Delta Properties Pty Ltd v Brisbane City Council

Delta Properties Pty Ltd v Brisbane City Council - [1955] HCA 51 - HCA 1955 case summary — Zoe

[11]

The first section of the group, s. 4, deals with three cases. (i) The first is the case of a house which is without a house-drain sufficient for the effectual disposal of waters other than rain-water. The section empowers the council's engineer in such a case to give the owner a notice requiring him to make a house-drain or house-drains emptying into a council drain which is within the curtilage of the house or is not more than three hundred feet from the curtilage. If no such means of drainage are available, the owner may be required to dispose of such waters by means of suitable works of sub-surface irrigation if, in the opinion of the council's engineer, the extent of the land available and the nature of the soil are suitable for sub-surface irrigation. (ii) The next is the case where a building on any premises is without a house-drain to take rain-water from such building to a council drain and there is a council drain within the curtilage, or within three hundred feet from the curtilage, of such premises. In such a case the engineer is empowered to give the owner a notice requiring him to make a house-drain from the premises so as to communicate with the council drain, and to make such connections with the house-drain as will cause all such rain-water to be taken to the council drain. (iii) The section also covers the case where there is already a house-drain from the premises communicating with a council drain, and the engineer is of opinion that adequate provision has not been made for the disposal of rain-water from the buildings on the premises and that the rain-water could be properly disposed of through such house-drain. The engineer is empowered in that case to require the owner to connect the building with the house-drain or with extensions or improvements thereto, together with such necessary connections from the buildings as will adequately convey all such water to the council drain. (iv) Then s. 5 governs the case where premises have a house-drain connecting with a council drain, but the house-drain, though sufficient for the effectual drainage of the premises, is not adapted to the general system of council drains in that locality, or ought in the opinion of the council to be connected to another council drain. In that case the council may, on condition of providing a house-drain or house-drains equally effectual for the drainage of the premises and communicating with such other council drain as it thinks fit, close the first-mentioned house-drain. (v) The fifth case is that of land which is situated within three hundred feet of a council drain and is so low-lying as not to admit of being drained by gravitation into a council drain. Section 6 provides that the council may give notice to the owner to fill up land so that it may be drained, and it goes on to provide for a daily penalty, and for the performance of the work by the council, in the event of the owner neglecting or refusing to comply with the notice. (vi) Finally, there is s. 7 which, as already stated, makes it unlawful to erect a building to be used wholly or in part as a dwelling, or to adapt any building to be used wholly or in part as a dwelling, upon land which is so situated as not, in the opinion of the council, to be capable of being drained.

[12]

Plainly the last-mentioned provision refers to the practicability of ridding land of water, and not to the bare possibility of doing so. As Mr. Gibbs contended, all land may be said to be capable of being drained, if "capable" refers only to physical possibilities. "Capable of being drained" must therefore be read as subject to some limitation of meaning. If the section were taken out of context, so that draining by any of the methods within the capacity of engineering skill were considered to be in contemplation, the only practical limit to drainability would be that which is set by considerations of cost. But the context throws much light on the construction of the section. The definitions which have been quoted, and the terms of ss. 4, 5 and 6, make it plain that the only kind of drainage to which reference is being made in this group of sections is drainage of individual premises, by gravitation through its own pipes and conduits, to council drains or (in relation to draining water other than rain-water, from houses erected on land which is suitable for sub-surface irrigation) to works of sub-surface irrigation. Whether particular land is "capable" of being drained in this sense must be a question of levels. Section 6 recognizes this by describing the land to which it applies as "so low-lying as not to admit of being drained by gravitation into a (council) drain"; and similarly s. 7 itself, by its express words, confines the council's attention to the effect of situation on drainability. The meaning of ss. 6 and 7 taken together seems to be that if a given parcel of land is so situated in relation to the other land in the vicinity that no "house-drain" which might be constructed would dispose of its waste and surface waters, satisfactorily from a health point of view, by gravitation to a council drain (or a work of sub-surface irrigation) which exists or might be provided, the council may require the land to be filled up so that it may be drained, if that is a feasible thing to do; and, if even that course is not a practicable solution of the problem in the council's opinion, no building for use as a dwelling may lawfully be erected.

[14]

The next point to be observed is that the group of sections is concerned only with drainage by means of house-drains, that is to say drains "for the drainage of one building only or of premises within the same curtilage" as the definition puts it. The council is not set at large to pronounce upon the drainability of any tract of land which it may see fit to select. Five of the six provisions which have been summarized above postulate a parcel of land identified by its connexion with a building or a proposed building. In the first two, as in the definition of "house-drain", this parcel is actually named as the curtilage; in the second and third it is referred to as the "premises" "on" which there is a building; and in the fourth it is called the premises. The sixth, the provision in s. 7 itself, creates a prohibition which will be infringed by the erection or adaptation of a building, to be used wholly or in part as a dwelling, "upon" land as to which the council has the specified opinion; and the only construction of the word "upon" which will make the section homogeneous with its fellows is that which treats a building as being upon the land within its curtilage and not upon any more extensive area. It seems an inevitable conclusion that an opinion of the council which is to result, by force of s. 7, in a prohibition of the erection of a building for use as a dwelling must relate specifically to a parcel of land which, before the council comes to consider it, has the character of the potential curtilage of a building to be erected or adapted for use wholly or partly as a dwelling. There is nothing in the ordinance to restrict the application of s. 7 still further by confining it to land which has acquired the necessary character in any particular manner. The fact that the land consists of one entire building lot in a sub-division is no doubt sufficient, though an opinion formed with respect to such a lot would not apply to any portion of that lot which is afterwards carved out of it so as to form by itself the curtilage of a building.

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