Scurr v Brisbane City Council

HIGH COURT OF AUSTRALIA

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

SCURR v. BRISBANE CITY COUNCIL

(1973) 133 CLR 242

24 September 1973

Town Planning (Q.)

Town Planning (Q.)—Development applications—Statutory requirements—Advertisement—Particulars—Adequacy—Whether mandatory or directory—Effect of inadequacy—Appeal by objector—Function of Local Government Court—City of Brisbane Town Planning Act, 1964-1971 (Q.), s. 22*. * (1973) 133 CLR 242 at pp 250-251

Decisions

September 24.
The following written judgments were delivered:-
BARWICK C.J. In this matter I have had the advantage of reading the reasons for judgment of my brother Stephen. I am in agreement with them and in my opinion the appeal should be allowed. (at p245)

McTIERNAN J. I agree with the reasons for judgment which Stephen J. will hand down and would therefore allow the appeal. (at p245)

MENZIES J. I have had the advantage of reading the judgment prepared by Stephen J. I agree with it. (at p245)

2. In determining an appeal brought to it under s. 22 of the City of Brisbane Town Planning Acts, the Local Government Court should, I think, include in its consideration the question whether the application for consent has been made in accordance with the procedure laid down by the section. It is not my view that any departure from the provisions of the section would, of itself, require that an appeal against a proposal of the council to give its consent should be upheld. In his reasons, however, Stephen J. has, I think, demonstrated that the departure from the requirements of the section which he considers did occur here was of a critical character. Indeed, as I read the judgments in the Local Government Court, and the Supreme Court, the judges of the State Courts would have thought it proper to allow the appeal had it not been their conclusion that the advertisement which had been published did comply with the requirements of the section. With regard to that matter, I have, with respect, come to a different conclusion for the reasons stated by Stephen J. (at p246)

3. I would, therefore, allow the appeal. (at p246)

GIBBS J. I have had the advantage of reading the reasons prepared by my brother Stephen. I am in full agreement with them. (at p246)

2. The provisions of s. 22 of the City of Brisbane Town Planning Act, 1964-1969 (Q.) ("the Act") clearly had the effect that neither the Brisbane City Council nor its delegate could lawfully decide an application of the kind referred to in the section unless public notice of the application had been given by advertisement in accordance with the provisions of the section. It was therefore the duty of the Council Registration Board as the delegate of the Council, when an application of that kind came before it, to consider whether such public notice had been given and if it formed the opinion that the requirements of the section had not been complied with, to refrain from deciding the application. However, although in the first instance the Board…