City of Tea Tree Gully v City of Campbelltown No. Scgrg-97-891 Judgment No. S6395

[1997] SASC 6395

Corporation of the City of Tea Tree Gully v Minister for Local Government and Corporation of the City of Campbelltown

Civil

Debelle J

At Dernancourt, a ford crosses the River Torrens.  At that point the River Torrens forms the boundary between the Corporation of the City of Tea Tree Gully ("the Tea Tree Gully Council") and the Corporation of the City of Campbelltown ("the Campbelltown Council").  The boundary is the centre of the river: s872 of the Local Government Act.  On the Tea Tree Gully side of the river, a road leading to the ford is called Reids Road.  On the Campbelltown side, it is called Silkes Road.  The ford has been used by pedestrians and vehicular traffic for a long time.  There is no other place between the foothills of the Mt Lofty Ranges and the Lower North East Road where it is possible to cross the river.  The Tea Tree Gully Council wishes to close the ford.  The Campbelltown Council opposes that course.

A Procedure to Resolve Council Disputes

The Local Government Act, 1934 provides a procedure for the determination of differences between councils. It is a provision which has been rarely used.  I do not recall an instance and counsel, who both have long and extensive experience in local government law, could recall only one instance of its use. It is sufficient to refer only to s721(1), which provides:

1. All differences arising between any two or more councils relating to the carrying out of the provisions of this Act, or to the fulfilment and exercise of the duties, powers, privileges or authorities of any such council, will be decided by a person appointed by the Minister on the petition of either of the contending councils."

The Campbelltown Council petitioned the Minister for Local Government pursuant to s721.  In its petition, the Campbelltown Council asserted that a difference existed between the councils concerning the intended closure of the ford, and asked the Minister to appoint a person to decide the difference.  The Minister appointed Mrs Stevens, a former District Court Judge.  Mrs Stevens has conducted some preliminary hearings.  At a hearing on 11 June 1997 the Tea Tree Gully Council submitted that, on the face of the petition, there was no difference between the councils within the meaning of s721, and that Mrs Stevens should proceed no further with the inquiry.  Mrs Stevens rejected that application.  On 16 May 1997, counsel for the Tea Tree Gully Council informed Mrs Stevens that the Council proposed to take these proceedings.  Mrs Stevens thereupon adjourned the inquiry.

An Application for Judicial Review

In this application for judicial review, the Tea Tree Gully Council seeks:

1 An order in the nature of certiorari quashing both the decision of Mrs Stevens that the petition raises a difference between the councils within the meaning of s721 and her decision that she is obliged to decide the difference.
2 A declaration that the petition does not disclose any difference arising between the Campbelltown Council and the Tea Tree Gully Council within the meaning of s721 which requires a decision by the Minister pursuant to s721.
3 An order in the nature of prohibition prohibiting Mrs Stevens from acting upon the petition as the appointee of the Minister.

There are three defendants to this application, the Tea Tree Gully Council, the Minister and Mrs Stevens.  The Minister and Mrs Stevens have stated that they will abide by the order of the court.

The Ford is Closed

Before examining the legal issues, I note the events leading to the closure of the ford. 

On 31 October 1995 Tea Tree Gully Council resolved to undertake a review of traffic management in the area of Highbury and Dernancourt.  Later, on 30 January 1996, the Council appointed what it called an "Advisory Sub-committee".  The sub-committee embarked on a process which included public consultation, as well as liaison with the Campbelltown Council.  The sub-committee reported on 18 November 1996.  The report considered two proposals called "Traffic Management Strategies".  The sub-committee recommended to the Council that it adopt Strategy 2.  Among other things, Strategy 2 involved prohibiting motor vehicles using the ford.  The Tea Tree Gully Council adopted the report at its meeting on 26 November 1996.

At a meeting on 25 March 1997 the Council resolved to implement Stage 1 of Strategy 2 by passing a resolution pursuant to s359 of the Local Government Act prohibiting the use of the ford by all vehicles except bicycles.  The resolution was expressed in these terms:

"That pursuant to Section 359 of the Local Government Act, 1934, all vehicles with the exception of bicycles be excluded generally from that portion of Reids Road, Highbury which lies between 5 metres and 50 metres south of the southern boundary of the intersection of Mahogany Avenue and Reids Road as detailed in Drawing No. 231/97/T/5796 and that subject to the Road Traffic Act, 1961 barricades and other control devices as are necessary to give effect to this resolution be erected."

Notice of the resolution was published pursuant to s359(4) of the Local Government Act. On 27 March 1997 the Council received approval in writing under the Road Traffic Act to install traffic control devices in order to implement its resolution.

A Petition is Lodged

On 4 April 1997 the Council commenced the works necessary to prohibit vehicular access over the ford.  On 28 April the Campbelltown delivered its petition to the Minister.  Omitting its formal parts, the petition reads:

1. The Corporation of the City of Campbelltown is a Municipal Council within the meaning of the Local Government Act, 1934;

1. The City of Tea Tree Gully is a Municipal Council within the meaning of the Local Government Act, 1934;

1. A difference within the meaning of Section 721 of the Local Government Act, 1934, has arisen between the Corporation of the City of Campbelltown and the Corporation of the City of Tea Tree Gully by virtue of the resolution set out hereunder, carried at a duly convened meeting of the City of Tea Tree Gully on the 25th day of March, 1997, the effect of which was to close portion of Reids Road, Highbury -

"That pursuant to Section 359 of the Local Government Act, 1934 all vehicles with the exception of bicycles are excluded generally from that portion of Reids Road, Highbury, which lies between 5 metres and 50 metres south of the southern boundary of the intersection of Mahogany Avenue and Reids Road as detailed on Drawing No 231/97/T/5796 and that subject to the Road Transport (sic) Act, 1961 barricades and other control devices as are necessary to give effect to this resolution be erected."

1. The Corporation of the City of Campbelltown submits that the closing of portion of Reids Road, Highbury by the City of Tea Tree Gully, a decision arising from the carrying out by the City of Tea Tree Gully of an action pursuant to the provisions of the Local Government Act, 1934, interfered with the exercise of the duties, powers or privileges of the City of Campbelltown and its ability to give effect to the objects and general responsibilities of a local government authority.

1. The City of Campbelltown submits the following matters are relevant to this matter:-
   5.1     Reids Road, Highbury, in the area of the City of Tea Tree Gully becomes Silkes Road, Paradise in the City of Campbelltown when the roads meet at the centre of a concrete ford in the River Torrens which forms the common boundary between the two Council areas.

5.2     Silkes Road and Reids Road have historically formed a valuable link in the local road network.

5.3         No other crossing place exists between the Mount Lofty foothills at Athelstone and Lower North East Road at Paradise.

5.4     The crossing is an important access for families from Highbury and Dernancourt taking their children to the Paradise Primary School.

5.5     The South Australian Police Department - North East Division, in a  submission to the City of Campbelltown said:-
         "The Reids Road - Silkes Road ford is considered a necessary access road by police within the Metro North East Division.  Should it be permanently closed, it will deprive us of one of only two access roads between the two Sub-Divisions, and may impact on response times to serious incidents, and would also limit the options to divert traffic in the case of emergencies such as a serious road crash on Lower North East Road near the Paradise bridge."

5.6     Other emergency service representatives have verbally expressed concern that the closure of the ford impacts on their response times and service availability.

5.7     It has been reported that small businesses in the Dernancourt Shopping Centre are concerned that the closure of the ford has had a negative economic impact on them.

5.8     A community survey conducted by the City of Campbelltown, as part of its consideration of the proposal to close the ford, demonstrated that there is a significant body of opinion in the community in favour of retaining the ford crossing.

5.9 Legal advice taken by the City of Campbelltown is to the effect that the City of Tea Tree Gully has exceeded the powers vested in it under the Local Government Act, 1934 and the Road Traffic Act, 1961 by removing the road pavement in Reids Road, Highbury as part of the traffic control measures put in place to close portion of Reids Road.

6.0     The City of Campbelltown recognises that the present traffic volume of 6,000 vehicles per day in Reids Road and Silkes Road is too high and the Council is prepared to work with the City of Tea Tree Gully to consider traffic control measures to reduce the volume of traffic.

The City of Campbelltown therefore respectfully asks that you exercise the powers vested in you pursuant to Section 721 of the Local Government Act, 1934, to -

A.     Conduct an inquiry into the difference between the City of Tea Tree Gully and the City of Campbelltown arising from the decision taken by the City of Tea Tree Gully on the 25th March, 1997, to close portion of Reids Road, Highbury.

B.     Ensure such an inquiry is a public inquiry and that members of the public are entitled to make written submissions and to give evidence in person.

C.     To make an interim order pursuant to Section 721(2)(f) of the Act that all further works in relation to the closure of portion of Reids Road, Highbury, or alteration to the approaches to the ford cease until the matter is resolved."

No Issue as to Standing

There is no challenge to the standing of the Campbelltown Council to lodge the petition.  The functions of a council include representing or promoting the interests of its ratepayers and residents: s196(c) of the Local Government Act.  It is, therefore, appropriate for the Campbelltown Council to lodge the petition on behalf of those of its residents and ratepayers who drive motor vehicles across the ford.  Further, the Campbelltown Council has an interest in streets and roads and traffic management in its area.

Does a Difference Exist?

The only ground on which the Tea Tree Gully Council brings this application is that there is no difference between it and the Campbelltown Council within the meaning of s721. The word "difference" should be given its natural and ordinary meaning unless some other course is clearly required. It is a word of relatively wide denotation. It refers to the state or relation of being different and, hence, denotes a disagreement, a dispute or quarrel: see Macquarie Dictionary and Shorter Oxford English Dictionary. As the Shorter Oxford English Dictionary notes, a difference can involve various shades of intensity from a simple estrangement or dispute to open hostility. Thus, its meaning ranges from a mere difference of opinion, through a logical argument, to a heated contention or quarrel. The law has not departed from the meaning adopted in ordinary usage. The word "difference" is frequently used in the definition of arbitration agreements. It has been held to denote a difference of opinion: London and North Western and Great Western Joint Railway Cos v J H Billington Ltd [1899] AC 79 at 81, and to a failure to agree: Attorney-General v Barker Bros [1976] 2 NZLR 495 at 502. No purpose is to be served by seeking to multiply examples. In order to qualify as a difference to which s721 of the Local Government Act refers, the difference must relate to the carrying out of the provisions of the Act or to the fulfilment and exercise of the duties, powers, privileges or authorities of a council. The width of the operation of s721 is emphasised by the fact that its operation is not limited to differences between neighbouring councils.

Mr Hayes QC, who appeared for the Tea Tree Gully Council, submits that, no matter how widely the word "difference" might be defined, there is no difference between these councils within the meaning of s721. He submits that the provision is not intended to deal with those cases where a council has lawfully exercised its powers, and the exercise of those powers has an effect upon another council. Instead, he says, it is concerned with differences arising between councils in relation to common acts or activities which both councils are proposing to carry out, and where each contends for a different method of carrying out the activity. He gives as an example differences arising between councils in the performance of joint undertakings. He relies on Municipal Council of Ryde v Municipal Council of Hunters Hill (1927) 27 SR (NSW) 459 at 472. But that decision does not have the force for which Mr Hayes contends. In that case, the court was dealing with an argument that s654 of the Local Government Act, 1919 (NSW), a provision in very similar terms to s721, ousted the jurisdiction of the court to grant an injunction. It was not concerned to examine the operation of the provision generally.

While s721 may well be intended to deal with differences of the kind identified by Mr Hayes, it is not limited to them. There is nothing in s721, nor elsewhere in the Local Government Act, which justifies restricting the operation of the provision in the manner for which Mr Hayes contends. Further, the contention seeks to restrict the operation of the word "difference" in a way which would emasculate the operation of the provision. It is apparent that, by using the word "difference", Parliament intended that the procedure would be available for the resolution of a wide variety of disputes arising out of the exercise by a council of its duties, powers, privileges and authorities, or in some other way relating to a council carrying out the provisions of the Local Government Act: Attorney-General v President etc. of the Shire of Preston (1902) 28 VLR 402 per Madden CJ at 407. Parliament has provided in s721 a procedure which enables councils to settle disagreements or disputes by a means other than litigation and the provision should not receive the restricted interpretation for which Mr Hayes contends.

It is apparent from the petition that Campbelltown Council does not share the view of the Tea Tree Gully Council that the ford should be closed  to motor vehicles and, therefore, has at least a difference of opinion, if not a disagreement or dispute,  with the Tea Tree Gully Council on that issue.  That difference of opinion concerns the exercise by the Tea Tree Gully Council of its powers pursuant to s359 of the Local Government Act, as well as its powers generally in relation to roads and traffic management.  Thus, there is a difference between the councils and that difference concerns the exercise by the Tea Tree Gully Council of its powers under the Local Government Act.  In other words, it is a difference of the kind to which s721 refers.

Mr Hayes did not press an argument that he had advanced before Mrs Stevens to the effect that the petition on its face did not disclose a difference between the Councils.  He relied on paragraph 4 of the petition, which asserted that the actions of the Tea Tree Gully Council in closing the ford to motor vehicles, "interferes with the exercise of the duties, powers or privileges of the City of Campbelltown and its ability to give effect to the objects and general responsibilities of a local governing authority."  He then submitted that that was not a difference of the kind to which s721 referred. That argument seeks to elevate form over substance.  The question whether a difference exists within the meaning of s721 is not to be determined merely by the form of words used, but by reference to the whole of the petition.  When viewed as a whole, the petition discloses that the Tea Tree Gully Council has exercised its powers in a manner with which the Campbelltown Council disagrees, and in respect of which it has voiced its disagreement in the petition.  That is a difference arising between two councils relating to the carrying out of the provisions of the Local Government Act and, hence, is a difference within the meaning of s721. 

Mr Hayes also pointed to difficulties which might arise if s721 is widely interpreted. There is some force in the contention that difficulties might arise. I do not think that s721 has the effect of ousting other statutory processes which deal with issues concerning the exercise of powers by local authorities or of ousting the jurisdiction of this court. In this respect, I prefer the reasoning of Molesworth J in Attorney-General v Shire of Wimmera (1880) 6 VLR 24 and Municipal Council of Ryde v Municipal Council of Hunters Hill (supra) to that in Attorney-General v Shire of Preston (1902) 28 VLR 402. See also Kogarah Municipal Council v Rockdale Municipal Council (1927) 39 CLR 203. A concurrent means of resolving disputes could lead to difficulty and the possibility of conflicting decisions, as well as the incurring of additional expense in the prosecution of alternative remedies. Although difficulties might arise, I do not think it is appropriate to accede to this argument, which has some of the characteristics of a floodgates argument. Generally speaking, the fault with a floodgates argument is that the predictions of dire consequences made usually do not eventuate, probably, I suspect, because the dams of commonsense and practicality usually hold. I do not think it appropriate to attempt to anticipate the kind of difficulties which might arise. They can be dealt with if and when they should arise. Further, to accede to the argument is to restrict the operation of s721 in a way which conflicts with the wide terms in which s721 is expressed.

For all of these reasons, the application is dismissed.  The plaintiff will pay the costs of the second defendant as taxed or agreed.