Belcaro Pty Ltd v Brisbane City Council [1963] HCA 35; (1963) 110 CLR 253 (18 September 1963)

HIGH COURT OF AUSTRALIA

BELCARO PTY. LTD. v. BRISBANE CITY COUNCIL [1963] HCA 35; (1963) 110 CLR 253

Local Government (Q.)

High Court of Australia
Kitto(1), Taylor(1), Menzies(2), Windeyer(3) and Owen(1) JJ.

CATCHWORDS

Local Government (Q.) - Ordinances - Sub-division of land - Approval - Condition of approval that stormwater drain be constructed - Payment by subdivider to local authority of portion of cost of construction as required by Ordinance - Whether local authority under a duty to construct drain - Mandamus unavailable - Construction by sub-divider of portion of drain in lieu of payment of portion of cost - Construction of remainder of drain by local authority not enforceable by mandamus - The City of Brisbane (Town Plan) Act of 1959 (Q.), Ordinances, Chap. 8, Pt II, ord. 26.*

HEARING

Brisbane, 1963, September 10, 11, 18. 18:9:1963
APPEAL from the Supreme Court of Queensland.

DECISION

September 18.
The following written judgments were delivered:
KITTO, TAYLOR AND OWEN JJ. This appeal is against an order of the Full Court writ of mandamus commanding the respondent Council to complete the construction of what was described as the trunk line stormwater drainage through certain land the subject of a registered plan of subdivision. (at p255)

2. The appellant as the owner of the land applied to the respondent Council in January 1961 requesting that a proposed subdivision might be approved by the Council Registration Board under Pt II of Chap. 8 of the Ordinances made under the provisions of The City of Brisbane (Town Plan) Act of 1959 (Q.). That Part by ord. 2 prohibits the subdivision of land otherwise than in accordance with an approval granted by the Board, and by ord. 15 it empowers the Board to approve an application, or disapprove it, or approve it subject to conditions. (at p256)

3. By letter of 8th March 1961 the Town Clerk informed the appellant that the Board had given approval to the amended proposal, subject to a number of conditions. They included a condition (iv) that the appellant carry out at its expense the construction of inter alia all necessary drainage works to the requirements and satisfaction of the Chief Engineer and Manager, Department of Works, and another (v) that prior to proceeding with the construction of the drainage works the appellant should submit to the Chief Engineer and Manager, Department of Works, for his approval full working plans prepared by a qualified engineer. Other conditions contemplated that a system of stormwater drainage would or might be necessary. In fact an open water-course or open drain ran through the area, or estate as it may be called, for a distance of some 350 feet. This made the construction of a main or trunk drain there a necessary part of the system. One of the conditions relating to stormwater drainage in the estate dealt with the question of cost, and in particular with the manner in which, as it said, the cost should be apportioned between the appellant and the Council. This condition, numbered (xii), was almost precisely in the terms of certain provisions contained in ord. 26 of Pt II. It departed from those provisions by making the opinion of the Council or of the Chief Engineer and Manager, Department of Works, decisive of certain matters of fact, but for present purposes nothing turns upon the departures and we may go at once to ord. 26, pausing only to mention that the Town Clerk's letter ended by saying: "It is pointed out, however, that the Council has not the funds to contribute towards the construction of the trunk line drainage through the estate". This referred, of course, to the construction of the stormwater drain. (at p256)

4. The relevant portion of ord. 26 is limited in terms to a locality which in the opinion of the Board is or will be a residential locality; and there is no question that the locality here in question is of that description. The provisions made are expressed to apply in any case in which the Board has required as a condition of approval (i.e. to a plan of subdivision) the construction of a system of storm-water drainage in a subdivisional estate. The case before us is such a case, for although the conditions in the Town Clerk's letter do not by themselves identify any system of stormwater drainage as being required, conditions (iv) and (v) which have been mentioned require compliance with the decision of the Chief Engineer and Manager, Department of Works (the engineer, as the Ordinance calls him), and he on 14th June 1961 approved of drainage plans submitted to him by the appellant which included a stormwater drainage system comprising twin 54 inch pipes for a length of 350 feet across the estate along the site of the open watercourse, making his approval subject to a 72 inch diameter pipe line being provided, i.e. in place of the twin 54 inch pipes. (at p257)

5. The substantive provision made by the relevant portion of ord. 26 is that in a case within its terms the cost of the stormwater drainage "shall be apportioned between the subdivider and the Council in accordance with the following:-"; and there follow two paragraphs, (a) and (b), applying respectively to the case where the whole catchment area is within the estate and the case where part of it is outside the estate. In the present case 142 acres of the catchment area is outside the estate and only 4.2 acres within the estate, so that par. (b) governs the apportionment of the cost of the stormwater drainage on the estate. That paragraph lays down two rules, as they may be called; one to apply where the cross-sectional area of the drainage is not greater than 8 1/2 square feet, and the other to apply where it is greater. A drain 72 inches in diameter being of greater cross-sectional area than 8 1/2 square feet, the second of the rules applies in respect of the whole 350 feet of the stormwater drain required on the appellant's property. The rule for that case is that "the subdivider shall pay to the Council the estimated cost as determined by the engineer of a drain . . . of cross-sectional area of 8 1/2 square feet, and of a length equal to that of the drain or drainage of greater cross-sectional area to be constructed". (at p257)

6. It is upon this provision of the Ordinances that the appellant founds its case, contending that the words "the subdivider shall pay to the Council the estimated cost" impose upon the sub-divider a legal liability to pay, and that there should be read into the provision by inference a correlative duty upon the Council to construct the stormwater drainage within a reasonable time after the payment is made. This duty, it is said, is a public duty the performance of which may be compelled by writ of mandamus at the instance of a subdivider who has performed the condition precedent to which it is subject, that is to say has paid the estimated cost as determined by the engineer. (at p257)

7. A difficulty in the appellant's way arises at this point. The appellant has in fact paid nothing to the Council as the estimated cost of a drain 350 feet in length and 8 1/2 square feet in cross-sectional area, and indeed the engineer has made no estimate of the cost of such a drain. The appellant's answer is that it has done something else instead, and that because of certain events that have occurred the question of the Council's duty to construct the drain is to be decided as if the estimate had been made by the engineer and the estimated amount had been paid to the Council. The events may be summarized as follows. The Town Clerk, it will be remembered, had said in his letter of 8th March 1961 that the Council had not the funds "to contribute" towards construction of the trunk line drainage through the estate. Thus the appellant was given notice that early participation by the Council in the construction of the drain could not be expected. This position the appellant accepted for the time being, stating in a letter to the Council of 9th May 1961 that as the Council had said that it had not the funds and the appellant could not contribute more than "its lawful share" the intention was to proceed with all the work except the trunk line drainage, "which can be completed at a later date when Council funds are available". Then it added: "Please advise if it will be necessary for the subdivider to pay in its proportion of the trunk line drainage at present". Clearly enough the proportion referred to was the amount to be estimated by the engineer under par. (b) of the provision in s. 26. (at p258)

8. To this the engineer replied by a letter dated 19th May 1961 in which he said he wished to advise that "in accordance with the Ordinances" the appellant was required to construct a portion of the trunk line drainage "the value of which is to be the equivalent of the subdivider's share of the trunk line drainage". And he added that the section to be constructed (by the appellant) would be determined after engineering plans had been received. There was nothing in ord. 26 or elsewhere, so far as appears, to oblige the appellant to construct any portion of the trunk line drainage. The engineer may have had in mind a provision that appears in ord. 21 to the effect (we are abbreviating it) that not later than twelve months after notification of approval of the proposed plan or such later date as may be approved by the Board the applicant (for subdivision) shall either execute any works the execution of which is a condition of the approval, or pay to the Council such sum as may be agreed upon as the cost of executing all such works and agree with it as to when such works shall be executed by the Council, or complete the earthworks and give to the Council security that he will execute the remainder of the work within a time to be fixed by the Council. The ordinance concludes by providing that unless the applicant complies with the foregoing requirements the approval of the proposal plan shall be deemed to have lapsed. This is the only sanction provided. The operation of the ordinance, we think, is not to impose a duty upon the sub-divider to execute required works, but simply to bring about a lapse of the approval if he does not execute them within the proper time. But even if the section operates otherwise, it cannot be applied to a stormwater drain of greater cross-sectional area than 8 1/2 square feet where part of the catchment is outside the estate, for whether or not par. (b) of the relevant portion of ord. 26 places a duty upon the Council its terms are inconsistent with there being any legal duty upon the subdivider to construct that drain. It contemplates the Council doing the work of construction. But whether the engineer in his letter of 19th May 1961 made a mistake as to the meaning of par. (b) of s. 26 or was offering the appellant an alternative to the course envisaged by that paragraph the fact is that the appellant made no demur, had its own engineer design the stormwater drainage for a length of 336 feet (which seems to have proved sufficient) and redesign it in conformity with the Council engineer's requirement of a single 72 inch pipe line, and then (by its engineer) sent to the Council a letter of 15th August 1961 seeking agreement upon details of a portion of the total length, which it might itself construct. The terms of the letter should be noted. It requested permission for the appellant to construct only that length of 72 inch pipe which would be equivalent in value to 336 linear feet of 39 inch pipe (that is, pipe of 8 1/2 square feet cross-sectional area) calculated at 90/- per linear foot, i.e. 1,512 pounds. It added that calculated at unit rates this was equivalent to 160 linear feet of 72 inch pipe including a manhole and stone-pitched headwalls. Proposed terminal points on the plan were indicated. To the request thus made the Town Clerk replied on 19th September 1961 that the Council had agreed to the appellant's constructing 160 feet of trunk line drainage between the suggested terminal points "as their full share towards the cost of constructing drainage in the estate". He added that the approval granted (apparently meaning the approval of the plan of sub-division) was subject to two pairs of blocks (which he identified by number) being amalgamated to form two blocks only until the balance of the trunk line drainage should be constructed by the Council. The appellant duly constructed the 160 feet of pipe line in accordance with the engineer's requirements, and on 22nd February 1962 the Deputy Town Clerk issued his certificate to the Registrar of Titles that the subdivisional plan had been approved subject to the two pairs of blocks above referred to being each amalgamated in one deed. The Council, however, has still not constructed the remainder of the stormwater drain and has denied that it is under any obligation to construct it. (at p260)

9. The course of events has been recounted in detail because the appellant relies heavily upon it for an argument that, bowing diplomatically to the demands of authority, it did what it was asked to do in lieu of paying money, and that as a result the Council should not be heard to say that it is not now under the same duty as if the payment of money had been made. But this will not do. It means that if the appellant's construction of ord. 26 is correct the Council is bound to construct the entire stormwater drain notwithstanding that part of it is already in situ, a proposition which the appellant itself does not support. The truth is that there is no escape for the appellant from the dilemma that either the case is to be considered on the footing of the actual fact that the payment has not been made, in which case no duty of the Council can have arisen which is conditional upon the making of the payment; or the case is to be considered on the footing of an agreement between the parties that the appellant's construction of the 160 feet of pipe line should place the Council, as to the construction of the residue, under a duty corresponding with the duty (if there be one) provided for by ord. 26, in which case the duty exists by virtue only of the agreement, and therefore lacks the public character which is necessary for the remedy of mandamus. (at p260)

10. But the appellant's case must fail for a more fundamental reason. Its whole basis disappears if the view be wrong that the relevant portion of ord. 26, the second part of par. (b), imposes on the sub-divider a liability to pay money and (by implication) imposes on the Council a duty to construct the drain. In our opinion that interpretation of the provision cannot be supported. As we have said, it is assumed by the language of that part of par. (b) that any drain over 8 1/2 square feet in cross-sectional area will in practice be constructed by the Council. But it must not be forgotten that the entire provision of which par. (b) forms part is by its terms directed to a particular purpose. It announces by the governing words with which it begins that the topic to which it is addressed is the apportionment between the subdivider and the Council of the cost of drainage required by the conditions of an approval. Not, be it noted, drainage which the Ordinances make it the duty of anyone to provide, but drainage which must be provided within the time limited by ord. 21 if the approval is not to lapse. The function of the provision, therefore, is to afford the subdivider a limited measure of relief against the burden which compliance with a condition as to drainage may otherwise lay upon him. Paragraph (a) means that he receives no relief where the catchment area served by the drainage lies wholly within the estate; and the first part of par. (b) means that that is to be the case also where the drain is not greater than 8 1/2 square feet in cross-sectional area, even though the catchment is not wholly within the estate. The second part of par. (b) takes the remaining case, where the drain is of larger dimensions and the catchment is not wholly within the estate. The measure it chooses for the burden which the sub-divider is ultimately to bear might have been based upon an assumption that the subdivider would do the work of construction, in which case it might have provided that the Council should pay to the subdivider the difference between the cost of the drain and the estimated cost of a drain of only 8 1/2 square feet cross-sectional area. But the reason why that course was not taken by the draftsman seems obvious: it would have placed upon the Council a possibly embarrassing financial liability whenever a subdivider of land on which a drain of sufficiently large dimensions was required should find it convenient to himself to construct the drain. So the opposite course was preferred: it was left to the Council to do the work, and the estimated cost of a smaller dimensional drain was made the subdivider's share of the actual cost. The language used shows that in accordance with familiar practice in such matters it was contemplated that the subdivider would be required to pay his share of the cost before the work was done. But no time was fixed for the payment, and the provision did not turn to the question of requiring the Council to do the work of construction. Again the reason is obvious. Those topics lay outside the purpose of the provision, which was only to tell the parties what were their respective shares of the burden of dealing with stormwater drainage in the manner necessary to enable the subdivider to exploit his land by sale in subdivision. Questions of time, on the other hand, were left to the parties to arrange between themselves, and any obligation upon the Council to construct the drain must flow from the arrangement made. For the appellant it has been urged before us that an interpretation of the provision should be adopted which would avoid two absurdities: one that a subdivider should have to pay his money and yet the Council might never construct the drain, and the other that the subdivider should have both to construct the drain and pay the money. But the argument misses the point. The provision we are considering does not oblige the subdivider to pay anything. It uses the expression "shall pay", but in the context this must mean only that the payment must be made or the drain will not be constructed. It cannot be that the provision puts the Council at the mercy of the subdivider, in the sense that whenever the subdivider chooses to demand that his large-dimension storm-water drain be constructed and offers to pay the estimated cost of a small-dimension drain in accordance with the provision the Council comes under a public duty enforceable by mandamus to construct the drain, regardless of the Council's available resources or its existing commitments. (at p262)

11. In our opinion the Full Court of the Supreme Court came to a correct conclusion, and the appeal should be dismissed with costs. (at p262)

MENZIES J. I agree that, even if the making by Belcaro Pty. Ltd. of the trunk line drain on its subdivision to the extent required by the Council could be regarded as a payment for the purposes of ord. 26 of Chap. 8 of the Ordinances made under The City of Brisbane (Town Plan) Act of 1959, the Full Court was correct in deciding that the section imposed no duty enforceable by mandamus upon the Council to complete the trunk line drain and accordingly that the appeal must be dismissed. (at p262)

2. I consider, however, that the Council's insistence that the company should itself make part of the large drain required for the drainage of its land and other land in the catchment area instead of paying its contribution towards the cost of the Council constructing the whole of the drain as provided for by s. 26 was not, as it was stated for the Council to be, a requirement "in accordance with the Ordinances". Furthermore, having regard to the course of events it is now the responsibility of the Council to complete the drain and although, as we here decide, the company cannot dictate when this must be done, I desire to say explicitly for myself that this decision does not mean that, whatever the circumstances, delay in doing so would always be beyond the reach of the long arm of the law. (at p262)

WINDEYER J. I agree that this appeal must be dismissed. When the Council Registration Board approved the subdivision of the appellant's land subject to the drainage and other works being constructed, the Council "had not the funds to contribute towards the construction of the trunk line drainage through the estate" as it informed the appellant. I do not think that the qualified approval of subdivision that the Registration Board gave obliged the Council to undertake any work to enable the appellant to carry out its project then, or indeed at any time. But the appellant wished to go on with it. And at its own expense it constructed a part of the main drain. This seems to have been done partly by agreement, partly, it may be, as a result of a misunderstanding by the Council's officers of the provisions of the Ordinances. The work that was done by the appellant sufficed to enable it, the appellant, to have the subdivision finally approved and thus be in a position to offer allotments for sale - except for four allotments which, pending the completion of the drain, were to be "amalgamated" and thus saleable only as two. But the appellant complains that, because the trunk drain remains uncompleted, it has been unable to sell its land, as otherwise it could have done. It says that by itself constructing at its own expense one half of the drain it notionally paid a contribution to the Council for the construction of the whole drain; and that the Council must now complete the work. But, for reasons given in the judgments of other members of the Court, and which I need not repeat, the appellant failed to establish a duty in the Council arising under the Ordinance. If the appellant has any legal right to have the drain completed by the Council, it must arise from some agreement made in the course of negotiations that are not, it seems, fully recorded in the correspondence. Such an agreement would not be enforceable by mandamus. I do not doubt that the Council could not lawfully require money to be paid to it for a particular purpose and apply it to another purpose. And I do not doubt that if it made a contract that it would do a particular work, it must perform its contract. But neither proposition bears directly on the facts of this case as they appear in the evidence. (at p263)

ORDER

Appeal dismissed with costs.