Ashfield Municipal Council v Roads and Traffic Authority of NSW

[2004] NSWSC 1036

Reported Decision: 136 LGERA 402

Supreme Court

CITATION:	Ashfield Municipal Council v Roads & Traffic Authority of NSW & Anor [2004] NSWSC 1036
HEARING DATE(S):	13 October, 2004
JUDGMENT DATE:	8 November 2004
JURISDICTION:	Equity Division
JUDGMENT OF:	Palmer J
DECISION:	Declaration as sought by the Plaintiff.
CATCHWORDS:	ROADS AND TRAFFIC - STATUTORY CONSTRUCTION - LOCAL GOVERNMENT - Injunctions - whether RTA requires consent of Council under s.138(1) Roads Act 1993 to carry out proposed road work in connection with construction of M4 extension.
LEGISLATION CITED:	- Environmental Planning and Assessment Act 1979 (NSW) - Part 5 - Interpretation Act 1987 (NSW) - s.34 - Local Government Act 1993 (NSW) - s.22 - Roads Act 1993 (NSW) - Clause 5 Schedule 2, Part 5; s.3, s.7, s.46, s.61, s.62, s.63, s.64, s.71, s.72, s.74, s.138, s.139, s.253, s.267 - Roads (General) Regulation 2000 (NSW) - Clause 79A - Transport Administration Act 1988 (NSW) - s.46
CASES CITED:	- Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 - Dering v Earl of Winchelsea (1787) 1 Cox 318; (1787) 29 ER 1184 - Meyers v Casey (1913) 17 CLR 90 - Tooth & Co Ltd, Re (1978) 19 ALR 191
PARTIES :	Ashfield Municipal Council - Plaintiff Roads and Traffic Authority of New South Wales - First Defendant Connell Wagner Pty Ltd - Second Defendant
FILE NUMBER(S):	SC 5287/04
COUNSEL:	T.F. Robertson SC, J.E. Lazarus - Plaintiff J.B. Simpkins SC, R.P.L. Lancaster - First Defendant B. Richardson (Sol) - Second Defendant
SOLICITORS:	Pike Pike & Fenwick - Plaintiff Clayton Utz - First Defendant Deacons - Second Defendant

The nature of the case

1 The Ashfield Municipal Council (“the Council”) seeks a declaration that the carrying out by the First Defendant (“the RTA”) of geotechnical work on roads within the municipality of Ashfield will be a contravention of s.138(1) of the Roads Act 1993 (NSW) unless the consent of the Council under that section is first obtained. The RTA has retained the Second Defendant (“CW”) to undertake the proposed geotechnical work. The Council accordingly seeks orders restraining both the RTA and CW from authorising or performing any such geotechnical work without the consent of the Council under s.138(1) of the Roads Act.

2    In July 2002, the Minister for Roads announced that the State Government would investigate the possibility of a motorway, including a possible tunnel, to connect the M4 at North Strathfield with Parramatta Road and the City West Link at Haberfield. The proposed motorway would pass through three local government areas, Ashfield, Canada Bay and Strathfield, and may affect parts of the Burwood and Leichhardt Council areas.

3    The RTA is in the process of preparing an environmental impact statement (“EIS”) for the project under Part 5 of the Planning and Assessment Act 1979 (NSW) (“the EPA Act”). CW, a planning consultancy firm, has been engaged by the RTA to assist in the preparation of the EIS. As part of the preparation of the EIS, preliminary geotechnical investigation is required along the route of the proposed motorway. These investigations involve the drilling of bore holes.

4    The RTA proposes to drill a number of bore holes in various locations on roads in the municipality of Ashfield. All of the roads are “public roads”; some are “classified” roads, and some are “unclassified” roads. I will come shortly to the relevant definitions in the Roads Act.

The Council’s opposition to the M4 extension

5    There is strong opposition within the Council to any extension of the M4 passing through Ashfield. On 11 May 2004, Council resolved to “unequivocally and unambiguously reject all of the RTA’s proposals for the extension of the M4”.

6    On 1 June 2004, CW wrote to the Council seeking permission to drill the proposed bore holes in the roads within the municipality. On 4 June, the Council’s General Manager produced a report to Council on the proposed bore holes which concluded: “there are no problems with these activities on technical grounds and it is intended to give permission for the drilling … and issue the necessary Road Opening Permits”.

7    At a meeting of the Council on 8 June 2004, the following motion was proposed:

“Is this not enough for Council administration to understand that co-operation with any stage of the proposal, even test boring of our property, is acquiescence with all three RTA M4 East extension proposals and renders our protests to date as tokenism that were undertaken simply to placate our communities and give the impression that Council is on side with our residents.”

8    After considering this motion, the Council passed the following resolution:

“1. That the General Manager instruct Council Administration NOT to issue any consent for access to or over any lands in Council Trusteeship or Fee Simple ownership to the RTA or any of its contractors or agents for an aspect of the RTA 3 proposals for the M4 East Extension. And if such consent or approval has been given it be withdrawn immediately and the RTA and its contractor be advised accordingly.

2. That the General Manager counsel all staff on the political direction and opposition of Council to the major State Government Ministerial and RTA M4 East initiative.”

9    On 9 June 2004, the Council wrote to CW advising of the resolution passed by the Council on 8 June and refusing permission for the drilling. At a meeting on 19 August 2004, the Council resolved to re-state to the RTA its total opposition to the M4 extension.

10    By letter dated 7 September 2004, the RTA asserted to the Council that it had power to carry out the proposed drilling and stated its intention to instruct CW to commence the drilling “shortly”. The Council replied by letter dated 9 September, saying that it may commence legal action to restrain the drilling as a breach of the Roads Act.

11    At a meeting of the Council on 14 September 2004, the Mayor moved a motion that the Council commence proceedings if the RTA or CW attempted to carry out the drilling. The motion was withdrawn and the Council resolved to seek the advice of Senior Counsel “to see if we could stop the drilling from occurring”.

12 It is apparent that the advice of Senior Counsel was obtained. On 22 September 2004, the Council wrote to the RTA asserting that the RTA could not carry out the drilling works without the Council’s prior permission under s.138 of the Roads Act and stating that if the RTA intended commencing the drilling work the Council might commence proceedings to restrain an anticipatory breach of the Roads Act.

13    On 24 September 2004, the RTA’s solicitors wrote to the Council raising concerns about the lawfulness of the Council’s resolution on 8 June 2004.

14    On 27 September 2004, the Council resolved that its resolution of 8 June be rescinded and that “the General Manager instruct Council Administration to refer any request for access to or over any lands owned by or under the control of Council, or any roads for which the Council is the Roads Authority, or any request for consent to carry out any activities on roads for which Council is the Roads Authority for determination by a meeting of the Council”. Council also resolved to commence proceedings in this Court seeking injunctions and other orders.

15 On 1 October 2004, the RTA applied to the Council for consent under s.138 of the Roads Act to undertake the proposed geotechnical investigations in the Ashfield Municipality.

16 On 6 October 2004, the Council’s solicitors wrote to the RTA’s solicitors stating that the Council was of the view that residents should be notified of the RTA’s application under s.138 and that it would be necessary for the Council to consult with the RTA before determining the application. On the same day, the RTA’s solicitors wrote to the Council’s solicitors asserting that consultation with residents was not required and that the Council should be able to deal with the RTA’s application at the same time as it engaged in consultation with the RTA.

17    On 7 October 2004, the Council wrote to the RTA requesting further information and stating that it would be necessary to notify residents of the application and to provide time for the consideration of submissions and for consultation with the RTA, prior to determining the application.

The issues

18    These proceedings were commenced by Summons filed on 28 September 2004. The Council seeks the declaratory and injunctive relief to which I have referred. By a Cross Claim filed on 1 October 2004, the RTA seeks the following relief:

“1. An order that the Cross Defendant determine any application made to it under section 138 of the Roads Act 1993 by the Cross Claimant in respect of the geotechnical investigations and works on the public roads which are not classified roads set out in Attachment A to the Cross Claim according to law.

2. A declaration that the Cross Defendant in determining any application of the kind referred to in order 1 is not entitled:

(a) to act upon a policy that no consent should be granted to any geotechnical investigations and works if they relate to the Cross Claimant’s proposals for the M4 East Extension; or

(b) to take into account as a relevant consideration the fact that the Cross Defendant is politically opposed to the Cross Claimant’s proposals for the M4 East Extension.

3. An order that the Cross Defendant determine the Second Defendant’s request for consent dated 1 June 2004 (“the Request”).

4. Alternatively to order 3, an order that any decision of the Cross Defendant to refuse the Request was void and of no effect.

5. An order that the Cross Defendant, in determining whether to grant or withhold consent in response to the Request, act according to law.

6. A declaration that the Cross Defendant, in determining whether to grant or withhold consent in response to the Request, is not entitled:

(a) to act upon a policy that no consent should be given to any geotechnical investigations and works if they relate to the Cross Claimant’s proposals for the M4 East Extension;

(b) to take into account as a relevant consideration the fact that the Cross Defendant is politically opposed to the Cross Claimant’s proposals for the M4 East Extension.”

19    When the matter was called on for hearing, Mr T.F. Robertson SC appeared with Mr Lazarus of Counsel for the Council and Mr Simpkins SC appeared with Mr Lancaster of Counsel for the RTA. CW filed a consenting appearance and did not participate in the trial.

20    The evidence adduced by both parties was essentially documentary. A volume of documents was admitted by consent, subject to relevance, and two affidavits were read on behalf of the RTA. Neither deponent was required for cross examination.

21    The principal issues as formulated by the parties are:

“1. Whether the RTA and/or CW are required by section 138 of the Roads Act to obtain the Council’s consent to the carrying out of the proposed road works on public roads in the Ashfield Council Government area.

2. If so, whether an injunction should issue restraining the carrying out of the road works unless and until the Council’s consent is obtained.

3. If so, whether, in determining whether to grant consent, the Council is entitled to act upon or otherwise have regard to:

(a) a policy that no consent should be granted to any geotechnical investigations and works if they relate to the RTA’s proposal for the M4 East;

(b) as a relevant consideration, the fact that the Council is politically opposed to the RTA’s proposal for the M4 East.”

Responsibility for the subject roads

22    By s.22 Local Government Act 1993 (NSW) a council, “has the functions conferred or imposed on it by or under any other Act or law”. The Roads Act 1993 is such an Act. Section 3 relevantly provides:

“The objects of this Act are:
…
(c) to establish the procedures for the opening and closing of a public road, and

(d) to provide for the classification of roads

(e) to provide for the declaration of the RTA and other public authorities as roads authorities for both classified and unclassified roads, and

(f) to confer certain functions (in particular, the function of carrying out road work) on the RTA and on other roads authorities, and

(g) to provide for the distribution of the functions conferred by this Act between the RTA and other roads authorities, and

(h) to regulate the carrying out of various activities on public roads.”

23 Section 7 of the Roads Act operates, inter alia, to confer a function on councils in accordance with s.22 Local Government Act, and relevantly provides as follows:

“(1) The RTA is the roads authority for all freeways.

(2) The Minister is the roads authority for all Crown roads.

(3) The regulations may declare that a specified public authority is the roads authority for a specified public road, or for all public roads within a specified area, other than any freeway or Crown road.

(4) The council of a local government area is the roads authority for all public roads within the area, other than:

(a) any freeway or Crown road, and

(b) any public road for which some other public authority is declared by the regulations to be the roads authority.

(5) A roads authority has such functions as are conferred on it by or under this or any other Act or law.”

24    The dictionary in the Roads Act defines “roads authority” as follows:

“ roads authority means a person or body that is, by or under this Act, declared to be a roads authority and, in relation to a particular public road, means the roads authority for that road.”

25    None of the roads in Ashfield upon which the RTA proposes to carry out geotechnical work is a freeway. The Council is, therefore, the roads authority in respect of all of the subject roads, there having been no regulation made in the Roads (General) Regulation 2000 (NSW) declaring the RTA or any other “public authority” to be the roads authority in respect of the M4 East project (extension?). This is in contrast to other major road projects such as the Cross-City Tunnel project, for which the RTA has been declared to be the roads authority: see Clause 79A, Roads (General) Regulation.

Classification of roads

26 Part 5 Roads Act provides a procedure for the classification of public roads, clearly for the purpose of allowing the State government to control roads otherwise controlled by local government. Public roads are either “classified” or “unclassified”. The dictionary in the Act defines “unclassified road” as a public road that is not a “classified road”. “Classified road” is defined as:

“… any of the following:
(a) a main road,
(b) a State highway,
(c) a freeway,
(d) a controlled access road,
(e) a secondary road,
(f) a tourist road,
(g) a tollway,
(g1) a transitway,
(h) a State work.”

“Main road” is defined to mean “a road that is declared to be a main road by an order in force under section 46” . Section 46 relevantly provides as follows:

“The Minister may, by order published in the Gazette, declare to be a main road:

(a) any public road, or

(b) any other road that passes through public open space and joins a main road, State highway, freeway, tollway, transitway or controlled access road.”

Accordingly, the Minister may, by making the appropriate executive declaration, constitute any public road, including any road under the control of a council, a classified road for purposes of the Roads Act . The consequences of a public road being a classified road are significant.

27 Section 61(1), Roads Act provides:

“It is exclusively the function of the RTA to make decisions as to what road work is to be carried out:

(a) on any freeway, State highway or metropolitan main road, or

(b) on any other classified road in respect of which the carrying out of that kind of road work is, by virtue of an agreement or direction under this Division, the responsibility of the RTA.”

28    Section 62 provides that the RTA and a roads authority may enter into an agreement whereby the RTA may take over some or all of the functions of the road authority with respect to a classified road. Section 63 provides that, in special circumstances, the Minister may give a direction to the same effect.

29    Section 64 provides:

“(1) The RTA may exercise the functions of a roads authority with respect to any classified road, whether or not it is the roads authority for that road and, in the case of a classified road, whether or not that road is a public road.

(2) The roads authority for a classified road with respect to which the RTA is exercising a particular function may not exercise its functions with respect to the road in any manner that is inconsistent with that in which the function is being exercised by the RTA.”

30    The reference in subsection (2) to the RTA assuming “a particular function” makes it clear that under subsection (1) the RTA may exercise all or any one or more of the functions of a road authority with respect to a classified road. If, and for so long as, the RTA chooses to avail itself of s.64 in order to assume a particular function of a road authority with respect to a classified road, the road authority ceases to be able to exercise that particular function and cannot exercise any of its other functions inconsistently with the manner in which the RTA is exercising the particular function which it has assumed.

Conduct of road works

31 Section 71 Roads Act provides:

“A roads authority may carry out road work on any public road for which it is the roads authority and on any other land under its control.”

32 Section 72 provides:

“(1) The RTA may carry out road work on a public road that is not a classified road:

(a) if, in the opinion of the RTA, it is necessary to do so in connection with the carrying out of road work on an adjoining classified road, or

(b) if, in the opinion of the RTA, the carrying out of the work would be of benefit to classified roads in the vicinity of the road on which the work is being carried out, or

(c) if the carrying out of the road work by the RTA is funded by money appropriated by Parliament for that purpose, or

(d) if the carrying out of the road work has been requested by, and is to be funded by, some other public authority.

(2) When carrying out road work on a public road under this section, the RTA has the immunities of a roads authority with respect to that road.”

is defined in the dictionary to the Roads Act as follows:

“ road work includes any kind of work, building or structure (such as a roadway, footway, bridge, tunnel, road-ferry, rest area, transitway station or service centre) that is constructed or installed on or in the vicinity of a road for the purpose of facilitating the use of the road as a road, the regulation of traffic on the road or the carriage of utility services across the road, but does not include a traffic control facility, and carry out road work includes carry out any activity in connection with the construction, erection, installation, maintenance, repair, removal or replacement of a road work.”

34    In summary:

– generally, a local council will be the roads authority whose function it is to carry out road work on all public roads, classified and unclassified, in its area: s.74(4), s.71;

– the RTA may, to the exclusion of a council, take over the functions of a council with respect to the carrying out of road work on a classified road if it chooses to exercise its power to do so under s.64(1), or if there is an agreement under s.63 or if there is a direction of the Minister under s.64;

– the RTA may carry out road work on an unclassified road in the circumstances provided in s.72;

– an unclassified road may be brought under the control of the RTA if:

it is converted to a main road and thereby a classified road, by the Minister’s declaration under s.46 and thereafter comes under the control of the RTA pursuant to s.64(1); or
the RTA is made the road authority for the road pursuant to s.7(3).

Consent to digging up a road

35 Section 138 Roads Act provides:

“(1) A person must not:

(a) erect a structure or carry out a work in, on or over a public road, or

(b) dig up or disturb the surface of a public road, or

(c) remove or interfere with a structure, work or tree on a public road, or

(d) pump water into a public road from any land adjoining the road, or

(e) connect a road (whether public or private) to a classified road,

otherwise than with the consent of the appropriate roads authority.

Maximum penalty: 10 penalty units.

(2) A consent may not be given with respect to a classified road except with the concurrence of the RTA.

(3) If the applicant is a public authority, the roads authority and, in the case of a classified road, the RTA must consult with the applicant before deciding whether or not to grant consent or concurrence.

(4) This section applies to a roads authority and to any employee of a roads authority in the same way as it applies to any other person.”

36    Section 139 relevantly provides:

“(1) A consent under this Division:

(a) may be granted on the roads authority’s initiative or on the application of any person, and

(b) may be granted generally or for a particular case, and

(c) may relate to a specific structure, work or tree or to structures, works or trees of a specified class, and

(c1) in relation to integrated development within the meaning of section 91 of the Environmental Planning and Assessment Act 1979, is subject to Division 5 of Part 4 of that Act, and

(d) may be granted on such conditions as the appropriate roads authority thinks fit.”

37    Mr Robertson submits on behalf of the Council that, in the particular circumstances of this case, the Council alone is “the appropriate roads authority” for the purpose of giving consent under s.138(1), whether the drilling work is to be carried out on a classified or an unclassified road. He points out that there has been no regulation made under s.7(3) declaring the RTA to be “the roads authority” for the subject roads. Mr Robertson says that s.138 is “paramount”, so that even if the RTA were purporting to exercise a function of the Council under s.64 or purporting to carry out road work under s.72, it would first be required to seek the Council’s consent under s.138.

Classified roads

38 Mr Simpkins says that the RTA and CW, as the RTA’s agent, do not need the consent of the Council under s.138(1) to carry out drilling work on classified roads. His submissions may be summarised as follows.

39    First, Mr Simpkins says, the proposed drilling work is within the phrase “carry out road work” within the dictionary definition of “road work”, because it is “an activity in connection with the construction of a ‘road work’” and a “road work” includes a tunnel constructed in the vicinity of a “road”. The dictionary defines “a road” as including the soil beneath the surface of the road. Accordingly, it follows that the drilling work is “an activity in connection with the construction of a tunnel in the vicinity of the soil beneath the surface of a road” and is, therefore, a road work as defined. After sifting through the rather convoluted definitions in the dictionary, I conclude that Mr Simpkins is correct in this submission.

40    Next, Mr Simpkins submits that the drilling work is “carrying on road work” on a public road which, under s.71, is within the function of a Council to perform as the relevant roads authority. In my view, in the present case if the Council wished to carry out the drilling work it would, as Mr Simpkins submits, be empowered to do so under s.71, both in respect of classified roads and unclassified roads.

41 Mr Simpkins then says that if the Council were exercising its function under s.71 by doing the drilling work, it would not have to apply to itself under s.138 for consent to dig up any road. He says that under s.64(1) the RTA may exercise the Council’s functions under s.71 with respect to a classified road so that the RTA may simply step into the Council’s shoes, as it were, as if the Council itself were doing the work. Because the Council does not need its own consent under s.138 if it were to be carrying out the road work, the RTA does not need the Council’s consent when it is exercising the Council’s function to carry out the road work.

42 I think that this submission is correct, but for the very last step. I do not think that the exercise by the RTA of a power to carry out road work under s.64(1) and s.71 automatically carries with it either a dispensation of the requirement to seek the Council’s consent under s.138 or else automatically vests in the RTA the consent function of the Council under s.138.

43 The function of a council as roads authority to carry out road work under s.71 is separate and distinct from its function to give consents under s.138. A council is not invariably the entity carrying out work for which a consent under s.138 is required. That entity may be a developer, a resident, a public authority (as s.138(3) makes clear), or another road authority such as the RTA (as s.138(4) makes clear). If the council itself is carrying out road work it may give itself any necessary consent under s.138 if it is the “appropriate authority” referred to in subsection (1) for the purpose of that work. However, the council may not always be the “appropriate authority” even if it is carrying out the road work: the RTA may have taken over the consent function under s.138(1) in respect of a particular classified road pursuant to its power to do so under s.64(1). Alternatively, the RTA may have taken over the council’s function under s.71 to carry out particular road work on a classified road but not its consent function with respect to that work under s.138(1).

44 The purpose of s.64(1) is to vest in the RTA an overriding control of classified roads, as is made plain by subsection (2): if the RTA wishes to exercise the function of a council under s.71 of carrying out road work to a classified road within the council’s area, the council, as the roads authority, cannot stand in its way by inconsistent exercise of its own functions.

45 So, if the RTA applies to the Council under s.138 for a consent to dig up a classified road for the purpose of carrying out road work pursuant to the exercise of the RTA’s rights under s.64(1) coupled with s.71, the Council must exercise its power under s.138(1) consistently with the function being exercised by the RTA. That does not mean that the Council is compelled to give a ‘rubber stamp’ consent to whatever is proposed by the RTA, regardless of what is involved in the proposal. The Council will have its own considerations to take into account when making its decision. For example, it will be concerned to see that disruption to local traffic and to the amenity of the neighbourhood is minimised. It may wish to impose conditions as to hours of work and so on, pursuant to its power to do so under s.139(1)(d). However, by virtue of s.64(2), the Council may not exercise its power under s.138 in order to frustrate the purpose of the RTA in carrying out the road work.

46 Of course, as I have pointed out above, it would be possible for the RTA, if it wished to carry out road work on a classified road, to sidestep entirely the involvement of the Council under s.138. As I have said, the giving of consent under s.138 is a function of the Council as the roads authority for the particular road. The RTA may, if it chooses, exercise that function under s.64(1) as well as the separate function of carrying out the road work itself. If the RTA chooses to exercise the consent function, then it would be the “appropriate roads authority” for the purposes of s.138(1). However, that is not what has happened in the present case.

47 The exercise by the RTA of a function under s.64(1) is a matter of choice. If the RTA chooses to exercise any particular function of a roads authority with respect to a classified road, it must communicate that decision to the roads authority concerned. In the present case, I think that the RTA has sufficiently communicated to the Council that it, by its agent or independent contractor, CW, proposes to exercise the function of the Council of carrying out road work, as defined, by the drilling of bore holes. Section 253 Roads Act expressly empowers the RTA, like any other roads authority, to exercise its functions under the Act by agents or independent contractors.

48 However, I do not think that the RTA has chosen to exercise the function of the Council under s.138(1) to give consent to CW, as the RTA’s agent, for the carrying out of the drilling work. Indeed, quite the opposite. On 1 June 2004, CW, as the RTA’s agent or contractor, expressly sought the Council’s permission under s.138 to carry out the drilling work. By letter dated 1 October 2004, the RTA itself applied for consent under s.138. That application is still current. The RTA’s Cross Claim in the present proceedings seeks orders that the Council decide the RTA’s application for consent under s.138 in a certain way. The RTA has, therefore, chosen to leave to the Council the function to be exercised under s.138(1).

49 In the result, as matters stand, the position is that the RTA has power under s.64(1) and s.71 to carry out the proposed drilling work on classified roads in the Ashfield Municipality, but subject to obtaining the Council’s consent under s.138(1). The RTA would not need the Council’s consent if the RTA chose to exercise the s.138 consent function, pursuant to its power to do so under s.64(1).

Unclassified roads

50 Mr Simpkins relies on two different grounds to support his submission that the Council’s consent under s.138(1) is not required for the drilling work proposed to be carried out on unclassified roads. The first is founded on Clause 5 of Schedule 2 to the Act; the second is founded on s.72 of the Act.

51    Schedule 2 is given effect by s.267. The Schedule is headed “Savings, transitional and other provisions”. Clause 5 provides:

“ Application of section 138

(1) Section 138 does not require a public authority, or a network operator within the meaning of the Gas Supply Act 1996, to obtain a roads authority’s consent to the exercise of the public authority’s or gas distributor’s functions in, on or over an unclassified road other than a Crown road.

(2) This clause ceases to have effect on a day to be appointed by proclamation.”

There has been no proclamation under Clause 5(2).

52    “Public authority” is defined in the dictionary as:

“ public authority means a public or local authority constituted by or under an Act or a statutory body representing the Crown, and includes a Minister and any body or class of bodies prescribed by the regulations for the purposes of this Act and the regulations or of any specified provision of this Act or the regulations.”

53 The RTA is constituted by s.46(1) of the Transport Administration Act 1988 (NSW) and by subsection (2)(b) it is a statutory body representing the Crown. Mr Simpkins submits that the RTA is, therefore, a “public authority” and, as such, it has the benefit of the exception conferred by Clause 5 of Schedule 2.

54    The RTA is certainly a “public authority” for certain purposes in the Roads Act. For example, as a “public authority” it could be declared to be a “roads authority” for specified roads pursuant to s.7(3). However, I am unable to agree that the RTA is intended to fall within the expression “public authority” for the purposes of Schedule 2 Clause 5, for the following reasons.

55 First, s.72 Roads Act specifically deals with what rights and powers the RTA has with respect to unclassified roads. Section 138(4) makes it clear that the section applies to the RTA as a roads authority. It is difficult to believe that an overriding right of the RTA to dispense with a council’s consent under s.138 with respect to unclassified roads is intended to be conferred in what, from Clause 5(2) of the Schedule, is obviously a transitional provision. No policy reason for such a curious temporary measure has been suggested.

56 Second, the ambiguity in the intended scope of “public authority” in Clause 5 entitles recourse to the Second Reading Speech: s.34(b) Interpretation Act 1987 (NSW). A copy of the speech was tendered in evidence. In relation to Schedule 2 Clause 5, the Minister said:

“A transitional provision [Clause 5, Schedule 2] has also been included which exempts public authorities and gas distributors from the need to obtain council’s consent under clause 137 [now s.138] to the exercise of its functions on an unclassified road other than a Crown road.

This provision has been inserted to give sufficient time for further consideration with utility bodies to clarify and resolve the difficult question of the respective powers and functions of councils and the utility bodies.” : see Hansard, Legislative Assembly, 11 March 1993, p.730.

57 The Minister’s observations make it clear, in my opinion, that the words “public authority” in Clause 5 of Schedule 2 are intended to refer, not to the RTA or other roads authorities specifically dealt with in the body of the Act, but to State owned “utilities” responsible for the supply of gas, electricity, water and other services.

58 Mr Simpkins’ submission founded on s.72 is as follows. The drilling of the bore holes is the “carrying out of road work”, within the meaning of those words in s.72, for reasons, previously given, which I have accepted as correct. The RTA has, in accordance with s.72(1)(a) and (b), formed the opinion that the relevant work is necessary or beneficial to work being carried out on adjoining or nearby classified roads and the evidence as to the formation of that opinion is unchallenged. Accordingly, Mr Simpkins says, s.72 empowers the RTA to carry out the work on unclassified roads without the consent of the Council under s.138.

59 I agree with Mr Simpkins’ submissions, except for the last step. In my opinion, s.72 merely gives a power to the RTA to carry out certain work on unclassified roads, in the sense of giving it the legal capacity to do so such work. Like s.64(1), s.72 does not automatically carry with it a dispensation from the requirement to seek the Council’s consent under s.138. That consent must still be sought. Because s.64(1) gives the RTA power to exercise a council’s functions under s.138 only with respect to a classified road, the section is of no avail when the RTA is seeking to carry out work on an unclassified road pursuant to s.72.

Whether injunctions should be granted

60 As matters presently stand, the consent of the Council under s.138(1) is required in respect of the drilling work proposed to be carried out on both the classified and the unclassified roads in the Ashfield Municipality and a declaration in terms of paragraph 1 of the Summons should be made accordingly.

61    Mr Simpkins submits, however, that the injunctions sought by the Council should nevertheless be refused as a matter of discretion. The essence of the submission is that the greater public good would be served by allowing work on the M4 extension to proceed rather than by permitting the Council to delay it on policy grounds. Mr Simpkins refers to what he says will be the substantial detriment suffered by the public as a result of delay in construction of the M4 extension as compared with the minimal inconvenience to residents of the Ashfield Municipality if the drilling work is allowed to proceed.

62    This is not an application for an interlocutory injunction, in which a consideration of the balance of convenience would feature largely in the exercise of discretion. These proceedings seek the enforcement of rights and obligations on a final basis. As matters presently stand, the RTA requires the Council’s consent to the proposed drilling work. That is the law which the legislature has enacted in the Roads Act; if the legislature decides that the policy underlying that law is no longer appropriate, it may change the law. In the meantime, this Court must apply the law as it is. The Court cannot enter into policy considerations as to whether a particular public law should or should not be enforced according to its terms, nor is it equipped to make decisions as to where the balance of the public interest and convenience lies in a proceeding of this character. Public interest and convenience as to the implementation of the M4 extension proposal are, essentially, matters for the Government and for the Council. The RTA, in my view, must comply with the law as it is and it must obtain the Council’s consent under s.138(1) to the proposed drilling work. I would not refuse an injunction on the ground that the public interest is in favour of the RTA being allowed to commit a breach of the law with impunity.

63    However, whether the injunctions sought in paragraphs 2 and 3 of the Summons should be granted involves some other complicating factors. First, the Court expects that the RTA, as a statutory body representing the Crown, would not act otherwise than in accordance with law once the law has been clarified and the Court has made clear that it would not refuse an injunction on the ground that the public interest favoured the RTA being permitted to breach the law. The Court would also expect that the RTA would not authorise or permit CW, as its agent or contractor, to commit a breach of the law.

64 Second, and more importantly, the present situation whereby the RTA requires the consent of the Council under s.138(1) may easily change. The RTA may withdraw its application for consent under s.138 and may give to the Council notice that, pursuant to s.64(1), it has decided to take over and exercise the Council’s functions under s.138(1) with respect to the drilling work on the classified roads. Alternatively, under s.63(1) the Minister may direct that the Council’s functions under s.138(1) with respect to the drilling work are to be the responsibility of the RTA. In either case the RTA will become the “appropriate roads authority” under s.138(1) for approval of the drilling work on the classified roads.

65 As for the work on the unclassified roads, under s.7(3) Regulations may be made declaring the RTA to be the roads authority for those roads, as was done under the Roads (General) Regulation 2000 for part of the M5 East Motorway, the Cross-City Tunnel Project and the Lane Cove Tunnel Project. If such a regulation were made for the M4 extension, again the RTA would become the “appropriate roads authority” under s.138(1) and the requirement for the Council’s consent to the drilling work would be bypassed.

66 Because the present requirement for the Council’s consent under s.138(1) is capable of removal by bureaucratic decree in the immediate future, it could well be productive of confusion to grant a perpetual injunction restraining the RTA and CW in the terms now sought by the Council.

67    Bearing in mind the Court’s expectation that an injunction directed to the Crown should be unnecessary, after the legal position has been declared, and the real possibility of confusion in the future should a permanent injunction be in place although the circumstances underlying its grant have changed, I do not think as a matter of discretion that I should, at this stage, grant the injunction sought by the Council.

68    However, I will reserve liberty to apply in case, for some reason which I cannot presently appreciate, the RTA now determines to proceed with the drilling work without the consent of the Council in circumstances in which I have held that that consent is necessary. If the Council finds it necessary to make such an application, I would prefer to reserve for consideration at that time, in the light of the facts which have necessitated the application, Mr Simpkins’ submission that the Court should refuse an injunction to restrain the commission of a criminal offence.

Unclean hands

69    In case I am wrong in refusing, at this stage, an injunction for the reasons given above, I should deal briefly with the RTA’s submission that the injunction should be refused because the Council has sought equity with “unclean hands”.

70 Mr Simpkins says that the Council has “unclean hands”, in the sense understood in Equity, because it improperly refused to consider on its merits the application for consent under s.138 made by CW on 1 June 2004 and rejected the application because of an inflexible policy of opposition to the M4 extension. Mr Simpkins says that, in so doing, the Council was acting in abuse of power and its decision was invalid as a matter of administrative law.

71    In Meyers v Casey (1913) 17 CLR 90, at 123, Isaacs J cited with approval the following passage from Dering v Earl of Winchelsea 1 Cox 318, at 319 ((1787) 29 ER 1184, at 1185):

“It is not laying down any principle to say that [the plaintiff’s] ill conduct disables him from having any relief in this Court. If this can be founded on any principle, it must be, that a man must come into a court of equity with clean hands; but when this is said, it does not mean a general depravity; it must have an immediate and necessary relation to the equity sued for; it must be a depravity in a legal as well as in a moral sense.”

72    If the Council failed in its duty under administrative law in dealing with CW’s application as it did – as to which it is not necessary to decide – that conduct does not, in my opinion have “an immediate and necessary relation to the equity sued for”. The question upon which the Council seeks a declaration and an injunction is essentially a matter of statutory construction, viz, whether the RTA does, or does not, need the Council’s consent under s.138(1) for the proposed drilling work.

73 The fact that CW’s application for consent under s.138(1) was refused, for whatever reason, has no bearing on the question of statutory construction. The refusal of consent has not induced the Council to come to Court seeking the declaration and the injunctions. What has induced the Council to come to Court is the fact that the RTA, in correspondence from its solicitors, has asserted that it does not, as a matter of statutory construction, need the Council’s consent under s.138, even though the Council has actually applied for such consent.

74    In any event, the wrongful act of the Council in refusing to deal with CW’s application for consent on its merits – if, indeed, it be a wrongful act – has been amended by the Council’s revocation of its resolution of 8 June 2004 and by the fact that what the Council is now dealing with is the RTA’s own application for consent made on 1 October 2004. The Council has not yet made any decision in relation to that application.

75    Further, if the Council committed a wrongful act in refusing CW’s application then I do not think that the character of that act savours sufficiently of “depravity” in the legal sense, so as to militate against the grant of equitable relief. There is no suggestion that the Council was acting other than honestly in the belief that what it was doing was in the best interests of its constituents. In that belief it may be right or wrong – it is not for this Court to say – but it is significant that after 8 June 2004 the Council took legal advice and, as a result of that advice, it apparently recognised that its previously expressed attitude of intransigence was not appropriate.

76    For these reasons, I do not accept that the Council should be denied equitable relief as a matter of discretion for want of “clean hands”.

Whether relief in Cross Claim should be granted

77    The RTA seeks the following relief in its Cross Claim:

1. An order that the Cross Defendant determine any application made to it under section 138 of the Roads Act 1993 by the Cross Claimant in respect of the geotechnical investigations and works on the public roads which are not classified roads set out in Attachment A to the Cross Claim according to law.

2. A declaration that the Cross Defendant in determining any application of the kind referred to in order 1 is not entitled:

(a) to act upon a policy that no consent should be granted to any geotechnical investigations and works if they relate to the Cross Claimant’s proposals for the M4 East Extension; or

(b) to take into account as a relevant consideration the fact that the Cross Defendant is politically opposed to the Cross Claimant’s proposals for the M4 East Extension.

3. An order that the Cross Defendant determine the Second Defendant’s request for consent dated 1 June 2004 (“the Request”).

4. Alternatively to order 3, an order that any decision of the Cross Defendant to refuse the Request was void and of no effect.

5. An order that the Cross Defendant, in determining whether to grant or withhold consent in response to the Request, act according to law.

6. A declaration that the Cross Defendant, in determining whether to grant or withhold consent in response to the Request, is not entitled:

(a) to act upon a policy that no consent should be given to any geotechnical investigations and works if they relate to the Cross Claimant’s proposals for the M4 East Extension;

(b) to take into account as a relevant consideration the fact that the Cross Defendant is politically opposed to the Cross Claimant’s proposals for the M4 East Extension.

78    Counsel for both parties have urged that there would be utility in the Court making the declarations sought by the RTA, despite the fact that the declarations are as to future matters. However, upon consideration of the factual situation as it is at present and of the relevant authorities, I have concluded that I should not, in the exercise of discretion, make the declarations sought in the Cross Claim.

79    The discretion whether to make declarations, even if sought by both parties to a dispute, is ultimately exercised according to the practical utility of doing so. While the Court, in modern times, is more willing than it used to be to assist the resolution of disputes by making declarations, it does not go to the length of providing consultative, speculative or hypothetical advice.

80    In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, at 581-2, Mason CJ, Dawson, Toohey and Gaudron JJ said:

“It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which “it is neither possible nor desirable to fetter … by laying down rules as to the manner of its exercise ’. However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have ‘a real interest’ and relief will not be granted if the question ‘is purely hypothetical’ , if relief is ‘claimed in relation to circumstances that [have] not occurred and might never happen’ or if ‘the court’s declaration will produce no foreseeable consequences for the parties’ .”

81    In Re Tooth & Co Ltd (1978) 19 ALR 191, Brennan J said at 209:

“A controversy as to the lawfulness of future conduct cannot be said to be immediate and real if it is unlikely that the applicant will engage in the conduct ( Golden v Zwickler (1969) 394 US 103 at 109). If the prospects of the applicant engaging in the conduct are uncertain, the uncertainty may deprive the controversy of a sufficient immediacy and reality to warrant the making of a declaration ( Steffel v Thompson (1973) 415 US 452 at 460). The degree of uncertainty as to whether the applicant will engage in the conduct proposed will usually determine whether the circumstances call for the making of a declaration.”

82    In my opinion, the factual situation in which the Council may come to make a decision on the applications referred to in the declarations sought in paragraphs 2 and 6 of the Cross Claim are too fluid and uncertain to call for the immediate making of the declarations.

83 The attitude of the Council to CW’s application for consent to carry out the drilling works, as appearing in the Council’s resolution of 8 June 2004 and reaffirmed in subsequent resolutions, has now been revoked by the resolution of 27 September 2004. It is a legitimate inference that this revocation was as a result of legal advice received from Senior Counsel and that the Council appreciates, as perhaps it did not appreciate before, that applications for consent under s.138(1) must be considered on their merits.

84 I do not think that, even though the Council has expressed its attitude to the M4 extension in forceful terms on several occasions, I am justified in assuming that it will not now consider on its merits the current application by the RTA for consent under s.138(1). The Council will doubtless have the benefit of legal advice in considering that application. I do not see any basis for believing that the Council will ignore that advice.

85 Whether the Council will have the “policy” ascribed to it in the declarations sought in paragraphs 2 and 6 of the Cross Claim at the time it comes to make the relevant decisions is speculative. Perceptions within the Council may change; proposals for the M4 extension may be varied. If a decision is made by the Council rejecting the RTA’s application for consent under s.138(1) it will be open to the RTA to challenge that decision and it will then be a question of fact whether, and to what extent if any, the decision resulted from a failure to consider the application on its merits because of some identified preconceived policy.

86 Finally, it must be remembered that the Council may never come to consider the RTA’s application for consent under s.138. As I have discussed, the RTA and the Government have the ready means of taking away the Council’s functions under that section in respect of anything to do with the M4 extension.

87 As to the orders sought in paragraphs 1 and 5, they are expressed in terms which are far too wide. What, precisely, is the Council to do in determining an application for consent under s.138 “according to law”? If a particular decision of the Council is set aside as infringing in some way the principles of administrative law, however honestly the error occurred, are the Council and its members to be liable to punishment for contempt of Court because of a breach of orders in terms of paragraphs 1 and 5?

88    Orders 3, 4 and 5 also are of no utility. The Council revoked its refusal of CW’s application and the reason it did so can only be of historical interest. The Council now has before it the RTA’s application and it must deal with that application unless the decision is taken from its hands by the action of the RTA or the Government.

89 In summary, the declarations and orders sought by the RTA, if granted, are in my opinion far more likely to create difficulty, confusion and further litigation between the parties rather than to resolve the dispute finally. The Council’s decision on the RTA’s application for consent under s.138, if made at all, will be reviewable in the light of the facts as they are then found to be. The parties and the Courts should not be distracted by decisions founded upon what the facts might have been.

90    For these reasons, I would refuse the relief sought in the Cross Claim.

Orders

91 I make a declaration that, so long as the Plaintiff remains the appropriate roads authority for the giving of the requisite consent under s.138(1) Roads Act 1993 (NSW), the carrying out of work in or on or the digging up or disturbing of the roads specified in the Schedule to the Plaintiff’s Amended Summons by the Defendants will be in contravention of s.138(1) of the Roads Act unless the consent of the Plaintiff is first obtained.

92    The Plaintiff will have leave to apply for injunctions to the effect of paragraphs 2 and 3 of the Amended Summons on such notice as is practicable if the Defendants or either of them attempt to carry out work in breach of their obligations as declared in the foregoing paragraph.

93    The Cross Claim will be dismissed.

94    I will hear the parties as to costs.

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Last Modified: 11/08/2004