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

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…

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: [1999] NSWLEC 284
Decision Date: 12/23/1999

CaseChat Overview and Summary

Connery v Manly Council is a case before the Land and Environment Court of New South Wales where Garry Michael Connery, the applicant, appealed against the decision of Manly Council to refuse consent for the construction of a private road through an unformed section of Bligh Crescent. The council had imposed conditions on the consent, including the requirement for a lease to be granted by the council. Connery applied to the council for the lease, but the council refused. Connery then applied to the Court to modify the consent and to grant approval under section 138 of the Roads Act 1993. The legal issue was whether the Court has the jurisdiction to grant approval under section 138 of the Roads Act 1993.

The Court held that it has the jurisdiction to grant approval under section 138 of the Roads Act 1993. The Court reasoned that the concept of 'matter' the subject of an appeal is wider than the actual order made by the council. The council possesses the power to grant consent under section 139(1) of the Roads Act, and such power is vested in the Court by virtue of section 39(2) of the Court Act. The Court held that 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.

The Court also rejected the council's argument that the 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. The Court held that the function of the council to grant or refuse consent pursuant to section 138 of the Roads Act is a function 'in respect of the matter the subject of the appeal'. The Court held that it would be incongruous if it could hear appeals from decisions of the Roads and Traffic Authority in relation to a refusal to grant consent under section 138 of the Roads Act, but not from a decision of a council under the same section.

The Court held that it has the jurisdiction to grant approval under section 138 of the Roads Act 1993 and answered the question of law in the affirmative. The Court did not make any final orders in the case as the matter was still under consideration.

Orders