Minister for Public Works v Duggan [1951] HCA 29

424 HIGH COURT

[HIGH COURT OF AUSTRALIA.)

THE MINISTER FOR PUBLIC WORKS j AND LOCAL GOVERNMENT (N.S.W.) | Appen AND THE COUNCIL OF THE MUNICI- | PALITY OF KOGARAH. DEFENDANTS, AND

DUGGAN AND OTHERS $ 3 : . ResronpEn PLAINtIFEFs,

ON APPEAL FROM THE SUPREME COURT OF NEW SOUTH WALES.

Resumption and Acquisition of Land—Resumption under statutory powe

H.C. or A. ; ra Government—Council—T'own-planning—* Improvement and embellishn : the area" —Parks—New roads—Acquisition of more land than n

Sypvey, Surplus land—Proposed re-sale at profit to reduce cost of new road—Imp

May 34,7; Purpose—Damage to owners—Injunction—Local Government Act 1919 June 8. (N.8.1.) (No. 41 of 1919—No. 44 of 1948), #3. 121, 235, 321 (a) (b) (d) 348 (1), 477, 496, 4964, 5184, 532, 535, 536. An application was made by a council under s. 536 of the Local Gove Act 1919-1948 (N.S.W.) to the Minister for Public Works and Local Go

Dixon, Williams and Kitto JJ.

'The Council proposed to construct a park and a new road on the certain mangrove swamps to be reclaimed and on the foreshores of Os Bay to be acquired, principally, by resumption. 'Lands so acquired and kn to be in excess of the actual requirement were to be re-subdivided and 1 for building lots and the proceeds applied towards the cost of the

the Local Government Act was amended by omitti 321, 322 and inserting a new s, 321. By the same Act an amen was

'The effect of these amendments is to confer on councils power which Court in this case has held they did not possess prior to the date of the amé

. [Epiror's Nore.—By Act No. 46 of 1951 assented to on 10th D ment. By s. 2 (2) Act No. 46 of 1951 has a limited retrospective op

? LR.) OF AUSTRALIA.

excess of the actual requirement, in order that upon re-subdividing that jand, the Council might re-sell it and apply the proceeds towards the cost of the scheme. '

Thompson v. Council of the Municipality of Randwick, (1950) 81 C.L.R. 87; 17 LGR. 256, applied.

ell

Decision of the Supreme Court of New South Wales (Roper C.J. in Eq.), : affirmed.

Peers from the Supreme Court of New South Wales. "Ina suit brought by them by way of statement of claim in the "equitable jurisdiction of the Supreme Court of New South Wales, 'thirteen plaintiffs, namely, Herbert James Alfred Duggan, Ellen 'Willhelmine Newton, married woman, Ethel May Cranston, widow, "Andrew Meuburn Vincent, Percy Harold Blackman, George James Page, Roy Hector Gingold, John Kucirek, George William Halls, Albert Arthur George Connor, John Tomlyn, Norman Leslie Clark Alan John Grainger, sought injunctions against the Council the Municipality of Kogarah and the Minister for Public Works and Local Government to restrain them and each of them from ing or attempting to resume or from taking any further ps to effect a resumption or resumptions of such part of certain tesidual lands as belonged to the respective plaintiffs. hd statement of claim, as amended, was substantially as 1. The defendant Council of the Municipality of Kogarah had ved to acquire by resumption certain land within its area r the ostensible purpose of undertaking the improvement and mbellishment of the area within the meaning of s. 321 (d) of the Government Act 1919, as amended.

nder s, 536 of the Act to the Governor.

3, That defendant proposed that part of the said land when ed, such part being referred to as "the residual lands', ould be re-subdivided and sold by it without any physical

formed part of the residual lands.

5, The plaintiffs charged and said the facts were that the ndant Council did not at any material time and did not now nd to use the residual lands for a statutory purpose ; that the dual lands were not capable of being so used ; that the residual were not being resumed for the ostensible purpose resolved

Held that the Council was not empowered by the Act to acquire land in H.C, or A.

1951, Ww Minister ror Puptic Works v. Ducoan.

i. Coe A. upon by the defendant Council; and that the residual lands

MrNIsTER FoR PusLic

HIGH COURT

threatened to be resumed for the purpose of recouping the defe Council in respect of the cost of making certain improve and/or embellishments resolved upon by it by the re-sale of those residual lands at a profit.

6. The plaintiffs charged and said the fact was that the tion of the residual lands was in excess and an abuse of the powers conferred upon the defendant Council and that by such resumption — irreparable loss and damage would be caused by that defer to sence of the plaintiffs.

. The plaintiffs feared that unless restrained by an injunction of the Court the defendants would proceed with the applica to resume the residual lands and that the plaintiffs and each them would suffee irreparable loss and damage thereby.

The plaintiffs prayed, inter alia, for the injunctions mentio above.

The plaintiffs served upon each of the defendants a notice of motion for an interlocutory injunction restraining each of th defendants from taking any further steps to effect a resumption or resumptions of land belonging to any of the plaintiffs the resun tion of which was threatened in connection with what was called "The Oatley Bay Improvement Scheme ".

In an affidavit Ernest Alexander Duggan deposed that he ¥ the honorary secretary of the Oatley Bay Resumption Protest Committee, a voluntary organization of ratepayers and owners land on the foreshores and in the vicinity of Oatley Bay, George River, Hurstville, and that all the plaintiffs were members of the committee. He annexed a report dated 18th March 1948, add l to the town clerk by Albert Henry Brewer, the defendant Council's' engineer, which, so far as material, was in the following terms : "Oatley Bay Reclamation and Improvement. A scheme for th resumption of the foreshores and reclamation of the man swamps in the N.E. and N.W. arms of Oatley Bay was adopted the Council in 1936. The scheme did not include drainage, as was hoped that such work would be carried out by the Pi Works Department as part of the relief work then in pro

A start was made on the acquisition of land for the o1 acheme, but little progress has been made due to the shortage funds. Council is now in a position to proceed with the acquisiti but it is felt that the scheme requires revision and extension to provide for the connecting road between Connels Point Road ¢ Oatley, and to ensure the best use being made of the more or less waste land surrounding the area. Plans showing the revision at submitted.

83 C.L.R.] OF AUSTRALIA.

, opposite Kyle Parade, across the N.E. Arm, through the ly built-on area at the foot of Waitara Parade and West it, across the N.W. Arm and then up the valley between erick and Kitchener Streets to join Frederick Street opposite Street. Its length is about one mile. To travel from Oatley to Connels Point now requires a three-mile journey. It also provides a link in the desirable marine drive along George's River from Tom Ugly's Point to Oatley.

Use of 'Dead Ground'. The properties facing Connels Point and Homedale Crescent have very big depths and practically ithout exception the rear portion of the lots is unused. If a road were put through as shown on the plans, this dead ground could be subdivided for residential sites. The improved value jould cover the cost of resumption and road construction. A siderable improvement in the area and the new park would result. The area between Halstead Street, Rickard Road and G1 cre Road requires replanning. A sketch showing a suitable yout is submitted. This can be treated as a separate matter cept as it affects the outlet of the proposed new road along the

n side of the park.

The land fronting Whitfield Parade and East Crescent also has big depth and could be similarly treated, although conditions are not favourable at the northern end. . . . It is recommended

land." At its meeting held on Ist April 1946, the defendant Council olved that the scheme outlined in the engineer's report be pted and that the town clerk be authorized to negotiate with various owners concerned for the acquisition of the required ions of their respective holdings. _ A report, dated 23rd September 1946, by the town clerk, relating, ter alia, to the subject scheme received by the Council at its held on 8th October 1946, contained the following para- ph: "In arriving at a conclusion in regard to the matter the ct that the Oatley Bay Scheme will provide many lots for sale to fiset at least part of the cost should not be overlooked." The Council again authorized the town clerk to negotiate with ers of the areas that would be required at prices not exceeding those shown in the Valuer-General's list. _ The whole area envisaged by the subject scheme comprised 119 acres, of which 85 acres were to be used for recreation areas nd park lands; 17 acres were to be used for a link and scenic

New Road.—The proposed new road runs from Connels Point H- ©. oF A.

For PuBiic Works v. Ducaan.

H.C. oF A.

1951. Ww

'MrxisTER FoR PUBLIC Works v. Dueean.

HIGH COURT

roads; and 17 acres fronting one of the new roads were to be replanned, re-subdivided and sold as residential sites subject to restrictive covenants imposed by the Council to ensure a prope standard of development. On 17th February 1947, the defendant Council resolved connection with improvement schemes—Renown Park and Reela tion of the North-East and North-West Arms of Oatley Bay- "that steps be taken to acquire the lands required in connec with both schemes and that the following procedure be adopted (a) each owner to be advised by letter of the Council's inten to acquire his land or a portion thereof, and an offer made t purchase same at the Valuer-General's estimated cost of acquisiti the Council to pay all legal costs. Such letters to contain intimation that if any owner is desirous of securing an allotment in the area—after its improvement and resubdivision—the Cot will place to bis credit the value (as determined by the Va General) of his land or the part thereof to be taken and later allow him to choose a lot in the resubdivided area and any differenc between his credit and the value of the lot chosen (this value Is to be determined by the Valuer-General) to be adjusted in cash — either way ; (b) in all cases where the Council's offer is not ace able to the owner, such owner to be given the prescribed under the Re-establishment and Employment Act, 1945, and ni that Council intends to make application for the Gove approval to the acquisition of his land by the process of res tion; (c) in all cases where necessary, application be made the approval of the Attorney-General to acquire land from ' bers of the Forces' by resumption ; and (d) that in all cases wl the owner is not prepared to accept the price offered, the T Clerk be authorized to take the necessary steps under Council seal for the resumption of the land ". By applications dated 8th April and 25th August 1948, tively, the town clerk, on behalf of the Council, applied s. 536 of the Local Government Act to the Minister for Local Gov ment for the acquisition by resumption of certain land, incl land severally owned by the plaintiffs, situate on the fore and in the vicinity of Oatley Bay for the stated purpose of " improvement and embellishment of the area" under s. 321 That purpose included the proposed (i) construction of a new road (ii) provision of parks and recreational grounds, and (iii) division and sale of residual lands not required for the pro new road or parks and recreational grounds. The Council after the resumption to re-subdivide and sell part of the

3 O.L.R.] OF AUSTRALIA.

rn yposed to be resumed including, inter alia, the said land of the intifls respectively. The said land of the plaintiffs was included the lands referred to in the engineer's report dated 18th: March 1946, set out above, in the paragraph headed "Use of 'dead' ond". Fin reply to representations made on behalf of, inter alia, the plaintiffs, the Minister for Local Government, by letter dated 'ith September 1950, said that the purpose of the scheme was to 'retain for public enjoyment, in its natural state, the affected of the George's River foreshores; to provide recreational tae on those parts capable of such development and to con- struct a scenic road as a means of communication to the scenic attractions of the locality. The areas in the vicinity of that of the George's River were seriously deficient in facilities for public recreation and it was considered that the overall benefits = be derived from implementation of the proposal outweighed any objections to the scheme. The Minister further said that while he regretted the disturbance of the present ownership of the properties affected by the scheme, he considered, nevertheless, he would not be justified in disregarding the decision of the Council which was appointed by the electors of the municipality to exercise 'its power, including that of resumption, conferred on it by the Local Government Act, and he had decided to recommend the proposal for the approval of the Governor, a notification of which a would, it was expected, appear in the Government (razette vin the near future. x A request on behalf of the plaintiffs for an undertaking by the Council that it would not proceed with its applications to the "Minister pending the filing on their behalf of a statement of claim for an injunction—a copy of which letter had been forwarded to the Minister—not having been complied with, the plaintiffs, by "motion made ex parte on 20th September 1950, obtained from the muirt an injunction up to 22nd September 1950, on the usual , restraining the defendants, namely, the Council and the ister, their servants and agents, from taking any further steps effect the said resumption or resumptions. = The injunction was continued from time to time until it came on to be further heard on 4th December 1950. A disputing appearance was entered on behalf of the Minister 27th September 1950. At its meeting held on 25th September 1950, the defendant resolved that further information be forwarded to the for Works and Local Government under seal, with reference

H. C. of A. 1951. ay

MINISTER FOR PuBLIC Works v. Dueean.

1951. rye 'MrntstER FOR PUBLIC Works v Dueean.

HIGH COURT [

17th February 1947, to make application under ss. 532 and 53 of the Local Government Act 1919, as amended, for the approy

for the purpose of "the improvement and embellishment of area (s. 321)" of certain land within the municipality and m

submitted to the Minister. " The purpose ' the improvement and embellishment of the area (s. 321)' as expressed in such resoluti

1919, as amended, to undertake and exercise, namely :— (a) the planning of new roads and subdivisions vide section 32] (a) of the Local Government Act 1919 ; (b) the re-arrangement of parcels of land, vide section 321 of the Local Government Act 1919 ;

(c) the improvement and embellishment of the area, 7 section 321 (d) of the Local Government Act 1919 ; 7

(d) the provision, control and management by the said Cou neil for public health, recreation, convenience and enjoyment, section 348 (1) of the Local Government Act 1919 ;

(e) the resumption of land under and for the purpose of section 4 of the Local Government Act 1919 ; and

(f) the resumption of land under and for the purposes of tion 535 of the Local Government Act 1919."

The plaintiffs' solicitors, by letter dated 27th October 1050, informed the Minister that interviews with officers of his Depart- ment subsequent to the granting of the interim injunction b disclosed that the publication in the Gazette of the resump notices was not imminent as was at first thought ; therefore was not any purpose in seeking to restrain him, and that if # Minister was disputing the claim merely as a matter of princi the plaintiffs should not be required to pay his costs in testing, these proceedings, abstract questions and principles of law. minister stated that he had a real interest in the action and Y concerned to know the limits of the resumption power con ferre by the Act; therefore he did not consent to being dismissed fr the suit and was not prepared to pay the costs in any event.

Affidavits by the plaintiffs showed that each had received the town clerk a letter dated 10th March 1947, which, m mutandis, was in the following terms :—' Some ten years ago 1 Council raised a loan for expenditure on the reclamation of

OF AUSTRALIA.

was commenced the War eventuated and the project was mently deferred. The Council is now in a position to proceed the proposal and has approved of the amplification of the scheme to provide for roadways connecting South Hurst- and Connels Point with Oatley, the improvement of extensive lic reserves and the resubdivision into home sites of residual

'he first step in the implementation of the scheme is the acquisi- of the required land and in this connection it will be necessary or the Council to acquire the part of your land coloured red on the attached plan. The Valuer-General's estimated cost of the juisition of this area is ' £115 Os. Od.' and Council hereby offers to purchase same from you at this figure and to pay all legal costs 'transfer. Acceptance of this offer will entitle you (if you so desire) to riority in the purchase of an allotment in the area to be resub- divided at the Valuer-General's valuation. It must be realized, however, that the acquisition of such a large area of land involved, its improvement and the resubdivision of the residue will take le time—possibly from three to five years—before the sites can be offered for sale. however, you are not prepared to accept the Council's offer i purchase, then you will later be served with the prescribed notice er the Re-Establishment and Employment Act 1945, and in due se Council will proceed to acquire the land by the process of mption.

by affidavit that he or she respectively had not been ached by or on behalf of the Council with any suggestion he or she, as the case might be, should co-operate with the il to re-subdivide that part of his or her land not required the proposed new road and park to the new road proposed to e constructed by the Council or to amalgamate such residue with he residual land of adjoining owners; that apart from the Council's fer to purchase portion of his or her land for the sum stated Council had not consulted his or her wishes or views as regards part of its alleged improvement scheme or the proposed resumptions at all; that the unimproved and improved capital tions of the particular allotment of land concerned were is shown; that improvements of the nature indicated had been ed or effected on the said allotment; that there was nothing

MINISTER For PuRLIC Works v

1 . eed MInisTER For PuBLic Works a Dvoean.

HIGH COURT

in the said allotment which would hinder or create any di in connection with its use as a building site; that if the pro resumption were effected the deponent would be prejudiced i the manner indicated; and that the deponent could not see an purpose, except the purpose of defraying the whole or part of th cost of the new road, in the proposed resumption of that pa

improvement or embellishment of the municipality would | effected by placing such land under Council ownership.

Several of the deponents deposed that at meetings ai by them they had heard the then mayor say, inter alia, that th Council intended to re-subdivide and re-sell the residual lands' a profit to finance the making of the proposed new roadways, that the Council would be unable to carry the scheme into without the profits from the re-sale of the residual land. had not at any time heard the mayor, or any other member representative of the Council, state that the Council propos' carry out any works of any sort on the residual lands or to any physical alteration thereto. One deponent stated that the town clerk had informed him upon inquiry that there were many miles of new roadways proposed to be made for which the re-sa the residual land at a profit was necessary in order to defray cost thereof. Another deponent deposed that the engineer h made a similar statement.

land in the subject locality to design a scheme which it pref and the odd blocks not required would give the vari recommended by town-planners to avoid monotony and individual requirements. There was sufficient area in practi all residual land to enable one lot fronting the existing road one lot fronting the new road to be created without eithi being less than the Council's minimum area.

The town clerk said in cross-examination that, apart from tl resolution made at the meeting held on 25th September the only resolution for resumption made by the Council w: resolution made by it at its meeting held on 17th February l and that no resolution was ever passed by Council to resum the following terms: "the whole or any part of the land for | purpose of the improvement and embellishment of the arei and, further, that the applications dated 8th April and 2! August 1948, respectively, lodged by him with the Mini

OF AUSTRALIA.

Government, were applications for the resumption of land the improvement and embellishment of the area pursuant to . 321 (d) of the Act, his authority therefor being the said resolution f 17th February 1947: the Council's adoption of the scheme nerally through the various reports that had been submitted time to time to the Council; and ordinary general practice.

he engineer said in evidence that some work would be done on he residual land to "make them better from a re-sale point of

n the decision in Thompson v. Council of the Municipality of ick (1) and consequently the plaintiffs were entitled to d. His Honour granted an injunction restraining the dants from taking any further steps pursuant to the resolu- passed by the Council and the applications made by it to Minister to effect a resumption or resumptions of land belonging o the plaintiffs or any of them the resumption of which was atened in connection with what was called " The Oatley Bay ovement Scheme".

om that decision each of the defendants appealed to the High The appeals were consolidated.

Else-Mitchell (with him A. F. Mason), for the appellants. The e proposed was an elaboration of earlier schemes which had n planned in 1936 and which had as their primary object the ovement of the area and the construction of new roads including nk road. The re-subdivision and replanning was desirable, if not ry, in view of the character of the neighbourhood and the lar character of the old subdivisions. The scheme proposed olved a substantial and material improvement in the whole and the land of each plaintiff proposed to be resumed was to e used in every case in three ways :—(a) part was to be used for lic recreation and park lands; (b) part was to be used for the y roads ; and (c) part was to be re-subdivided and sold subject ) appropriate building covenants. The residue of each plaintiff yas left to him and in each case represented appropriately sized ban blocks having an average depth of 150 feet. Such a e in its entire character falls within the Local Government and is authorized, despite the fact that re-sale for profit ne part of the land was contemplated. The decision in yson vy. Council of the Municipality of Randwick (1) is plicable and should be overruled, as it was decided without (1) (1950) 81 C.L.R. 87; 17 L.G.R. 256.

IXXxI.—28

H.C. oF A.

1951. a)

Minister For Pusiie Works v Dueean.

434 HIGH COURT

H.C. or A. reference to important sections of the Act and their hist rene Reliance is placed in this case upon the following provisions of

Munoren Act—ss. 235, 322, 476, 47, 496, 496a, 518, 5184, 532, 535, ror Pusttc These provisions support the acquisition and their scope, in Werks instances, can only be properly determined by looking at t Dvacax. history and the form in which they appeared in the Local ~~ ment Act as it was passed in 1919. A distinction is to be dr between the powers under the Local Government Act and the Ps

which have ee considered in English decisions, pal

meal adres have been in issue. There are widely differ methods by which compulsory acquisition may take place England: Halsbury's Laws of England, 2nd ed., vol. 6, pp. seq. Commercial undertakings had wide powers in England statute: in New South Wales they have never had that power acquisitions in New South Wales have always been by or und ministerial authority, in respect of which the Minister for Publ Works, as the recommending authority to the Executive Coi has had a discretion to refuse to implement the proposed aequi tion. In consequence of the position of commercial unde

exercisable under special Acts and by ad hoc bodies ; and (b of local governing bodies under general Acts. In illustrati (a) the following cases, which decided that more land cannot |

bodies constituted for special or limited purposes: Gard y. missioners of Sewers of the City of London (1); Lynch v. Ct

Railway (3); and J. L. Denman & Co. Ltd. v. Westminster Co po tion (4); see also Halsbury's Laws of England, 2nd ed., vo p- 28, pars. 28, 29. In illustration of (b) the following cases i effect decide that a greater liberality is to be afforded to governing bodies under general statutes and that the te purpose is to be much wider—G@alloway v. Mayor and Common of London (5); Rolls v. London School Board (6); and Quint v. Bristol Corporation (7). The decisions in Clanricarde v. Conges Districts Board for Ireland (8) and Municipal Council of Syd Campbell (9) are in reality only illustrations of the principle fl (1) (1885) 28 Ch. D, 486, at pp. 505, (6) (1884) 27 Ch. D. 639, at p 506, 510. 642, 643. (2) (1886) 32 Ch. D. 72, at pp. 85, 86, (7) (1874) L.R.. 17 Bq. 524, at p. (3) (1868) L.R. 3 Ch. 377, at p. 385. (8) (1914) 79 J.P. 481; 31 TL (4) (1906) 1 Ch. 464, at p. 476. 120.

(5) (1866) L.R. 1 HLL. 34, at pp. 43, (9) (1925) A.C, 338; 7 L.G.R. 6 48, 49, 61, 62.

OF AUSTRALIA.

hoc body cannot acquire for purposes which a person preju- ly affected can prove to be outside a purposive power because he power is co-extensive with the purpose. On the other hand, power, object, or function of a statutory body will be construed e of the purposes for which it is constituted (Wilkinson v. Railway and Dock Co. (1)). In summary the principle of the cases is that a special or ad hoc body established for special limited purposes cannot under a power to resume land take nore land than is proved to be necessary. This distinction is eognized in Halsbury's Laws of England, 2nd ed., vol. 6, p. 31, 29. The Local Government Act establishes democratic dinate legislative bodies with wide general powers not limited to purpose. Section 84 charges a council with the local govern- nt of its area. The powers so conferred include ss. 477, 535 22. Those sections confer powers which are independent of This can be deduced from—(a) the history of the sections mparable provisions in previous Acts; (b) other provisions the Local Government Act 1919; and (c) the character of the as an amending and not merely a consolidating Act. The y of those provisions is as follows: Section 477. Prior to the local governing authorities had no power to resume By the Local Government (Shires) Act 1905, s. 15, a power of esumption was conferred upon shire councils. This power was ower to apply through the Governor (s. 16). The Local Govern- Extension Act 1906 extended those provisions of the Local ent (Shires) Act 1905 to municipalities (s. 36)—these were resumption provisions. The Local Government Act 1906 was a consolidating Act which repealed the earlier Acts and made ision for acquisition in s. 129 and s. 130. These provisions substantially identical with ss. 15 and 16 of the Local Govern- (Shires) Act 1905, and took the form of a power to resume for pose and machinery for resumption. The Local Government

"must therefore be regarded as new and additional. Howarth McMahon (2) was a decision on s. 477, but the resumption e was a fraud on the power as the Council never intended to ry out the declared purpose. That decision is not questioned.

ion 535. The Sydney Corporation (Amending) Act 1900, 26, gave power to resume land required for limited purposes. 8 section was consolidated in s. 197 of the Sydney Corporation

(1882) 20 Ch. D. 323, at pp. 333, (2) (1951) 82 C.L.R. 442; 18 L.G.R. 339, 340. 43.

H.C. or A. 1951. ed

Muster ror Pupiic Works v. Ducean.

H. C. oF A.

1951. ree

MrNisTER FOR PuBLic Works v Dvcean.

HIGH COURT

Act 1902. The Sydney Corporation Amendment Act 1905 provid for resumption with the approval of the Governor for purposes (s. 16). The Sydney Corporation Amendment Act 190

amended A 16 of the 1905 Act by including for the first ti power to resume all lands of which those required for the li purpose formed part. The various Acts, including the Sydne

Act, were caneaigee tn in the Sydney Corporation Act 1932, 's. 2 46. Section 322. The comparable provision prior to 1919 was s. 2 of the Sydney Corporation Amendment Act 1905, which g power in respect of any land purchased or resumed to do a of the following things therein set out. The Local Government Ac 1919 altered the language by providing that the Council may purchase or resume and may thereupon do the following thi therein set out. Some importance must be conceded to change of language. Compared with other provisions of the s. 477 is unrelated to any particular purpose. It occurs Part XXIII. headed " Miscellaneous Powers", all of which purposes or functions. The distinction between Part XX " Miscellaneous Powers? and Part XXIV. " Ancillary Pow and Part XXV. " Acquisition" should be noted. It should a be noted that the " Miscellaneous Powers " are matters compa to those dealt with in Parts XX-XXII. inclusive, but by nature are not of sufficient scope to warrant inclusion as a separé Part. Other provisions of the Local Government Act refer to resu tion or acquisition apart from or in addition to s. 532, nan ss. (2), 238 (1), 261, 262 (2), (6), 322,342 O (a), 365, 384, 3! 417a, 418 (5), 477, 478, 492 (1) (a), 5148 and 535. The nature of the Local Government Act 1919, as appears by the lor title, is an Act to make better provision for the gover areas and to extend the powers and functions of local go' bodies. Some effect must be given to these provisions purportil to extend powers and the Act should not be treated as a consolidation. Parliament has obviously intended to amend law in these respects and its wishes should not be nullified judicial construction (Bismag Ltd. y. Amblins (Chemists) Lid. The wide powers which were thus conferred by the Local ment Act 1919 were subject to the limitations—(a) that the Gov must approve the acquisition and the Council must provi funds (s. 536); (b) that the land once acquired could be disp

(1) (1940) Ch. 667, at pp. 678, 679.

OF AUSTRALIA.

only with the Governor's approval (s. 518 since amended) ; (c) that any fraudulent exercise of power would in any case to review by the Courts. The character of the powers d by ss. 477, 535 and 322 as powers distinct from purpose supported by the following decisions :—Narma v. Bombay icipal Commissioner (1): Jones v. Metropolitan Meat Industry 2) and Werribee Council vy. Kerr (3). Municipal and bodies may have a power of recoupment by statute, as in 5 of the Public Health Act 1925 (Eng.). The right of recoupment nay be implied: Halsbury's Laws of England, 2nd ed., vol. 6, 31, pars. 28, 29. Sections 535 and 477 were clearly intended o give a right to recoupment under the Local Government Act. Criterion Theatres Ltd. v. Sydney Municipal Council (4) is a clear mithority in favour of recoupment under the provisions of the ney Corporation Act, which authorized the resumption of lands nd "all lands of which those lands formed part". This is the ame in substance as s. 535 of the Local Government Act. The in s. 532 of the Local Government Act to acquire land by is identical with the power to acquire compulsorily. The should not be construed to affect titles to land acquired by tion, but a restrictive interpretation of the power to resume hardly have any other effect. The validity of purchases therefore, be justifiable under other provisions such as s. 477 and 322. The doctrine of limited powers conferred on public authorities as set out in Westminster Corporation v. London

d North Western Railway Co. (5) and cited by this Court in v. Municipal Council of Randwick (6), is subject to some

The doctrine of reasonableness, which that decision to lay down, must be regarded as misconceived because sonableness per se is not a test of validity or power (Williams felbourne Corporation (7)). The requirement for by-laws to be onable must be regarded as a branch of the same doctrine as 'referred to in Westminster Corporation v. London and North Railway Co. (8). The only question for inquiry is whether act done or the by-law made is in reality an exercise of power : Brunswick Corporation v. Stewart (9). Summarized the sub- are that s. 532 is the basis of all acquisitions, voluntary pulsory. The purpose it requires is to be found in the

(I) (1918) 45 Ind. App. 125. (5) (1905) A.C. 426, at p. 430. (2) (1925) 37 C.L:R. 252, at pp. 262- (6) (1950) 81 C.L.R., at p. 105; 17 L.G.R., at p. 267.

(3) (1928) 42 C.L.R. 1, at pp. 8-10, (7) (1933) 49 C.L.R. 142. 30, 31. (8) (1905) A.C. 426.

(4) (1935) 35 C.LR. 535; 7 L.G.R. (9) (1941) 65 C.L.R. 88. a

H. C. or A.

1951. eae MrvisTER For Pusiic Works v. Dvaean.

438 HIGH COURT [19

H.C. or A. provisions of ss. 477 and 322. Acquisition is itself the pi

ij must approve and Council must provide the funds; and (b) Se iic the Courts can set aside any exercise which is a fraud on the 'ORKS Dvadax. local government object. The power to acquire for purpo —— eg., parks, roads &c., taken with the wide powers to acqui implies a right of recoupment. The power conferred by s. expressly gives power to acquire adjoining lands, that is, la physically contiguous. Sections 496, 496a and 518a authorize th

scheme, in the light of its history, was not the re-sale of the pa to be acquired.

A. F. Rath, for the respondents. The evidence for the appellant: discloses that the appellant Council's plans are " embryonic There is then no sufficient plan, in the sense that there is not any plan or decision of the Council referable to a purpose of the Local

enable the court to say that it falls within a purpose of the Act

if it is not so advanced, the court will declare the prop acquisition ultra vires. The case law clearly establishes doctrine of ultra vires in the exercise of local government p in the sense that where the power is to be exercised for a p

not only must that purpose exist, but also it must exist in res] of the whole of the land affected by the exercise of power. case of Municipal Council of Sydney v. Campbell (1) is incon the Sydney Corporation Act 1932. Apart from s, 477 of the Government Act 1919-1948, the acquisition powers in both Acts in essence the same, and are similarly expressed. There is n any real difference between s. 322 of the Local Government Ac

of Campbell's Case (2). Section 42 of the Public Works Act 191: read with s. 536 of the Local Government Act, shows that the purpos of the resumption must be expressed, and must be in the natt of an "authorized work". The Public Works Act lays dow rigid conditions for an " authorized work"; and in the same w: a scheme of resumption under the Local Government Act mu

(1) (1925) A.C. 338; 7 L.G.R. 69. (2) (1925) A.C, 3385 7 L.G.R. 69. —

RJ OF AUSTRALIA.

idly conform with an expressed purpose in the Act. Section 477

Act" occurred immediately after the word "resume". This ld bring it in line with s. 322 and would involve reference to

"land" where secondly occurring in the section is co- ive with the word "land " where firstly occurring. The real fect of s. 477 is that it is restrictive in operation ; it means that if the proposed acquisition is for a purpose of the Act, the il must consider also its expediency in the interests of the The principles relevant to the construction of the section set out in Maxwell on Interpretation of Statutes, 9th ed. (1946), 236. An acquisition must be "for", that is, reasonably refer- e to, a purpose of the Act (see s. 532), but to determine whether it ; so referable the Court must consider the nature of the purpose nd the circumstances of the case. Some of the purposes of the \ct are powers to "regulate"; normally an acquisition would not be "for" such a purpose. The Act also contains powers things on land already vested in the Council ; here again an ition would not normally be " for" the purpose of exercising ch powers. In every case the test is: Is the acquisition "for " » purpose, for example, a power to erect and sell houses (s. 496) oes not necessarily involve acquisition: on its true construction stay not permit acquisition at all, or it may permit acquisition e in the particular case' acquisition is reasonably incidental 'the purpose. On the other hand, a power to " provide " would e commonly, but not always, permit acquisition. But it is ificant that in a very important instance—the provision of he Act expressly provides for acquisition (ss. 235 (2), It is arguable that the powers of resumption and purchase the Act are not co-extensive; cf. in s. 22 " for the purposes " "for any purpose " in s. 532. A purpose may be valid where sumption is not. It may be that in any case of purchase, e vests in the Council, whereas in the case of resumption the vests only if the resumption is for a purpose expressed in the Again, it is arguable that a voluntary acquisition may be ', or reasonably referable to, a particular purpose where a mpulsory acquisition would not be so. The power in s. 246 e Sydney Corporation Act 1932 to resume "all lands of which required for such purposes form part " was held to be inde- nt of purpose (Criterion Theatres Ltd. v. Municipal Council

»

H.C. or A.

1951. Ww

MInIsteR FoR Pusiio Works v. Duaean.

440 HIGH COURT

H.C. or A. of Sydney (1) ). The words " form part" indicate a limit to I Aes vision, though it may be a difficult question to construe

jee 5 of the Local Government Act 1919 does not contain am

ror Pusric such limiting provision on the extent of the land that may

ye taken under it. The words "in the vicinity" in s. 535 sho

Ducean. that its scope, and probably its object, are different from ¢l

—— provisions of the Sydney Corporation Act. Section 535

probably inserted in the Act for more abundant caution, in t

a power to resume for a purpose might not include a power to

resume land merely incidental to the purpose, because of thi

extraordinary nature of the power: see Gard v. Commissioner

of Sewers of the City of London (2); and J. L. Denman & Co, Lt

v. Westminster Corporation (3). Section 535, in providing fo

" incidental " resumption, emphasizes the necessity for the purpo

referred to in s. 532. Thus it is not true that s. 535 is meaningless

unless it implies a power of recoupment. The Act contain

separate and elaborate financial provisions, and in particu

s. 121 provides for defraying the expenses of works and se:

The Local Government (Town and Country Planning) Amendm

Act 1945 may give councils wider powers of acquisition, and

present proposal might be a proper "' scheme" under that

but that Act has not been used or relied on in the present cast

Galloway v. Mayor and Commonalty of London (4) shows that

court will imply a power of recoupment in favour of a local gov

ment body only in a clear case. That case was really not a case

of implication at all, for the Act in question gave power to

specific land, and expressly indicated that some of the land m

be used to defray the cost of the works.

R. Else-Mitchell, in reply. The Governor-in-Council, in de whether or not to approve the proposed resumption, had evidence than the application of the Council; the area had inspected by a departmental planning officer in conjunction the Council's engineer: The Minister and the Governor theref propose to exercise an independent discretion. The allegat that the scheme was embryonic does not affect its validity or Council's power to resume land for the purpose of that (Lynch v. Ku-ring-gai Municipal Council (5) ). Lack of d accordingly not a ground for holding a scheme to be outside if the main purpose is within power; the main purpose in

(1) (1926) 35 CLR. 555; 7 L.G.R. (3) (1906) 1 Ch., at pp. 476, 478. —

(4) (1866) L.R. 1 HLL. 34.

(2) (185) 28 Ch. D., at pp. 496, 497, (0) (1047) 16 LGR. 144; aun 507-509, 511, 512. _ LGR. 1

OF AUSTRALIA.

se was public recreation and improvement which was established w back as 1936. Galloway v. Mayor and Commonalty of (1) was not an isolated decision; the principle there ted was applied in other cases in England (Rolls v. London chool Board (2) and Quinton v. Bristol Corporation (3); and in

w Zealand (Wellington City Corporation v. Dealy (4)). The tmentioned decision upheld the acquisition under a New nd Act similar to the Local Government Act not only of lands the lands required for road widening but also the lands to a different owner lying behind those lands. Sec- 192 of the New Zealand Act is similar to s. 535 of the Local went Act 1919. Sections of this character are common in government legislation: for example, s. 592 of the Local ent Act 1928 (Vict.), which authorizes the acquisition of ouring land. Provisions in such legislation authorizing the ition of "adjacent", " adjoining', " neighbouring ", lands or " lands of which the lands required form part " at least authorize

coupment of the cost of a public work to be carried out and ze re-sale of frontages to the new public work to reduce st. The provisions of the Public Health Act 1925 (Eng.), which authorize recoupment are in less specific and narrower than the provisions relied upon. Recoupment is not denied 121 of the Local Government Act and that section does not an equitable method of recoupment because the rate must d on the whole municipality or a ward, or shire or riding : 118-120. The Sydney Corporation Act did not confer wider s than the Local Government Act. The powers in s. 246 ie Sydney Corporation Act are related to purpose in the same y as s. 532 of the Local Government Act. A purpose in relation s is expressed in ss. 75 and 76 of the Sydney Corporation , but those sections confer a separate power of taking land for purposes in precisely the same way as ss. 235 and 238 of the

Government Act. The distinction between Municipal Council ydney v. Campbell (5) and Criterion Theatres Ltd. v. Municipal of Sydney (6) is that the former case related to improve- and remodelling under the Sydney Corporation Act and the

purpose was held to be tainted by original lack of good in the passing of the first resolution for acquisition. The ion Theatres Case (7) related to the widening of a road and d with it expressly the right to acquire additional lands.

(1) (1866) L.R. 1 HLL. 34. (5) (1925) A.C. 338; 7 L.G.R. 69. 1884) 27 Ch. D. 639. (6) (1925) 35 C.L.R. 555; 7 LGR. (1874) L.R. 17 Eq. 524. ies

(1929) N.Z.L.R. 352. (7) (1925) 35 C.L.R. 655; 7 L.G.R. 72

H. C. or A.

1951. W

MINISTER For Pusuic Works

H.C. or A. 'The authority of that case on this question is not affected by |

1951. WwW

Mrsistei For Pv

Works

Dve

June 8.

R EIC

HIGH COURT

decision in Howarth v. McMahon (1). The provisions of tl Local Government Act relating to trade activities are not in poi (see s. 110) and no general power to carry on trading acti outside the area is conferred. Such power exists in limited e such as electricity undertakings (ss. 418 (4), 506). The Government (Town and Country Planning) Amendment Act does not confer any extensive power to resume (s. 342G (3) (1 and s. 3420 (a) are only incidental to a scheme. A council ha power to undertake reclamation work, which was a major of the scheme (s. 494A). The scheme in its entirety was a able and proper one. It was not tentative and it was bona Re-sale was an incidental and not a major feature of the scheme as in Thompson v. Municipal Council of Randwick (2) and h decision is not applicable.

Cur. adv, vult.

The Court delivered the following written judgment :—

This is a consolidated appeal by the defendants from a e the Supreme Court of New South Wales in Equity made on December 1950 by Roper C.J. in Eq. restraining each of them taking any further steps pursuant to resolutions passed by defendant Council and the applications made by it to the def Minister to effect a resumption or resumptions of land belon the plaintiffs or any of them the resumptions of which are threat in connection with what is called the Oatley Bay Improver Scheme. The resolutions in question were passed by the defi Council on Ist April 1946 and 17th February 1947. The first re tion was to the effect that the engineer's special report on the Oatley Bay Reclamation and Improvement Scheme be adopted and the Town Clerk be authorized to negotiate with the various ov

respective holdings. The second resolution was to the effect t steps be taken to acquire the lands required for the scheme a that the following procedure be adopted: (a) Each owner advised by letter of the Council's intention to acquire his land a portion thereof, and an offer made to purchase same at

all legal costs. Such letters to contain an intimation that if owner is desirous of securing an allotment in the area—a improvement and re-subdivision—the Council will place

(1) (1951) 82 C.L.R. 442; 18 L.G.R. (2) (1950) 81 C.L.R. 87; 17 43. 256.

LR.) OF AUSTRALIA.

the value (as determined by the Valuer-General) of his nd or the part thereof to be taken and later allow him to choose in the re-subdivided area and any difference between his dit and the value of the lot chosen (this value also to be deter- by the Valuer-General) to be adjusted in cash either way ; all cases where the Council's offer is not acceptable to the , such owner be given the prescribed notice under the ablishment and Employment Act, 1945, and notified that il intends to make application for the Governor's approval he acquisition of his land by the process of resumption ; (c) In where necessary application be made for the approval the Attorney-General to acquire land from " Members of the s" by resumption; and (d) That in all cases where the mer is not prepared to accept the price offered, the Town Clerk uthorized (1) to make application, under the Council's seal, t the Governor's approval to the resumption of the required ; (2) to deposit with the resuming Department the estimated of resumption; and (3) to give Council's undertaking also seal, to recoup the Department for any expenditure incurred f the amount of such deposit. 'he engineer's report referred to in the resolutions of the Council a report dated 18th March 1946 and related to the resumption he foreshores and reclamation of the mangrove swamps in the West and North-East arms of Oatley Bay. Most of the ned land is to be made into a park. It also referred to is for a new road joining Connel's Point and Oatley to part of a proposed marine drive from Tom Ugly's Point to . It stated that " the proposed new road runs from Connel's int Road opposite Kyle Parade, across the N.E. Arm, through h ly built on area at the foot of Waitara Parade and West , across the N.W. arm and then up the valley between ick and Kitchener Streets te join Frederick Street opposite Street." After claiming certain advantages for this road, ort proceeded to discuss what was called the " Use of dead *. Tt stated that "The properties facing Connel's Point oad and Homedale Crescent have very big depths and practically lout exception the rear portion of the lots is unused. If a road put through as shown on the plans, this dead ground could bdivided for residential sites. The improved value should the cost of resumption and road construction. A con- derable improvement in the area and the new park would result. area between Halstead Street, Rickard Road and Greenacre toad requires replanning. A sketch showing a suitable layout is

H. C. or A.

1951. as

MINISTER For PusLio Works v. Dueean.

Dixon J. Williams J. Kitto J.

H.C.or A. g

1951. a

MrnisTER FoR PuBLic Works

HIGH COURT

of the park. The land fronting Whitfield Parade and Hast also has a big depth and could be similarly treated, al conditions are not as favourable at the northern end. The conto of the land fronting the N.W. Arm do not lend themselves to similar treatment." On 8th April 1948 the Council applied to the defendant Mi under s. 536 of the Local Government Act 1919 as amended for acquisition by resumption for the purpose of the improve and embellishment of the area under s. 321 of the Act of the lands of those owners required for the scheme who were unwilling t sell voluntarily. The statement of claim in the suit was issued on 21st Septemb 1950. On 25th September 1950 the defendant Council p: a resolution which stated, inter alia, that the purpose improvement and embellishment of the area (s. 321) " as expr in the resolution of 17th February 1947 and in the applicati submitted to the Minister was intended by the Council to me and include the following purposes and powers which the Cou is authorized under the Local Government Act 1919 to unde and exercise, namely: (a) the planning of new roads and | divisions, vide s. (a) of the Local Government Act 1919; (b) re-arrangement of parcels of land vide s. 321 (b) of the J Government Act 1919; (c) the improvement and embellii of the area vide s. 321 (d) of the Local Government Act 1919 ; (i provision, control and management by the said Council of grounds for public health, recreation, convenience and enjoyment vide 348 of the Local Government Act 1919 ; (e) the resumption of land

«

and (f) the resumption of land under and for the purposes of s. of the Local Government Act 1919.

The total area proposed to be reclaimed or acquired yolunt or by resumption comprises 119 acres, of which 85 acres are

sale. The plaintiffs do not object to the proposed resumpti so much of their land as is required for the new road and

land as is not required for these purposes. This land is convenier referred to in the statement of claim and in the judg Roper C.J. in Eq. as the residual lands. In the course

OF AUSTRALIA.

ese resumptions it would no doubt effect some re-subdivision f the residual lands before submitting them for sale, at the same e if they were left in the hands of the plaintiffs, the plaintiffs without having to co-operate with other persons effect ision of their lands so as to give them frontages to the roposed new road, and could sell them in that form of sub-division. he resolutions I think of the Council, and in particular the reports which they are based, the report of the engineer and the of the Town Clerk, indicate, I think, that the question of le of residual lands was a matter of importance to the Council, that the proposed profit on the re-sale which the engineer suggested would cover the cost of the resumption and of the making was a material and vital consideration in the Council in wing of the resumption of the residual lands of the plaintiffs. s put that that conclusion did not necessarily follow at this because one could not find that the plan of the Council had hed a stage of maturity under which it was a matter of any ity that the roads in question would be built, and if they were built, then it was suggested that the whole of the resumed land d be used for park lands, and that would be a proper purpose under the provisions of the Act dealing with improvement embellishment of the municipality or under some other pro- ions of the Act. I think there are two answers to that argument, ie being that if the proposal of the Council is so ill-defined at the time that the resumption might be effected for purposes h are proper or for purposes which are improper, then the to resume is improper at the present time. The other that it is, in my opinion, clear from the resolution of the il that the Council did propose and does propose to re- wide and re-sell the residual lands referred to in this case. king offers to each of the plaintiffs, and in the resolution

they would have a right to acquire one of the blocks on the bdivision of the area. In that set of circumstances it appears me that this case is only distinguishable from Thompson v.

ie facts from the recent decision of this Court in Thompson ick Municipal Council (1). It was not disputed that it

H. C. or A.

1951. —

Minister ror Pustic Works v. Duaean.

Dixon J. Williams J. Kitto J.

H. C. oF A. 1951. Ww

'Minister For PurLic Works v. Ducean.

Dixon J. Williams J. Kitto J.

HIGH COURT

to make a profit out of their re-sale, and that no attempt have been made to resume these lands if it had not been the of the defendant Council to reduce the cost of the constru the new road in this way. The resolution of the defendant ( of 25th September 1950 passed after the issue of the state

reconsideration of the scheme by the Council and adds no to its validity. It was evidently passed after legal advice had be obtained and was intended to support the arguments which been addressed to us. The object of the appeal really persuade the Court that in Thompson v. Randwick Mu Council (1) there were important sections of the Local Goi Act and other considerations to which insufficient weight had given and that the case was wrongly decided and should not followed. : Section 532, which appears in Part XXV. of the Local n ment Act headed " Acquisition of Land", provides that "1 Council may acquire land within or outside the area for purpose of this Act by lease, purchase, appropriation, or res! in accordance with this Part". It was admitted that this is the basis of all acquisitions of land voluntarily or compu by local governing bodies. But it was submitted that ss. 477 322 confer powers of acquisition on Councils which are in selves " purposes of this Act" within the meaning of s. 532 a that if a Council bona fide resolves to exercise these pow acquisition of the intended lands is a purpose within the m of s. 532 and that the only restriction on carrying out this pi is that the Governor-in-Council must approve and the must provide the necessary funds. It was contended that jurisdiction of the Courts to interfere is restricted to cases the exercise of the power of acquisition conferred hy these s is not bona fide or where, in the case of s. 477, it is clear acquisition could not be in the interests of the area or, in the of s, 322, it is clear that the acquisition could not be for one of t purposes defined in pars. (a) to (h) of that section. It is t1 s, 477 is not referred to in the judgment of this Court in Tho v. Randwick Municipal Council (1). But it was certai overlooked when the Court was considering its opinion. more recent case of Howarth v. McMahon (2) the meaning section was carefully considered by this Court and the opinic

(1) (1950) 81 C.L.R. 87; 17 L.G.R. (2) (1951) 82 C.L.R. 442; 18 256. 43.

R.] OF AUSTRALIA.

e expressed that "the vagueness of the expressions employed provision affords no warrant for giving it a more generous than s. 532. On the contrary it suggests that it is an inci- | power depending upon specific powers the exercise of which or the acquisition of land. No machinery is supplied outside V. for acquiring land when s. 477 is invoked ".

the argument of the present appeal the previous history sections and of the origin of the powers of local governing ies to resume land were fully explored. But we do not think is history throws any real light on the meaning of these ms in the structure of the present Act. Section 477 appears have been imported from South Africa and had no previous tory in Australia. Section 322 appears to be derived from 22 of the Sydney Corporation Amendment Act 1905, which gave er to the Municipal Council of Sydney in respect of any land ased or resumed by the Council under the authority of the do most of the things included in s. 322. Some importance, s submitted, must be conceded to the alteration of language 322, which provides that the Council may purchase or resume, ewhere in this Act provided, any land, and may thereupon or any of the things therein described. But the words is elsewhere in this Act provided " and the word " thereupon " 322 appear to us to confine the operation of the section, like of the Sydney Corporation Amendment Act, to the doing of upon land purchased or resumed for some purpose elsewhere led in the Local Government Act. We see no reason whatever onsidering the meaning placed upon this section in Thompson wick Municipal Council (1), where it is said: "In our uon this section does not confer a power to purchase or resume ntly of purpose, nor does it enumerate purposes for which or resumptions may be made. Its operation is to confer hich may be exercised with respect to land when purchased umed for a purpose authorized elsewhere in the Act ".

were also referred to ss. 496, 496A and 518a of the Act and s submitted that these sections authorize the acquisition of for housing purposes. It may well be that s. 496 does so, ere is no evidence that the defendant Council proposes to e the residual lands of the plaintiffs for such a purpose. evidence is all to the contrary, for it is part of the present hat any owner who agrees to sell his land to the Council have the option of purchasing a lot in the new sub-division. e sections are not mentioned in any resolution of the Council,

(1) (1950) 81 C.L.R., at p. 103; 17 L.G.R., at p. 266,

H. C. or A. Si

a

Mrvister ror Pusiic Works

mn J Williams J. Kitto J.

H. C. or A. 1951. pues

Minister For Punic Works v Dvueean.

Dixon J. Williams J. Kitto J.

HIGH COURT

not even in the resolution of 25th September 1950, or in the of the engineer, and cannot assist the defendants. 4 The crucial question on the appeal is whether the Local Gover ment Act authorizes a Council to acquire land with a view to re at a profit so as to recoup itself for the expenditure or part of expenditure on some authorized work. Section 321 (d) of the : was construed by this Court in Thompson v. Randwick Mi Council (1) to mean that the undertaking of the improvement embellishment of the area involves at least some physical imy ment or embellishment of the area. '" This power authorizes Council itself to undertake work which can be said to be an imy ment or embellishment of the area and provides a purpose which the council may acquire the land on which the work is done" (2). From that construction we see no reason to d The physical work which the Council proposes to undertake ii in th present case is the reclamation of the swamp area, the n the park lands and the construction of the new road. The tion of the land necessary for these purposes is authorized ss. 235 and 321 (d) of the Act. The Council does not prop do any work on the residual lands. It merely proposes to subdivide and sell them, The acquisition of land for this p is not authorized by s. 321 (d) of the Act. But it was cont that ss. 477 and 535 are clearly intended to give a right to ment. As we have already said, it was contended that the of acquisition referred to in these sections are in themselves pendent purposes within the meaning of s. 532 of the Act. have already rejected that contention in Thompson v. Randi Municipal Council (1) and Howarth v. McMahon (3). 5 The only purposes within the meaning of s. 532 that emer, the present case are the purpose of constructing the new and the purpose of undertaking the improvement and emb ment of the area within the meaning of s. 321 (d), And we not prepared to hold that either s, 477 or s. 535 confers a right to acquire land for the purpose of recoupment as incident these or any other express purposes. Section 477 in terms author the Council to purchase or resume land within or outside the ar It may do so in any case where the Council deems it exped ¥ acquire, hold, sell or let such land in the interests of the area. must always be in the interests of the area considered as a whol to acquire land if by so doing it can be re-sold at a profit and

(1) (1950) 81 C.L.R. 87; 17 L.G.R, (8) (1951) 82 CLLR. 442; 18 LG 256. 43. 3

fa

(2) (1950) 81 C.LR., at p. 104; 17 L.GR., at p. 267.

OF AUSTRALIA.

profit applied as part of the revenue of the Council. If s. 477 thorizes recoupment a Council could embark on a plan of iring land anywhere in New South Wales which it thought ld re-sell at a profit. The consent of the Minister would only quired where the acquisition was by compulsion. Section 535 s that " Where the council proposes to acquire land for purpose it may also acquire other land adjoining or in the y If this section authorizes recoupment, the power of isition for this purpose would be almost as wide as under s. 477 use s. 531 (1) (c) provides that in respect of any area Part XXV. apply to land within or outside the area. The case of Criterion weatres Ltd. v. Sydney Municipal Council (1) was strongly relied by the appellants. The legislation there in question and in ficular s. 16 of the Sydney Corporation Amendment Act 1905 amended provided that "the Council may from time to time th the approval of the Governor . . . purchase or resume ill lands required for the opening of new public ways or the widen- enlarging, or extending of public ways in the city, and all lands which those required for such purposes form part, . . . and any land required for carrying out improvements in or remodelling any portion of the said city ". The only work which the Municipal Council of Sydney proposed to do was to widen Park Street. It had not considered the question of carrying out improvements in or remodelling any portion of the city. Part only of the lands nting Park Street were required to widen the street. But the uncil resolved to resume that part of these lands required to n Park Street for that purpose and the remainder of these for carrying out improvements and remodelling that portion of the city in the vicinity of that public way. And the whole of

effective because part of the lands was required to widen tk Street and this authorized the resumption of all the lands Which the lands required for this purpose formed part. There in our opinion, no real resemblance between s. 16 of the Sydney 'ion (Amendment) Act and ss. 477 and 535 of the Local ment Act, because the latter sections are not, like the former mn, limited to any specific land.

e question when the whole of a person's lands may be acquired

ish legislation often specifies the lands that may be resumed (1) (1925) 35 C.LR. 555; 7 L.G.R. 72.

H. C. or A.

1951. Se

Minister For PuBLio Works ". Ducean.

Dixon J. Williams J. Kitto J.

H. C. oF A. 51. ces Minister For Pusuice Works v. Duaean,

Dixon J. 'Williams J. Kitto J.

HIGH COURT

for the statutory purpose. Even so, if the land is resumed the benefit of a body trading for private gain, such as a company, the body may usually be restrained from resu more of the land so specified than is actually required for th particular work. Public bodies usually may resume the w of such lands although parts only are required for the parti purpose with a view to re-selling the residue at a profit, these are all cases where the public body is on the face of statute authorized to acquire the whole of the land and the empowered to re-sell the surplus land. In Galloway's Case (1), where the English decisions are reviewed, Lord Cranworth L 0, 8

tee ees guile are etait or referred to in a Bictia to the Act. In later Acts the practice has been to have them all described in a book called the book of reference, deposited with the clerk of the peace accompanied by a map or ground plant " (2 The difference between sections authorizing the acquisition specific land and wide sections like s. 477 and s. 535 of the Government Act is discussed in the judgment of Kay J. (as then was) in Gard v. Commissioners of Sewers of the City of don (3) and on appeal by Baggally L.J., Kay J. said :—* there is a very wide distinction between this and the case of Galloway v. Mayor and Commonalty of London (4). Tn that

Act; they were actually defined by boundaries and quanti and the words of the Act were that they might take all those land which not only showed the extent to which they were to go,

of land which they were to take. There is nothing of that in this statute. It contains no schedule. There is no limit ¥ ever upon the lands which are to be taken, save such as is con prised in the words which I have read, and that makes an eno difference between the two cases". An example of a sec England which impliedly authorizes the acquisition of land for tl purposes of recoupment is to be found (according to the text ¥ Lord Macmillan's Local Government Law and Administratio England and Wales, 1934, vol. 2, p. 42; Halsbury's Laws of Engla 2nd ed., vol. 6, p. 31) in s. 83 of the Public Health Act 1925, ¥ provides that for removing doubts it is declared that the purp mentioned in s. 154 of the Public Health Act 1875 (which

(1) (1866) L.R. 1 HLL. 34. (3) (1885) 28 Ch. D. 486, at pp. 406, (2) (1866) L.R. 1 HLL., at pp. 45, 46. 497, 509. (4) (1866) L.R. 1 HLL. 34.

OF AUSTRALIA.

herwise improving any street or for the making of any street) de the improvement and development of frontages or of lands on or adjacent to any street. This section includes an reference to the improvement and development of frontages lands abutting on or adjacent to any street which indicates such frontages or lands can be purchased for this purpose is limited to lands which would be likely to benefit from the done.

'The fact that in s. 477 there is no limit by reference to their ituation upon the lands which may be acquired is in itself a very g reason for rejecting the contention that the section enables uuncil to acquire lands compulsorily for purposes of recoup- only. In s. 535 there is a limitation to land adjoining or in vicinity, but that is so wide and vague a description that the e reason against such an interpretation remains applicable. nds could be acquired which did not benefit in any way from the ar expenditure simply because the local governing body the opportunity of re-selling them at a profit. In Perpetual ecutors and Trustees' Association of Australia Ltd. v. Federal issioner of Taxation (Thomas's Case) (1) this Court had itly to consider, not for the first time, the circumstances in h it will reverse one of its own decisions. It was pointed out this Court is not bound by its own previous decisions so as solutely to preclude reconsideration of a principle approved and plied in a previous case. But the exceptions to the rule are eptions which should be allowed only with great caution and na clear case. In the present case we can see no reason what- ver for departing from the construction placed upon the various s of the Local Government Act considered in Thompson v. Municipal Council (2) and Howarth v. McMahon (3). is nothing in ss. 477 or 535 to indicate that Parliament ded that local governing bodies should be authorized to acquire d for purely financial reasons. Section 121 of the Act provides a tecognized means by which such a body can recoup itself for al expenditure which benefits a particular portion of its area. e submission that the facts that such a body must obtain the P of the Governor-in-Council and provide the necessary before it can resume land indicates that these are the safe- intended by the Act against the resumption of land for an

(1) (1949) 77 C.L.R. 493. (3) (1951) 82 C.L.R. 442; 18 L.G.R. (2) (1950) 81 C.L.R. 87; 17 L.G.R. 43. ; 256.

1951. Ww Minister For PuBLIc Works v. Duacay.

Dixon J. Williams J. Kitto J.

452 HIGH COURT

H.C. of A. unlawful purpose cannot be accepted. The submission is q)

eas inconsistent with the decision of the Privy Council in Muniei Muster Council of Sydney v. Campbell (1) as this Court pointed vor Pustic Criterion Theatres Ltd. v. Sydney Municipal Council (2).

ve clearly a judicial function to determine what is a purpose it Duccan. the meaning of s. 532 of the Act. é

The appeals should be dismissed with costs.

Dixon J. Williams J.

Kitto J. 4 Appeals dismissed with costs,

Solicitor for the appellant Minister, 7. P. McRae, Crown Solicit

for New South Wales. 7 Solicitor for the appellant Council, H. R. Seabrook & Co,

Solicitors for the respondents, McMaster, Holland & Co,

(1) (1925) A.C. 338; 7 L.G.R. 69. (2) (1925) 35 C.L.R. 5555 7 ips