Brunswick City v Baker

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.