Vitosh v Brisbane City Council [1955] HCA 52; (1955) 93 CLR 622 (12 October 1955)

HIGH COURT OF AUSTRALIA

VITOSH v. BRISBANE CITY COUNCIL [1955] HCA 52; (1955) 93 CLR 622

Local Government (Q.)

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

CATCHWORDS

Local Government (Q.) - Brisbane City Council - Resolution - Validity - Power to declare "any defined part of the city to be a residential district" - Resolution declaring all parcels of land vacant at date of resolution or then having residential buildings on them to be residential district or districts - Unsuccessful application for mandamus upon assumption that resolution valid - Contention in later action between same parties that resolution invalid - Issue estoppel - The City of Brisbane Acts 1924 to 1952 (15 Geo. V. No. 32 - 1 Eliz. II., No. 52), s. 36 (1) (2) (3) - Brisbane City Council Ordinances, Chap. 35.

HEARING

Melbourne, 1955, October 11, 12. 12:10:1955
APPEAL from the Supreme Court of Queensland.

DECISION

The judgment of the Court was delivered by DIXON C.J.
This is an appeal against a judgment of Matthews J. by which the plaintiff's dismissed with costs. His Honour gave judgment against the plaintiff upon a counter-claim by the defendant, but that counter-claim is no longer in question. (at p626)

2. By his claim in the action the plaintiff sought relief against a resolution of the Brisbane City Council by which lands of a given description were declared to be a residential district or districts and against the refusal of the council to relax the provisions which that resolution contained. The plaintiff claimed certain consequential relief, including damages. (at p626)

3. By s. 36, sub-s. (1), of The City of Brisbane Act of 1924 (Q.) the Council of the City of Brisbane is charged with the government of the city and has the control of the working and business of such government. Sub-section (2) of s. 36, empowers the council to make ordinances for promoting and maintaining certain purposes which include the general good government of the city and of its inhabitants. Sub-section (3) of s. 36 extends the power of the council. Among the matters included in the extension are the sub-division of land, the use and occupation of land, and the use and occupation of buildings and generally all works matters and things in the opinion of the council necessary or conducive to good government of the city and the well-being of its inhabitants. (at p627)

4. In 1928 the council adopted an ordinance which forms Chap. 35 and is entitled "Residential Districts". The ordinance was approved by the Governor in Council. By this ordinance the council took power to create residential districts by resolution of the council. The power it took enabled the council by resolution to declare any defined part of the city to be a residential district. Upon making such a declaration the ordinance enabled the council by the resolution to prohibit the erection in each such district of any building for use for the purposes of such trades, industries, manufactures, shops and places of amusements as might be described in the resolution. (at p627)

5. The council adopted a resolution on 6th December 1932 in purported pursuance of this ordinance and it is that now in question. By the resolution the council resolved that all parcels of land which are "now", that is to say on 6th December 1932, vacant or upon which there are "now" residential buildings which term included a combined shop and dwelling, to be a residential district or districts in terms of Chap. 35 of the ordinance. The ordinance is referred to as the residential district ordinance and is dated 29th February 1928. (at p627)

6. The resolution went on to forbid the erection in such districts of any building for the purposes of the trades etc. described therein and to forbid the use of any building for such purposes. The resolution, however, was expressly made subject to such exemptions as might thereafter be determined by resolution of the council at an ordinary meeting. (at p627)

7. At that time certain land in Balham Road, Rocklea, Brisbane, fell within the description contained in this resolution. On 16th April 1951 the defendant council approved an application by one Elizabeth May Beezley as registered proprietor for a resub-division of this land. On 5th May 1951 the plaintiff acquired from her by purchase a parcel of land so resub-divided. He applied to the defendant council for permission to erect certain buildings on the land. If the resolution of 6th December 1932 is valid it would operate, by virtue of the ordinance, to make unlawful the erection of such buildings as the plaintiff desired upon the site. That is to say, unless an exemption were granted by resolution of the council at an ordinary meeting pursuant to the ordinance. (at p627)

8. The plaintiff's application to the defendant council for permission was refused. He resorted unsuccessfully to remedies by way of mandamus and then he brought this action. (at p628)

9. The first question in the action is obviously whether the resolution is a valid exercise of the power conferred upon the council by the ordinance. That question had already been decided in the affirmative by the Full Court of Queensland in the case of Russell v. Brisbane City Council (1955) QSR 419 . Matthews J. was, of course, bound by that decision. We, however, are of opinion that the resolution is invalid and are unable to agree with the decision of the Full Court in Russell v. Brisbane City Council (1955) QSR 419 . (at p628)

10. The resolution attempts to establish as a residential district or districts parcels of land described according to attributes existing on 6th December 1932. The attributes are that the parcels should be parcels which are vacant or upon which there are residential buildings. We think that this cannot amount to an exercise of the power conferred by the ordinance. That power was to declare a defined part of the city to be a residential district. The ordinance contemplates the definition by metes and bounds or by streets or by some other sufficient topographical description of an area forming part of the city. What the resolution does is to take as a criterion the existence or non-existence upon the land on the given date of buildings of certain descriptions or the entire absence of buildings upon the parcel. That involves no selection of a part of the city suitable to form a district. It means merely a decision by the council that vacant land wherever it should be found and land upon which there were then residential buildings should be subject to restrictions contained in the ordinance. That appears to us to be an entirely different kind of discretionary power from that bestowed by the ordinance. It follows from this view that the resolution formed no obstacle to the plaintiff and it was unnecessary for him to apply for an exemption under the ordinance and the resolution. (at p628)

11. However, the plaintiff did apply to the council for an exemption or for the council's consent to his proceeding with the building. When this application was refused he sought a prerogative writ of mandamus. As we have said the application was unsuccessful and a mandamus was refused. In the course of giving his reasons for the refusal of the mandamus Macrossan C.J. stated that the resolution was valid under the ordinance. It is now said that the proceedings by prerogative writ of mandamus operate by way of issue estoppel to preclude the plaintiff from succeeding in this action on the ground that the resolution was invalid. It is said that the issue of the validity of the resolution was decided against him. We think that this argument is misconceived. The plaintiff's application for a writ of mandamus assumed the validity of the resolution and upon that assumption the plaintiff sought an order commanding the exercise of the council's discretion under the resolution; but no issue arose as to the validity of the ordinance or of the resolution. The plaintiff is not estopped by his having proceeded on the assumption that he was bound by the resolution under the ordinance. (at p629)

12. The relief sought by the action includes declarations of right, injunctions and damages. No case whatever for damages has been made out by the plaintiff and we do not think that any injunction is necessary even if the facts disclosed by the record give any ground for granting an injunction. We think that it is enough to make a declaration of right, a declaration that the resolution dated 6th December 1932 of the defendant council is invalid. (at p629)

13. The appeal should be allowed with costs. The judgment of Matthews J. upon the plaintiff's claim should be discharged and in lieu of that judgment a declaration in the terms stated should be made. The plaintiff should have the costs of the action but, of course, not the costs of the counter-claim. The order for costs upon the counter-claim stands. The costs of the action and of the counter-claim should be set off. (at p629)

McTIERNAN J. I have a few observations to make on the question of the power granted by the ordinance and its exercise by the resolution. I agree with what has been said by his Honour the Chief Justice. The additional observations I wish to make are these: the power granted by the ordinance is to declare any "defined part" of the city to be a residential district. In order to exercise this power in accordance with the terms in which it is granted it is necessary to define a part of the city and then to declare such part to be a residential district. The fact that the part defined is to be a district - a residential district - shows what is meant by the word "part". (at p629)

2. The question is whether the portions of the city indicated by the words of the resolution "all parcels of land which are now vacant or upon which there are now residential buildings" are a defined part of the city according to the intention of the ordinance. (at p629)

3. No doubt such parcels of land are capable of being ascertained. The word "now" fixes the time - that is, the date of the resolution when their condition is to be ascertained. But would a collection of parcels of land, not necessarily contiguous, constitute a district or districts according to the ordinary meaning of the word district? There may have been areas of vacant land consisting of one parcel, or contiguous parcels, that would constitute a district. But there may have been many separate parcels of land distant from one another hemmed in by built-up land. The collection of these parcels of land could not be described as a district. It would not be in accordance with the ordinary meaning of the word "district" to say that each of the separate parcels, however small, would be a district. I do not think that it is the intention of the ordinance to empower the council to define a residential district solely by the criterion that a parcel of land is vacant or that a residential building is erected upon it. That seems to me to be the criterion adopted by the resolution. I do not agree that this criterion is correct. The words "any defined part" in this context - the ordinance - seems to me to mean a portion of the territory of the city described with reasonable certainty and reasonably capable of answering to the description of a district considered as an area of land. (at p630)

4. It is, of course, within the power in question to define as many residential districts as the council thinks fit. I am unable to agree that this particular resolution is a good exercise of the power to declare residential districts within the city. (at p630)

ORDER

Appeal allowed with costs. Judgment of Matthews J. discharged. In lieu thereof declare that the resolution dated 6th December 1932 of the defendant council is invalid. Order that the plaintiff have the costs of the action and the defendant the costs of the counter-claim and that such costs be set off.