Court of Appeal (Qld)|2002-04-12|Before: McPherson and Williams JJA and Byrne JSeparate reasons for judgment of, each member of the Court, each concurring as to the orders made
McPherson and Williams JJA and Byrne JSeparate reasons for judgment of, each member of the Court, each concurring as to the orders made
Catchwords
STATUTES – BY-LAWS AND REGULATIONS – VALIDITY –
REPUGNANCY – IN GENERAL – REPUGNANCY TO AUTHORIZING
STATUTE –
whether a law prohibiting the removal of and forcing the replacement of trees on
Source
Original judgment source is linked above.
Catchwords
STATUTES – BY-LAWS AND REGULATIONS – VALIDITY –REPUGNANCY – IN GENERAL – REPUGNANCY TO AUTHORIZINGSTATUTE –whether a law prohibiting the removal of and forcing the replacement of trees onprivate property is valid - wheres 36 (3) of the City of Brisbane Act 1924 wasamended to include the words “the environment”. STATUTES– BY-LAWS AND REGULATIONS – VALIDITY – UNREASONABLENESS– PARTICULAR CASES - where the by-law couldbe read to be beyond the powerof the organisation - whether the legislation’s validity can be tested inthat way. STATUTES – BY-LAWS AND REGULATIONS – VALIDITY– VAGUENESS AND UNCERTAINTINY – IN GENERAL – where theword“any” was used – whether the order made under the by-lawexceeded the limits of the by-law – where thesubject of an order isrequired to take action to the satisfaction of the local authority – wherethe provision suffers fromfatal uncertainty.STATUTES – BY-LAWS
AND REGULATIONS – VALIDITY – REPUGNANCY – IN GENERAL –
REPUGNANCY TO GENERAL LAW
– where a by-law is inconsistent with general or
common law – whether the result is an invalid
by-law.Acquisition of Land Act 1967City of Brisbane
Act 1924 City of Brisbane Ordinances, Chapter 22Integrated
Planning Act 1997Land Act 1962Local Government Act
1993Vegetation Management Act 1999Attorney-General v De
Keyser’s Royal Hotel [1920] UKHL 1
[1920] AC 508, consideredC J Burland Pty
Ltd v Metropolitan Meat Industry Board [1968] HCA 77
(1968) 120 CLR 400,
distinguishedCommonwealth v New South Wales [1923] HCA 34
(1923) 33 CLR 1,
consideredCommonwealth v Tasmania (Dam Case) [1983] HCA 21
(1983) 158 CLR 1,
consideredCullis v Ahern [1914] HCA 59
(1914) 18 CLR 540, appliedDurham
Holdings Pty Ltd v State of New South Wales (2001) 75 ALJR 501,
appliedFejo v Northern Territory of Australia [1998] HCA 58
(1998) 195 CLR
96Fraser v Hemming [1911] St R Qd 139, appliedIbralebbe v The
Queen [1964] AC 900, consideredJerusalem Jaffa District Governor v
Suleiman Murra [1926] AC 321, appliedKing Gee Clothing Co Pty Ltd v
The Commonwealth [1945] HCA 23
(1945) 71 CLR 184, consideredKwiksnax Mobile
Industrial & General Caterers Pty Ltd v Logan City Council [1994] 1 Qd R
291, distinguishedLondon County Council v James [1912] 2 KB 504
consideredLynch & Standon v Brisbane City Council [1961] HCA 19
(1961) 104 CLR
353, consideredMitchell v Lemm (1908) 3 HKLR 75, consideredR v
District Court of the Northern District of Queensland
Ex parte Thompson
[1968] HCA 48
(1968) 118 CLR 488, appliedRandwick Municipal Council v Rutledge
[1959] HCA 63
(1959) 102 CLR 54, 71 consideredRiel v R
Ex parte Riel (1885) 10 App
Cas 675, appliedUnion Steamship Co of Australia Pty Ltd v King [1988] HCA 55
(1988)
166 CLR 1, consideredWidgee Shire Council v Bonney [1907] HCA 11
(1907) 4 CLR 977,
applied Williams v Melbourne Corporation [1933] HCA 56
(1933) 49 CLR 142,
applied
Judgment (29 paragraphs)
[1]
STATUTES - BY-LAWS AND REGULATIONS - VALIDITY - REPUGNANCY - IN GENERAL - REPUGNANCY TO AUTHORIZING STATUTE - whether a law prohibiting the removal of and forcing the replacement of trees on private property is valid - where s 36 (3) of the City of Brisbane Act 1924 was amended to include the words "the environment".
[2]
STATUTES - BY-LAWS AND REGULATIONS - VALIDITY - UNREASONABLENESS - PARTICULAR CASES - where the by-law could be read to be beyond the power of the organisation - whether the legislation's validity can be tested in that way.
[3]
STATUTES - BY-LAWS AND REGULATIONS - VALIDITY - VAGUENESS AND UNCERTAINTINY - IN GENERAL - where the word "any" was used - whether the order made under the by-law exceeded the limits of the by-law - where the subject of an order is required to take action to the satisfaction of the local authority - where the provision suffers from fatal uncertainty.
[4]
STATUTES - BY-LAWS AND REGULATIONS - VALIDITY - REPUGNANCY - IN GENERAL - REPUGNANCY TO GENERAL LAW - where a by-law is inconsistent with general or common law - whether the result is an invalid by-law.