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Parramatta City Council v Pestell

Parramatta City Council v Pestell

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Case Copied 24 November 1972 54 min read

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HIGH COURT OF AUSTRALIA

. Barwick C.J., McTiernan, Menzies, Gibbs and Stephen JJ.

PARRAMATTA CITY COUNCIL v. PESTELL.

(1972) 128 CLR 305

24 November 1972

Local Government (N.S.W.)

Local Government (N.S.W.)—Local rate—Validity—Power to impose where in council's opinion work or service would be of special benefit to a portion of its area to be defined or described—"Special benefit"—Omission of allotments from defined portion—Validity—Definition by "metes and bounds"—Local Government Act, 1919 (N.S.W.), as amended, s. 121 (1)—Local Government Ordinance 5, cl. 28 1/2 (b).

Decisions

1972, November 24.
The following written judgments were delivered:-
BARWICK C.J. Section 121 of the Local Government Act, 1919 (N.S.W.) (the Act) empowers the council of a municipality or shire to make and levy a local rate. The section is in the following terms:

"121. (1) For or towards defraying the expenses of executing any work or service or for or towards repaying with interest any advance made by the Minister or debt incurred or loan raised in connection with the execution of any work or service where, in either case, such work or service in the opinion of the council would be of special benefit to a portion of its area to be defined as prescribed, the council of a municipality or shire may make and levy a local rate on the unimproved capital value or on the improved capital value of ratable land within such portion. (1A) For or towards meeting any liability transferred to the council of a municipality or shire consequently upon the alteration of the boundaries of the area, the council may make and levy a local rate on the unimproved capital value or on the improved capital value of the ratable land added to the area. (2) The council of a municipality or shire may by notice in the Gazette from time to time define part of the area to be known as a 'town improvement district' within which a 'town improvement local rate' may be levied under the provisions of this section." (at p308)

2. On 22nd July 1968 the Council of the City of Parramatta (the Council) purported to exercise the power given by s. 121 (1). It resolved:

"That a Local Rate of one (1) cent in the $ on the Unimproved Capital Value be made and levied for the year 1968 on all rateable land in the portion of Dundas Ward described in the Schedule annexed hereto, the proceeds of such rate to be used for or towards defraying the expenses of the construction of roads, kerbing and guttering, concrete footpaths, drainage and the general embellishment of the area, such works and services being in the opinion of the Council of special benefit to such portion of the area and that such be known as the Rydalmere Industrial Area Local Rate."

The schedule annexed to the minute of the resolution described a large area, being part of the Dundas Ward of the local government area of the appellant Council, by metes and bounds but excluded out…

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.

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Details

Case: [1972] HCA 59
Decision Date: 24 November 1972

CaseChat Overview and Summary

Parramatta City Council (the Council) sought to recover from Mr. Pestell (the respondent) the cost of certain works carried out by the Council on land owned by the respondent. The dispute concerned the Council's entitlement to recover these costs under section 317 of the Local Government Act 1919 (NSW).

The High Court of Australia was required to determine whether the Council had a right to recover the costs of the works from the respondent. Specifically, the Court had to consider whether the works undertaken by the Council fell within the scope of "work done in relation to a street" as contemplated by the relevant provisions of the Act, and if so, whether the Council had complied with the procedural requirements for recovering such costs.

The Court held that the works undertaken by the Council, which involved the construction of a concrete footpath and kerb along the frontage of the respondent's land, constituted "work done in relation to a street". The Court reasoned that the purpose of the works was to improve the street and its amenities for public use, and that the respondent's land directly benefited from these improvements. The Court further found that the Council had substantially complied with the procedural requirements of the Act, and that the respondent was liable to pay the costs of the works.

The High Court dismissed the appeal and affirmed the decision of the Supreme Court of New South Wales, ordering that the respondent pay the costs of the appeal.

Orders