Captive Vision Pty Ltd v Ku-ring-gai Council (No 2)

[2019] NSWLEC 109

Land and Environment Court

New South Wales

Medium Neutral Citation:	Captive Vision Pty Ltd v Ku-ring-gai Council (No 2) [2019] NSWLEC 109
Hearing dates:	1 August 2019
Date of orders:	01 August 2019
Decision date:	02 August 2019
Jurisdiction:	Class 1
Before:	Pepper J
Decision:	Application for the determination of a separate question dismissed with no order as to costs.
Catchwords:	CIVIL PROCEDURE: application for the determination of a separate question – whether delay in the making of the application – Class 1 appeal to be heard imminently – separate question comprised gravamen of Class 1 appeal – no utility in determining separate question – no evidence of savings in time or costs if question determined separately – application refused – not fair or reasonable to make costs order.
Legislation Cited:	Civil Procedure Act 2005, ss 55-60 Land and Environment Court Rules 2007, r 3.7 Roads Act 1993, Div 1 of Pt 5, s 138 Uniform Civil Procedure Rules 2005, r 28.2 State Environmental Planning Policy No 64 – Advertising and Signage, cll 11, 17, 18
Cases Cited:	Captive Vision Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1331 Cavanagh v Wollondilly Shire Council [2019] NSWLEC 105
Texts Cited:
Category:	Procedural and other rulings
Parties:	Captive Vision Pty Ltd (Applicant) Ku-ring-gai Council (First Respondent) Roads and Maritime Services (Second Respondent)
Representation:	Counsel: Mr A Galasso SC (Applicant)  No Appearance (First Respondent)  Mr M Astill (Second Respondent)   Solicitors: McKees Legal Solutions (Applicant) Wilshire Webb Staunton Beattie Lawyers (First Respondent) Clayton Utz (Second Respondent)
File Number(s):	2019/34878

Judgment

RMS Applies for the Determination of a Separate Question

1. The recently joined (as at 15 July 2019 by order of the Court) second respondent to a Class 1 appeal, the Roads and Maritime Services (“RMS”), seeks an order that the following question be determined as a separate question in advance of the other issues in the proceedings:

Does the Court have power under s 39 of the Land and Environment Court Act 1979 or otherwise to make order 1 as sought in the Class 1 Application – that is, to grant a consent under s 138 of the Roads Act 1993 in relation to a classified road, in circumstances where the concurrence of Roads and Maritime Services has not been obtained or has been refused?

2. The application was opposed by the applicant to the Class 1 proceedings, Captive Vision Pty Ltd (“Captive”). The attitude of the first respondent, Ku‑ring-gai Council (“the Council”), is not known.

3. At the conclusion of the hearing of the notice of motion, the application was refused with no order for costs. These are the reasons for that determination.

4. On 1 March 2019, the Class 1 appeal was set down for hearing for two days commencing on 19 September 2019.

5. Prior to the matter being set down for final hearing, Captive was ready to seek an order for expedition but did not do so because of the allocation of the hearing dates in September 2019. From Captive’s perspective, the appeal is urgent because it has the benefit of a development consent that lapses on 11 November 2019.

6. The following facts were not in dispute and were contained in an agreed statement of facts and the Council’s Statement of Facts and Contentions, both of which were relied upon for the purpose of this application only.

The Site

7. The site is identified as Lot 1, DP 1221097, also known as 767 and 802-808 Pacific Highway, Gordon (“the site”). The Pacific Highway is a classified road under Div 1 of Pt 5 of the Roads Act 1993.

8. The site is the Gordon pedestrian air bridge which is a steel and glass structure which straddles the Pacific Highway between Moree and Dumaresq Street, Gordon, in the centre of the Gordon retail/commercial area.

9. The air bridge provides a major pedestrian entry point into the Gordon Centre, a multi-level retail centre which links commercial premises on either side of the Pacific Highway. The air bridge is only open during business hours and outside these hours no pedestrian access is possible.

10. The air bridge crosses the Pacific Highway at a level approximately equivalent to the 2nd floor level of the buildings and facades on either side of the Highway in that location.

11. The site, being within the Gordon Town Centre, is characterised by a mix of two and three storey contemporary developments, early 20th century two storey shop fronts and facades and the five storey Gordon Centre.

12. The site is within a precinct identified in Ku-ring-gai Council's Local Centres Development Control Plan as Precinct G2: Pacific Highway Retail. This Precinct is located on both sides of the Pacific Highway, between Dumaresq Street and Park Avenue to the north and St Johns Avenue to the south.

13. The site is zoned SP2 Infrastructure pursuant to the Ku-ring-gai Local Environmental Plan (Local Centres) 2012 (“the LEP”).

14. Land to the east and west of the Pacific Highway is zoned B2 pursuant to the LEP.

The Council Refused to Grant a Construction Certificate

15. On 15 April 2016, DA0164/16 (“the DA”) was lodged with the Council by Captive seeking consent for the erection of two electronic advertising signs on the northern and southern sides of the pedestrian air bridge on the site. The signs are 17.63 m² in size.

16. The Council notified and advertised the DA for a period of 30 days to surrounding and adjoining land owners and occupiers. As a result of the notification period, the Council received four submissions opposing the proposal. The main issues were pedestrian safety, impacts on the streetscape and impacts on the setting of the Gordon town centre.

17. On 25 October 2016, the DA was approved subject to conditions (“the consent”).

18. Condition 10 of the consent required that prior to the commencement of any works associated with the installation of the signage, a Roads Act approval under s 138 of that Act was to be obtained from the roads authority. The Roads Act approval was to be in the form of a Road Occupation Certificate. The Council is the roads authority for works on, above or below the Pacific Highway, albeit with the concurrence of the RMS because the Pacific Highway is a classified road under the Roads Act.

19. Condition 10 was as follows:

Road opening permit

The opening on any footway, roadway, road shoulder or any part of the road reserve shall not be carried out without a road opening permit being obtained from Council and/or the RMS (upon payment of the required fee) beforehand.

Reason: Statutory requirement (Roads Act 1993 Section 138) and to maintain the integrity of Council’s infrastructure.

20. On 11 January 2017, Captive made a Roads Act application to Council as required by condition 10 of the DA.

21. On 27 January 2017, construction certificate (“CC”) application CC0004/17 was lodged with the Council (“the CC application”).

22. On 1 February 2017, the Council referred the Roads Act application to the RMS, seeking its concurrence to the application pursuant of s 138(2) of that Act.

23. On 3 February, RMS wrote to the Council seeking further information to enable a proper assessment of the proposal under State Environmental Planning Policy No 64 - Advertising and Signage (“SEPP 64”).

24. Clauses 11, 17 and 18 of SEPP 64 state that:

11    Requirement for consent

A person must not display an advertisement, except with the consent of the consent authority or except as otherwise provided by this Policy.

…

17 Advertisements with display area greater than 20 square metres or higher than 8 metres above ground

(1)    This clause applies to an advertisement:

(a)    that has a display area greater than 20 square metres, or

(b)    that is higher than 8 metres above the ground.

(2)    The display of an advertisement to which this clause applies is advertised development for the purposes of the Act.

(3)    The consent authority must not grant consent to an application to display an advertisement to which this clause applies unless:

(a)    the applicant has provided the consent authority with an impact statement that addresses the assessment criteria in Schedule 1 and the consent authority is satisfied that the proposal is acceptable in terms of its impacts, and

(b) the application has been advertised in accordance with section 79A of the Act, and

(c)    the consent authority gave a copy of the application to RMS at the same time as the application was advertised in accordance with section 79A of the Act if the application is an application for the display of an advertisement to which clause 18 applies.

18    Advertisements greater than 20 square metres and within 250 metres of, and visible from, a classified road

(1)    This clause applies to the display of an advertisement to which clause 17 applies, that is within 250 metres of a classified road any part of which is visible from the classified road.

(2)    The consent authority must not grant development consent to the display of an advertisement to which this clause applies without the concurrence of RMS.

(3)    In deciding whether or not concurrence should be granted, RMS must take into consideration:

(a)    the impact of the display of the advertisement on traffic safety, and

(b)    the Guidelines.

(c) (Repealed)

(4)    If RMS has not informed the consent authority within 21 days after the copy of the application is given to it under clause 17 (3) (c) (ii) that it has granted, or has declined to grant, its concurrence, RMS is taken to have granted its concurrence.

(5)    Nothing in this clause affects clause 16.

(6) This clause does not apply when the Minister for Planning is the consent authority.

25. On 3 February 2017, the Council wrote to RMS advising that it did not require an approval from RMS under SEPP 64 and that concurrence under s 138(2) of the Roads Act was sought. The Council also provided RMS with the information that it had requested.

26. Section 138 of the Roads Act relevantly provides as follows:

138 Works and structures

(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

…

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 RMS.

27. On 27 February 2017, RMS wrote to the Council and advised that it would not issue concurrence to the Roads Act application. The Council therefore did not issue the Roads Act approval.

28. On 12 December 2017, the Council refused the Roads Act application.

29. On 5 April 2018, the Council received modification application 0045/18 (“the modification application”).

30. The modification application sought to amend condition 10, altering its terms and the threshold under which a Roads Act approval could be obtained. The principal purpose of the modification application was to require the Roads Act approval to be obtained before any CC could be issued.

31. The Council notified and advertised the modification application for a period of 30 days. No submissions were received.

32. On 23 July 2019, the modification application was referred to the Council's Local Planning Panel for determination and was approved subject to conditions 1a and 8a being inserted into the development consent and condition 10 being deleted:

Condition 1a:

Amendments to approved plans

No part of the signs on either side of the Air bridge is to exceed 8m above the ground and shall not extend below the level of the Air bridge. All plans subject of any construction certificate shall be consistent with the requirement.

Reason: To ensure consistency with the requirements of SEPP 64.

Condition 8a:

Section 138 Approval

No Construction Certificate for the erection of the two electronic advertising signs shall be granted prior to the grant of consent by Council for the erection of those structures over the Pacific Highway pursuant to Section 138 of the Roads Act 1993.

Reason:   Statutory requirement.

Condition 10:

10. Deleted

33. On 16 August 2018 the Council approved an extension of the consent which extended the lapsing of it by 12 months to 11 November 2019.

34. On 22 November 2018, Captive was advised by the Council that in the absence of a Roads Act approval the CC application had to be refused.

35. On 29 November 2018, Captive requested that the CC be formally determined.

36. On 19 December 2018, the Council refused the CC application for the following reason:

1.    Council have not received the previously requested Road Opening Permit from the Maritime Services as required by Condition 8a of Mod0045/18.

37. Accordingly, on 1 February 2019, Captive filed a Class 1 appeal with the Court against the refusal of the CC application by the Council.

The Class 1 Application and the Council’s Statement of Facts and Contentions

38. The Class 1 appeal seeks the following relief:

1. That consent be granted pursuant to Section 138 of the Roads Act 1993.

2.   That Construction Certificate No. CC004/17 be issued.

39. Part B of the Council’s Statement of Facts and Contentions provides that:

B1 - CONTENTIONS THAT THE APPLICATION BE REFUSED

Section 138 Roads Act Approval

1. The construction certificate should be refused because there is no concurrence from the RMS as required by Condition 8a of MOD0045/18 and s138 (2) of the Roads Act 1993.

Particulars

a) Condition 8a of MOD0045/18 is as follows:

Section 138 Approval

No Construction Certificate for the erection of the two electronic advertising signs shall be granted prior to the grant of consent by Council for the erection of those structures over the Pacific Highway pursuant to Section 138 of the Roads Act 1993.

Reason:   Statutory requirement.

b) The Pacific Highway is a classified road under the Roads Act 1993.

c) A s138 Roads Act Approval cannot be given for a classified road without the concurrence of the RMS.

d)   No concurrence has been given by the RMS.

B2 - CONTENTIONS THAT MAY BE RESOLVED BY CONDITIONS OF CONSENT

Nil.

B3 - CONTENTIONS THAT RELATE TO A LACK OF INFORMATION

Nil.

40. As is immediately apparent, the separate question essentially comprises the Council’s only contention.

41. No Statement of Facts and Contentions has been filed by any other party, including RMS. In other words, the only contention presently raised in the appeal is that stated in B1 above.

Applicable Legal Principles

42. The power to make orders for a question to be decided separately is contained in r 28.2 of the Uniform Civil Procedure Rules 2005.

43. The legal principles applicable to the determination of whether a question ought to be determined separately in advance of the final hearing were recently set out in Cavanagh v Wollondilly Shire Council [2019] NSWLEC 105 (at [22]-[29]), and are relied upon and applied without repetition in this case.

RMS’s Reasons for Seeking the Separate Question

44. RMS relied on an affidavit of Mr John Clayton sworn 20 May 2019 (a solicitor acting for RMS). The affidavit did no more than attach a copy of the DA, the CC application, the modification application, and various correspondence passing between Captive, RMS and the Council.

45. This correspondence made it abundantly clear that the issue of whether or not RMS was required to give its concurrence was known as early as February 2017, and moreover, that on 28 February 2017 RMS refused to do so in respect to any s 138 Roads Act application or under SEPP 64.

46. The correspondence also made it clear that RMS had been aware of the proceedings since 13 March 2019.

47. In a letter dated 10 May 2019 to the Council and Captive stating its reasons why it ought to be joined as a necessary party, RMS stated its position as to the legal issues it would be seeking to raise in the Class 1 appeal as follows:

4    Legal Issues

4.1    RMS also intends to raise two legal issues.

4.2    The first concerns whether or not the Court has power to grant the orders    sought in the Class 1 appeal in circumstances where:

(a) the Consent makes the grant of a construction certificate contingent on a section 138 approval being granted by the Council; and

(b) section 138(2) requires RMS's concurrence before any section 138 approval may be issued.

4.3 Specifically there is a legal question as to whether the Court, in determining an appeal against the refusal to issue a construction certificate, is able to exercise the statutory functions of RMS in granting its concurrence to the issue of a section 138 approval which is legally required under the Consent before a construction certificate may be issued. Irrespective of it being required under the Consent, a section 138 approval is separately required for the development by operation of the Roads Act.

4.4   RMS' initial position at this stage is that the Court does not have this    power. Thus, the Court does not have power to grant Order 1 as    sought in the Class 1 Application and consequently Order 2 also    cannot be made, or if it can, it ought not because it lacks utility.

4.5    Further, as this issue is determinative of the appeal and is a question of pure statutory construction that requires no evidence, RMS proposes to move the Court for an order that the question of power be determined as a separate question.

4.6   The second legal issue concerns the commercial arrangements between the Applicant and the Council. As RMS understands those    arrangements, the Council has agreed with the Applicant to lease the    relevant airspace in which the advertising signs are located so as to allow the Applicant to display the proposed advertising signs. According to the Council's letter dated 22 September 2017, one of the    components of the arrangement is that 5 minutes per hour of    advertising time be allocated to the Council for community advertising. In its letter, the Council described this as a significant public benefit to the Council as follows:

“A commercial rent that reflected the benefit conferred upon the lessee for the lease variation was negotiated consisted with Council's adopted Commercial Lease Policy which included obtaining independent expert valuation advice. Additionally, the commercial negotiations included the allocation of 5 minutes per hour to Council for community advertising as well as a public service to broadcast alert transmissions of events of catastrophic nature (major bushfires, accidents etc.) for the public. These represent a significant public benefit to Council and are consistent with Council's strategic direction.”

4.7   The same letter indicated that the commercial arrangements between the Council and the Applicant were conditional upon DA approval being granted:

“The parties prepared a Deed of Agreement, Deed of Variation of Lease and Deed of Consent to Signage Licence to put into effect the proposal conditional upon DA approval being granted.”

4.8   In RMS' view, the existence of an arrangement whereby a benefit to Council is conditional upon Council exercising its statutory discretion in a particular way is an indicium of either actual or apprehended bias in its decision making function and is similar in nature (although of a different scale) to the issues considered by the Court in Gwandalan Summerland Point Action Group Inc v Minister for Planning [2009] NSWLEC 140.

4.9   In RMS' view, the existence of this arrangement:

(a)   precluded the Council from the proper and lawful exercise of its discretion in approving the Development under the Environmental Planning and Assessment Act 1979; and

(b) would preclude the Council from exercising its statutory function to grant either a construction certificate or a section 138 approval.

4.10   RMS intends to make an application to be joined by 20 May 2019. Accordingly, we would be grateful for your clients' indication as to whether they consent for RMS to be joined by COB on 17 May 2019.

48. RMS filed its motion seeking joinder on 20 May 2019. Also contained in the motion was an order seeking the determination of the separate question of what appears to be the first legal issue (only) raised by it in its letter above.

48. No explanation for the delay between 13 March 2019 and 20 May 2019 (the date of the filing of its notice of motion) was provided by RMS to the Court.

49. When the matter came before the Registrar on 29 May 2019, the Registrar indicated that while she could deal with the joinder application, she could not deal with the application for a separate question because she lacked the power to do so. Captive opposed the entirety of the notice of motion being set down before a judge (that is, the question of joinder and the application for a separate question). For reasons that are not clear, the Registrar bifurcated the orders sought in the motion and proceeded to deal with the joinder application. According to the parties, the matter took about two hours to be heard albeit spread over the course of two days.

50. The Registrar reserved her decision on 30 May 2019. On 15 July 2019, the Registrar handed down her decision joining RMS to the Class 1 appeal (Captive Vision Pty Ltd v Ku-ring-gai Council [2019] NSWLEC 1331) and set the remainder of the motion down (that is, the application for a separate question) before a judge on 1 August 2019.

RMS’s Grounds for a Separate Question

52. According to RMS, the application for a separate question ought to be granted because:

1. first, if answered in its favour it will be wholly dispositive of the Class 1 appeal. This was not cavilled with by Captive;

2. second, the question is arguable. Again, this proposition is undeniably correct;

3. third, the separate question is a discrete question of law that requires no evidence for its determination other than facts that can be agreed by the parties. Likewise, this submission is uncontroversial;

4. fourth, any delay in the filing of the motion was due to RMS not becoming aware of the proceedings until 13 March 2019, notwithstanding that the appeal was filed on 1 February 2019;

5. fifth, any delay in the setting down of the application for the determination of a separate question was not due to its default, but was due to Captive opposing the entirety of the motion to be heard and determined by a judge; and

6. sixth, as a party to the proceedings it was entitled to raise merit contentions and that these would of necessity require the filing of expert evidence which will be avoided if the separate question is heard and determined in its favour, thereby resulting in a potential savings in time and costs to all parties and to the Court.

53. At no point has RMS furnished the Court with evidence of what expert evidence it would seek to adduce at the Class 1 appeal, although it may be presumed that evidence from a traffic expert is likely.

54. Similarly, at no point has RMS furnished the Court with an estimate in savings in time and costs if the question were to be determined separately in advance of the appeal.

55. Rather, RMS’s principal position was that because the separate question will be wholly dispositive of the Class 1 appeal if answered in the negative, its application should be acceded to.

Captive’s Grounds for Opposing the Application

56. Captive relied on an affidavit of Mr Daniel Tyrrell sworn 31 July 2019. Mr Tyrrell is the solicitor with carriage of the matter for Captive. In his affidavit Mr Tyrrell deposed to some of the factual matters outlined above.

57. Captive opposed the application for the following reasons:

1. first, the final hearing of this matter is only six weeks away and it is unlikely that the separate question could be listed, heard and determined prior to the commencement of the appeal;

2. second, the hearing date is critical to Captive because of the potential lapsing of the consent on 11 November 2019;

3. third, the unexplained delay from 13 March to 20 May 2019 in RMS filing its motion for joinder and a separate question;

4. fourth, the legislative scheme contemplates a non-active role by RMS for signage with an area below 20 m² (see cl 18 of SEPP 64). Concurrence is therefore not required under that instrument. Properly construed, concurrence is also not required under s 138 of the Roads Act having regard to the subject matter of the DA. There is already a consent in place granted by the Council for the use of the signs to be erected in conformity with s 138 of that Act. The application for a separate question is therefore an attempt by RMS to re-agitate merit matters related to, and already addressed by, the Council in the grant of the consent and in these circumstances it ought not be permitted to do so; and

5. fifth, as RMS conceded during the hearing, if order 1 in the appeal is made then order 2 must follow and the CC must be issued. Accordingly, the subject-matter of the separate question comprises a substantial part of the subject-matter of the Class 1 appeal, and therefore, the utility of ordering the separate question is limited.

The Application Must be Refused

58. In my opinion, having regard to the applicable legal principles, the evidence before the Court and the arguments of the parties to the application, the application for the determination of a separate question must fail largely for the reasons proffered by Captive (but without the Court determining the correctness of the parties’ submissions on the legal question the subject of the application).

59. First, although the delay in the listing and hearing of this application for a separate question has not been the fault of RMS, I agree with Captive that RMS ought to have filed its motion much earlier upon being notified of the proceedings.

60. Second, given the immediacy of the final hearing of the Class 1 appeal in which the question for separate determination is not only squarely raised, but comprises the gravamen of the contentions raised for determination, there is little utility in having the question separately determined.

61. Moreover, to make such an order would place the hearing dates of the Class 1 appeal in peril, which would be grossly prejudicial to Captive given the potential lapsing of the consent on 11 November 2019.

62. In this regard, it is noted that it is unlikely that at this late stage the Court diary could, in any event and absent of an order for expedition, permit the separate question to be heard and determined in advance of the hearing.

63. Third, in the absence of RMS adducing any evidence as to the savings in time and costs that would result if the question was heard and determined separately it is not known what, if any, savings would result by ordering the separate question.

64. Fourth, this application was separated from the joinder application by Court order, determined after argument from the parties. There was no “fault” in Captive seeking and obtaining such an order.

65. Therefore, for the reasons given above, to order a separate question at this stage of the appeal would neither be quick, just or cheap having regard to the matters set out in ss 56-60 of the Civil Procedure Act 2005.

Costs

66. Upon the dismissal of the application, Captive sought its costs notwithstanding that these are Class 1 proceedings and the presumptive rule is that there is to be no order as to costs unless it is fair and reasonable to make such an order in the circumstances.

67. In this regard, r 3.7 of the Land and Environment Court Rules 2007 (“the LEC Rules”) relevantly states as follows (emphasis added):

3.7   Costs in certain proceedings

…

(2)    The Court is not to make an order for the payment of costs unless the Court considers that the making of an order as to the whole or any part of the costs is fair and reasonable in the circumstances.

(3)    Circumstances in which the Court might consider the making of a costs order to be fair and reasonable include (without limitation) the following:

(a)    that the proceedings involve, as a central issue, a question of law, a question of fact or a question of mixed fact and law, and the determination of such question:

(i)    in one way was, or was potentially, determinative of the proceedings, and

(ii) was preliminary to, or otherwise has not involved, an evaluation of the merits of any application the subject of the proceedings,

(b)    that a party has failed to provide, or has unreasonably delayed in providing, information or documents:

(i)    that are required by law to be provided in relation to any application the subject of the proceedings, or

(ii)    that are necessary to enable a consent authority to gain a proper understanding of, and give proper consideration to, the application,

(c)    that a party has acted unreasonably in circumstances leading up to the commencement of the proceedings,

(d) that a party has acted unreasonably in the conduct of the proceedings,

(e)    that a party has commenced or defended the proceedings for an improper purpose,

(f) that a party has commenced or continued a claim in the proceedings, or maintained a defence to the proceedings, where:

(i)    the claim or defence (as appropriate) did not have reasonable prospects of success, or

(ii)    to commence or continue the claim, or to maintain the defence, was otherwise unreasonable.

68. Captive relied specifically on r 3.7(3)(d) of the LEC Rules. It argued that upon the delivery of the Registrar’s judgment on 15 July 2019 joining RMS as a party to the proceedings, RMS ought to have immediately withdrawn the remainder of its motion because it was inevitable that this application would fail given that the appeal was listed for final hearing within six weeks.

69. However, to order costs against RMS in these circumstances would be to effectively punish it for delay that was occasioned through no fault of its own, which would be neither fair nor reasonable in all the circumstances.

70. The costs order sought by Captive must therefore be refused.

Orders

71. For the reasons give above, RMS’s application for the determination of a separate question is refused and the remainder of the notice of motion filed on 20 May 2019 by RMS (order 3) is dismissed.

72. Each party is to pay its own cost of the application. The exhibits are to be returned.

**********

Decision last updated: 02 August 2019