Plunkett v Smith [1911] HCA 58

Plunkett v Smith [1911] HCA 58 - HCA 1911 case summary — Zoe

[25]

will be observed, deals with the covering of roofs, and has nothing to say to the structure of the roof itself or the material of which that structure is to be composed. Sec. 308 provides that, "No building shall be erected within any municipal district the external walls of which building shall be wholly or in part of wood, canvas, thatch, or other inflammable material, or the internal partitions or ceilings whereof shall consist either wholly or in part of calico, canvas, paper, or other inflammable material, nor shall any verandah or baleony to any house or building be roofed with canvas or other inflammable material." But, if any building is constructed contrary to the provisions of that section, the Council may order it to be removed, or they may, in their discretion, permit by written licence the erection of a building which does not comply with those provisions under such condi- tions as they may impose. Again, in that section there is nothing about the structure of roofs. Sec. 335, which is in the same Part XV., authorizes the Council to make by-laws with respect to various matters enumerated, relating to buildings, plans, levels, foundations, thickness and height of walls, party walls, height, size, dimensions, lighting, and ventilation of rooms, the removal of walls contrary to the by-laws, the construction of staireases. PI. (d) is in these terms, "The construction and erection, size, and position of parapets, flues, and fireplaces in any building"; while the final placitum () is "generally for the carrying out of this Part of this Act." Possibly that last provision would authorize the making of a by-law giving a general approval under the powers of sec. 304 to a particular kind of material for the covering of roofs, but it certainly would not authorize the Council to substitute for the discretion con- ferred upon it by sec. 308 and to be exercised in each particular case, a general rule prescribed by by-law. I can find nothing, having regard to the contents of that Part of the Act, to warrant the suggestion that the Council has power to regulate the material or structure of roofs. The legislature has dealt with two particular matters in connection with buildings - the material of the covering of roofs, and the material of walls and internal partitions; but has said nothing about the material or structure

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O'Connor J. If it was within the power of the municipality to make the by-law now under review it is clear that the by-law itself is not unreasonable. Indeed, the objection of unreasonable- ness was not seriously argued in this Court. 'The real matter in controversy is whether the by-law is ultra vires. A number of cases were cited in the course of the argument, but they all turn on the wording of particular Statutes, and throw no light on the meaning of the statutory provisions which the Court has to interpret. Where, as in this case, a municipal body asserts the power to restrain by by-law the liberty which every man primé facie has to build his house in the mode he thinks fit, provided he does not thereby injure his neighbour, it is bound to establish that the legislature has conferred the power in clear language. Mr. Villeneuve-Smith, on behalf of the municipality, contended that the necessary power was contained in the Municipalities Act 1906, and he relied upon several sections which I shall take in their order. Sec. 179 empowers the municipality to make by- laws with reference to a variety of subjects, covering practically the whole scope of the Act. It is contended that the necessary power is to be found in the general terms of sub-sec. 52 of that section, and particularly in the words, quoting only those that are material, "the good rule and government of the municipality and the . . . safety of the inhabitants thereof." No doubt the sean of precautions against fire is one of the ways in which the good rule and government of the municipality may be secured. Taking the words in their wider sense they would include the exercise of all the powers which the Act, by its several sections, expressly confers on the municipality. But general words in such a section cannot be so interpreted when the Act enacts, as this does specifically with respect to every subject matter within its purview, the manner in which the good rule and government of the municipality and the safety of the inhabi- tants is to be carried out. The precaution of fire is one of these

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this Part of the Act." The part of the Act referred to contains only six sections which in any way relate to the subject matter of so erecting buildings as to prevent the oceurrence of fires. Of these sections 326 and the three sections following may be left out of consideration in this case. They have relation only to inflammatory buildings in public and other places and give special powers to the municipality in relation thereto directed to the prevention of fires. It is upon the two remaining provisions sec. 304 and see. 308 that the complainant must rely in seeking 'support for the by-law in the general words at the end of sec. - 335. Sec. 304 enacts that no roof of any house or other build- ing shall be covered with any other material than slate, tiles, metal, glass, artificial stone, cement or shingle or other material approved of by the Council. Sec. 308 prohibits the erection of any building having external walls wholly or in part of wood or other inflammable material or having internal partitions ceilings verandahs or balconies in which certain inflammable materials are used. But the municipality is empowered to grant leave to erect buildings of the kind prohibited by the latter section under restrictions as to time and otherwise. Basing his argument on these two sections, Mr, Villenewve-Smith's contention was that the fascia being part either of the wall or of the roof the by-law does no more than supply a detail in the precautions which those two sections direct to be observed for the prevention of fire. Mr. Pilkington's veply to this contention is I think unanswerable. The fascia he says is not attached to or part of the external wall but is attached to or part of the roof, but even if it were attached to or part of the wall the case is provided for expressly by sec. 308, which allows the municipality a discretion in such cases. The general by-law making power was not intended to apply to matters thus specifically dealt with by the enactment. The claimant's strongest argument however, is that founded upon sec. 304. The fascia he contends is part of the roof and the prohibition against using fascias of wood where a house is built within a certain distance of the boundary is no more than the supplying of a detail in the prevention of fire from an inflammable roof. If that contention is good it is clear that a by-law might be made controlling the selection of material of which the roof is to be

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Before

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Judgment (43 paragraphs)