Davies v Ku-ring-gai Municipal Council - [2003] NSWSC 840

No judgment structure available for this case.

Reported Decision:
58 NSWLR 535

Supreme Court

CITATION: Davies v Ku-ring-gai Municipal Council [2003] NSWSC 840

HEARING DATE(S): 04/03/03, 05/03/03, (and submissions to 07/03/03)

JUDGMENT DATE:
10 September 2003

JURISDICTION:
Equity Division

JUDGMENT OF: Austin J

DECISION: Declaratory and injunctive orders made.

CATCHWORDS: ROADS & TRAFFIC - meaning of "regulates traffic" in Roads Act s 114 - whether roads authority may use powers under Part 6 of Roads Act to carry out traffic control work which regulates traffic for the purposes of Part 8 - whether reversal from turning bay into private garage would contravene Australian Road Rules - - ADMINISTRATIVE LAW - whether decision of roads authority disregarding effects under Australian Road Rules failed to take into account relevant considerations and was invalid - whether decision of roads authority making contravention of Australian Roads Rules likely was unreasonable in the Wednesbury sense

LEGISLATION CITED: Australian Road Rules, rules 109, 112-115, 118
Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 71, 72
Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 (NSW), regs 5 and 6
Roads Act 1993 (NSW), ss 3, 6, 7, 71, 87, 114-122
Transport Administration Act 1988 (NSW), s 50

CASES CITED: Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 23
Attorney-General (NSW) v Quin (1990) 170 CLR 1,
Bromley London Borough Council v Greater London Council [1983] 1 AC 768
Foley v Padley (1984) 154 CLR 349
Lane Cove Council v Roads and Traffic Authority of New South Wales (2001) 50 NSWLR 714
Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24
Minister for Immigration v Eshetu (1999) 197 CLR 611
Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014
Swan Hill Corporation v Bradbury (1937) 56 CLR 746
Weal v Bathurst City Council (2000) 111 LGERA 181
Zhang v Canterbury City Council (2001) 51 NSWLR 589

PARTIES :
Kathryn Davies (Plaintiff)
Ku-ring-gai Municipal Council (Defendant)

FILE NUMBER(S): SC 1655/02

COUNSEL:
B Preston SC with M Allars (Plaintiff)
B McClintock SC with S Flannigan (Defendant)

SOLICITORS: Colin Biggers & Paisley (Plaintiff)
Deacons (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

WEDNESDAY 10 SEPTEMBER 2003

1655/02 KATHRYN DAVIES V KU-RING-GAI MUNICIPAL COUNCIL

JUDGMENT

1 HIS HONOUR: The plaintiff lives at 27 Fiddens Wharf Road, Lindfield, in Sydney's northern suburbs, and has done so for over 45 years. Using the compass approximately, but accurately enough for present purposes, I can say that Fiddens Wharf Road runs east/west, connecting the Pacific Highway in the east to Lady Game Drive in the west. Although only a single carriageway in each direction, Fiddens Wharf Road is heavily used, especially in peak hours, by traffic seeking to cross from one of the two main arterial roads to the other. The plaintiff's house is on the northern side of Fiddens Wharf Road, roughly a third of the way from the Pacific Highway to Lady Game Drive. It is at the top of a "T" intersection where Cook Road, running north/south, abuts to Fiddens Wharf Road. The traffic along Cook Road is light.

2 In 1993 Ku-ring-gai Municipal Council, the local council with responsibility for the area, responding inter alia to concerns about excessive speed along Fiddens Wharf Road, commissioned a report from PPK Consultants. PPK Consultants recommended a number of measures, including the introduction of speed humps. Speed humps were introduced along Fiddens Wharf Road in June and July 1999. A decision on other measures recommended by the consultants was deferred. Subsequently, however, in response to complaints by some local residents, the Council decided to remove the speed humps and explore other "traffic calming" measures.

3 One such measure was a roundabout at the T intersection of Fiddens Wharf and Cook Roads. It was considered by the Ku-ring-gai Traffic Committee in April 2001. The Traffic Committee is a committee which advises the Council, comprising representatives of the Council, the Roads and Traffic Authority, the Police and the local State Member of Parliament.

4 The plaintiff has strenuously resisted the roundabout proposal at all times. There is a double garage on her property, which approximately abuts the front boundary at the western end. There is no room for her to turn vehicles around on her property. If a roundabout were constructed at the intersection, the driveway of her property would lead directly onto the roundabout. In the absence of the "turning bay" arrangements to which I shall refer, she would be forced to reverse her vehicle onto the roundabout whenever she wished to leave her property by car. While I was taken in evidence to some other roundabouts where there are driveways leading straight into the roundabout, in the other cases there was room on the resident's property to turn the vehicle so that it could be driven nose-first, both from the roundabout, and onto it.

5 I shall return to the detailed development of the roundabout proposal later. The Council resolved to approve the Traffic Committee's recommendations for the construction of a roundabout, together with a "turning bay" located adjacent to the roundabout, on 16 October 2001. The proposed roundabout would be located in front of the plaintiff's property, so that vehicular access to and from the plaintiff's property would be via the roundabout. The turning bay proposal emerged as a supplementary proposal by the Council to facilitate safe access by the plaintiff to her property.

6 By a summons filed on 26 February 2002, the plaintiff sought declaratory and injunctive relief to challenge the Council's decision. In subsequently filed points of claim, she contended that the decision was invalid for essentially two sets of reasons. First, she said that the Council did not have the power to make the decision, which was therefore ultra vires in the narrow sense. Secondly, she claimed that in making its decision, the Council failed to take into account relevant considerations, failed to give proper consideration to safety issues, approved arrangements which would cause drivers to act illegally, and acted so unreasonably that no reasonable Council could have reached that decision (various grounds of "broad" ultra vires).

7 The defendant Council has not challenged the plaintiff's standing to obtain the relief that she seeks, presumably having regard to the way in which the proposed roundabout and turning bay would directly and singularly affect the plaintiff's use of her property.

8 The first part of the plaintiff's case raises only questions of statutory construction, and does not require any examination of documents or correspondence or any findings of fact. I shall deal with the matters of statutory construction first. I shall then turn to the second part of the claim, which requires an examination of the relevant facts in light of principles of administrative law.

1. Statutory power ("narrow" ultra vires)

9 The plaintiff's case is that the defendant Council has no power to construct the roundabout and turning bay, except by following a procedure which it has not properly observed. The submission depends upon the proper construction of the Roads Act 1993 (NSW), the Act which governs the administration of roads and road construction in New South Wales.

1.1 Objects of the Act

10 Section 3 of the Act states:

11 For the purposes of the present case, I note, in particular, paragraphs (e), (f), (g) and (h). Paragraph (b) also has some general relevance, although it is not suggested that the Council's proposal interferes with the plaintiff's statutory right of access, under s 6, across the boundary between her land and Fiddens Wharf Road.

1.2 Definitions

12 The Act allocates functions and powers to "roads authorities". The expression "roads authority" is defined in the dictionary to the Act to mean a person or body that is, by or under the Act, declared to be a roads authority and, in relation to a particular public road, means the roads authority for that road. Section 7(1) states that the RTA is the roads authority for all freeways. Section 7(4) states that the council of a local government area is the roads authority for all public roads within that area, other than freeways, Crown roads, or public roads for which some other public authority is declared by the regulations to be the roads authority. It is common ground that there is no specific regulation declaring that Fiddens Wharf Road is allocated to another public authority, and consequently Ku-ring-gai Municipal Council is the roads authority for Fiddens Wharf Road.

13 It is also common ground that Fiddens Wharf Road is a public road for the purposes of the Act. Part 5 of the Act deals with the classification of roads. It makes provisions for the Minister, by order published in the Gazette, to declare a public road to be a main road, a State highway, a freeway, a controlled access road, a secondary road, a tourist road, a tollway, a transitway or a State work. The dictionary to the Act defines "classified road" by reference to these classifications. The defendant tendered into evidence a schedule of classified roads, prepared in December 2002. Fiddens Wharf Road is not on the list. On the basis of the tendered list and other evidence about the nature of the road, I conclude that Fiddens Wharf Road is not a "classified road".

14 In some of the evidence Fiddens Wharf Road is described as a "collector road" (see the Appendix to the Report of Ku-ring-gai Council's Urban and Environmental Assets Committee Lindfield/West Lindfield Traffic Scheme, 4 September 2000). That is an informal categorisation for an unclassified road which has a daily volume of 5,000 to 10,000 vehicles. The expression "collector road" has no particular significance under the Act.

15 If the Council has any authority to construct the roundabout and turning bay, its authority is to be found in either Part 6 or Part 8 of the Act. No other source of authority has been advanced. Part 6 of the Act is headed "Road work", and Part 8 is headed "Regulation of traffic by roads authorities". It is convenient to begin by considering Part 8.

1.3 The powers of a roads authority under Part 8

16 Part 8 empowers roads authorities to regulate traffic on public roads. These powers qualify the statutory and common law rights of members of the public and adjoining owners to have access to public roads.

17 Section 114 states that "a roads authority may not regulate traffic on a public road otherwise than in accordance with this Part." The Council is the roads authority in respect of Fiddens Wharf Road. Therefore it cannot "regulate traffic" on Fiddens Wharf Road otherwise than in accordance with Part 8. "Regulate traffic" is defined in the dictionary to the Act to mean "restrict or prohibit the passage along the road of persons, vehicles or animals." A power to regulate an activity does not normally include power to prohibit it, but in this definition the power is expressly extended to prohibition (cf Swan Hill Corporation v Bradbury (1937) 56 CLR 746), and presumably the power to prohibit may be exercised absolutely or subject to a condition such as a condition conferring a discretionary power to consent to the activity (Foley v Padley (1984) 154 CLR 349).

18 The word "restrict" is not defined in the Act. Counsel for the plaintiff submitted that a power to "restrict" is similar to a power to regulate and restrain. I agree. In Swan Hill Corporation v Bradbury, Dixon J made the following observation with respect to a power to "regulate" (at 762):

"By-laws made under such a power may prescribe time, place, manner and circumstances and they may impose conditions, but under the prima facie meaning of the word they must stop short of preventing or suppressing the thing or course of conduct."

19 Thus, applying these observations by analogy, a power to restrict the passage along a public road of persons, vehicles or animals is a power to prescribe the time, place, manner and circumstances in which traffic may pass along the road, and is therefore a power encompassing the action of installing a roundabout which affects the manner and circumstances of passage.

20 In Lane Cove Council v Roads and Traffic Authority of New South Wales (2001) 50 NSWLR 714 Bryson J held (at 726), without specifically referring to the definition of "regulate traffic", that "Give Way" signs would regulate traffic by indicating that traffic in one direction would be required to yield to traffic in the other direction. Here, the construction of the roundabout and turning bay would restrict the passage of vehicles along Fiddens Wharf Road, not dissimilarly from the way in which "Give Way" signs would restrict traffic.

21 For these reasons the construction of the roundabout and turning bay would regulate traffic on a public road, and so s114 would prohibit that activity otherwise than in accordance with Part 8.

22 There are four provisions in Part 8 that authorise a roads authority to regulate traffic on a public road, namely ss 115, 116, 120-121 and 122. Sections 120 and 121 are not applicable here because they depend upon the Minister making an order, and he has not done so. Section 122 may also be put to one side because it applies only where the roads authority is satisfied that it is necessary to regulate traffic in order to prevent damage in excess of ordinary wear and tear arising from the reasonable use of the road concerned.

23 Section 115(1), which is in Division 1 of Part 8, authorises a roads authority to regulate traffic on a public road "by means of barriers or by means of notices conspicuously displayed on or adjacent to the public road". Section 115(2) says that in the case of a roads authority other than the RTA, the power in subsection (1) may not be exercised otherwise than for one of the purposes listed in the subsection.

24 In my opinion s 115(1) does apply to authorise the construction of the proposed roundabout and turning bay, because what is proposed is not a "barrier", and it is obviously not a "notice". A roundabout restricts and directs the flow of traffic but it is not properly described as a barrier to traffic, because the word "barrier" implies some form of complete or partial obstacle to passageway.

25 That conclusion makes it strictly unnecessary for me to consider whether the construction of the roundabout and turning bay would fall within any of the permitted purposes in subsection (2), but that issue is relevant in another way, as I shall explain, and the therefore it should be dealt with. The only relevant purposes are the following:

26 Subparagraph (a) does not apply. It envisages a case where a roads authority wishes to do something for the purpose of enabling it to carry out road work or some other work - in other words, the thing that the roads authority wishes to do in reliance on s 115 is ancillary to or connected with the performance of its function in some other way by the carrying out of work. Thus, a roads authority might rely on s 115 to erect a barrier to block one of several lanes of traffic, for the purpose of enabling it to carry out road work behind the barrier on that lane. In the present case, the only question is whether the roads authority has a statutory power to construct the roundabout and turning bay, and it cannot be suggested that the construction is for the purpose of enabling the roads authority to carry out some other work. Therefore subparagraph (a) does not apply in the present circumstances.

27 Subparagraph (g) applies where the roads authority is able to point to some authority to regulate traffic other than s 115 itself. The effect of the subparagraph is to permit the roads authority to regulate traffic, by installing a barrier or notice, if it does so for the purpose of discharging some other legal duty or exercising some other legal authority. In the present circumstances there is no other relevant legal authority, and so subparagraph (g) does not apply.

28 That brings me to s 116, which is in Division 2 of Part 8. The only relevant source of authority is in s 116(1)(a), which authorises a roads authority to apply to the RTA for consent to (inter alia) the carrying out of any work or the taking of any other action for the purpose of regulating traffic on a public road for purposes other than those referred to in Division 1. The construction of the roundabout and turning bay would fall within the words "the carrying out of any work or the taking of any other action". The work would be undertaken "for the purpose of regulating traffic on a public road", because the roundabout would (as I have said) restrict the passage of vehicles along Fiddens Wharf Road.

29 As to whether the work would be "for purposes other than those referred to in Division 1", none of the enumerated purposes in s 115(2) has any application. Subparagraph (b) to (f) are clearly irrelevant. Subparagraph (a) does not apply for the reason I have given. As to subparagraph (g), if s 116(1)(a) were a source of authority for the purposes of sub-paragraph (g), then the two provisions would be circular, and s 116(1)(a) would have no field of application. My conclusion, therefore, is that the construction of the roundabout and turning bay in the present case would be for a purpose other than those referred to in Division 1.

30 It follows that s 116(1)(a) is source of authority for the construction of the roundabout and turning bay by the Council.

31 However, the Council cannot invoke that source of authority without following the procedure set out in s 116. In the first place, it is necessary for the Council to apply to the RTA for consent to the work. Before doing so, it must cause notice of that application to be published in a local newspaper, under s 116(2). The notice must comply with subsection (3), and to do so it must state that any person is entitled make submissions to the RTA within the stated period. The Council would have to ensure, under s 117(2), that submissions received by it with respect to its application to the RTA were forwarded to the RTA. The RTA would then take make a decision under s 118, and the Council would have a statutory right under s 119 to request the Minister to review the RTA's decision.

32 None of these procedural steps has been taken to date with respect to the proposed roundabout and turning bay. In 1994 the Council purported to give public notice in the local newspaper of a traffic scheme which involved a roundabout, but that work, as notified, was not carried out. The decision taken by the Council on 16 October 2001 related to an amended roundabout proposal. In November 2001 the Council published in the local newspaper an announcement of its decision to construct the roundabout, but the advertisement did not purport to be given under s 116(2), it was an announcement of a prior decision, and it did not invite public submissions.

33 In my opinion the requirements for an advertisement calling for submissions, and for the consideration of submissions, cannot be regarded as merely directory. At least in substance, they are mandatory prerequisites in the sense that the power conferred by s 116(1)(a) cannot have been enlivened in circumstances where there has been complete failure to embark upon the statutory procedure at all.

34 The Council drew attention to the fact that the procedures to be complied with under ss 116(2) and (3), and s 117, are matters for the roads authority, whereas s 118 separately empowers the RTA to give its consent without any express reference to those procedures. The Council submitted that the procedures in ss 116 and 117 were, in those circumstances not pre-requisites to the RTA’s power to consent, which stood unqualified and alone. It was then submitted that the Council could exercise the RTA’s power to consent, as its delegate, without any need to comply with the procedures. In my opinion this submission misreads s 118(1), which authorises the RTA to consent “after considering any submissions that have been duly made”. Section 118 assumes, and requires, that the procedure of public notification and receipt of submissions be undertaken before the power is exercised. That is so, as a matter of construction, whether the power is exercised by the RTA or its proper delegate, even where the delegate is the roads authority.

35 On 7 March 1998 the RTA executed under seal an instrument of delegation under s 50 of Transport Administration Act 1988 (NSW), in which it delegated to listed councils including Ku-ring-gai Council a number of the statutory functions of the RTA, including its functions under Division 2 of Part 8 of the Roads Act. That delegation was revoked and repeated in equivalent terms by a further instrument dated 26 October 2001, which appears to be still in force. On the basis of that evidence, it appears that the Council was in a position of to approve, as delegate of the RTA, its own application as the relevant roads authority for the purposes of s 116. However, the fact that it held the relevant delegation did not, in my opinion, permit the Council to disregard the procedures set out in ss 116-118, which provide for advertising of the application under s 116 and the making of public submissions.

36 My conclusion is that no provision of Part 8 of the Act can be relied upon by the Council to authorise it to construct the roundabout and turning bay in the manner proposed by the Council, that is, by proceeding to construction without adhering to the procedures set out in Division 2 of Part 8 of the Act.

37 The next question is whether there is any relevant source of authority for the Council in Part 6. There are two aspects to this question: first, whether any of the provisions of Part 6 is applicable in its terms; and secondly, if so, whether Part 8 overrides Part 6 in a manner that would prevent the Council from relying on any such provision.

1.4 The powers of a roads authority under Part 6

38 There are two potential sources of authority in Part 6, namely s 71 and s 87(3).

"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."

39 If otherwise applicable, s 71 would authorise Ku-ring-gai Municipal Council to carry out "road work" on Fiddens Wharf Road, since Fiddens Wharf Road is a public road for which the Council is the roads authority. However, the definition of "road work" in the dictionary to the Act specifically excludes a "traffic control facility". If the proposed roundabout is a "traffic control facility", then s 71 would not authorise the Council to construct it.

40 "Traffic control facility" is defined in the dictionary to the Act as having the same meaning as it has in Part 6 of the Transport Administration Act 1988 (NSW). Section 45E(1) of the latter Act includes in the definition of that expression "(c) any … structure or device that is intended to promote safe or orderly traffic movement on roads or road related areas". In my opinion a roundabout is, in its nature, intended to promote safe and orderly traffic movement. Further, there is specific evidence that the roundabout and turning bay are intended to promote "traffic calming" and therefore safe traffic movement on Fiddens Wharf Road. Consequently the roundabout and its associated turning bay constitute a "traffic control facility" within the definition.

41 Therefore s 71 cannot be a source of authority for the Council to construct the roundabout and turning bay.

42 Section 87(1) empowers the RTA to carry out traffic control work on all public roads, whether or not it is the appropriate roads authority for the road in question. Section 87(3) empowers the appropriate roads authority to carry out traffic control work on an unclassified road, except where the RTA has notified the authority that it proposes to carry out traffic control work. If otherwise applicable, s 87(3) would authorise the Council, as the appropriate roads authority, to carry out traffic control work on Fiddens Wharf Road, which is an unclassified road for the reasons I have given. "Carry out traffic control work" is defined in the dictionary to the Act to include carrying out any activity in connection with the construction, erection, or installation of a traffic control facility. Therefore s 87(3) would authorise the Council to construct the roundabout and turning bay, if it were otherwise applicable.

1.5 Relationship between Part 6 and Part 8

43 The reason for questioning whether s 87(3) is otherwise applicable to the present circumstances arises out of s 114, which (as I have said) states that a roads authority may not regulate traffic on a public road otherwise than in accordance with Part 8. The question is whether this prevents the Council from relying on an authority contained in Part 6, where the activity that it proposes falls within the definition of "regulating traffic" and it has not purported to comply with the procedures set out in s 116ff.

44 A similar question was considered by Bryson J in Lane Cove Council v Roads and Traffic Authority of New South Wales. In that case the Lane Cove Council erected some structures to limit use of a road, Bellevue Avenue, for which it was the responsible road authority, to one-way traffic. The RTA subsequently decided that two-way traffic operations should be re-instated to that road, not by demolishing any structures erected by the Lane Cove Council on the road but by removing existing "No Entry" signs and replacing them with "Give Way" signs. It relied on s 87(1) as the source of its power to do so. The Lane Cove Council unsuccessfully sought an injunction to restrain the RTA from acting.

45 The question before Bryson J related to the interaction between Part 6 and Part 8, but it was not the question before me now. The question for his Honour was whether the RTA (which was not the roads authority in relation to Bellevue Avenue) could rely on s 87 as a plenary source of power to carry out traffic control work, in a fashion that would override Lane Cove Council's exercise of its power (as the relevant roads authority in relation to Bellevue Avenue) to regulate traffic under Part 8. The facts before Bryson J did not raise the question whether the roads authority in relation to a particular public road can invoke a Part 6 power as a source of authority for work that will regulate traffic, where the work has not been properly authorised under Part 8.

46 The main submission advanced on behalf of Lane Cove Council was as follows. The Council was the roads authority for Bellevue Avenue, for the purposes of Part 8, and the power to regulate traffic on that road was therefore given, under ss 115 and 116, to the Council rather than to the RTA. Consequently any traffic control work carried out by the RTA under s 87 was to be carried out to give effect to Lane Cove Council's regulation of traffic along Bellevue Avenue, not to change or defeat it or substitute some other regulation for it.

47 Bryson J disagreed with this submission. He said (at 727):

"Essentially, the Lane Cove Council's position is to the effect that it is necessary, in order to give a harmonious construction to the whole of the Roads Act, to qualify the provisions of s 87 conferring power on the RTA so that the exercise must be ancillary to any regulation of traffic which has taken place under Part 8. To my reading the conferral of power in s 87 is distinct, clear, full and unqualified. There can only be some implication limiting the power by reference to some other provision or to the general operation of the Act where the basis for the implication is clear and the implication is necessary for the provisions as a whole to have a reasonable operation."

48 After deciding that the terms of s 87 themselves, taken alone or read with the terms of Part 8 or the Act as a whole, do not give any rise to any difficulty about the extent of what s 87 empowers, he continued:

"I see no reason for thinking that it is necessary to treat the power conferred by s 87 as ancillary to or subordinate to any exercise of regulation of traffic under Part 8 which may have taken place, and for that matter I do not see any basis for the reverse process; neither is made subject to the other, either by expression of intent or by necessary implication. It may or may not be inconvenient, in practical affairs, that one authority should exercise a power which will change matters after another authority has exercised the power to bring those matters about; the situation may or may not be inconvenient, depending on how well the practicalities are handled, but that does not make it necessary to imply subordination of one power to the other, and does not indicate which is to be subordinated."

49 He concluded:

"I see no inconsistency between the operation of s 87 to confer on the RTA the powers for which the RTA contends, and the operation of Part 8. The operation of Part 8 is to confer on the relevant roads authority power to regulate traffic. I do not see that either s 87 or Part 8 has any claim to primacy over the other. The existence and full exercise of any power conferred by s 87 to carry out traffic control work is not inconsistent with and is in no way an anomaly in relation to the exercise by the Lane Cove Council of its power to regulate traffic and the state of affairs brought about by that. If that state of affairs is altered by a later exercise by the RTA of its power, I see no anomaly. The Lane Cove Council's power of regulation was exercised and produced results; if those results have since been altered by later exercise of another power by another authority, that is no anomaly or inconsistency, and no ground upon which to base some exercise of reading down or qualifying the circumstances in which that other power exists."

50 Taken in isolation, some parts of these extracts from his Honour's reasoning might appear to govern the present case. In particular, his assertion that s 87 is not in any way subordinate to Part 8 could be taken to mean that the Ku-ring-gai Council in the present case can look to s 87(3) as a source of plenary power to carry out traffic control work, even where what is to be done will regulate traffic and there is no proper authority under Part 8. But, in my opinion, that would be to misread Bryson J's reasoning. In the facts before his Honour, the power under s 87 was to be exercised by the RTA, rather than the relevant roads authority for Bellevue Avenue. Therefore s 114, which prevents a roads authority from regulating traffic on a public road otherwise than in accordance with Part 8, had no application to restrict the RTA's use of its Part 6 power (a point acknowledged by his Honour at 726, paragraphs 38 and 39). Bryson J's reasoning was directed to establishing that there is no implied limitation to s 87 that would make it subject to the exercise of a Part 8 power by another entity. In a case such as the present, where the body purporting to exercise power under s 87 is the roads authority for the relevant road for the purposes of Part 8, its exercise of power is expressly constrained by s 114, which has the effect that where the traffic control work that is proposed is work that will “regulate traffic” on a public road, it must be carried out under Part 8, and s 87(3) is not a separate source of authority.

51 This interpretation of Bryson J's judgment is borne out by some of his Honour's own remarks. He made it specifically clear (at 717) that the question whether the Lane Cove Council was authorised by law to make the partial closure of the road was not a matter before him for decision. However, he observed (at 722) that, as the Lane Cove Council held a delegation from the RTA for the exercise of all the RTA's functions under Division 2 of Part 8, and the works carried out for the partial closure were not carried out for any of the purposes in paragraphs (a)-(g) of s 115(2), "the question whether the Lane Cove Council was or was not in breach of the prohibition in s 114 in constructing the partial closure depends on whether the Lane Cove Council itself gave consent under s 116 while that delegation was in effect." Significantly for present purposes, he did not suggest that s 87(3) would have any role to play.

52 For these reasons, my opinion is that Ku-ring-gai Council, being the roads authority for Fiddens Wharf Road, cannot rely on s 87(3) as an independent source of power to construct the roundabout and turning bay, because installation of the roundabout and turning bay would amount to regulating traffic, and under s 114 that cannot be done otherwise than in accordance with Part 8.

1.6 Conclusion as to statutory power

53 In summary:

· s 116 is not available as a source of power to construct the roundabout, at this stage, because the procedure described by ss 116-118 has not been followed;

· s 115 is inapplicable because what is proposed is not a barrier or notice, and the proposal is not for any of the purposes stated in s 115(2);

· ss 71 and 87(3), both in Part 6, are not available as independent sources of power because the proposed roundabout and turning bay will regulate traffic, and s 114 prevents the Council from regulating traffic otherwise than in accordance with Part 8;

· additionally, s 71 is inapplicable because the roundabout and turning bay constitute a traffic control facility, and therefore their construction would not be the carrying out of "roadwork" as defined.

54 No other source of authority to construct the roundabout and turning bay has been identified. The construction would therefore be unauthorised and illegal. On the basis that she has the standing to restrain the Council from engaging in unlawful activity that would directly affect her rights (a proposition not challenged by the defendant), the plaintiff is entitled to declaratory and injunctive relief on this ground. In my view paragraph 1 of the summons sets out an appropriate form of declaration. Paragraph 2 sets out an appropriate form of injunction, except that the injunction should be qualified by adding some such words as "without complying with Division 2 of Part 8 of the Roads Act 1993 (NSW)".

55 In my opinion the fact that the Council is in a position, as delegate of the RTA, to make the same substantive decision again after following the procedure in ss 116-118 should not cause the Court, in the exercise of its discretion, to decline declaratory and injunctive relief on the ground of futility. It is far from self-evident that the relief will be futile. The decision taken on 16 October 2001 was controversial amongst Councillors. The Court is not in a position to assume that if the matter is re-committed to them in the same terms, they will vote in the same way. Further, it appears (as I shall describe below) that Council officers have prepared yet another modification of the roundabout proposal, in response to the expert evidence in the present proceeding, and therefore it cannot be assumed that the same proposal would be committed to the Council, if indeed any version of the roundabout proposal is persisted with. Nor is the Court in a position to assume that the RTA will stand by and permit its general delegation to be used by the Council in the present controversial circumstances.

2. Administrative law grounds

56 The conclusion just expressed is enough to dispose of the case. However, I have heard substantial evidence and submissions on matters going to "broad ultra vires". It is necessary for me to make relevant findings of fact in case the matter goes further, and it is appropriate that in doing so, I should express my views on the legal issues in contention.

2.1 Facts

57 A great deal of correspondence and documentary evidence has been placed before me on what has obviously become an emotionally charged issue for local residents and Councillors. Plans for "traffic calming" on Fiddens Wharf Road have waxed and waned over the last decade. Some measures have been tried and abandoned, decisions had been taken, reversed, and deferred, and ultimately the Council has reached the position reflected in its resolution of 16 October 2001, notwithstanding active and trenchant opposition by the plaintiff. I shall outline the chapters in this saga.

58 As I have said, the Council commissioned a report by PPK Consultants, completed in May 1993 and entitled the "Lindfield Traffic Management Report". The report, prepared after community consultation, recommended "traffic calming" rather than traffic diversion as the correct policy to deal with problems in Fiddens Wharf Road. Traffic calming was to be achieved by a combination of measures, including thresholds of elevated height to alert drivers that they were approaching an area where speed would be controlled by special devices; pedestrian refuges; wombat crossings; speed humps; two-way slow points; and roundabouts. The report proposed a mini-roundabout at the intersection of Fiddens Wharf Road and Cook Road. The authors observed at page 14 of the report that "Ku-ring-gai Council is expected to consult with residents who live near these locations and to determine exact locations that avoid driveways and other access points."

59 On 4 March 1994 the Council published in the New South Wales Government Gazette a notice under s 116 of the Roads Act of a proposal to install a traffic management scheme in the Lindfield/West Lindfield area, to improve traffic safety by reducing vehicular speeds and discouraging through-traffic. Written submissions were invited. The proposed scheme was essentially the scheme proposed in the PPK Report.

60 On 6 September 1994 the Council approved a Lindfield Local Area Traffic Management Scheme, based on the PPK Report, for staged implementation. The Scheme included proposals for six roundabouts, including the one at the intersection of Fiddens Wharf and Cook Roads. However, funding constraints prevented commencement of work until 1998. In September 1996 the Council wrote to residents in the immediate vicinity of the proposed roundabout, inviting their comments. It was made clear that there had been no funding allocation or a construction timetable, and only a survey and design were being undertaken.

61 By March 1999 only limited steps had been taken to implement the Scheme. A 50km/hr speed limit had been introduced in 1998, and one roundabout had been constructed with financial assistance from the RTA. In a letter to residents dated 16 March 1999, Mr Tucker of the Council explained that "due to the high cost of roundabouts, their negative impact on access to private property when constructed at T-intersections and the loss of kerbside parking in their vicinity, it has been decided to defer further roundabout construction and concentrate on installation of lower-cost slow points". The letter said that some funding had become available and proposed that it be used to install 38 slow points or speed humps in the area.

62 In April 1999 the Ku-ring-gai Traffic Committee received a report by Council officers on resident reactions to the proposals for slow points. The report recommended that the Lindfield Local Area Traffic Management Plan (evidently based on the Scheme previously approved by the Council, but with modifications introduced over time) be approved, and that the precise locations of the slow points be marked out by reference to various local factors. The Traffic Committee disagreed with these recommendations, and decided instead to recommend to the Council that the implementation of the current phase of the Plan (installation of the 38 slow points) be deferred to allow further investigations to be undertaken regarding the need for low impact devices.

63 On 4 May 1999 the full Council decided not to adopt the Traffic Committee's recommendation. Instead, the Council approved the Plan in accordance with the recommendations in the officers’ report, including installation of the 38 slow points. Slow points were installed in Fiddens Wharf Road in June/July 1999.

64 In response to a letter from the plaintiff, Mr Koolik behalf of the Council wrote to her on 1 July 1999, reiterating the view expressed in the letter to residents of March 1999 that roundabout construction had been deferred in favour of the installation of lower-cost slow points. He expressed the opinion that it was unlikely that the Council would make any alterations to the approved scheme until a review had been undertaken of the impact of the slow points.

65 Evidently the installation of the 38 speed humps was unpopular with some residents. On 5 October 1999 the Council adopted a Mayoral minute resolving to remove the 38 recently installed speed humps and to refer the matter to the Traffic Committee for attention. It appears that this resolution was not immediately acted upon. The Council set up a "Lindfield Speed Humps Committee". The Committee met on 29 August 2000, and at that meeting residents raised a number of issues in opposition to speed humps. There was consensus at the meeting that raised devices should not be used on bus routes. The Committee proposed that a report be prepared for an alternative scheme, involving replacement of the existing raised devices with "at-grade treatments".

66 Such a report was prepared by Mr Koolik and Mr Baker, entitled "Lindfield/West Lindfield Traffic Scheme", for a meeting of the Council's Urban & Environmental Assets Committee on 12 September 2000. The report recommended an alternative scheme after removal of the speed humps on Fiddens Wharf Road, identified by sketch plan LATM 9/00, which showed "roundabout or intersection channelisation" and the intersection of Fiddens Wharf and Cook Roads. The report said that "roundabouts are preferred treatments, although 'Y' channelisation could be an alternative treatment." These alternatives were shown on the sketch plan. The Committee resolved that Council approve the sketch plan, and that residents be consulted.

67 A letter enclosing a copy of the sketch plan was sent to residents on 13 September seeking their views on the proposal by 11 October. The plaintiff wrote a strong protest, emphasising that a roundabout or intersection channelisation in front of her house would make it dangerous for her to drive her vehicle out of her property on to the road. A report analysing residents' responses was presented to the Ku-ring-gai Traffic Committee on 26 October 2000. While noting that "roundabouts were seen by many residents as an acceptable alternative if a speed management device was required", the report observed that preliminary on-site investigations at a number of intersections including Cook Road/Fiddens Wharf Road had indicated that "due to carriageway limitations, bus route manoeuvres or tree preservation issues, the proposed intersection treatment was not feasible". The report proposed re-locating the intersection treatment at Cook Road, which was "not feasible due to tree issues". Various proposals were costed, and a new sketch plan (LATM 10/00) was annexed that did not show an intersection treatment at Cook Road.

68 On 6 November 2000 Mr Baker, the Director Technical Services for the Council, wrote a memorandum to the Mayor and Councillors referring to the report to the Traffic Committee meeting on 26 October, and stating that since that time he had met and had discussions with residents. He said that local residents considered the Scheme as advertised (presumably, as recorded in LATM 90/00) to be more effective than the one currently recommended (shown in LATM 10/00, with no roundabout at Cook Road). He noted that the provision of a roundabout at Cook Road would impact on two established brush box trees, but also that residents had referred to a number of unreported crashes at the Cook Road intersection. He said that "a resident at the Cook Road intersection [presumably the plaintiff] objected to the proposed roundabout as it would create a safety problem in accessing her property". But he observed that "the construction of driveways within roundabouts is not unusual and it is considered that this should not be an issue preventing the device from proceeding". He recommended reversion to the proposal for a roundabout at Cook Road.

69 At the Council's meeting on 7 November 2000 a proposal to approve the scheme outlined in sketch plan LATM 10/00 was deferred and referred back to the Traffic Committee. The plaintiff wrote to Councillors and members of the Traffic Committee, reiterating her objection to the roundabout on safety grounds. The matter was referred to the Traffic Committee's meeting of 23 November 2000, with comments in the agenda paper reiterating Mr Baker's view that the construction of driveways within roundabouts is not unusual. The Traffic Committee resolved that Council approve proposed changes to the Lindfield (West) Traffic Scheme as outlined in sketch plan LATM 11/00. The minutes of the Traffic Committee's meeting note the Committee's discussion of the Cook Road roundabout proposal, as follows.

"The Committee noted that this would not be a unique treatment because a number of driveways have direct access to the existing roundabout in Grosvenor Road and that these operate effectively. The driveway to the property concerned could be splayed to assist access. Further, vehicles could be reversed into the garage of the property concerned so that they are not reversed into the proposed roundabout. The roundabout would provide a slower speed environment."

70 The plaintiff wrote to Councillor Roach reiterating her objection to the roundabout on 28 November 2000. On 29 November the Council wrote to all residents who had written regarding the proposals, including the plaintiff, informing them of the Traffic Committee's recommendation and saying that the Council would consider it on 5 December 2000.

71 The Council's decision on 5 December 2000 was to approve the proposed changes to the Lindfield (West) Traffic Scheme outlined in sketch plan LATM 11/00, "with a roundabout at Cook Road being a temporary measure until such time as the adjoining owner's entry and egress to the property and effect of the device has been trialled".

72 On 14 December 2000 Mr Ross Nettle of Transport and Traffic Planning Associates wrote to the plaintiff, evidently after she had approached him for an opinion. Mr Nettle expressed concern about the roundabout proposal on safety grounds, and noted that there was confusion as to whether the plaintiff would have right of way when driving out of her property. He recommended that Council should consider alternative measures, and enclosed plans for a "centre blister", "diamond blister" and a "mid-block device". The plaintiff forwarded Mr Nettle's letter to the Council.

73 At about the same time the plaintiff had a discussion with Mr Simon Cusack of the Roads and Traffic Authority, in which (she said) he supported her concerns about the safety of the proposed roundabout. She wrote to the RTA on 19 December 2000 setting out her concerns and asking for their assistance. The RTA replied on 16 January 2001, saying that "in general it is not desirable practice for vehicles to either enter or exit a roundabout in a reverse direction", while observing that it would be important to "assess every situation on its merits, which would include reviewing the detailed design for the site and assessing if other measures could deliver the same desired outcome (ie speed reductions)". Later Mr Koolik of the Council contacted Mr Cusack and Mr Moon of the RTA, after the plaintiff had reiterated in correspondence that Mr Cusack had supported her concerns. In his memorandum to Mr Baker dated 20 February 2001, Mr Koolik said that Mr Cusack's personal view was that roundabouts should not be adjacent to driveways and could be unsafe, but they were acceptable with design modifications such as flaring to assist residents to enter and leave their properties. Mr Moon, according to the memorandum, had seen the intersection and considered that a roundabout located there would not be unsafe.

74 There was a site inspection by Councillors on 9 December 2000, after which the plaintiff wrote to them reiterating her concerns. In her letter she referred to a proposal that there would be a "refuge area" on the side of the road into which she would be able to back her car, but she objected to that proposal as impractical and ineffective. She recorded some conflicting advice she had received as to who would have the right of way when she drove her car out of her property.

75 Mr Baker wrote a fairly detailed response to the plaintiff's representations on 5 February 2001. He rejected Mr Nettle's suggestion for mid-block devices on the ground that they can have greater impact on adjacent residents than roundabouts, in terms of loss of parking, and are often not as effective in reducing traffic speeds because there is no requirement to give way to other motorists. He reviewed her safety concerns and suggested she might try reversing into the driveway. The plaintiff responded in detail by her letter dated 9 February 2001.

76 A motion for rescission of the Council's resolution of 5 December 2000, so far as it related to the installation of a temporary roundabout at Cook Road, was considered by the Council at its meeting on 20 February 2001. The rescission motion was carried, and Council resolved that the Director of Technical Services provide a further report on the representations and technical advice provided by Transport and Traffic Planning Associates. On 4 April 2001 Mr Koolik and Mr Baker reported to the Traffic Committee, recommending that the Council reaffirm its decision to install a roundabout at Cook Road as a temporary measure. The Traffic Committee considered this report on 19 April 2001. The plaintiff addressed the Committee. Some other residents addressed the Committee to support the roundabout proposal. The Committee discussed the merits of providing a turning bay on the footpath area to the east of her driveway, to assist the plaintiff to drive her car into and out of her garage. The representative of the RTA advised the Committee that "it would not be viable to provide a formal reversing area on the road pavement within the roundabout and still provide adequate vehicle defection through the intersection". The Committee recommended

"That consideration be given by the Ku-ring-gai Traffic Committee to the provision of a turning bay, not to be used for parking, on the footpath area near the driveway to No 27 Fiddens Wharf Road in the design of the trial roundabout in Fiddens Wharf Road at Cook Road."

77 At its meeting on 1 May 2001, the Council received a petition with signatures of 87 local residents opposing the roundabout. The Council decided that the matter be deferred to have the Traffic Committee "consider alternative traffic calming devices, including the mid-block design".

78 Mr Koolik and Mr Baker prepared a report for the Traffic Committee's meeting of 24 May 2001, setting out 5 alternative options for traffic calming. Option 1, two mid-block treatments, in a "tadpole design", was rejected because it would result in significant loss of on-street parking and might have a negligible impact on average speeds. Option 2 was the roundabout, with a turning bay to the east of the plaintiff's property, approximately as proposed at the Traffic Committee's meeting on 19 April. Option 3 proposed a roundabout, with a turning bay to the west of the plaintiff's property. That would require removal of a significant tree, and therefore option 2 was preferred. Option 4 proposed "channelisation" at the intersection by causing traffic on Fiddens Wharf Road to be deflected right and left to follow the contours of splitter islands placed both at the east and at the west of the Cook Road intersection. That was considered to be excessive. Option 5 proposed a "propeller island" located east of the intersection with Cook Road, which, like Option 4, would cause the traffic to be deflected to follow the contours of the island. The report recommended that Options 2 and 5 be advertised to residents for comment.

79 I should explain a little more about Option 2, which was the option eventually preferred by the Council. On the western side of the intersection of Cook Road with Fiddens Wharf Road, there would be a "splitter island" that would direct east-bound traffic closer to the curb. On the north-eastern side of the roundabout there would be a turning bay bounded by lay-back crossing, running from the front of the plaintiff's driveway on the roundabout, and continuing for some distance to the east along the edge of Fiddens Wharf Road. It was to be "largely over the existing road pavement". The idea was that, when coming home, the plaintiff would drive off the roundabout nose first onto the turning bay, and then reverse back into her driveway, so that she would next leave her property in a forward direction.

80 At the plaintiff's request, Mr Nettle wrote a comment on this report on 21 May 2001. He expressed the opinion that the cost of Option 1 would be much lower than the report had estimated, and he was sceptical about the report's reasons for rejecting Option 1. The plaintiff sent Mr Nettle's letter to Mr Baker for distribution to the members of the Traffic Committee. She also addressed the Traffic Committee at its meeting on 24 May. The Traffic Committee decided to recommend, as its first preference, tadpole treatment at a single location substantially to the west of the Cook Road intersection, adjacent to Nos 40, 40A and 40B Fiddens Wharf Road, with the Cook Road roundabout with turning bay (Option 2) as its second preference, and a tadpole treatment immediately east of Cook Road as its third preference. Predictably, this produced objections from residents in and about the location of the proposed tadpole treatment, and a residents’ petition supporting the Cook Road roundabout as the best and safest solution.

81 The issue returned to the Council at its meeting on 5 June 2001. The plaintiff addressed the Council, as did other residents including the occupier of 40A Fiddens Wharf Road. The Council resolved to advertise to residents the three preferences recommended by the Traffic Committee, and to it establish a temporary roundabout at Cook Road for 6-12 months to establish the feasibility of a permanent roundabout.

82 Residents were in due course notified of the three preferences, and Mr Koolik and Mr Baker prepared another report for the Traffic Committee on 7 September 2001, considering the residents' responses. The report noted that the Council's second preference, a roundabout at Cook Road, received the highest level of first preference resident support, although overall the community support for the first and second preferences was relatively even. Noting the plaintiff's safety concerns, the report said that they had been addressed by the proposed turning area, "which would assist entry into the roundabout in a forward direction". The report recommended that the Council, after considering resident feedback, should approve Option 2 (that is, a roundabout at Cook Road with a turning bay to the east) for construction.

83 The plaintiff wrote to the Council asking that the Traffic Committee defer its consideration of the report as she would be overseas. However, the Traffic Committee receded to consider the matter at its meeting on 20 September 2001, tabling the plaintiff's letter and hearing presentations by other residents. The Committee decided to adopt the recommendations in the report, noting that the roundabout proposal should incorporate widening of the turning area and removal of a street tree.

84 The plaintiff returned from overseas on 16 October 2001, the day on which the Council considered the Traffic Committee's recommendations. She was able to attend and address the Council meeting, although she protested that she had had insufficient time to prepare. The meeting was addressed by other residents, including some who objected to the tadpole treatment that had been Council's first preference. One speaker was the Consul General for the Republic of Lithuania, who resided at 40B Fiddens Wharf Road. He said he had also been away overseas quite often and had been unable to speak to the Council previously.

85 The Council resolved to adopt the Traffic Committee's recommendations. This is the resolution that the plaintiff challenges in the present proceeding. The text of the resolution was as follows:

"That the Council note the resident responses to the advertising of three treatment options for Fiddens Wharf Road at/near Cook Road, and that after considering this feedback and previous technical input, that Option 2, that is a roundabout at Cook Road, be approved for construction, incorporating widening of the turning area and removal of the street tree."

86 The evidence includes a transcript and full minutes of the meeting. After the residents addressed the Council, Council Little moved the Traffic Committee's recommendation. He said:

"I think the safety issue has been addressed over a considerable time on this particular matter. The new design does not involve reversing into the roundabout. I think that needs to be clearly understood by Councillors here. The safety issues raised by Mrs Davies really arose from the fact that the original design had a reversal into the roundabout necessary. Now, the roundabout has been offset from the garage, a tree is being removed so there is a wide turning circle which allows for a large vehicle to reverse quite comfortably out of that garage. I have actually tried it myself in my car which has a very wide turning circle and I believe it is quite comfortable. I don't believe there is any basis at all for not proceeding with the new design where there is a parking bay especially provided for Mrs Davies so that she can reverse out of that garage safely and then go in a forward direction into the roundabout."

87 Councillor Malicki asked for an explanation from the Acting Director because "it appears when somebody backs out of that driveway that they are in the wrong lane facing the wrong correction". The Acting Director replied, "When they back out of the driveway they'll be behind a curb line." Councillor Malicki persisted, asking "So they are in fact facing into direct oncoming traffic even though they’re behind …". The Acting Director replied, "Facing into the roundabout so they turn left into the roundabout as a normal intersection". Councillor Malicki said he could not support the proposal because it created more difficulties that had previously existed. Councillor Hall supported Councillor Malicki. Councillor Little summed up, reiterating that the safety issues had been addressed, but evidently still believing that vehicles would back out onto the turning bay and move onto the roundabout while facing directly into the oncoming traffic. Councillors then voted.

88 It is plain that Councillor Little, and perhaps also the Acting Director, misunderstood the concept of the turning bay and the way it was to be used. As I have said, as it emerged from discussions, the idea was that the plaintiff’s vehicle would turn out of the roundabout nose-first into the turning bay, and then reverse, turning into the garage so that on completion of the manoeuvre, the car would be parked in the garage with its nose facing towards the roundabout, ready to enter the roundabout forwards upon departure. Councillor Little's idea appears to have been that the plaintiff’s car would turn out of the roundabout directly into her garage, finishing up with the tail of the car pointing towards the roundabout, and then reverse and turn into the turning bay upon departure. Her car would commence to enter the roundabout from the turning bay pointing in the wrong correction, facing the oncoming traffic.

89 The plaintiff drew attention to this misunderstanding in subsequent correspondence. Eventually the Mayor wrote to her on 21 November 2001. The Mayor said, correctly, that the turning bay was intended to allow the plaintiff to leave Fiddens Wharf Road in a forward direction, enter the bay, and reverse into her garage. She said that the turning bay was not intended to be used where turning vehicles would face oncoming traffic in Fiddens Wharf Road. She said that the Council's decision, consistent with the recommendation of the Traffic Committee, would remain and the staff would proceed with the detailed design process.

90 On 7 November 2001 the Council advertised in the North Shore Times that it had approved the roundabout at Cook Road for construction, and that work was expected to be undertaken by early 2002. The advertisement was not expressed to be, and could not be regarded as, an advertisement for the purposes of s 116(2) of the Roads Act. On 21 December 2001 the Council wrote to the plaintiff saying that a detailed survey of the work had been completed and design plans should be completed by late January 2002. The construction work was to commence in February. The commencement of the construction work has been deferred pending the outcome of the present proceeding.

91 Expert traffic engineering evidence was prepared for the hearing, and the experts (Mr McLaren for the plaintiff and Mr Hutcheson for the Council) met together shortly before the hearing. Subsequently, days before the hearing, Council officers produced and showed Mr Hutcheson a modification of the turning bay plan. In the modified version, in the splitter island to the west of the roundabout would be accompanied by a blister island at the curb, so as to cause east-bound traffic along Fiddens Wharf Road to be deflected towards the centre of the roundabout when approaching it, and therefore to turn more sharply left when entering the roundabout. The exact status of the new sketch plan is unclear and in particular, it does not appear to have been adopted by the Council. But its existence suggests that, whatever happens in the present proceeding, Council officers may wish to recommend to the Council that it reconsider the precise terms of the decision made on 16 October 2001.

2.2 The plaintiff's "broad ultra vires" grounds

92 At the hearing, the plaintiff relied on the following contentions, which I shall consider in turn:

93 In Points of Claim filed on 28 March 2002, the plaintiff advanced some other "broad ultra vires" claims. She contended that the Councillors who voted for the resolution of 16 October 2001 did so for the purpose of adhering to their commitment that they would remove speed humps from Fiddens Wharf Road and secure their replacement by other traffic control devices. This was said to be an extraneous and improper purpose. At the hearing and in written submissions the plaintiff did not develop this claim or expressly rely on it. In my view the claim is not supported by the evidence, which shows that, although the Council decided to remove the speed humps and replace them with other means of "traffic calming", the decision of 16 October 2001 was taken on the basis of considerations about safety, misguided though they may have been.

2.3 Decision would cause breach of Australian Road Rules

94 The plaintiff claims that if the Council's decision of 16 October 2001 is implemented, from the plaintiff will be forced to breach the Australian Road Rules while driving into and out of her property.

95 The Australian Road Rules are part of the law of New South Wales by virtue of the following statutory provisions. First, the Road Transport (Safety and Traffic Management) Act 1999 (NSW) makes extensive provisions on matters of safety and traffic management. The objects of that Act include "to provide for a system of safety and traffic management that is consistent with the uniform national approach envisaged by the agreements scheduled to the National Road Transport Commission Act 1991 of the Commonwealth" (s 3(a)), and "to improve safety and efficiency of transport on roads and road related areas" (s 3(c)). Section 71 and Schedule 1 create a broad authority for the making of regulations in respect of safety and traffic management. That takes us to regs 5 and 6 of the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 (NSW), made pursuant to that authority. These provisions incorporate the Australian Road Rules published by the National Road Transport Commission into the regulation and therefore make them part of New South Wales law.

96 The following provisions of the Australian Road Rules are relevant for the purposes of the present case:

"109 A roundabout is an intersection with:
(a) one or more marked lanes, or lines of traffic, all of which are for the use of vehicles travelling in the same direction around a central traffic island; and
(b) a roundabout sign at each entrance."

"112 (1) This rule applies to a driver entering a roundabout if:
(a) the driver is to leave the roundabout at the first exit after entering the roundabout; and
(b) the exit is less than halfway around the roundabout.
(2) The driver must give a left change of direction signal when the driver is entering the roundabout.
Offence provision.
(3) The driver must continue to give the change of direction signal until the driver has left the roundabout.
…"

"113 (1) This rule applies to a driver entering a roundabout if the driver is to leave the roundabout more than halfway around it.
(2) The driver must give a right change of direction signal when the driver is entering the roundabout.
Offence provision.
(3) The driver must continue to give the change of direction signal while the driver is driving in the roundabout …"

"114 (1) A driver entering a roundabout must give way to:
(a) any vehicle in the roundabout; …
Offence provision."

"115 (1) A driver driving in a roundabout must drive to the left of the central island in the roundabout, unless subrule (2) or (3) applies to the driver. …
Offence provision."

97 The plaintiff says that the arrangement proposed by the Council's decision would, if implemented, be unique in New South Wales. This is because there is no other example of a turning bay having the function proposed in the present case. The Australian Road Rules contain no definition of a "turning bay", and what is proposed does not meet the definition of a "parking bay" in the Rules. It falls within the general scope of what is defined as a "road-related area". The defendant adduced evidence of some other roundabouts adjacent to residential driveways, but (as I have said) in those cases there seemed from the relevant photographs to be provision for the residents to turn vehicles on their properties. In none of the other cases identified in evidence was there any turning bay arrangement.

98 The plaintiff says that use of the turning bay will oblige her to breach Rule 115. This is because, according to her contention, when she reverses from the turning bay into the garage the front driver's side of her vehicle will protrude over the lay-back edge of the turning bay and into the space above Fiddens Wharf Road. To that extent, her vehicle will be moving in an anti-clockwise direction through the roundabout as it moves towards the garage. Rule 115 requires a driver driving in a roundabout to drive to the left of the central traffic island, that is, in a clockwise direction.

99 The crucial issue of fact is whether reversal from the turning bay into the garage can be executed without protruding over the edge of the turning bay and therefore wrong to the Road. Expert evidence was given on this subject by traffic engineers, Mr McLaren for the plaintiff and Mr Hutcheson for the defendant.

100 Both Mr McLaren and Mr Hutcheson gave evidence as to whether a vehicle reversing from the turning bay into the garden would protrude onto the Road. I prefer Mr Hutcheson's evidence on this point, because it was later and, being given in response to Mr McLaren's evidence, was able to point to some differences and give reasons justify his point of view. What emerges is that a standard-sized vehicle reversing from the turning bay into the western side of the garage would be able to execute the manoeuvre, tightly, without protruding onto the road, but a car reversing into the eastern garage in a single lock would travel outside the turning area and into the street.

101 The consequence is, however, that there is a factual basis for the plaintiff's claim about breach of Rule 115. Whenever a driver wishes to reverse into the eastern garage on the plaintiff's property, part of the vehicle will protrude and move along the roundabout in the wrong direction contrary to Rule 115.

102 The defendants contended that a driver may lawfully reverse into a roundabout. Rule 296 of the Australian Road Rules provides that the driver of a vehicle must not reverse the vehicle unless he or she can do so safely and must not reverse further than is reasonable in the circumstances. That authorises the reversal of vehicle in general circumstances. However Rule 109 defines a "roundabout" in specific terms, by reference to vehicles travelling in the same direction around a central traffic island, and Rule 115 requires the driver to drive to the left of the traffic island. It follows, in my view, that the Australian Road Rules do not contemplate that a vehicle should drive against the flow of the single direction of traffic in a roundabout, by reversing into it.

103 The plaintiff also contended that the Council's decision would involve breach of the Australian Road Rules relating to the use of indicators. I have considered these submissions but, in my view, they do not identify any additional difficulty if the Australian Road Rules are interpreted in a common sense manner. In my opinion the position is as follows. When the resident driver travels west along Fiddens Wharf Road and enters the roundabout, Rule 113 requires that she signal right, since she intends to leave the roundabout more than halfway around it. Rule 118 then requires her to signal left, if practicable, as she approaches and enters the turning bay. While she is not leaving the road when entering the turning bay, because it is a road-related area, she is leaving the roundabout with the result that Rule 118 applies.

104 In my opinion the fact that, whenever the plaintiff or her visitors use the eastern garage, they are likely to contravene Rule 115 is not itself a ground of invalidity of the Council's decision. The plaintiff and her visitors are not required by the Council's decision to breach the law, because they could comply with the Australian Road Rules by not using the plaintiff's eastern garage. But a decision which imposes this consequence might be a decision reaching the level of Wednesbury unreasonableness, and a decision which imposes this consequence without taking it into account might be a decision open to challenge for failing to take into account relevant considerations. I shall therefore return to non-compliance with Rule 115 under those headings.

2.4 Failure to take into account relevant considerations

105 It is a general principle of administrative law that a public decision-maker such as the defendant, when making decisions, is required to consider those relevant considerations that it is bound to take into account in light of the subject matter, scope and purpose of the legislation that it is required to administer: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24, 39. It appears from reflection on the scope of the Roads Act, and the objects stated in s 3, that one of the principal purposes of the Act is to protect the safety of persons and vehicles using public roads, and perhaps other roads regulated under the Act, from damage or hazards. Although s 115 does not apply in the present circumstances, the purpose of protecting users from serious damage emerges from the list in subsection 115(2).

106 As the Peko-Wallsend case and many other cases show, a statutory authority such as the defendant may be required to take into account all relevant considerations in reaching its decision even where there is no express statutory list of such matters. Sometimes, however, legislation specifies matters which are required to be taken into account. In two recent decisions the Court of Appeal of New South Wales has explored what needs to be done to satisfy such a statutory requirement. It appears to me that those cases are relevant here, where the requirement to consider matters of safety arises by implication from the Act rather than expressly.

107 In Weal v Bathurst City Council (2000) 111 LGERA 181, Bathurst Council determined a development application without specifying maximum noise emissions or levels of plant and equipment to be operated so as to reduce noise. The Council was required under the Environmental Planning and Assessment Act 1979 (NSW) to take into account a number of specified matters as for a province to the subject development. The Court of Appeal held that to discharge this duty, the Council had to reach a proper understanding and undertake a process of evaluation. In Zhang v Canterbury City Council (2001) 51 NSWLR 589 the Court emphasised that the statutory obligation to take relevant matters into consideration required that those matters be given weight as fundamental elements or focal points in the Council's determination (at 602 per Spigelman CJ).

108 Safety, in the sense described above, was a relevant consideration which the Council was bound to take into account in making its decision on 16 October 2001. The plaintiff contends that the Council's decision would be open to challenge, were it otherwise valid and authorised, because the Council failed to take into account certain specific considerations relating to safety. Five areas have been identified, which I shall now consider.

The Australian Road Rules

109 Nothing in the extensive evidence in this case indicates that the Council paid any regard to the Australian Road Rules when making its decision on 16 October 2001. None of the Councillors who contributed to the debate on that occasion referred to the Rules. They were not mentioned in the minutes of any of the meetings of the Ku-ring-gai Traffic Committee to which I have referred, nor in any of the reports or correspondence prepared by Council officers and tendered in evidence. In written submissions presented just prior to the hearing, the plaintiff contended that the Council had failed to take the Australian Road Rules into account, and (having thus been put on notice of the issue) the Council did not seek to lead any evidence to show that it had taken the Rules into consideration. My conclusion is that the Council did not have any regard to the effect of the Australian Road Rules when making its decision.

110 For reasons I have given, the Council's decision had the effect that Rule 115 would be likely to be contravened whenever a vehicle was reversed into the plaintiff's eastern garage. In my opinion that was a highly relevant consideration which should have been taken into account before the Council's decision was made.

The PPK Consultants report

111 The plaintiff drew attention to the fact that in their 1993 report, PPK Consultants recommended that the Council should consult with residents living near the locations of proposed traffic calming elements, and to determine exact locations that would avoid driveways and other access points. That report was adopted by the Council, with amendments, on 6 September 1994. In the plaintiff's submission, Council's adoption of the report implied its acceptance of the policy that locating roundabouts at driveways was to be avoided. The plaintiff contended that this policy was a relevant consideration that the Traffic Committee should have taken into account in making its recommendations on 8 and 24 May 2001, and Council should have taken into account when it made its decision on 16 October 2001.

112 I disagree with the submission. In the my opinion Council's adoption of the PPK Report did not entail its acceptance of the particular policy about roundabouts at driveways for which the plaintiff contends. Moreover, there was a great deal of discussion, consultation, reporting and decision-making between 1994, when the Report was adopted, and October 2001 when the Council's final decision on the subject was made. PPK's view in 1993 had ceased, in my opinion, to be a relevant consideration per se by the time Council made its decision.

Safety considerations

113 The plaintiff submitted that there was evidence that the Council had failed to take into account the safety implications of the proposed roundabout and turning bay. She referred to the fact that the plan for the proposal did not indicate that any traffic control device would be placed above or near the turning bay, or how the Council would ensure that other vehicles did not park in the bay. She said the decision failed to take into account the means by which the plaintiff would have safe access to her garage in the event of the presence of an illegally parked vehicle in the turning bay.

114 I am not persuaded that the Council failed to take into account safety in respect of these matters. The design of the turning bay was such that any reasonable observer would realise that it was constructed for a purpose to do with the roundabout. Consequently the likelihood of unauthorised parking there would not be high. If there was an unauthorised vehicle parked in the turning bay, it would be necessary for the plaintiff or her visitors to forgo parking in the plaintiff's garage and to park further along the street. It is not obvious to me, and there is nothing in the evidence to show, that a safety issue would arise in those circumstances.

115 The plaintiff also complained that the Council had failed to take into account the view expressed by the RTA representative at the Traffic Committee meeting that "it would not be viable to provide a formal reversing area on the road pavement within the roundabout and still provide adequate vehicle deflection through the intersection". It is far from clear that this remark was directed to the proposal that ultimately found favour with the Council. It might have been directed, for example, to Option 3. Further, I am not satisfied that the view expressed by the RTA representative, whatever it was, was not properly taken into account. It was minuted by the Traffic Committee, whose recommendations were carried forward to the Council for decision.

116 None of the matters identified under this heading amount to failure to take into account relevant considerations the purpose of challenging the Council's decision.

The risk of vehicles mounting the lay-back sides

117 The plaintiff referred to Mr McLaren's evidence that the angled edge of the turning bay, in combination with inadequate deflection of vehicles passing through the roundabout and travelling in an easterly direction, created a high danger of vehicles mounting the turning bay. The evidence was that this danger would be at its highest when a truck or a large vehicle entered the roundabout from Cook Road, passing over the central island to proceed in an easterly direction along Fiddens Wharf Road. According to Mr McLaren, the angled edge of the turning bay would not protect a stationery vehicle on the turning bay from a collision, there being no "clear zone" between the line of traffic and the kerb, as required by the RTA's Road Design Guide.

118 Mr McLaren's evidence was dealt with by Mr Hutcheson in a manner that I regarded as persuasive. I do not accept Mr McLaren's evidence that the design approved by the Council in October 2001 created a high danger of vehicles mounting the turning bay. There seems to be some risk that large trucks might run onto the turning bay when completing their turn, although the evidence does not seem to be that this would necessarily occur, or that the truck driver would fail to notice a parked vehicle of the turning bay to be avoided in execution of the turn. I note, additionally, that some of the criticism made by Mr McLaren has been addressed in the revised proposal developed by Council officers after the meeting between the experts.

119 I do not regard this evidence as identifying basis for challenging the Council's decision on the ground of failure to take into account relevant considerations.

Confusion

120 The plaintiff contended that the Council had failed to consider whether the proposal was one that would cause confusion for motorists, and that this failure amounted to a failure to take safety into account. Her submission identified confusion to motorists of two kinds. First, a motorist travelling east along Fiddens Wharf Road may well be confused, especially at night time, to observe a vehicle reversing from the turning bay into the garage, especially given the risk that the front driver's side of the vehicle might protrude onto the roundabout. Secondly, a motorist travelling east along Fiddens Wharf Road might be confused if the resident driver, having approached the roundabout from the east and having signalled a right turn, were then to alter the signal to a left turn before entering the turning bay.

121 I am not persuaded that the Council failed to notice these matters during the meeting on 16 October 2001, where difficulties of these kinds were raised. However, this submission leads to a point of greater significance. It concerns me that, according to the transcript of the meeting, there was very substantial confusion in the minds of the Councillors who participated it, particularly those who voted in favour of the proposal. I have referred to Council Little's erroneous remarks. He was the mover of the motion. I have also referred to Councillor Malicki's questions and the exchange between him and the Acting Director, which was also confusing. Councillor Hall, who also opposed the motion, strongly expressed concern about safety matters., and Councillors Cross and Little confirmed that they and other Councillors were confused as the location and proposed use of the turning bay.

122 This evidence is significant, having regard to what was said by the Court of Appeal of New South Wales in the two cases to which I have referred. A decision-maker can take satisfactory into account a relevant consideration only if the issue has been properly understood, and there has been a reasonable opportunity to consider it. Safety should have been a fundamental element of the Council's consideration. The evidence of what actually happened at the meeting, recorded in the transcript, leads me to conclude on the balance of probabilities that Councillors were not able to reach a reasonable understanding of the safety issues at the meeting, and therefore failed to give proper consideration to them.

2.5 Wednesbury unreasonableness

123 It is a long-standing principle of administrative law, albeit one that the Courts treat warily (see, for example, Attorney-General (NSW) v Quin (1990) 170 CLR 1, at 36 per Brendan J; Minister for Immigration v Eshetu (1999) 197 CLR 611, 627 per Gleeson CJ and McHugh J), that a public decision-maker's purported decision is open to challenge if is so unreasonable that no reasonable person in the decision-maker’s shoes could have reached it: Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 23. The Wednesbury principle has been discussed frequently by Australian courts, and occasionally applied, as is the Weal case (at 201 per Giles JA; cf at 188 per Mason P) to which I have referred.

124 In my opinion the present case is one of those unusual cases where it would be appropriate to apply the Wednesbury principle to invalidate the Council's decision if it were otherwise valid. There are two critically important components in my conclusion on this point.

125 The first is the matter to which I have just referred, namely the circumstances in which the decision on 16 October 2001 was taken. Councillor Little, the mover of the motion, erroneously explained to Councillors that the turning bay would be used by the resident to back her vehicle out of her garage. It appears from the transcript that his statements misled or confused at least some of his colleagues. It is more likely than not, after one takes into account the remainder of the discussion including the exchange between Councillor Malicki and the Acting Director, that at least some of the Councillors who voted in favour of the proposal did so on the basis that the turning bay would be used in the manner outlined by Councillor Little.

126 Having regard to the importance of safety considerations in determinations by a roads authority under the Roads Act, it seems to me that a decision to approve a proposal, a component of which would involve the resident's vehicle entering the roundabout from the turning bay in precisely the wrong direction, is highly unreasonable by any standard.

127 Secondly, to the extent that the decision was based upon the proper and intended use of the turning bay, it was highly unreasonable for the Council to make a decision which entailed that the resident's vehicle would be likely to protrude into the roundabout travelling in an anti-clockwise direction, in contravention of the Australian Road Rules.

128 In reaching these conclusions I do not purport to enter into the merits of the Council's decision on matters open to debate. The issues to which I have referred go beyond questions about the weight which the Council might have attached to issues of safety. I agree with the plaintiff's submission that, when it is viewed objectively, the Council's decision is so devoid of any plausible justification that no reasonable body of persons could have reached it (citing Bromley London Borough Council v Greater London Council [1983] 1 AC 768), and one which no sensible authority acting with due appreciation of its responsibilities would have decided to adopt (Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, at 1064 for Lord Diplock).

Conclusions

129 My principal conclusion is that the plaintiff is entitled to the declaration sought in paragraph 1 of the summons, and the injunction sought in paragraph 2 (but qualified by the addition of some such words as "without complying with Division 2 of Part 8 of the Roads Act 1993 (NSW)") on the "narrow" ultra vires ground discussed in the first part of these reasons for judgment. That conclusion is reinforced by my findings that the Council, having a duty to do so, has failed to take into account certain relevant considerations that I have identified, and has reached a decision so unreasonable that no reasonable Council could have reached it.

130 I shall direct the plaintiff to bring in draft short minutes of orders to reflect these reasons for judgment, and I shall arrange a time to make the orders and hear submissions with respect to costs.

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Last Modified: 10/03/2003

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Citations

Davies v Ku-ring-gai Municipal Council [2003] NSWSC 840

Most Recent Citation

Boensch v Parramatta City Council [2012] NSWSC 836

Cases Citing This Decision

2

Rockdale City Council v Simmons [2015] NSWCA 102

Boensch v Parramatta City Council [2012] NSWSC 836

Cases Cited

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Statutory Material Cited

5

Miller v TCN Channel Nine Pty Ltd [1986] HCA 60

R v Connell; Ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42

Swan Hill Corporation v Bradbury [1937] HCA 15

CITATION:	Davies v Ku-ring-gai Municipal Council [2003] NSWSC 840
HEARING DATE(S):	04/03/03, 05/03/03, (and submissions to 07/03/03)
JUDGMENT DATE:	10 September 2003
JURISDICTION:	Equity Division
JUDGMENT OF:	Austin J
DECISION:	Declaratory and injunctive orders made.
CATCHWORDS:	ROADS & TRAFFIC - meaning of "regulates traffic" in Roads Act s 114 - whether roads authority may use powers under Part 6 of Roads Act to carry out traffic control work which regulates traffic for the purposes of Part 8 - whether reversal from turning bay into private garage would contravene Australian Road Rules - - ADMINISTRATIVE LAW - whether decision of roads authority disregarding effects under Australian Road Rules failed to take into account relevant considerations and was invalid - whether decision of roads authority making contravention of Australian Roads Rules likely was unreasonable in the Wednesbury sense
LEGISLATION CITED:	Australian Road Rules, rules 109, 112-115, 118 Road Transport (Safety and Traffic Management) Act 1999 (NSW), s 71, 72 Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 (NSW), regs 5 and 6 Roads Act 1993 (NSW), ss 3, 6, 7, 71, 87, 114-122 Transport Administration Act 1988 (NSW), s 50
CASES CITED:	Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 23 Attorney-General (NSW) v Quin (1990) 170 CLR 1, Bromley London Borough Council v Greater London Council [1983] 1 AC 768 Foley v Padley (1984) 154 CLR 349 Lane Cove Council v Roads and Traffic Authority of New South Wales (2001) 50 NSWLR 714 Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 Minister for Immigration v Eshetu (1999) 197 CLR 611 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014 Swan Hill Corporation v Bradbury (1937) 56 CLR 746 Weal v Bathurst City Council (2000) 111 LGERA 181 Zhang v Canterbury City Council (2001) 51 NSWLR 589
PARTIES :	Kathryn Davies (Plaintiff) Ku-ring-gai Municipal Council (Defendant)
FILE NUMBER(S):	SC 1655/02
COUNSEL:	B Preston SC with M Allars (Plaintiff) B McClintock SC with S Flannigan (Defendant)
SOLICITORS:	Colin Biggers & Paisley (Plaintiff) Deacons (Defendant)