Plunkett v Smith

The appeal concerned the validity of a by-law made by the Municipal Council of Leederville, which stipulated that no fascia or projecting eave constructed of inflammable material could be erected within 2 feet 6 inches of an adjoining property boundary. The appellant challenged the by-law, arguing that the Council lacked the statutory authority to enact such a regulation. The Supreme Court of Western Australia had previously upheld the by-law's validity.

The central legal issue before the High Court was whether the Municipalities Act 1906 conferred upon the Council the power to regulate the material or structure of building eaves and fascia, particularly concerning inflammable materials. This involved interpreting various sections of the Act, including those pertaining to buildings and general by-law making powers, in light of the specific provisions concerning fire prevention and building materials.

The Court reasoned that the Act, particularly Part XV concerning buildings, provided specific regulations regarding the covering of roofs and the materials for external walls and internal partitions, but it did not grant a general power to regulate the material or structure of roofs themselves, nor specifically eaves or fascia. While the Act contained provisions for fire prevention, these were considered to be limited to specific circumstances and did not extend to the broad regulation of building materials for eaves and fascia. The Court applied the principle of *expressum facit cessare tacitum*, meaning that where a statute expressly deals with a matter, general words in another provision should not be interpreted to extend beyond those express dealings. The Court found that the legislature had clearly delineated the scope of its intervention regarding roof materials, and the by-law exceeded these limits.

Consequently, the High Court allowed the appeal, reversed the decision of the Supreme Court of Western Australia, and discharged the judgment appealed from. The appeal from the Police Magistrate was allowed with costs, and the conviction was quashed.