Payne v Port Phillip City Council
[2007] VSC 507
•12 December 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 8341 of 2006
| BARRY WILLIAM PAYNE | Plaintiff |
| v | |
| PORT PHILLIP CITY COUNCIL | Defendant |
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JUDGE: | Mandie J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 December 2007 | |
DATE OF JUDGMENT: | 12 December 2007 | |
CASE MAY BE CITED AS: | Payne v Port Phillip City Council | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 507 | |
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LOCAL GOVERNMENT – challenge to validity of local law regulating the placement of advertising signs, including mobile billboards – whether Schedule 8 to the Local Government Act 1989 provides conditions for the validity of local laws – whether local law infringed the right of members of the public to pass along roads in the municipal district – whether the local law made persons liable for an offence whose connection with the subject of the regulatory provision was too remote – whether the Council had complied with the procedure for making a local law – whether the local law was consistent with the Road Management Act 2004
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Nash QC with Mr G Hardy | Frank Randle |
| For the Defendant | Mr P Hanks QC with Mr C Horan | Maddocks |
HIS HONOUR:
This is the return of an order nisi granted on 25 August 2006 pursuant to s.103 of the Supreme Court Act 1986[1] and s.124 of the Local Government Act 1989[2] (“the LGA”). The order requires the defendant, the Port Phillip City Council, to show cause why certain local laws should not be quashed either wholly or in part for illegality. The local laws concerned are described in the order as Clauses 7 and 8 of Community Amenity Local Law No. 3 (“the Local Law”) and Parts 16 and 19 of Procedures and Protocols Manual (“the Manual”).
[1]Section 103(1) of the Supreme Court Act 1986 provides that a person who pays into court the sum of $500 as security for costs may apply to the Court constituted by a Judge for an order calling on the corporation by which or on whose behalf a by-law has been made to show cause why the by-law should not be quashed, either wholly or in part, for illegality.
[2]Section 124 of the LGA provides that a person may dispute the validity of a local law under s.103 of the Supreme Court Act 1986 as if a local law were a by-law.
By way of background, but not by way of restricting the scope of the plaintiff’s challenge to the Local Law, I note that the plaintiff has been charged with an offence against the Local Law. It is irrelevant, for the purposes of the present proceeding, to set out the description of the alleged offence contained in the charge. It is sufficient to say that the charge apparently relates to the plaintiff’s ownership or control of a mobile billboard and that the offending conduct is alleged to have occurred in Marine Parade, St Kilda. It is common ground that Marine Parade is an arterial road.
The Local Law
Clause 2 of the Local Law provides that its purposes are to provide for the peace, order and good government of Port Phillip City in a way that is complementary to the Council’s Corporate Plan by, inter alia:
· managing the uses and activities on roads and Council land so that the Council is aware of uses or activities which may interfere with the safety and convenience of people travelling on or using roads or land or which may impede free and safe access for people or which may be detrimental to the amenity of the area or the enjoyment of facilities on roads or land;
· managing, regulating and controlling uses and activities which may be dangerous, cause a nuisance, or be detrimental to the amenity of the area or the environment or interfere with a healthy and safe environment in the municipal district;
· providing for the administration of the Council’s powers and functions.
Clause 3 of the Local Law states that it is “made under Section 111(1)” of the LGA. That provision empowers a Council to make local laws for or with respect to any act, matter or thing in respect of which the Council has a function or power under any Act.
Clause 6A of the Local Law incorporates the Manual, as published from time to time, into the Local Law.
So far as relevant, cl.7(1) of the Local Law requires a person to obtain a permit from the Council before “placing advertising signs” in certain locations and cl.8(1) specifies those locations as including a road, Council land or any area designated by the Council. Clause 7(2) makes the failure to obtain such a permit an offence. Clause 8(5) lists a number of other persons who are also guilty of an offence if an advertising sign is placed in breach of the Local Law. Further, cl.8(2) provides that, in addition to the requirement to obtain a permit, a person must comply with any requirements in the Manual. The Manual then provides, inter alia, that a mobile billboard must not be located in a parking area for more than 2 hours and that mobile billboards are not permitted in certain specified locations within the municipality (including a number of arterial roads and commercial zones). It is convenient now to set out the relevant provisions both of the Local Law and of the Manual.
The relevant provisions of the Local Law are as follows:
“ PART TWO – ACTIVITIES AND USES REQUIRING A PERMIT
DIVISION 1 – MANAGEMENT BY PERMIT
7. Activities and uses requiring a permit
(1)A permit must be obtained from the Council before a person carries out the following uses or activities:
(a) placing advertising signs[3] as specified in clause 8;
[3]The term “advertising sign” is relevantly defined in cl.6 of the Local Law as follows: ““Advertising sign” means any placard, sign, pointer board, notice, poster, mobile billboards, banner or other similar device whether portable or affixed or attached to any land, building or vehicle, which is used for the purposes of:
•soliciting sales;
•notifying the presence or location of a property where goods or services may be obtained; or
•notifying an event or competition, including a community or recreational event – …”
…
(2)A person who fails to obtain a permit for any of the uses or activities listed in sub-clause (1) is guilty of an offence against this Local Law.
Penalty: $500 (Unless provided otherwise)
(3)In addition to the requirement to obtain a permit, a person must comply with:
(a)any other requirements or limitations that this Local Law applies to a use or activity; and
(b) any conditions of a permit.
Penalty: $500
…
DIVISION 2 – EXPANDED REQUIREMENTS, LIMITATIONS AND EXEMPTIONS
8.Advertising Signs
(1)A permit is required to place an advertising sign on:
(a)a road, road related area or Council land; or
(b)an area designated by the Council; or
(c)any other location likely to interfere with the vision of a pedestrian or driver.
(2)In addition to the requirement to obtain a permit to place an advertising sign on the locations specified in sub-clause (1) a person must comply with any requirements in the Procedures and Protocols Manual.
…
(5)If an advertising sign is placed in breach of this clause 8:
(a)the person who is the owner of the premises, property, business, event of activity to which the advertising sign relates;
(b)the person who has the management and control of premises, property, business, event or activity to which the advertising sign relates;
(c)the person who is a promoter of the premises, property, business, event or activity to which the advertising sign relates;
(d)the person who printed the advertising sign or whose name is on the advertising sign as the printer;
(e)the person who commissioned the printing of the advertising sign; and
(f)the person who is responsible for the placement, siting or distribution of the advertising sign including without limitation the person who engages another whether as an employee or agent to place, site or distribute the advertising sign; and
are each guilty of an offence against this Local Law whether or not the person who placed the advertising sign is identified or prosecuted.
Penalty: $2000
(6)The Council may designate:
(a)advertising signs relating to particular uses or activities that are exempt from the requirements of this provision; or
(b)areas where advertising signs are permitted or limited.
The relevant provisions of the Manual are as follows:
“ PART 16 – ADVERTISING SIGNS
…
C. ADDITIONAL REQUIREMENTS APPLYING TO MOBILE BILLBOARDS
In addition to the requirement to obtain a permit under clause 8 of the Community Amenity Local Law No. 3 for mobile billboards, a person responsible for placing a billboard in position must comply with the following requirements:
(a) a mobile billboard must not be located in a parking area[4] for more than 2 hours regardless of whether the appropriate fee has been paid; and
(b) there must be at least a minimum separation of 200 metres between mobile billboards at any one time.
[4]The Manual provides that “parking area” has the same meaning as in the Road Rules – Victoria 1999. The latter Rules define a “parking area” as “a length of road or area designed for parking vehicles”.
…
PART 19 – DESIGNATED AREAS
The following areas are designated for the respective purposes of the Community Amenity Local Law No. 3:
…
7. Advertising Signs – Mobile Billboards
(a) Mobile billboards are not permitted in the following locations within the Municipality:
·Ormond Esplanade, Marine Parade, Jacka Boulevard, Beaconsfield Parade, Beach Street, Beacon Road, The Boulevard and abutting car parks, including foreshore car parks
·St Kilda Road
·Fitzroy Street
·Acland Street Commercial Zone
·Claredon Street Commercial Zone
·Bay Street Commercial Zone
·Carlisle Street Commercial Zone”
I now turn to the grounds of invalidity of the Local Law argued by the plaintiff.
A. Does the Local Law validly incorporate the Manual?
Section 112 of the LGA deals with the incorporation of documents and other publications in a local law and provides as follows:
“112 (1) A local law may apply, adopt or incorporate any matter contained in any document, code, standard, rule, specification or method formulated, issued, prescribed or published by any authority or body whether –
(a)wholly or partially or as amended by the local law; or
(b)as formulated, issued, prescribed or published at the time the local law is made or at any time before then; or
(c)as formulated, issued, prescribed or published from time to time.
(2) If a local law has applied, adopted or incorporated any matter contained in any document, code, standard, rule, specification or method as formulated, issued, prescribed or published from time to time and that document, code, standard, rule, specification or method is at any time amended, until the Council causes notice to be published in the Government Gazette of that amendment, the document, code, standard, rule, specification or method is to be taken to have not been so amended.”
In written submissions, the plaintiff had contended that the Council had not validly incorporated the Manual in the Local Law. However Mr Nash QC who appeared with Mr Hardy of Counsel for the plaintiff abandoned this contention and conceded that the Manual had been validly incorporated in the Local Law. Accordingly it is unnecessary to consider questions arising (if any) in relation to the proper construction and application of s.112 of the LGA.
B. Is the Local Law required to comply with the provisions of Schedule 8 of the LGA?
Section 123(1) of the LGA provides that a local law may be revoked in whole or in part by the Governor in Council by an Order in Council on the recommendation of the Minister. Section 123 goes on to provide:
“(2) In deciding whether to recommend that a local law be revoked, the Minister must consider –
(a)whether there is a substantial breach of any of the matters specified in Schedule 8; and
(b)whether the contents of the local law would be more appropriately contained in a planning scheme; and
(c)any other matter the Minister considers to be appropriate.
(3) If the Minister is of the opinion that a local law substantially breaches clause 2(j) of Schedule 8, she or he must not recommend that the local law be revoked unless she or he has consulted the Council that made the local law about the possible breach.”
Schedule 8 of the LGA provides as follows:
“SCHEDULE 8
Section 123
PROVISIONS WITH RESPECT TO LOCAL LAWS
Without derogating from any other principles the following apply to local laws:
1 A local law must—
(a) accord with the letter and intent of the enabling Act;
(b) in the case of a principal local law, clearly set out as part of its text—
(i) the objectives of the local law; and
(ii) the precise provision authorising the local law;
(c) be directed towards those objectives and not go beyond them;
(d) adopt the means of achieving those objectives which appear likely to involve the least burden or the greatest advantage on the community;
(e) wherever appropriate, set performance standards rather than prescribe detailed requirements as to the manner in which those standards shall be achieved;
(f) be expressed plainly and unambiguously, consistently with the language of the enabling Act and in accordance with modern standards of drafting applying in the State of Victoria.
2 A local law must not—
(a) exceed the powers conferred by the Act under which the local law purports to be made;
(b) without clear and express authority in the enabling Act—
(i) have any retrospective effect;
(ii) impose any tax or fee, or any fine, imprisonment or other penalty;
(iii) purport to shift the onus of proof to a person accused of an offence;
(iv) provide for any further delegation of powers delegated by the Act;
(c) be inconsistent with the principles, objectives or intent of the enabling Act;
(d) make unusual or unexpected use of the powers conferred by the Act under which the local law is made having regard to the general objectives, intention or principles of that Act;
(e) embody principles of major substance or controversy or contain any matter which principles or matter should properly be dealt with by an Act and not by subordinate legislation;
(f) unduly trespass on rights and liberties of the person previously established by law;
(g) unduly make rights and liberties of the person dependent upon administrative and not upon judicial decisions;
(h) be inconsistent with principles of justice and fairness;
(i) duplicate, overlap or conflict with other statutory rules or legislation;
(j) restrict competition unless it can be demonstrated that—
(i) the benefits of the restriction to the community as a whole outweigh the costs; and
(ii) the objectives of the local law can only be achieved by restricting competition.”
The plaintiff submitted that Schedule 8 imposed mandatory requirements for all local laws and that failure to comply with those requirements would render a local law invalid. On the other hand, the defendant submitted that Schedule 8 did no more than provide criteria to be taken into account by the Minister if considering whether to revoke a local law under s.123 of the LGA and served no other function or purpose.
A schedule forms part of an Act[5] but, obviously enough, the application and effect of a schedule must be governed by, and interpreted in the light of, the provisions of the Act as a whole. Despite the use in Schedule 8 of the words “must” and “must not”, there are a number of indications in the LGA, in my opinion, that the contents of Schedule 8 are not intended to govern the validity of local laws.
[5]See s.36(2) of the Interpretation of Legislation Act 1984.
Firstly, the only references to Schedule 8 in the whole of the Act are to be found in s.123 and it is clear that the primary purposes of the Schedule are those which are set out in s.123.
Secondly, in deciding whether to recommend revocation of a local law, the Minister is obliged to consider whether there is a substantial breach of any of the matters specified in Schedule 8. Thus it can be seen that it is only substantial breaches that the Minister must take into account and, even if there are substantial breaches, the Minister still has a discretion whether to recommend revocation. In those circumstances, it is difficult to conclude that the legislature would have intended that a local law should ipso facto be invalid as a result of any “breach”, whether substantial or not, of the matters contained in Schedule 8.
Thirdly, the nature of a number of the matters set out in Schedule 8 is such that it is most improbable that the legislature would have intended that they be justiciable in that they are unsuitable for judicial determination and involve matters of policy or political or administrative judgement. For example:
· para. 1(d) requires that a local law must adopt those means of achieving its objectives “which appear likely to involve the least burden or the greatest advantage on the community”;
· para. 1(f) requires, inter alia, that a local law be expressed “in accordance with modern standards of drafting applying in the State of Victoria”;
· para. 2(e) provides that a local law must not, inter alia, “embody principles of major substance or controversy”.
Further, some of the matters in Schedule 8 would inevitably involve a substantial factual inquiry of a kind inappropriate to the consideration by a court of the validity of subordinate legislation. For example:
· the question, under para. 1(d), as to whether the local law has adopted means of achieving its objectives which “appear likely to involve the least burden or the greatest advantage on the community”
· the question, under para. 2(j), as to whether the local law restricts competition “unless it can be demonstrated that .. the benefits of the restriction to the community as a whole outweigh the costs .. “.
The above examples support the conclusion, I think, that Schedule 8 was not intended to provide criteria for any judicial determination of validity. That is not to suggest that some of the criteria in Schedule 8 would be incapable of interpretation or application by a court and, indeed, some of them clearly restate common law principles that, independently of the Schedule, a court would take into account in considering the validity of a local law.
Fourthly, although not essential, it might be expected that matters intended to govern the validity of a local law would be laid down in the body of the Act and not in a schedule. For example, s.111(2) of the LGA provides that a local law must not be inconsistent with any Act or regulation and s.111(3) of the LGA provides that a local law is inoperative to the extent that it is inconsistent with any Act or regulation[6]. In addition, Part 5 of the LGA contains a number of provisions regulating the making of local laws but, as I have said, contains no provision incorporating the requirements of Schedule 8 (other than s.123).
[6]These provisions may be compared with para. 2(i) of Schedule 8 which provides that a local law must not “duplicate, overlap or conflict with other statutory rules or legislation.”
For the above reasons, I consider that the matters in Schedule 8 do not govern the validity of the Local Law and the plaintiff’s arguments based on breaches of the matters contained in Schedule 8 cannot succeed.
C. If the matters in Schedule 8 govern the validity of local laws, does the Local Law comply with the matters in Schedule 8?
The plaintiff submitted that the Local Law failed to comply with the matters in Schedule 8 in a number of respects. Having regard to my conclusion that the matters in Schedule 8 do not govern the validity of local laws and are relevant only for consideration by the Minister under s.123 of the LGA, I consider that it is inappropriate for the Court to express any conclusion on the plaintiff’s submissions that the defendant was in “breach” of various matters contained in Schedule 8[7].
D. Does the Local Law unlawfully infringe the right of a member of the public to pass along a road?
[7]Of course, that would not, and did not, prevent the plaintiff from reliance upon matters listed in Schedule 8 (or similar matters) as providing grounds of invalidity independently of the existence and applicability of Schedule 8.
The plaintiff submitted that the Local Law unlawfully infringed the common law right of a member of the public to pass along a road. The plaintiff further submitted that the Local Law infringed the like right as is set out in Part 2 of the Road Management Act 2004 (Vic) (“the Road Management Act”). Part 2 includes the following provisions:
“7.The purpose of this Part is to confer specified rights which are legally enforceable on members of the public using roads.
8.(1)A member of the public is individually entitled as of right to pass along a road.
(2)Members of the public are generally entitled as of right to pass along a road.
…
(4) The rights conferred by this section do not derogate from any right of passage conferred by the common law.
(5) Rights of passage conferred by this section or at common law are subject to any restrictions, limitations or conditions which may be specified by or under this Act or any other Act or law.”
The plaintiff submitted that such right to pass along a road necessarily carried with it the right, not only to drive a vehicle along the road, but to park or put that vehicle in a stationary position on or alongside the road.
The plaintiff submitted that the Local Law infringed the foregoing right in that the Manual contained an absolute prohibition against mobile billboards on designated roads (see Part 19, cl.7(a), set out earlier above – “cl.7(a)”). The plaintiff contended that the effect of cl.7(a) was to prohibit a member of the public from driving or parking a vehicle to which a mobile billboard was attached on or in any of the designated roads.
In support of the proposition that the said right covered stationary vehicles, the plaintiff referred to Matthews v City of Prahran[8] in which Cussen J said[9] that there was a right in every member of the public not only to pass with vehicles along the highway but also “to remain stationary for a reasonable time” and in which Mann J said[10] that vehicles did not cease to be elements of traffic when drawn up at the side of the street in the course of an ordinary and proper use of a highway (and that the power to regulate traffic extended to the control of such stationary vehicles).
[8][1925] VLR 469.
[9][1925] VLR 469, 479.
[10][1925] VLR 469, 480-1
On the other hand, the defendant submitted that cl.7(a) had a more limited operation that did not infringe the right of a member of the public to pass along a road or to park thereon. The defendant submitted that, whereas the Local Law prohibited the placing of mobile billboards anywhere in the municipality without a permit, cl.7(a) contained an additional restriction, applicable to permit holders, prohibiting them from “placing” mobile billboards in or on the designated roads but, as I understood the submission, cl.7(a) did not otherwise prevent vehicles (to which mobile billboards were attached) from passing along the designated roads or parking therein[11].
[11]Subject to the 2 hour limit on parking imposed under Part 16 of the Manual.
I consider that the defendant’s submission is correct. Clause 7(a) provides that mobile billboards “are not permitted” in the designated locations. In my view that phrase conveys the intent and meaning that, even if a permit is granted to place a billboard in the municipality generally, such placement is nevertheless “not permitted” in the designated locations.
It seems to me that the concept of “placing” a mobile billboard involves more than simply passing along a road or briefly parking alongside a road. It involves, as with any other advertising sign, the notion of positioning a sign in a particular location and displaying the advertisement for more than some insignificant[12] period.
[12]This would be a question of fact in each case.
I do not think that cl.7(a) can be interpreted as a blanket prohibition of the presence of mobile billboards in the designated locations. That interpretation of cl.7(a) would have too wide and unreasonable an operation that could not have been intended. For example, on that interpretation, if a vehicle were towing a mobile billboard on Marine Parade, or such a vehicle was parked in Marine Parade, but the billboard itself was covered over, cl.7(a) would be infringed.
If, as I consider to be the case, cl.7(a) does not prevent a vehicle towing a mobile billboard from passing along or parking on the designated roads provided that the mobile billboard is not “placed” for the purpose of advertising, then cl.7(a) does not infringe the right of any member of the public to drive along a designated road (or park thereon for a short time).
Alternatively, and in any event, as the defendant pointed out, s. 8(5) of the Road Management Act provides that rights of passage (under that Act or at common law) are “subject to any restrictions, limitations or conditions which may be specified”, not only under the Road Management Act, but under “any other Act or law”. So, if the Local Law is otherwise a law validly made under the LGA, the prohibition that it places upon mobile billboards in designated roads would, it seems to me, fall within the description of “restrictions, limitations or conditions” specified under the LGA and be saved by s.8(5) of the Road Management Act.
I conclude that the Local Law, specifically the Manual, does not unlawfully or impermissibly infringe the statutory or common law right of the public to pass along the designated roads.
E. Is cl.8(5) of the Local Law ultra vires as having too remote or tenuous a connection with the purposes and objectives of the Local Law?
The plaintiff submitted that cl.8(5) of the Local Law was beyond the power of the Council because it made persons guilty of an offence whose conduct might have been entirely innocent and unconnected with any illegal placement of an advertising sign and, further, whose conduct may have taken place outside the municipal district and prior to any placement of the sign. For example:
·cl.8(5)(a) rendered liable to an offence the person who was, inter alia, “the owner of the premises” to which the advertising sign related and an owner of premises might simply be a landlord and have no knowledge or control of advertising organised by a tenant.
·cl.8(5)(d) rendered liable to an offence the person who “printed the advertising sign” and a printer might well have no foreknowledge of or control over the subsequent use or placement of the material that he printed.
The plaintiff referred to Brown v Burrow[13]. In that case, s.69 of the Mildura Irrigation Trusts Act 1895 authorised the First Mildura Irrigation Trust to make regulations for the prevention and remedy of the waste or undue consumption of water, and generally for duly administering and carrying out the provisions of the Act. Under that section, the Trust made a regulation: “If water shall be used for the irrigation of any land without the authority of the Trust, the owner or occupier of such land shall be liable in a penalty not exceeding ₤50”. Cussen J said[14]:
“[The regulation] resembles many enactments in modern legislation, as it seeks to render a person liable, though he has had no connection, either by himself or his servant, with the act or forbearance on which the liability depends.
…
I shall assume the this section gives power to make a regulation forbidding any person, without the permission of the Trust, using or causing or permitted or suffering to be used, any water belonging to or under the control of the Trust, whether for the purposes of irrigation or otherwise. I think this regulation goes much further. It disregards local limits, and purports to make an owner or occupier liable, wherever he may be when the act complained of is done. But, even if this objection could be got over by giving the regulation a limited construction, it purports to impose a penalty on a person without reference to his connection with the forbidden act, which is a breach of the alleged regulation as framed, and might impose liability, even though he has done his best to prevent it. I think such a power should only be exercised by Parliament, or under some enactment of Parliament whereby this exceptional power is given to a subordinate body, either expressly or by necessary implication. I can find no such power here..”
[13](1908) XIV “The Argus” Law Reports 460.
[14](1908) XIV “The Argus” Law Reports 460, 461-462.
The defendant accepted the proposition that cl.8(5) would be ultra vires to the extent that its connection with the purposes and objectives of the Local Law, namely the regulation of advertising signs, was too remote or tenuous but submitted that this was not the case. The defendant further submitted that Brown v Burrow simply turned upon the interpretation of the particular regulation-making power in that case.
I should say here that the plaintiff only briefly argued that the whole of the Local Law, insofar as it related to the regulation of advertising signs, was ultra vires or invalid. Rather, the plaintiff relied on specific grounds of invalidity and specific defects in the Local Law (such as those outlined in sections A to D above, as well as the submissions dealt with in this section E). However it is convenient at this stage to examine the source of the Council’s power to make this local law.
The source of the power relied on, as recited in the Local Law itself, was s.111 of the LGA which provides as follows:
“111 (1) A Council may make local laws for or with respect to any act, matter or thing in respect of which the Council has a function or power under this or any other Act.
(2) A local law must not be inconsistent with any Act or regulation.
(3) A local law is inoperative to the extent that it is inconsistent with any Act or regulation. “
Section 111(1) of the LGA thus refers broadly to the making of local laws “for or with respect to any act, matter or thing in respect of which the Council has a function or power.” In that regard, ss. 6 and 8 of the LGA relevantly provided (at the time that the Local Law was made[15]):
[15]Shortly after the Local Law was made these sections were repealed.
“6 (1) The purposes of a Council are –
(a) to provide for the peace, order and good government of its municipal district…
8 (1) A Council has the following functions –
(a) the functions in Schedule 1 …”
Schedule 1 of the LGA at that time provided that the functions of Councils included a number of listed matters. So far as relevant, these matters were “health, education, welfare and other community services including .. prevention and abatement of nuisances”, “planning and land use..”, “roads including .. traffic control and signs..” and “any other functions relating to the peace, order and good government of the municipal district including .. parking .. transport .. environment control ..”.
In my opinion it is clear that the Council had power to make this Local Law insofar as it regulates advertising signs and requires that they not be placed without a permit and insofar as it regulates the areas in which mobile billboards may be placed. Putting aside specific alleged “defects” raised by the plaintiff with which I have dealt or will deal with separately, the Local Law was made within power. The Local Law clearly relates to such of the above functions of the Council as the prevention and abatement of nuisances, planning and land use and roads and, in any event, the Local Law undoubtedly relates to the Council’s purpose and function of providing for the peace, order and good government of its municipal district.
The question arises, however, whether, despite the general validity of the Local Law, cl.8(5) has too remote or tenuous a connection with any legitimate purpose, function or objective of the Council. In that regard, Brown v Burrow provides some general guidance. It seems to me that some parts of cl.8(5) are reasonably related or connected to the purpose of regulating advertising signs within the municipality. The following categories of persons covered by cl.8(5) seem to me to be persons who would be likely to know of and control the placement of a relevant advertising sign (or who ought to have such knowledge and control), such that it was not unreasonable of Council to make them liable for an offence if an advertising sign was placed in breach of cl.8:
·the person who has the management and control of premises, property, business, event or activity to which the advertising sign relates; [cl.8(5)(b)]
·the person who is a promoter of the premises, property, business, event or activity to which the advertising sign relates; [cl.8(5)(c)]
·the person who is responsible for the placement, siting or distribution of the advertising sign including without limitation the person who engages another whether as an employee or agent to place, site or distribute the advertising sign. [cl.8(5)(f)]
I would add that I do not think that the fact that the person described (or their business activity or event) was at all times outside the municipal district would, of itself, detract from the Council’s power to make the person liable for an offence, if there were otherwise a reasonable connection with the subject matter of the regulation (the placement of the advertising sign).
On the other hand, I think that the connection of the persons referred to in cl.8(5)(d) and (e), namely, the person who printed the advertising sign or whose name is on the advertising sign as the printer or who commissioned such printing, is too remote and tenuous to justify making such a person liable for an offence. Clause 8(5)(a) is a “mixed” category: I think that the connection of the owner of the premises or property to which the advertising sign relates is too remote and tenuous to justify making such a person liable for an offence; but it is otherwise in relation to the person who is the “owner” of a business, event or activity to which the advertising sign relates – it was not unreasonable of Council, I think, to make such a person liable for an offence.
The defendant submitted that, if (contrary to its submission) the Court found cl.8(5) or any part thereof invalid, it was “severable” either at common law or pursuant to s.22(1) of the Interpretation of Legislation Act 1984[16]. I accept that submission. In my opinion, the invalidity of cl.8(5) of the Local Law is restricted in extent to the words “of the premises, property” in sub-para (a) and to the whole of sub-paras (d) and (e) but that otherwise the clause is valid.
[16]A local law is a subordinate instrument for the purposes of the Interpretation of Legislation Act 1984 – see s.118 of the LGA.
F. Did the Council comply with the procedure laid down for making a local law?
Section 119 of the LGA relevantly provides:
“ (1) Before a Council makes a local law it must comply with the following procedure.
(2) The Council must give a notice in the Government Gazette and a public notice stating –
(a) the purpose and general purport of the proposed local law; and
(b) that a copy of the proposed local law can be obtained from the Council office…”
The plaintiff submitted that the notices given by the Council pursuant to s.119(2) of the LGA were fundamentally defective in that they did not state “the general purport of the proposed local law” because the notices made no reference to the fact that the Local Law contained a prohibition on certain vehicles being allowed to travel into certain parts of and on certain roads in the municipality. I do not accept that submission. As I have stated earlier, the Local Law does not prohibit vehicles from travelling into certain parts of or on certain roads in the municipality. If by “vehicle” this submission is intended to refer to mobile billboards, then, as I have explained, the prohibition is on the display of advertising and not upon the travelling of the billboard as such. In any event, a consideration of the notices in question satisfies me that “the general purport” of the Local Law was stated therein (and a copy thereof was said to be available for inspection). The requirement that the general purport of a law be stated does not involve the necessity to identify each and every substantive provision. The notices indicated that the proposed Local Law regulated, among other things, the placement of advertising signs and also regulated when and where specified activities and uses were not permitted in the municipal district and, in my opinion, that was sufficient.
G. Is the Local Law inconsistent with s. 66 of the Road Management Act?
Section 111 of the LGA provides that the local law must not be inconsistent with any Act or regulation and is inoperative to the extent that it is so inconsistent. The plaintiff briefly submitted that the Local Law was inconsistent with s.66 of the Road Management Act which provides:
“(1)Subject to sub-section (2), a person must not without the written consent of the relevant coordinating road authority –
(a) place any structure, device or hoarding for the exhibition of an advertisement or place any advertisement for exhibition on or over a road; or
(b)place any sign or bill on or over a road or on a pole, bus shelter, traffic sign, tree or other object or infrastructure on a road reserve.
Penalty: 10 penalty units.
(2)Sub-section (1) does not apply if the placing of the structure, device, hoarding, advertisement, sign or bill is authorised or permitted by or under this Act or by or under any other Act.”
The coordinating road authority for arterial roads (such as Marine Parade) is VicRoads.[17] The plaintiff submitted that the Local Law, insofar as it related to placing advertising signs on arterial roads, was inconsistent with s.66 of the Road Management Act. I do not accept that submission. Section 66(2) of the Road Management Act expressly contemplates that the placing of advertising signs may be permitted by or under some other Act. Accordingly there is no inconsistency created by the Local Law in requiring a permit for the placing of an advertising sign within the municipal district. Further, I think that provision shows that it was not intended that s.66 should “cover the field” in relation to advertising signs. As regards the cl.7(a) prohibition, both laws can be obeyed and there is no actual inconsistency. Of course, if a person obtained the written consent of VicRoads under s.66(1) of the Road Management Act to place an advertising sign on an arterial road within the municipal district of Port Phillip, the Local Law would be inoperative to that extent.
[17]See ss.36 and 37 of the Road Management Act.
Conclusion
For the foregoing reasons, except to the extent mentioned in relation to cl.8(5), I consider that the Local Law is valid. I will hear submissions from the parties as to the orders that ought to be made and as to costs.
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