Success in the Supreme Court for Wattle Range Council

• Council successfully defends a challenge against its resolution to declare Council land a public road.

• Supreme Court upholds Council’s powers under Section 208 of the Local Government Act 1999.
  
  
• Fact that land was the subject of a trust was no reason to limit Council’s powers under Section 208.

The Penola & District Ratepayers & Residents Association (the Association) brought proceedings in the Supreme Court of South Australia (the Court) against Wattle Range Council seeking to overturn the Council’s declaration of a parcel of Council land as a public road.

The Association was seeking declarations from the Court invalidating the Council’s resolutions, made under Section 208 of the Local Government Act 1999 (the Act), declaring a portion of land, which was the subject of a trust, to be public road.  The Association also asked the Court to grant an injunction restraining the Council from acting any further in reliance on the impugned resolutions.

Norman Waterhouse acted for the Council, with our Kate Oliver instructing Michael Roder SC in the proceedings before the Supreme Court’s Justice Duggan.

Issues

His Honour was required to consider whether:

1. the Council had the power to revoke the classification of relevant portions of land as community land pursuant to Section 194 of the Act;
   
   
2. the Council had the power to declare relevant portions of the land to be a public road pursuant to Section 208 of the Act;
   
   
3. the Council’s request to the Minister that the Commissioner of Highways consider exercising his powers to open the road under Section 20(1)(a) of the Highways Act 1926 was contrary to its duties under the trust;
   
   
4. the Council had the power to enter the trust; and
   
   
5. the Council had fettered its statutory powers by entering the trust.
   

Decision

After hearing argument from both sides on the issues, Justice Duggan handed down his decision in the instant case on 21 July 2010, which will serve as a landmark judgement defining the powers of all South Australian councils under Section 208 of the Act.

On each of the points above, with the exception of point 1, Justice Duggan decided in favour of the Council.  Specifically, the Court held as follows.

• The land the subject of the trust is held by the Council for the benefit of the community within the meaning of Section 194(1)(b) of the Act and, on that basis, the Council does not have the power to revoke the classification as community land.  Consequently, Council’s resolution revoking that classification was invalid.
  
  
• Section 208 of the Act does not expressly empower the Council to declare a road or land to be a public road.  However, it can be implied, from reading together the definition of ‘public road’ contained in the Act and Section 208(4), that land can be declared public road by resolution of the Council.  Therefore, the Council’s resolution declaring the land to be public road was valid.
  
  
• The Council did not breach its duties as trustee by inviting the Commissioner of Highways to exercise his power to acquire the land and open it as public road.
  
  
• The trust cannot be construed as restricting the Council’s statutory powers to declare open public roads.
  
  
• If the Council purported to fetter its own statutory powers by entering into the Trust, it acted contrary to the rule of executive necessity, and the trust, to that extent, would be invalid.

The Court made declarations to this effect on 3 August 2010.  The Court also ordered the Association to pay the Council’s costs of the proceedings.

Implication for Councils

The reason this is a landmark decision for local government is that, prior to this judgement, no case law existed about most of these issues.  Of particular importance is the Court’s determination that:

• councils can simply declare, by resolution, that roads or other land in their ownership are public roads under the Act; and
  
  
• councils cannot fetter their statutory discretion by entering into trusts that purport to limit the exercise of that discretion – such trusts would, by virtue of the rule of executive necessity, be invalid to the extent of the limitation on a council’s statutory powers.

The Association still has 21 days (from 21 July 2010) to appeal this decision to the Full Court of the Supreme Court.  We will keep you informed of any further developments, if any occur.

For further information on this Briefly please contact Kate Oliver on 8210 1226 or by email koliver@normans.com.au.

top of page

© Norman Waterhouse 2010. All Rights Reserved. You may not reproduce all or any part of this newsletter without our prior consent.
Requests should be directed to the Editors of this newsletter.

We respect your right to privacy. You can view our Privacy Information Notice on our website and our Privacy Policy is available
on request from our Privacy Officer at privacy@normans.com.au The contents of this newsletter are for information only and
should not be taken as advice on the law.