (or perhaps any one or more) of which the council may make? Or does it describe one order the council may make which must be expressed in an alternative form? If the latter be its meaning and the owner must be given an alternative to demolishing the building, there is a subsidiary question. Has the council a discretion to select the alternative and say for example "demolish or else re-erect", "demolish or else put in a state of repair and good condition to our satisfaction"? Or must the council put before the owner all the choices, demolition, re-erection and putting into a state of repair and good condition? Or again, may it be that one or some of these alternatives cannot be included in an order except in combination with some other alternative, while others need not be so combined? Thus is it possible that the council cannot order re-erection &c. except as something the owner may choose to do as an alternative when he is ordered to demolish, though the council is not under the necessity of giving him that choice when ordering demolition? Presumably it is for the council to say whether the order is to apply to the whole building or a part; though it is to be noticed that the event on which the power arises is that the building, not a part, is in such a dilapidated or unsightly condition as to be &c. (at p502)

3. Not much help in answering these questions is given by sub-s. (1) itself. The form of words "to demolish, or as an alternative, to re-erect", after the verb "order", perhaps may suggest that it is all a description of the order to be made. But the ensuring words seem to me to look in the opposite direction. For, if it is, as in reason it must be, for the council to say whether the whole or a part of the building is to be re-erected, why, under the same form of alternative, is it not for the council to order, not re-erection, but putting into repair and good condition? And if the council can choose between re-erection and putting into repair and good condition, why should they not choose between demolition and reerection or demolition and putting into repair and good condition? In any case re-erection is an odd alternative to demolition. It might be thought that you could not re-erect the whole without demolishing the whole, though you might re-erect a part without demolishing the whole. (at p502)

4. There is of course an obvious grammatical question whether the words "to the satisfaction of the council" govern only the putting into a state of repair and good condition or also the re-erection or finally the demolition too. But the existence of that question does not help to solve the main difficulty of construction. (at p502)

5. Mr. Rath, for the plaintiff-appellant, said that guidance was to be obtained from legislation in pari materia both in New South Wales and elsewhere because it was a general legislative policy to present such choices to the owner and not to leave them to the authority making the order. Thus s. 171(1) of The Local Authorities Acts 1902 to 1935 (Q.), which, through s. 373 of the Sydney Corporation Act 1932-1945 (N.S.W.), seems to have inspired the provisions of s. 317B of the Local Government Act 1919-1951, was interpreted as requiring an order expressed to give to the owner the alternative choices described in the Queensland section: Fraser v. Hemming (1911) QSR 139, at pp 147, 148 . So too with s. 118 of the Health Act 1911-1950 (W.A.) dealing with houses unfit for human occupation: Haddy v. Howard (1920) 22 WALR 48 . In New South Wales s. 249(h) of the Local Government Act 1919-1951, which in respect of any public road empowers the council to order the owner of any unsightly dilapidated or dangerous fence, verandah, awning, shed or other similar structure on or near to the road to repair or remove the structure has been interpreted as meaning that the owner must be given by the order the option of removing the shed or of repairing it: Wauchope v. Trefle (1942) 59 WN (NSW) 213; 15 LGR 50 . In s. 58(1)(b)(ii) of the Public Health Act 1936 (Imp.) (26 Geo. 5 & 1 Edw. 8, c. 49) the election is expressly given to the owner, a provision taking the place of s. 75 of the Towns Improvement Clauses Act, 1847(10 & 11 Vict. c. 34): see too s. 106 of the London Building Act 1894 (57 & 58 Vict. c. CCXIII). (at p503)

6. It must be observed however not only that the terms in which these various provisions were expressed are very different, but also that s. 317B which is to be construed upon the present appeal bears no such relation to any of them as to make it right in principle to reason from the meaning they bear, or have been held to bear, in arriving at the meaning of s. 317B(1). (at p503)

7. Within s. 317B itself Roper C.J. in Eq. found what his Honour considered to be the determining consideration. It is the direct evidence supplied by sub-s. (3) of the intention of sub-s. (1). Sub-section (2) provides that if the order is not obeyed the council may with all convenient speed enter upon the land upon which it stands and execute the order. It is obvious that if the order to be executed is to demolish the building something must be done with the materials of which it was built, whereas that problem will not arise if it is repaired or re-erected. Sub-section (3) provides as follows:- "Where the order directs the demolition of a building or any part thereof the council, if executing the order, may remove the materials to a convenient place and (unless the expenses of the council under this section in relation to such building are paid to it within fourteen days after such removal) sell the same if and as it, in its discretion, thinks fit." The protasis of this clause introduced by the words "Where the order directs", appears to me clearly to express a hypothetical condition. It imports that the order may or may not direct demolition and provides for the case of its doing so as a contingency. Sub-section (4) is clumsily and obscurely drawn and it may be an unsafe procedure first to construe it and then to use the construction to elucidate sub-s.(1). But as I read it the second part of sub-s. (4) has the same force. I have come to the conclusion that the view adopted by Roper C.J. in Eq. is the correct one. Sub-section (3) shows clearly how the legislation, or its draftsman, understood sub-s. (1) and further, though the language of sub-s. (1) is undoubtedly ambiguous, yet I think that when it is analysed as in the earlier part of this judgment, the sense of it appears rather to be that the choice of alternatives lies with the council. (at p504)

8. It is necessary to add one observation by way of qualification or caution. The question does not arise on the facts of this case whether the provision confers a power to order re-erection which is independently exerciseable so that the owner has no choice but must re-erect. What is in question is the existence of a power independently exercisable to order demolition. In spite of some verbal difficulties it may be possible to read the provision as if it were written "may order the owner to demolish or, may order him as an alternative to demolishing to re-erect, such building or any part thereof". That would mean that while the council may, as it has done in this case, order demolition simpliciter, it cannot order re-erection directly and absolutely; it can only do it as a choice given to the owner. It is of course a strong thing to order an owner to re-erect a building without giving him any choice and an interpretation which gives the council a power to do this may be thought to be improbable a priori. It would be avoided by any such reading as the foregoing. If, however, such an interpretation were adopted it might be difficult to treat differently the words which follow the expression "to re-erect such building or any part thereof", namely "or otherwise to put the same . . . into a state of repair". That is to say it might be difficult, in that event, to read them as anything but the grant of a further choice to the owner. But perhaps that might not be an objection. (at p504)

9. However, these are not questions which arise in this case and all that need be said about them is that they are not necessarily covered or precluded by an interpretation of the power to demolish as one exerciseable independently of the power to order re-erection &c., so that a council may order demolition without expressing in its order an alternative of re-erection or any other alternative. (at p504)

10. I think that the provision does mean that the council shall have such a power to order demolition simpliciter. (at p505)

11. Accordingly I am of opinion that the decision of Roper C.J. in Eq. was right and that the appeal should be dismissed. (at p505)

WEBB J. I would dismiss this appeal for the reasons given by the Chief Justice. (at p505)

2. I agree with his Honour and with Roper C.J. in Eq. that s. 317B(1) of the Local Government Act 1919-1951 (N.S.W.) taken by itself, is ambiguous: it could be read either as giving the council the alternative, or as giving it to the building owner. But the former meaning is that indicated by the terms of s. 317B(3), although it involves a departure from the general policy of this kind of legislation as revealed in both English and Australian decisions. One does not readily conclude that if, say, a building is unsightly simply because it has broken windows the council has the legal power to order its demolition instead of directing the owner to repair the windows. However there is no reason to suppose that any council would make such a foolish order. But if it did then there is provision in s. 317B(5) for an appeal to a district court judge who is not confined to determining merely whether the council had the legal power to make the order appealed against, but may himself make such order as the circumstances and the public interest warrant and the law permits. (at p505)

TAYLOR J. For the reasons already given by the Chief Justice, with which I entirely agree, I am of the opinion that this appeal should be dismissed. (at p505)

ORDER

Appeal dismissed with costs.