Bone v Mothershaw

In the case of Bone v Mothershaw, the dispute arose from the validity of a by-law enacted by the Brisbane City Council that prohibited the removal and forced the replacement of trees on private property. The case was heard in the Queensland Court of Appeal. The primary issue before the court was whether the by-law, which was enacted under the authority of section 36(3) of the City of Brisbane Act 1924, was valid given its potential inconsistency with both the authorizing statute and the common law.

The court examined whether the by-law was repugnant to the City of Brisbane Act 1924, particularly in light of the amendment that introduced the term "the environment." The court also considered whether the by-law was unreasonable and whether it suffered from vagueness and uncertainty. The primary focus was on the interpretation of the word "any" in the by-law and whether the requirement for action to be taken to the satisfaction of the local authority created an element of fatal uncertainty.

The Queensland Court of Appeal concluded that the by-law was not repugnant to the authorizing statute and did not contravene common law principles. The court found that the by-law was not unreasonably beyond the power of the Brisbane City Council. Additionally, the court held that the use of the term "any" and the requirement for action to be taken to the satisfaction of the local authority did not render the by-law fatally uncertain. Therefore, the by-law was upheld as valid.

The application for leave to appeal was dismissed with costs. The court found that the by-law was within the powers granted by the City of Brisbane Act 1924 and did not conflict with common law, nor was it rendered invalid by vagueness or uncertainty.