Corporation of the City of Adelaide v Attorney-General (SA)

The Corporation of the City of Adelaide (the Corporation) proposed to construct an underground public convenience in Gresham Place. The Attorney-General for South Australia, along with owners of abutting properties, sought a declaration that the Corporation was not entitled to undertake this construction and sought an injunction to restrain it. The dispute centred on the Corporation's power to declare Gresham Place a public street and, consequently, its authority to construct the convenience and underpin adjacent buildings. The matter came before the High Court of Australia on appeal from the Supreme Court of South Australia.

The High Court was required to determine whether the Corporation's resolution of November 1929, declaring Gresham Place a public street under section 159 of the Municipal Corporations Act 1923 (S.A.), was valid. This involved interpreting whether section 159 conferred an independent power to declare streets public, or if it was contingent on the powers in section 158, which required a request from abutting owners. Further issues included whether the soil of Gresham Place vested in the Corporation under section 154, whether section 253 of the Act permitted the construction of conveniences in streets where the Corporation did not own the soil, and whether the proposed construction would constitute a public nuisance. Additionally, the Court had to consider whether section 39 of the Building Act 1923 (S.A.) authorised the Corporation to underpin adjacent buildings, given it was not the "owner" of that land.

A majority of the High Court, comprising Rich, Dixon, and McTiernan JJ., held that section 159 of the Municipal Corporations Act 1923 did not grant an independent power to declare streets public, and that such a declaration required a request in writing from the abutting owners as stipulated in section 158. As no such request had been made, the resolution was invalid, meaning the soil of Gresham Place did not vest in the Corporation under section 154. Consequently, section 253 did not empower the Corporation to erect urinals in streets where it lacked proprietary rights in the soil. Starke and Evatt JJ., however, found that section 159 conferred an independent power, rendering the resolution valid and vesting the freehold in the Corporation. Despite this, they concluded that the construction would constitute a public nuisance due to the excessive and unreasonable restriction it would place on public use of the street. Furthermore, Rich, Starke, Dixon, and Evatt JJ. agreed that section 39 of the Building Act 1923 did not authorise the underpinning of adjacent buildings as the Corporation was not an "owner" for the purposes of that section.

The appeal was dismissed, and the decision of the Supreme Court of South Australia, which had granted an injunction, was affirmed.