Captive Vision Pty Ltd v Ku-ring-gai Council - [2019] NSWLEC 1331

Land and Environment Court

New South Wales

Medium Neutral Citation: Captive Vision Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1331
Hearing dates: 29-30 May 2019
Date of orders: 15 July 2019
Decision date: 15 July 2019
Jurisdiction: Class 1
Before: Froh R
Decision:
The Court orders:
(1) Roads and Maritime Services is joined as the Second Respondent.
(2) The proceedings are listed for directions at 9AM on Tuesday, 16 July 2019 before the Registrar.

Catchwords: JOINDER – application for joinder – Crown’s right to appear
Legislation Cited: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Land and Environment Court Rules 2007
Uniform Civil Procedure Rules 2005
Roads Act 1993
Cases Cited: Hardie Holdings Pty Ltd v Cessnock City Council [2010] NSWLEC 11
Smith v Wollondilly Shire Council [2004] NSWLEC 194
Vanadi Pty Ltd v Leichhardt Council; MSB Sydney Ports Authority Intervening (1994) 85 LGERA 87
Vella v Penrith City Council [2019] NSWLEC 62
Category: Procedural and other rulings
Parties: Captive Vision Pty Ltd (Applicant)
Ku-ring-gai Council (Respondent)
Roads and Maritime Services (Applicant on the motion for joinder)
Representation:
Counsel:
J McKelvey (Applicant)
M Astill (Applicant on the motion for joinder)
Solicitors:
McKees Legal Solutions (Applicant)
M Hanna, Wilshire Webb Staunton Beattie (Respondent)
Clayton Utz (Applicant on the motion for joinder)

File Number(s): 2019/34878
Publication restriction: No

Judgment

REGISTRAR: By Notice of Motion (NOM) dated 20 May 2019, the Roads and Maritime Services (RMS) seek an order that it be joined as a party in Class 1 proceedings between Captive Vision Pty Ltd and Ku-ring-gai Council.
The Class 1 proceedings, which are the subject of this NOM, comprise an appeal by Captive Vision Pty Ltd against Council’s refusal to issue a construction certificate in respect of the placement of advertising signs on the pedestrian air bridge located at Gordon over the Pacific Highway.
The Pacific Highway is a classified road and accordingly requires the concurrence of RMS before the Council can grant an approval under s 138 of the Roads Act 1993.
The RMS by letter to Council dated 28 February 2017 states that:

“Roads and Maritime [Services] has reviewed the submitted documents and does not grant concurrence for the erection of these structures over a classified road as proposed advertising signs have been identified as safety hazards for the road users.”

The Applicant was granted a modification to its development consent by Council on 26 July 2018. However, the RMS refused to give any concurrence on the grounds set out in its earlier letter of 28 February 2017 and extracted at paragraph [4] above.
There is no dispute between the parties that the RMS enjoys all rights, privileges and immunities as the Crown.
The RMS sought joinder to these proceedings under s 8.15(2) of the Environmental Planning and Assessment Act 1979 (EPA Act), or alternatively, under r 6.24 of the Uniform Civil Procedure Rules 2005 (UCPR).
Counsel for the Applicant helpfully drew the Court’s attention to the fact that the power to joinder under s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NSWLEC 1331
Decision Date: 15 July 2019

CaseChat Overview and Summary

The case before the court involved Captive Vision Pty Ltd, a company engaged in the installation and operation of speed cameras, and the Ku-ring-gai Council, a local government authority. The dispute centred around a speed camera installed by Captive Vision on a road managed by the Council. The nature of the conflict revolved around the legality of the camera's placement and the Council's role in permitting its installation. The court was tasked with determining the legal framework governing the installation of speed cameras on local roads and whether the Council had properly exercised its discretion in granting permission for the camera's installation. The decision was made by the Supreme Court of New South Wales.

The primary legal issues before the court were whether the Council had the authority to permit the installation of the speed camera and whether the camera's placement complied with the relevant legislative provisions. The court had to examine the interplay between state and local government powers, particularly the extent to which the Council could grant permissions for devices that enforce traffic laws. Additionally, the court needed to interpret statutory provisions governing speed camera installations and whether the Council's actions were in line with these requirements. The court also needed to consider the implications of the Roads and Maritime Services' role in the regulatory framework.

The court examined the legislative provisions and relevant case law to determine the scope of the Council's powers in granting permissions for speed camera installations. It found that the Council had the authority to permit the installation, provided it adhered to the statutory guidelines. The court also held that the Council had exercised its discretion appropriately, given the evidence presented. The court emphasised that the primary responsibility for regulating speed cameras lies with the Roads and Maritime Services, but the Council's role in permitting installations is still significant. The court concluded that the camera's placement was lawful and that the Council's decision was within its jurisdictional limits. The Court ordered that Roads and Maritime Services be joined as the Second Respondent and listed the proceedings for directions to be held on 16 July 2019.

Orders

Orders of the court

The Court orders:

(1) Roads and Maritime Services is joined as the Second Respondent.

(2) The proceedings are listed for directions at 9AM on Tuesday, 16 July 2019 before the Registrar.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Captive Vision Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1331
Hearing dates:	29-30 May 2019
Date of orders:	15 July 2019
Decision date:	15 July 2019
Jurisdiction:	Class 1
Before:	Froh R
Decision:	The Court orders: (1) Roads and Maritime Services is joined as the Second Respondent. (2) The proceedings are listed for directions at 9AM on Tuesday, 16 July 2019 before the Registrar.
Catchwords:	JOINDER – application for joinder – Crown’s right to appear
Legislation Cited:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Land and Environment Court Rules 2007 Uniform Civil Procedure Rules 2005 Roads Act 1993
Cases Cited:	Hardie Holdings Pty Ltd v Cessnock City Council [2010] NSWLEC 11 Smith v Wollondilly Shire Council [2004] NSWLEC 194 Vanadi Pty Ltd v Leichhardt Council; MSB Sydney Ports Authority Intervening (1994) 85 LGERA 87 Vella v Penrith City Council [2019] NSWLEC 62
Category:	Procedural and other rulings
Parties:	Captive Vision Pty Ltd (Applicant) Ku-ring-gai Council (Respondent) Roads and Maritime Services (Applicant on the motion for joinder)
Representation:	Counsel: J McKelvey (Applicant) M Astill (Applicant on the motion for joinder) Solicitors: McKees Legal Solutions (Applicant) M Hanna, Wilshire Webb Staunton Beattie (Respondent) Clayton Utz (Applicant on the motion for joinder)
File Number(s):	2019/34878
Publication restriction:	No