Connery v Manly Council

[1999] NSWLEC 284

Reported Decision: (1999) 105 LGERA 451

Land and Environment Court

of New South Wales

CITATION:

Connery v Manly Council [1999] NSWLEC 284

PARTIES

APPLICANT
Connery

RESPONDENT
Manly Council

NUMBER:

10165 of 1999

CORAM:

Cowdroy J

KEY ISSUES:

Question of Law :- Appeal to permit use of dedicated but unmade road for access to a lot in approved subdivision - approval requiring lease be granted by council - council refusing lease - application for modification of condition - whether Court has jurisdiction to grant approval under s 138 of the Roads Act 1993 to make use of road

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979 s 79C, s 96, s 97
Land and Environment Court Act 1979 s 39(2)
Roads Act 1993 s 7, s 138, s 139

DATES OF HEARING:

12/14/1999

DATE OF JUDGMENT DELIVERY:

12/23/1999

LEGAL REPRESENTATIVES:

APPLICANT
Mr P McClellan QC with Mr J Johnson (Barrister)

SOLICITORS
McKees Legal Solutions

RESPONDENT
Mr W O'Rourke (Solicitor)

SOLICITORS
Deacons Graham & James

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES MATTER No. 10165 of 1999
CORAM: Cowdroy J
DECISION DATE: 23/12/99

Garry Michael Connery

Applicant

v

Manly Council

Respondent

JUDGMENT

Background

1. This matter comes before the Court upon a question of law which is as follows:-

Whether the Court on hearing an application under section 96 of the Environmental Planning and Assessment Act 1979 to modify a development consent given by the Court has power to grant an approval under section 138 of the Roads Act 1993.

2. The issue arises following a judgment given by Commissioner Roseth on 21 June 1999. In such judgment the Court upheld an appeal against the refusal by Manly Council (“the council”) of consent to development application no 238/97 for construction of a private road (“the road”) through an unformed section of Bligh Crescent. The road would provide vehicular access to the rear lot at 36 Abernathy Road, Seaforth which is comprised of two lots namely, lot 102 in deposited plan no 717385 and lot 27 in deposited plan no 5297.

3. Various conditions were imposed by the Court as part of its consent. Condition no 4 provided:-

Submission and approval of road reserve lease from Council in regard to the construction within the road reserve area of Bligh Crescent.

4. Following Commissioner Roseth’s judgment the applicant applied to council for the lease referred to in cl 4 of the special conditions. Council refused the application at its meeting on 30 August 1999. Accordingly the applicant has applied to the Court pursuant to s 96 of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) to modify the consent which includes the deletion of condition no 4 and for the insertion of a new condition no 4 which provides:-

This consent also operates as a consent pursuant to section 138 Roads Act to:
(a) erect a structure or carry out work on or over a public road;

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

(c) remove or interfere with trees on a public road

insofar as it is necessary to carry out the development the subject of this consent.

Council’s submissions

5. The council submits that the Land and Environment Court Act 1979 (“the Court Act”) does not provide this Court with jurisdiction to give the consent required by the Roads Act. It submits the Court is not a ‘roads authority’ for the purposes of the Roads Act.

6. As an alternative argument the council submits that the Court is empowered to exercise those functions necessary to determine the ‘matter’ the subject of the appeal provided by s 39(2). Since there was no application for consent to the council under s 139 of the Roads Act, the present application is not a matter for consideration by the Court pursuant to s 79C of the EP&A Act.

7. Finally the council argued that the subject of the appeal was the application to construct a private road pursuant to the provisions of the EP&A Act. Council says that matters for consideration under the Roads Act are quite different to the matters raised for consideration by the Court under the EP&A Act and are not a matter in respect of which this Court has jurisdiction.

Jurisdiction of the Court

8. Bligh Crescent is a ‘public road’ as defined in the dictionary to the Roads Act 1993 (“the Roads Act”). Pursuant to s 7(4) thereof the council is the roads authority for such road. Section 7(4) of the Roads Act provides:-

(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.

9. Roads authority is defined as follows:-

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.

10. By s 7(5) of the Roads Act, the roads authority is invested with such functions as are conferred upon it by the Roads Act or any other Act or law.

11. Section 138 of the Roads Act relevantly 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) - (e) (not relevant)

otherwise than with the consent of the appropriate roads authority.

12. Section 39(2) of the Court Act provides:-

(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

13. The extent of the jurisdiction of the Court has been considered in the decision of the New South Wales Court of Appeal in McDougall v Warringah Shire Council (1993) 80 LGERA 151. At 155 Kirby P adopted the observations of Reynolds JA in Kogarah Municipal Council v Kent (1981) 46 LGERA 334 where His Honour said at 336:-

... the language of s 39(2) ... is wide and clear and to me it means ... that the Court could do whatever the council could do in order to dispose of the appeal.

14. In McDougall v Warringah Shire Council at 157 Kirby P observed:-

The result of this interpretation is that all the functions and discretions the council could have exercised when considering the application are open to the Land and Environmental Court on appeal and not only those strictly necessary to the approval.

The President’s conclusion was reached after a consideration of the numerous authorities concerning the power of the Court pursuant to s 39(2) such as Claude Neon Ltd v Manly Municipal Council (1981) 50 LGRA 281; Strathfield Municipal Council v Drew ; North Sydney Municipal Council v P D Mayoh Pty Limited (1988) 14 NSWLR 740.

15. The concept of the ‘matter’ the subject of an appeal has also been the subject of judicial consideration. Hemmings J in Morris v Sydney City Council (1987) 69 LGERA 30 observed at 33:-

The ‘matter’ the subject of an appeal is, in my opinion, a wilder [sic] concept than the order or decision the subject of the appeal. Nothing in Strathfield Municipal Council v Drew (1985) 1 NSWLR 338; 55 LGRA 310 suggests that ‘the matter’ is limited to the actual order made by Council.

The High Court of Australia has defined ‘matter’ in expansive terms: see Fencott v Muller (1982-1983) 152 CLR 570 at 607; Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 474, 520).

16. Applying these established principles to the issue before the Court, the question arises whether the council has the power to deal with the application made by the applicant pursuant to s 139(1) of the Roads Act. Such section 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

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

17. Clearly the council possesses such power since it is the roads authority as provided by s 7 of the Roads Act. Such an application can only be made to it. In this case however the application is made pursuant to s 96 of the EP&A Act to the Court. The Court has jurisdiction by virtue of s 39(2) of the Court Act to entertain the application provided it is part of the ‘matter’ the subject of the original appeal. Since the council was the only authority which could have entertained the application pursuant to s 139(1) of the Roads Act, that function is now vested in this Court by virtue of the width of s 39(2) of the Court Act.

18. Subsidiary questions arose during the course of argument. It was submitted by the council that since council owns the land, it possessed the same rights as any other land owner to refuse permission as sought by the applicant. Such a contention has been considered and rejected (see Shellharbour Municipal Council v Rovilo Pty Limited (1989) 68 LGRA 231). Council’s determination not to afford the consent sought would of itself be appellable in this Court (see Shellharbour Municipal Council v Rovilo per Clarke at 237 - 238).

19. Reliance was placed by the council upon the judgment of Bannon J in Figgis & Jefferson Pty Limited v Mosman Municipal Council (1993) 81 LGERA 423. In arriving at his decision His Honour seems to have been deflected by Strathfield Municipal Council v Drew , a situation in which the Public Health Act 1902 existed independently of the requirements of the EP&A Act. However the Roads Act has very different provisions. In contrast to the facts in Strathfield Municipal Council v Drew , the council is the appointed consent authority and is required to exercise functions under the Roads Act. In the present circumstances the function of the council to grant or refuse consent pursuant to s 138 of the Roads Act is a function ‘ in respect of the matter the subject of the appeal’ (per Mahoney JA in McDougall v Warringah Shire Council at 165).

20. The effect of s 39(2) of the Court Act is to remove the issue of such consent from council’s determination and place it with the Court. The subject matter of the appeal concerns the entitlement of the applicant to use the road and that issue forms part of the ‘matter’ the subject of the appeal. For these reasons, I do not follow Bannon J.

21. Regard can be given to the provisions of the Environmental Planning and Assessment (Amendment) Act 1997, which inserted Div 5, Pt 4 of concerning integrated development. By such provisions, this Court is invested with power to hear appeals in respect of determinations made under various statutes, including the Roads Act. Section 91(3) of the Amended Act provides:-

(3) Development is not integrated development in respect of the consent required under section 138 of the Roads Act 1993 if, in order for the development to be carried out, it requires the development consent of a council and the approval of the same council.

22. The applicant submits that it would be incongruous if the Court could hear appeals from decisions of the Roads and Traffic Authority in relation to a refusal to grant consent under s 138 of the Roads Act, but not from a decision of a council under the same section. There is force in such submission. An interpretation of a statute that gives effect to the intensions of Parliament is to be preferred to an interpretation that would frustrate the purpose of the enactment (see Nokes v Doncaster Amalgamated Collieries Ltd [1940] AC 1014 per Lord Simon at 1022).

Answer to the question

23. The Court answers the question of law in the affirmative namely, the Court on hearing an application under section 96 of the Environmental Planning and Assessment Act 1979 to modify a development consent given by the Court has power to grant an approval under section 138 of the Roads Act 1993.