of advertisements on or in the v of State highways; and

of advertisements on or in the v of State highways; and - [1930] HCA 5 - HCA 1930 case summary — Zoe

[42]

Knox C.J., Srarke anp Drxon JJ. This is an appeal by special leave from a decision of the Full Court of Victoria quashing a by-law of the Country Roads Board. The subjects with which the by-law deals are the erection of hoardings and the exhibition of advertisements near State highways. The Board may, by resolution, declare to be a State highway any highway which, in its opinion, is of sufficient importance to be so declared, and thereupon the highway comes under the care of the Board, and is maintained by it (secs. 5-8 of the Highways and Vehicles Act 1924, now in Part III. of the Country Roads Act 1928). The Board is empowered to make by-laws for purposes which include " Regulating or prohibiting the erection and construction of hoardings on or in the vicinity of State highways or regulating, restricting, preventing, or controlling the exhibition of advertisements " (sec. 3 of the Country Roads Act 1927, now sec. 60 (d) of the Country Roads Act 1928). In an attempt to exercise this power, the Board, by clause 3 of the by-law, forbad any person without the consent in writing of the Board, in effect, on or in the vicinity of a State highway to erect any " hoarding for the exhibition thereon of advertisements '' or to place any advertise- ments upon any natural or other objects. Clause 4 provides that the Board may in its absolute discretion refuse its consent to the exhibition, on or in the vicinity of a State highway, of advertise- ments which, in its opinion, are open to any of the objections which the clause specifies. The meaning or the application of this provision appears to have been doubted because it does not in terms refer to the erection of hoardings but only to the exhibition of advertisements, and because much of the language in which the grounds for refusing consent are expressed is derived from sec. 198 (1) (d) of the Local Government Act 1915 (now 1928). But the phrase " consent to the exhibition of advertisements " seems a compendium which, although

[71]

question in this case is whether a clause which forbids hoardi and advertisements without the consent of the Board answe description of a by-law " prohibiting or regulating the ere hoardings, or regulating, restricting, preventing, or controllir advertisements." If the Full Court had felt itself at liberty so propound the question and to answer it upon a consideration o of the terms used, probably it would have felt no difficulty in the affirmative answer which this Court considers to be requit Clauses 5, 6 and 7 of the by-law need separate consider Clause 5 authorizes the service of an order of the Board directit removal of hoardings whether constructed before or after the p: of the by-law when certain conditions are fulfilled, and clause enables the Board, upon non-compliance with its order, to cau the hoardings to be removed, and to sell the materials and reimbur the expenses of removal. Such a provision is not authorized by much of sec. 3 of the Country Roads Act 1927 as has been a quoted. But sec. 3 goes on to empower the Board in relati hoardings or advertisements on or in the vicinity of State highy to make by-laws for or with respect to any purposes for connection with which the council of a municipality may unt sub-sec. 1 of sec. 198 of the Local Government Act 1915 make by-lay relating to hoardings or advertisements. Par. (b) of sec. 198 | authorizes by-laws for the purpose of, or any purpose in conne with, "requiring the pulling down and removal of ings." According to a decision of the Full Court of Victori Levingston v. President &c. of Shire of Heidelberg (1), the words wl i occur at the end of this paragraph " abutting on or within ten any street or road"' apply only to the word " fences " and do not qu "hoardings." This decision was not challenged at the bar, and it stood so long that we do not propose to consider its correctness. B clauses 5 and 6 do not themselves impose any obligation upon to remove hoardings, whether specified or to be specified. The, operate only to enable the Board after notification directing # removal to perform itself the work of removal. On the whole think that it is not essential that a legal duty to comply with directions should be imposed, and that these clauses are within tht

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vicinity of any State highway." The Board is so far ca acting within the legal territory marked out in sec. 3 of Act X 3568. As to hoardings, the subject matter is restricted to hoardit " for the exhibition thereon of advertisements of any descrip' and as to the description of advertisements, they are all adver ments attached, fixed to, or painted on anything whatsoever, i it the locality mentioned. But the qualifying phrase as to the consent is not left to operate as if clause 3 stood alone. It is lin by clause 4, which marks out the sphere of consideration which | by-law commits to the Board in giving or refusing its consen That sphere is the same as that which the legislation has adopted in sec. 198 (1) (2) of the Local Government Act 1915, with an obviously proper consideration in the interests of The power, therefore, of the Board to " refuse its consent " (clau is limited to the considerations mentioned. It is not an arbitt power, and it is manifestly a perfectly reasonable mode of de with the subject, if the law permits it. 4 The Supreme Court, by a majority, has held that the law doesn permit that course, but that the prohibition of a hoarding J advertisement, in order to be valid, must be ascertainable from comparison of the by-law itself with the hoarding or advertis itself. That means a practical impossibility unless the prohil is total and absolute, for it would need prophetic vision to indi with necessary precision what and where advertisements will I objectionable, and to leave the decision to various legal tribunal would introduce such diversity and uncertainty, as well as ex 1 as to make the remedy worse than the disease. There is nothing in Barry's Case (1) to invalidate the by Barry's Case was decided on a power of "regulating" and not of " prohibiting " it. A by-law that under the lesser por of regulation assumed to prohibit processions unless with the co of the town clerk was held invalid. If the by-law had been in form of an absolute prohibition, it would have been equally inv (Municipal Corporation of City of Toronto v. Virgo (2); and

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President &e. of Shire of Tungamah v. Merrett (1) ). Barry's Case (2) is, therefore, no authority for the decision appealed from in this case. In the present case there exists the statutory power to prohibit either entirely or partially. The prohibition adopted is not entire, but only extends to instances where the act is done without the written consent of the Board, the power of refusal being limited as mentioned. As I pointed out during the argument, the two positions are essentially different. The power of regulation may, and almost necessarily does, involve some restriction or prohibition. The body entrusted with the power to regulate must in some sufficient way mark out whatever limits of prohibition are to exist. That is to say, legal rights otherwise existing are not to be cut down at the discretion of some individual or individuals, but must be dealt. with by the law. And they are not properly dealt with in that case by first exercising the power of prohibition which is not conferred. But where the by-law itself prohibits, and in the absence of a written consent prohibits completely, the consent if refused simply leaves the by-law to operate without it, and if given satisfies the provision of the by-law by a factum which excludes the given case from its operation. Clauses 3 and 4 are complementary, and, read together, are valid. Clause 5, being limited in locality as before, is valid under the powers referentially included in sec. 3 of the Act No. 3568. Clause 6, which, if dependent solely on sec. 198 (1) (e), might be questioned because clause 5 did not go on to require the owner to comply with the order (as to which I say nothing), is nevertheless valid, because the subject matter is conveyed by sec. 3 of the Act No. 3568, the hoardings being those " on or in the vicinity ofany State highway." Clause 5 may be regarded, for this purpose at all events, as introductory to clause 6, and as identifying the hoard- ings included in the latter clause. Clause 7 is similarly valid.

At a glance

Court

Decision date

Before

Source

Judgment (92 paragraphs)

Parties

Cited By (2)