Attorney-General (Q) (Ex rel Duncan) v Andrews

High Court of Australia|1979-07-01|Before: Wilson JJ, Gibbs J

The application for the appointment of new relators was opposed on the ground that the executors whom it was proposed to appoint as relators had no interest in the proceedings, except in relation to the costs of the proceedings in the Supreme Court. The land which had belonged to the original relator, and which was in the neighbourhood of the land of the second respondent, had been sold, and it was said that the appeal was really being prosecuted in the interests of the purchaser.

It has become established over a long period that the relator need not have any interest in the proceedings: Attorney-General v. Vivian [11] ; Attorney-General v. Logan [12] ; Attorney-General and Spalding Rural Council v. Garner [13] ; Attorney-General v. Crayford Urban District Council [38] . There is nothing surprising in this, since in a case in which the Attorney-General properly proceeds by relation, he could have proceeded ex officio without a relator if he had chosen to do so, and in the relator action he has the legal right to control the conduct of the proceedings. The relator is however answerable for the costs. When a relator dies, the practice is for the proceedings to be stayed until a new relator is appointed, but no appointment will be made except with the consent or on the application of the Attorney-General: see Halsbury's Laws of England, 4th ed., vol. 5, par. 945, and de Smith: Judicial Review of Administrative Action, (3rd ed.), p. 401. In these circumstances it is apparent that there was no ground on which the Court could properly refuse the order for substitution.

(1826) 1 Russ 226, at p. 236 [38 E.R. 88, at p. 92]. 2. [1891] 2 Q.B. 100, at pp. 103, 106. 3. [1907] 2 K.B. 480, at p. 485. 4. [1962] Ch. 575, at pp. 585, 590. Stephen J.

A full description of the facts and circumstances of this appeal appears in the reasons for judgment of my brother Wilson. The point at issue is a short one; it turns upon the meaning of the word "frontage" in cl. 46(h) of the City of Gold Coast town planning scheme.

Clause 46 provides that a building shall not be erected or used or land shall not be used for the purpose of an accommodation unit unless:

(h) the road to which vehicular access is provided and which forms the principal road frontage, as determined by the Council, is

The land in question consists of a group of four adjoining subdivisional lots numbering, from north to south, 38 to 41. The eastern end of each lot fronts onto what was once the Esplanade but is now, as a result of erosion by the sea, the seashore. At the western end of each lot is Garfield Terrace, running roughly north and south and separated from the seashore by these lots and others like them to the north. I say to the north because the subject lots are at the extreme southern end of Garfield Terrace. Along the southern boundary of the most southerly lot, lot 41, is an east-west lane connecting Garfield Terrace with the seashore. Into Garfield Terrace from the west and opposite lot 38 and its northern neighbour, lot 37, runs Fern Street. Together they form a "T" junction, with Fern Street, running east and west, as the long vertical leg of the "T" and Garfield Terrace as the horizontal on top. Thus lots 37 and 38 face west down the length of Fern Street. To the south of the junction Garfield Terrace, otherwise ten metres wide, becomes quite narrow, perhaps no wider than the east-west lane which connects this southern extremity of Garfield Terrace to the seashore. Indeed, there is some doubt whether this narrow part of Garfield Terrace still remains part of it or is, rather, no more than the northern arm of the east-west lane. In my view it makes no difference to the outcome which it is.

While cl. 46(h) gives to the Council a power to determine what is the "principal road frontage" of particular land, it does not leave the Council at large. A determination may only be made in respect of that which answers the description of a "road frontage". A road to which land has no frontage cannot be determined to be its "principal road frontage". The area of choice is thus confined to those roads to which there is a frontage.

I would not myself confine the area of the Council's determination so narrowly as to prevent it from making a determination in favour of part only of the frontage of a block of land on a particular road. In the present case, for example, the Council could, I think, determine that only so much of the subject land's frontage onto Garfield Terrace as fronted onto the wide portion of that street, that is, only the frontage afforded by lot 38, was the land's principal road frontage, the frontage onto the narrow, southern extremity of the street being excluded from the principal road frontage as thus determined.

However what the Council cannot do is treat the subject land as having any frontage to Fern Street; hence it cannot determine its principal road frontage to be some non-existent frontage to Fern Street. So far as I am aware, according to no ordinary usage of "road frontage" is land fronting onto the street which forms the horizontal top of a "T" junction spoken of as having a frontage to the street which forms the vertical leg of the "T". The only road frontage of land on the eastern side of Garfield Terrace, right down to its southern extremity, is its frontage to Garfield Terrace, just as the answer to the question "In what street is that land?" must be "Garfield Terrace".

Streets into which other streets run are not thereby interrupted, they do not momentarily lose their own identity. To take a local example: Brisbane's George Street remains George Street where Mary Street runs into it; no part of its surface becomes Mary Street and the government offices lining its south-western side front onto George Street and have no frontage onto Mary Street. Likewise the eastern side of Sydney's Mitchell Library fronts exclusively onto Macquarie Street and has no frontage to Hunter Street, just as Melbourne's Parliament House is neither "in" nor has it a frontage to Bourke Street.

This being what I take to be the ordinary meaning of "frontage" when applied to locations involving "T" intersections, I see no reason for departing from that usage in the case of cl. 46(h). It follows that no part of the subject lots have a frontage onto Fern Street, that the Council cannot determine to the contrary and that the width of Fern Street is therefore irrelevant to compliance with cl. 46(h). Without the aid of Fern Street, which is twenty metres wide, cl. 46(h) cannot be complied with.

It would, I think, make no difference, if instead of a true "T" junction, the narrow southern extemity of the horizontal were to be regarded not as part of Garfield Terrace but as a distinct lane. Fern Street would still end at the projection across it of the most eastern of the north-south boundaries of the properties on either side of Fern Street at its junction with Garfield Terrace; all to the east would be Garfield Terrace. Cul-de-sacs and roads which joint at a simple "L" junction raise other problems which are not now relevant.

In the Full Court the view was taken that upon its true meaning the opening phrase of cl. 46 meant that it was for the Council to determine the road to which vehicular access was provided and that one that determination was made it followed that such road became "the principal road frontage as determined by the Council". As appears above, I do not so construe the words of cl. 46 and I further agree with the learned trial judge in dismissing as erroneous the view that any part of the western boundary of the land has a frontage to Fern Street. It follows that I would allow this appeal and would restore the answers given by the learned trial judge to the two questions asked of him.

I would dismiss this appeal for the reasons given by Wilson J.

This appeal involves the construction of Clause 46 (h) of the Town-Planning Scheme for the City of Gold Coast.

John Hayward Andrews, the first respondent in these proceedings, is the Administrator of the Gold Coast City Council. In or about May 1978 Viscount Holdings Ltd. (the "second respondent") applied to the Council for preliminary building approval of plans for a high-rise block of home units to be erected on land situated at Surfers Paradise and more particularly described as Sub-divisions 38, 39, 40 and 41 of Portion 37 on Registered Plan No. 21845, situated in the County of Ward, Parish of Gilston.

On 11th May 1978, the executive committee of the Council adopted a recommendation of the city planner in relation to the application. I will set out the relevant detail of the recommendation at a later stage in these reasons. It is sufficient at this point to note that its effect was to approve the proposed development subject to certain conditions, the relevant one of which involved the question of vehicular access to the site.

The Town-Planning Scheme for the City of Gold Coast was approved by the Governor-in-Council in 1973. It was published in the Government Gazette on 17th March 1973 and has been amended from time to time by subsequent Orders in Council. Clause 46 of the Scheme imposes some restraints upon the use of a building or land for the purpose of an accommodation unit. The relevant part of that clause, as amended, provides:

A building or other structure shall not be erected or used or land shall not be used for the purpose of an accommodation unit unless -

(h) The road to which vehicular access is provided and which forms the principal road frontage, as determined by the Council, is -

(ii) At least fifteen (15) metres in width in circumstances where the road is open at both ends but is not longer than three hundred and sixtyfive (365) metres and that both ends lead on to roads not less than twenty (20) metres in width, or

(iii) At least ten (10) metres in width in circumstances where the road is a one way road and where the road pavement is at least 6.7 metres in width kerbside parking is prohibited.

It is necessary in order to understand the issue in this case to describe the boundaries of the land which is the subject of the second respondent's application for preliminary building approval. Such a description conveniently appears in the reasons for judgment of Douglas J. in the Full Court, and I gratefully adopt it as my own:

The titles to the four subdivisions would have to be consolidated into one title as part of the requirements of a permit to build. Starting on the eastern side of the subdivisions they are all bounded by the Esplanade which, of course, has long since vanished into the sea. To the south in succession each subdivision is bounded by the other until 41 which is bounded by an unnamed lane. To the north each subdivision is bounded by the other until one finds the boundary of allotment 38 contiguous with that of 37. To the west subdivision 38 has a frontage to the junction of Garfield Terrace and Fern Street. Subdivisions 39 and 40 have a frontage to a lane, presumably, an attenuated continuation of Garfield Terrace to the south. Subdivision 41 is triangular in shape, and has no frontage to a "[western]" boundary. Traffic is permitted to flow east and west in Fern Street, but is one way to the north in Garfield Terrace.

I now set out the relevant part of the recommendation adopted by the Council on 11th May 1978:

Plans have been submitted for preliminary building approval for a 17 storey block of 33 home units to be developed by Viscount Holdings Ltd., at Numbers 3, 5 and 7 Garfield Terrace, Surfers Paradise. The plans comply in general with provisions of the planning scheme and building requirements subject to the following items as indicated by the Acting Chief Building Inspector; -

(1) The access for vehicular traffic can only be positioned in that part of the frontage which is directly opposite Fern Street. Access will not be permitted off the laneway.

The site in question is at the southern end of Garfield Terrace with frontage of 10 metres to Garfield Terrace opposite Fern Street and 20 metres to a lane extending southerly from the Garfield Terrace-Fern Street intersection. Garfield Terrace north of Fern Street has a width of 10 metres whilst the land (sic) is 6.7 metres wide. Garfield Terrace complies with Clause 46(h)(iii) above as evidenced by the number of accommodation units already approved and erected along its length. The obvious intent of the planning scheme is to ensure that adequate access is available for high density development. Because vehicular ingress and egress is to be provided in a suitable manner on that section of the frontage opposite Fern Street and is easily and safely accessible, the proposed development complies with the intent of the Schedule. It is recommended that (1) the applicant be advised that access to the site is to be restricted to that part of the frontage immediately opposite the Fern Street intersection.

Following the acceptance by the Council of the Executive Committee's recommendation, the Attorney-General for the State of Queensland commenced a relator action at the relation of one Douglas Blaikie Duncan, a resident in the vicinity of the proposed development. The relief claimed in the action was, in brief, a declaration that the proposed development was contrary to the provisions of cl. 46(h) of the Town-Planning Scheme for the City of Gold Coast and injunctions against both the first and second respondents.

By consent the matter came before a single judge of the Supreme Court of Queensland (Dunn J.) for the determination of two questions of law, as follows:

(a) whether pursuant to Clause 46(h) of the Town Planning Scheme for the City of Gold Coast the first defendant has power lawfully to determine that Fern Street forms the principal road frontage to the land referred to in the pleadings;

(b) whether upon the proper construction of Clause 46(h) of the Town Planning Scheme for the City of Gold Coast any part of the land referred to in the pleadings can be determined to have a frontage to Fern Street

His Honour answered both questions in the negative, whereupon the second respondent appealed to the Full Court of the Supreme Court of Queensland.

The Full Court (Douglas, Andrews and Sheahan JJ.) allowed the appeal, and answered the two questions: (a) Yes; (b) Unnecessary to Answer.

The Court dismissed the action and ordered the present appellant to pay the costs. The appellant instituted an appeal to this Court from the decision of the Full Court.

Subsequent to the institution of the appeal to this Court the original relator died. With the consent of the Attorney-General the Court ordered that Mr. Duncan's three executors be substituted as the relators on the record. The Court also determined a preliminary objection to the competency of the appeal in favour of the appellant.

The case before us then requires the construction of cl. 46(h) of the Town-Planning Scheme for the City of Gold Coast in its application to the facts of this case. We are not concerned with the provisions contained in pars. (ii) and (iii) of cl. 46(h). The sole question is whether the Council was empowered, as a matter of law, to determine that Fern Street forms the "principal road frontage" to the land which is the subject of the second respondent's application for preliminary building approval.

The appellant argued that the provisions of cl. 46(h) impose legal limits on the discretionary power of the Council to authorize the erection or use of a building or the use of land for the purpose of an accommodation unit, and that its discretion in relation to the development in question in this case was controlled by the requirement that "the road to which vehicular access is provided and which forms the principal road frontage, as determined by the Council, is at least twenty (20) metres in width". So much may be conceded: indeed, I do not understand the respondents to contend otherwise. It is the meaning of the word "frontage" that causes the difficulty.

It was said for the appellant that common usage supplies the meaning of the word "frontage", and that one must have regard to the entire length of roadway along each boundary of a block of land to identify the "frontages" of the land. Any change in the direction of a boundary may give rise to a new road frontage if that boundary is bordered by a road but each straight section of boundary bordered by a road constitutes a separate and indivisible road "frontage".

The proposition was illustrated by reference to the land in question. It was said to have two road frontages: one to the south of lot 41, being an unnamed lane, and one to the west of lots 38, 39 and 40, which, in the appellant's submission, is the southern end of Garfield Terrace. Neither of these frontages is wide enough to satisfy the requirements of cl. 46(h)(iii). In particular, it was said that Fern Street does not form a road frontage to the land because you cannot split the single road frontage formed by Garfield Terrace into sections so as to enable the minimum width test to be applied selectively.

With respect, I am unable to accept the appellant's argument. I do not think that nomenclature can be determinative. It cannot matter that a particular stretch of road which is capable otherwise of satisfying the phrase "principal road frontage" is called Fern Street or Garfield Terrace. The real question is whether the road frontage to lot 38, whatever it be called, is capable of satisfying the description of a "principal road frontage". In my opinion, it can. I reject the proposition that cl. 46(h) requires that every part of a road which forms a frontage to land must be of the prescribed width, irrespective of any requirements regarding vehicular access. If, as is the case in the present suit, vehicular access is to be restricted to a small portion of the perimeter of a site, and the road adjacent to that portion is a road of the requisite width, then in my opinion it is within the discretion of the Council to characterize that portion of the road as the principal road frontage.

One may test the appellant's argument by supposing in the present case that the section of road, or the lane as it is sometimes described, south of the junction of Fern Street with Garfield Terrace was not there, and that there was no lane adjacent to the southern boundary of lot 41. Could it then be said that there was no road frontage to the site at all? I do not think so. I think that in such a case the road adjacent to the western boundary of lot 38 would clearly satisfy the description of a road frontage.

The appellant sought to meet the case against it by submitting that the effect would be to write the reference to "principal road frontage" out of cl. 46(h). I do not agree. It may have that effect in a case where vehicular access to land is provided from only one road or from only one section of a road. Clearly such a road or section will always form the principal road frontage and must satisfy the minimum width requirement. However, in many cases vehicular access will be provided from more than one road. In such cases only that road which is determined by the Council to be the principal road frontage would be required to satisfy the minimum width requirements set out in cl. 46(h).

High Court of Australia Gibbs, Stephen, Mason, Murphy and Wilson JJ. Barwick C.J. Gibbs, Stephen, Mason and Wilson JJ. Attorney-General (Q) (Ex rel Duncan) v Andrews [1979] HCA 24

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