Municipal Council of Sydney v Campbell

The judgment of their Lordships was delivered by

Mr. Justice Durr. By s. 16 of the Sydney Corporation
Amendment Act, 1905, the Municipal Council of Sydney is
empowered from time to time, with the approval of the
Governor, to purchase or "resume" any land required for
"carrying out improvements in or remodelling any portion
of the city." By s. 17 the Council is authorized to use the
city funds for the purpose of obtaining plans, estimates and
reports as to the cost or desirability of purchasing or '' resum-
ing" lands; and by s. 18 it is provided that, with the
approval of the Governor, the Council may cause a notice
of the "resumption" of any land to be published in the
Government Gazette and in each of the daily papers: and
that a plan showing the separate parcels may be deposited at

(1) (1914) 79 J. P. 481. (5) (1899) 79 L. T. 685.
(2) (1923) L. R. 511. A. 14. (6) (1886) 32 Ch. D. 72.
(3) (1919) L. R. 471. A. 45. (7) (1885) 28 Ch. D. 486.
(4) (1866) L. R. 1 H. L. 34. (8) 32 Ch. D. 72, 87, 90.

(9) [1905] A. C. 426, 430.

A. C. AND PRIVY COUNCIL.

the Town Hall, Sydney, and at the Department of Lands,
Sydney, for public inspection: and that, on the publication
of the notice and description, the land to which it relates is to
become vested in the Council in fee simple, while the owner
acquires a title to be compensated in the manner provided
by the statute. By s. 3 of an amending Act of 1906, the
Council is authorized to purchase or '"' resume" any lands
required for the opening of new public ways or for widening,
enlarging or extending any public ways in the city, as well
as any lands of which those required for such purposes are
@ part.

On March 12, 1923, the Lord Mayor prepared a minute
relating to the subject of the extension of Martin Place, an
important thoroughfare in the centre of Sydney, and in this
minute he recommended the extension of Martin Place to
Macquarie Street, and the resumption of a considerable area,
which embraced property belonging to the respondents. The
proposals of the Lord Mayor's minute were adopted by a
resolution of the Council on June 28, and the resumption
provided for by the resolution was approved by the Governor
in Council.

On the application of the respondents, injunctions were
granted by the Chief Judge in Equity, restraining the Council
from proceeding under this resolution ; and subsequently the
Lord Mayor presented another minute, and on November 29
another resolution was passed by the Council, authorizing the
resumption of the identical area affected by the former
resolution. Again proceedings were taken before the Chief
Judge in Equity, who granted injunctions restraining the
Council from proceeding under the second resolution; and
at the hearing of the actions these injunctions were made
permanent. Admittedly, the Council had authority (under
s. 3 of the amending Act of 1906) to '"' resume " lands for the
purpose of extending Martin Place. It is also undisputed
that the lands of the respondents which the Council proposes
to take are not within the limits of any area wnich
could be required for that purpose. The right to resume
them is based upon the assertion that they are "required"

v.
CAMPBELL,

342 HOUSE OF LORDS (1925)

J.c. for the purpose of remodelling and improving the city
1924 within the sense of s. 16 of the Sydney Corporation
Muniorear Amendment Act.
ie The learned Chief Judge in Equity held that in point of
ela fact these lands were not really '' required" for any such
Campsett. purpose, but that, as in the case of the other parts of the area
on affected which were not necessary for the extension of the
street, the resumption proceedings were taken with the object
of enabling the Council to get the benefit of any increment in
the value of them arising from the extension, and thus, in
some degree at all events, recouping the municipality the cost
of it; and that, since the resumption of lands for such a
purpose alone was indisputably not within the ambit of the
authority committed to the Council, the resolutions of June
and November were both invalid.

In the first minute presented to the Council by the Lord
Mayor (in June), the proposed resumption was treated as a
resumption undertaken for and in relation to the extension of
Martin Place; and the consequential advantages accruing
from the possession of the residual lands, which were supposed
to recommend the Lord Mayor's proposals, were the financial
advantages alone, arising in the manner just suggested. It is
quite true that in the minute of the Governor in Council
approving the resolution the proposal approved is described
as ''a proposal... . for the improvement and remodelling of
the area in the vicinity,"' as well as for the extension of Martin
Place. But these words, it is shown by the evidence, were
inserted at the suggestion of the solicitor for the municipality
after the resolution had been passed.

The area described in the resolution of November is the
identical area affected by the previous resolution; and,
indeed, the proposal to which the resolution professes to give
effect is identical in all respects with the previous proposal
except for the pronouncement by the Lord Mayor and the
declaration in the resolution that the land is required not only
for the extension of Martin Place, but for improving and
remodelling the area in the vicinity.

No plan for improvement or remodelling was at any time

|

Asc. AND PRIVY COUNCIL.

decided upon ; and, indeed, no such plan was ever considered
by or proposed to the Council.

Their Lordships think it not reasonably disputable that at
the time of the passing of the resolution in June, the Council
conceived it to be within its powers to resume lands not needed
for the extension itself, but solely for the purpose of appro-
priating the betterments arising from the extension ; and that,
as Street C.J.E. found, the Council had not at that time applied
itself to the consideration of any other object in connection
with the resumption of the residual lands. It is not at all
inconsistent with this that individual members of the Council
may have been actuated by some more or less definite
expectation that the lands so "' resumed "' would be dealt with
not by resale to purchasers, but by leasing them, and that one
advantage, arising from that mode of dealing with them,
would lie in the fact that the Council would thereby retain
control over the use to which the resumed lands might be put.

The legal principles governing the execution of such powers
as that conferred by s. 16, in so far as presently relevant, are
not at all in controversy. A body such as the Municipal
Council of Sydney, authorized to take land compulsorily for
specified purposes, will not be permitted to exercise its powers
for different purposes, and if it attempts to do so, the Courts
will interfere. As Lord Loreburn said, in Marquess of
Clanricarde v. Congested Districts Board (1): '' Whether
it does so or not is a question of fact.' Where the pro-
ceedings of the Council are attacked upon this ground, the
party impeaching those proceedings must, of course, prove
that the Council, though professing to exercise its powers
for the statutory purpose, is in fact employing them in
furtherance of some ulterior object.

Their Lordships think that the conclusion of the learned
Chief Judge in Equity upon this question of fact is fully
sustained by the evidence. As already mentioned, it is
admitted that no plan of improvement or remodelling was at
any time before the Council ; and their Lordships think there
is great force in the argument that the course of the oral

(1) 79 J. P. 48).

343

J.C.
1924

eH
MuNICcIPAL
CouNcIL
OFr
SYDNEY

v.
CAMPBELL,

HOUSE OF LORDS [1925]

discussion, as disclosed in the shorthand note produced,
shows, when the events leading up to the second minute of the
Lord Mayor are considered, that in November the Council
was applying itself to the purpose of giving a new form to a
transaction already decided upon, rather than to the con-
sideration and determination of the question whether the
lands to be taken were required for the purpose of remodelling
or improvement. Their Lordships think the learned Chief
Judge was right in his conclusion, that upon this question
there was no real decision or determination by the Council.

Their Lordships accordingly will humbly advise His Majesty
that this appeal should be dismissed with costs.