Brunswick City v Baker - [1916] HCA 84

THE MAYOR, COUNCILLORS AND CITIZENS

OF THE CITY OF BRUNSWICK

COMPLAINANTS, BAKER

ON APPEAL FROM THE SUPREME COURT OF Local Government-Streets, formation of-Contribution to cost-Street set out on H. C. OF

private properly-Dedication to public-Public highway-Setting out of street -Distribution of cost, scheme of-Local Government Act 1915 (Vict.) (No. 2686), secs. 526, 527, 532, 537.

Sec. 526 (1) of the Local Government Act 1915 (Vict.) provides that "In case-(a) Any street road lane yard or passage or other premises formed or set out on private property, or (b) Any street road lane or passage formed or set out on land of the Crown or of any public body in such manner as to form means of back access to or drainage from property adjacent to such

21 CLR 408

street road lane or passage, whether the same respectively is dedicated to the public as a highway or not, or any part or parts of the same respectively is or are not formed levelled drained paved flagged macadamized or otherwise made good to the satisfaction of the council of the municipality, such council may form level drain pave flag macadamize or otherwise make good the same or any part or parts thereof to the satisfaction of the council and may either before or after SO doing recover the cost of SO doing from the owners of the premises fronting adjoining or abutting upon such parts thereof as may require to be formed levelled drained paved flagged macadamized or made good in manner hereinafter appearing."

Held, that the words "dedicated to the public as a highway' in that sub- section include the case of a street the dedication of which has been accepted by the public SO that the street has become a public highway.

Spear v. Mayor &. of Williamstown, (1916) V.L.R., 96; 37 A.L.T., 170, Held also, that a street is " set out' within the meaning of sec. 526 if it is indicated on the ground, and whether it is SO indicated is a question of

Metropolitan Bank Ltd. v. Mayor &. of Camberwell, (1909) V.L.R., 82: 30 A.L.T., 151, approved.

Held further, that a municipal council, for the purpose of distributing the cost of constructing a street under the power conferred by sec. 526, may treat the street as divided into two equal parts by a line running along its entire length, and may apportion the cost of the work done on one side of the line among the owners of the premises fronting the street on that side.

Decision of the Supreme Court of Victoria reversed.

APPEAL from the Supreme Court of Victoria.

At the Court of Petty Sessions at Brunswick on 10th March 1916 a complaint was heard whereby the Mayor, Councillors and Citizens of the City of Brunswick sought to recover from Ada Merinda Baker the sum of £16 12s. 2d., being a portion of the cost of forming, paving, levelling, draining and making good a private street known as Centennial…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brunswick City v Baker

Details

AGLC: Brunswick City v Baker [1916] HCA 84
Case: [1916] HCA 84
Decision Date: 9 June 1916

CaseChat Overview and Summary

The Mayor, Councillors and Citizens of the City of Brunswick (the Council) appealed to the High Court of Australia from a decision of the Supreme Court of Victoria. The dispute concerned the Council's attempt to recover a portion of the cost of forming, paving, levelling, draining, and making good Centennial Avenue from Ada Merinda Baker, a property owner whose land fronted the northern side of the avenue. The Council sought to recover these costs under the provisions of the *Local Government Act 1915* (Vic.).

The legal issues before the High Court were whether Centennial Avenue, having become a public highway, was still subject to the cost-recovery provisions of the *Local Government Act 1915* for works done on it, and whether the Council's scheme for distributing the cost of these works was valid. Specifically, the Court had to determine the meaning of "dedicated to the public as a highway" within section 526 of the Act, and whether a street was considered "set out" if it was merely indicated on the ground. The Court also considered whether a council could apportion the cost of street works by dividing the street into two equal halves along its length and charging owners on one side for the work done on that side.

The High Court, in allowing the appeal, reasoned that the phrase "dedicated to the public as a highway" in section 526 includes streets that have been accepted by the public and have become public highways. This interpretation was based on a detailed examination of the legislative history and the context of the provisions, distinguishing it from a prior Supreme Court decision. The Court affirmed that a street is "set out" if it is indicated on the ground, and found that Centennial Avenue met this criterion. Furthermore, the Court held that a municipal council has the power to distribute the cost of street construction by dividing the street into halves and apportioning the cost of work on one side to the owners on that side, provided the scheme is equitable and properly adopted. The Court found that the evidence supported the finding that Centennial Avenue was set out to its full width and that the Council had complied with the statutory requirements for estimating costs and distributing them.

Consequently, the High Court allowed the appeal, discharged the order of the Supreme Court, and made absolute an order to review the decision of the Court of Petty Sessions. The claim of the Council against Ms. Baker was allowed, with the appellants to pay the respondent's costs of the appeal.

Orders