Lane Cove Council v RTA
[2001] NSWSC 30
•12 February 2001
Reported Decision:
(2001) 50 NSWLR 714
(2000) 112 LGERA 190
[2001] NSWSC 30
New South Wales
Supreme Court
CITATION: Lane Cove Council v. RTA [2001] NSWSC 30 CURRENT JURISDICTION: Equity FILE NUMBER(S): SC 4569/00 HEARING DATE(S): 30-31/01/01 JUDGMENT DATE:
12 February 2001PARTIES :
Roads and Traffic Authority of New South Wales (Defendant)
Lane Cove Council (Plaintiff)JUDGMENT OF: Bryson J at 1
COUNSEL : W. Davison S.C. (Plaintiff)
J. Nicholas (Defendant)SOLICITORS: Pike Pike & Fenwick (Plaintiff)
Clayton Utz (Defendant)
CATCHWORDS: VEHICLES and TRAFFIC - Regulation of traffic - traffic signs and notices - local council constructed a partial road closure with associated signage changing the traffic flow to one way traffic with a "No Entry" sign - RTA opposed restriction to one-way and proposed to restore two-way by substituting "Give Way" sign - powers and functions of roads authority to construct traffic control facilities - Roads Act 1993 ss 87, 114, 115, 116 HELD RTA had power to change signage. - LOCAL GOVERNMENT - regulation of traffic - see VEHICLES and TRAFFIC - HIGHWAYS and BRIDGES - regulation of traffic - See VEHICLES and TRAFFIC LEGISLATION CITED: Roads Act 1993
Transport Administration Act 1988
Local Government Act 1919CASES CITED: Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 223
Weal v. Bathurst City Council & Anor [2000] NSW CA 88
Water Conservation and Irrigation Commission v. Browning (1947) 74 CLR 492
Attorney General for New South Wales ex rel Chopin v. North Sydney Municipal Council [1973] 1 NSWLR 186
Mutton v. Ku-ring-gai Municipal Council [1973] 1 NSWLR 233.
Attorney General for New South Wales v. Lane Cove Municipal Council (1976) 2 NSWLR 1DECISION: Orders: I give judgment for the defendant with costs.
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISIONBRYSON J.
MONDAY 12 FEBRUARY 2001
JUDGMENT4569/00 LANE COVE COUNCIL -v- ROADS AND TRAFFIC AUTHORITY OF NEW SOUTH WALES
1 HIS HONOUR: Traffic Flow. Bellevue Avenue, Greenwich forms a T intersection with Pacific Highway at its northerly end. From that point Bellevue Avenue first runs generally south-west and then takes an irregular course, curves approximately south-east then east and joins Greenwich Road at another T intersection. Pacific Highway and Greenwich Road both carry heavy traffic. Before Bellevue Avenue reaches Greenwich Road it intersects with Sarner Road which connects it with River Road generally to the south and with several local roads. For most of its length Bellevue Avenue is bordered by residential development. However there is more intense land use on the land fronting Pacific Highway on either side of the intersection. The Mercure Hotel stands on the north-western side of the intersection, while on the south-eastern side and proceeding generally south-easterly along the Pacific Highway frontage are office buildings and other commercial developments. Elcedo Lane runs generally parallel to Pacific Highway behind office and commercial buildings, and joins the south-eastern side of Bellevue Avenue about 30 metres south-west of the intersection with Pacific Highway. Elcedo Lane does not have any other outlet. Several residential properties with frontage to Bellevue Avenue do not have vehicle access to Bellevue Avenue except by way of Elcedo Lane.
2 Vehicles entering Pacific Highway from Bellevue Avenue must turn left and proceed generally north-westerly in Pacific Highway. It has not during times now relevant been possible to make a right-hand turn from Bellevue Avenue into Pacific Highway and proceed generally south-easterly towards North Sydney and Sydney; that movement is prevented by a raised median strip in Pacific Highway and by an unbroken white line marking the second or median lane of the two traffic lanes on the south-western or north-bound side of Pacific Highway. Vehicles leaving Bellevue Avenue must turn left into Pacific Highway and are committed by practical considerations to follow the Pacific Highway generally northerly away from North Sydney for some distance. It is possible for a vehicle to loop around to the left by turning left at Innes Road, then by following Wisdom Road and Sarner Road to reach River Road; then turn left to Greenwich Road, then to turn right to the Pacific Highway and proceed towards North Sydney. (There are several other possible routes which could lead back to the intersection of Greenwich Road and Pacific Highway). It is also possible to turn right at Campbell Street, Artarmon, and then proceed by Reserve Road to the Freeway towards North Sydney and Sydney, or to reach Herbert Street, thence to reach Pacific Highway at St Leonards.
3 It would also be possible for a vehicle leaving Bellevue Avenue to make a U turn at some point in the Pacific Highway where the median strip is broken at an intersection, such as at the intersection of Westbourne Street or Campbell Street, and then travel towards North Sydney. However it would be unlawful to do so as the intersections with Westbourne Street and Campbell Street are both controlled by traffic lights; further it would be necessary to reach the median lane, and to cross the unbroken white line, in order to make a U-turn at Westbourne Street. These movements are both dangerous and unlawful. Other manoeuvres are conceivable such as turning right into Westbourne Street, making a U-turn in that street and then returning to the Pacific Highway. Much of the same could be done at Campbell Street.
4 For vehicles proceeding from Bellevue Avenue towards North Sydney and Sydney, practicality and convenience strongly favour travelling to the intersection of Bellevue Avenue with Greenwich Road. (Even so there could be difficulties arising from heavy traffic in Greenwich Road). Use of Bellevue Avenue by vehicles from the Mercure Hotel and from office and commercial development with frontage to the Pacific Highway and rear access to Elcedo Lane would produce a flow of traffic through Bellevue Avenue which would be adverse to the amenity of the residential development there.
5 Road closure, dispute and litigation. In 1997 Lane Cove Council (LCC) constructed a partial road closure with temporary materials in Bellevue Avenue about 50 metres from Pacific Highway and a little to the south-west of the intersection of Elcedo Lane with Bellevue Avenue. The effect of the closure and associated signage was to close Bellevue Avenue at that point to south-bound traffic and introduce a one-way traffic flow; vehicles could only pass the closure if they were travelling generally north-easterly towards Pacific Highway. Two-way traffic was allowed on either side of the closure for the length of Bellevue Avenue, but was not allowed through the closure. Traffic from the Mercure Hotel and from Elcedo Lane was prevented from travelling along Bellevue Avenue and reaching Greenwich Road and thence the Pacific Highway, and was limited to making a left hand turn at the Pacific Highway and then proceeding in one of the less convenient ways I have referred to reach North Sydney and Sydney. Traffic originating in the lower residential development in Bellevue Avenue was not significantly impeded. In 2000, LCC replaced the temporary closure with permanent structures which produced the same effect. The permanent work was completed on 10 October 2000. It was paid for by a contribution required as a condition of Development Consent from the developer of a large medium-density residential development on the north-western side of Bellevue Avenue; vehicles from this development are restricted by the closure.
6 On 19 October 2000 Roads and Traffic Authority (RTA), in a letter written by Mr Ford, Director, Traffic and Transport, informed the General Manager of LCC that, for reasons stated, RTA “… determined that two way traffic operation be reinstated in Bellevue Avenue and accordingly directed that the required works be carried out within a period of 14 days …” On 6 November Mr Ford wrote again, pointed out that the period for compliance had passed and said “I now advise that the RTA will carry out the necessary traffic control work to reinstate two way flow in Bellevue Avenue near Elcedo Lane.” This led to the commencement of this litigation on 10 November; LCC claimed a declaration that RTA was not empowered to carry out road works and/or traffic control work which would have the effect of interfering with or dismantling the partial road closure, and an injunction restraining RTA from doing so. At an interlocutory hearing on 4 December I decided that the final hearing of the proceedings should take place on 30 and 31 January and expressed the view that the status quo should be maintained until there was a decision; and RTA gave an undertaking not to commence work.
7 LCC’s Amended Statement of Claim alleged (paras 15 & 16) that RTA has no power to carry out the alteration which it intends to carry out. RTA by para 10 of its Defence takes issue with this, states that it relies on s.87 of the Roads Act 1993, and states in detail the work which it proposes to carry out. The proposed work affects only signage; RTA proposes to remove existing “No Entry” signs at the northern end of the partial closure, and erect a “Give Way” sign there; and also proposes to erect “One Lane” signs at both approaches. The effect will be that traffic from either direction may proceed through a curving narrow section which is not wide enough for two vehicles to pass each other, traffic from the south-west towards Pacific Highway will have priority and traffic from the north-east will have to give way. My decision relates only to the work which RTA now intends to do as defined in para.10 of its Amended Defence.
8 If what RTA proposes to do is something which RTA is not authorised by law to do, RTA should be restrained by injunction at the suit of LCC from doing it. Bellevue Avenue is vested in fee simple in LCC pursuant to subs.145(3) of the Roads Act 1993. LCC owns the land and for that reason is entitled to prevent RTA or anyone else from carrying out works on Bellevue Avenue unless with statutory authority. LCC’s general responsibility for roads within its area is probably a further ground on which it has standing to obtain an injunction. LCC’s standing to claim an injunction was not disputed in the proceedings. I refer in this judgment to the grounds on which its claim was disputed.
9 Legality of LCC’s road closure. In the Amended Statement of Claim LCC also alleged facts relating to the series of events commencing in 1996 in which LCC prepared a plan for the purpose of regulating traffic in Bellevue Avenue and acted on that plan after publishing notice and receiving and considering submissions, and after consideration by the Lane Cove Traffic Committee. These allegations led to a body of evidence and some debate about whether LCC was authorised by law to make the partial closure of Bellevue Avenue. I do not propose to examine these circumstances closely or to express any view as to whether the Council was lawfully authorised to carry out the partial closure, because the remedies claimed in this litigation do not turn on those matters; RTA is not making any claim against Council, and is not proposing or threatening to remove the works, except for the signage. The question whether LCC’s partial closure works should be in position should be left to be determined when and if some litigant asks the Court to make an order on the basis that they should not be there.
10 Excess of power of RTA and limits on what the Court can do. In para.16A of the Amended Statement of Claim, LCC alleged that, should it be found that RTA had power to carry out its proposed works, the exercise by RTA of its power to do so was unreasonable. After considerable bodies of evidence had been led on both sides relating to this question LCC’s counsel told me that he had been instructed not to pursue the claim in para.16A. The Court is not concerned to decide on the merits of LCC’s decision to construct a partial closure and to restrict the direction of travel, or on the merits of RTA’s intention to change the restriction. The Court does not have power to hear an appeal from the decision of either party, or to decide what would be good traffic arrangements in Bellevue Avenue. The most that the Court could have been asked to do was to decide whether a decision by one or other of the administrative bodies was so unreasonable that no reasonable person could have come to it; a decision which is unreasonable in this sense is outside the legal power of an administrative body to make a decision, and if a decision is unreasonable, the Court can do no more than set it aside; the Court cannot make another decision in its place, as the power to do so is given to the administrative body, not to the Court. In stating this I have echoed use of “unreasonable” in Associated Provincial Picture Houses Limited v. Wednesbury Corporation [1948] 1 KB 223 at 228-229. The test has been formulated in other terms; several were cited by Mason P in Weal v. Bathurst City Council & Anor [2000] NSW CA 88 at para.27, and see too Giles JA at para.82. All formulations of the test are stringent. In Water Conservation and Irrigation Commission v. Browning (1947) 74 CLR 492 at 504 Dixon J stated the test thus:
- Where an administrative body has given a decision in ostensible performance of its duty, it must be shown that nevertheless in truth the duty remains unperformed, so that the purported decision implied a refusal of the true duty. In a case like this that can only be done if it is made to appear that the body acted upon grounds outside the purposes for which it was entrusted with a discretionary power or duty …
11 Several witnesses made affidavits which showed that LCC’s partial closure imposes, or that other arrangements would impose serous disadvantages on them. So long as RTA does not act on considerations extraneous to the purpose for which its power exists, the function of deciding how to exercise its power, and of setting off disadvantages which can be seen against what are perceived as advantages, must be left to the RTA. The same can be said for LCC’s exercise of its powers. Serious disadvantages and reasonable grievances for some of those affected do not mean that there has been any departure from the power; and in controlling traffic in Bellevue Avenue disadvantages and grievances seem unavoidable. The evidence shows that strong points of view of various groups affected by traffic control in Bellevue Avenue have been put in submissions to LCC and to the executive government, and in comments made in public debate. Some public comments have been strident and persistent. This emphasises that any administrative decision must be a difficult one.
12 In my view it was appropriate for LCC to decide not to pursue the claim in para.16A, as the evidence seemed to show that there were quite strong considerations favouring each side of the question, a number of people affected have expressed strong views and pressed hard for the adoption of one outcome or the other, and there is no outcome which could be expected to produce general satisfaction. Whatever happens, some significant group of people will suffer serious inconvenience or disamenity. There may be other practical approaches such as controlling the intersection of Bellevue Avenue and Pacific Highway by traffic lights, or extending Elcedo Avenue, but I cannot decide on those and must confine my attention to the present circumstances.
13 Legislative provisions. In its Defence and its Counsel’s submissions RTA put forward s.87 of the Roads Act 1993 as the source of its power. The case turns on the meaning of s.87. Section 87 must be understood not in isolation but in context with other provisions of the Roads Act 1993. Section 3 sets out the objects of the Act in these terms.
- (a) to set out the rights of members of the public to pass along public roads, and
(b) to set out the rights of persons who own land adjoining a public road to have access to the public road, and
(c) to establish the procedures for the opening and closing of a public road, and
(d) to provide for the classification of roads, and
(e) to provide for the declaration of the RTA and other public authorities as roads authorities for both classified and unclassified roads, and
(f) to confer certain functions (in particular, the function of carrying out road work) on the RTA and on other roads authorities, and
(g) to provide for the distribution of the functions conferred by this Act between the RTA and other roads authorities, and
(h) to regulate the carrying out of various activities on public roads.
14 I particularly notice object (a) and objects (e), (f), (g) and (h).
15 Subsection 5(1) provides as follows:
- 5. Right of passage along public road by members of the public
(1) A member of the public is entitled, as of right, to pass along a public road (whether on foot, in a vehicle or otherwise) and to drive stock or other animals along the public road.
16 To my mind s.5(1) confers a right of passage in any direction, meaning both ways in a suburban street.
17 Section 7 is in these terms:
- 7. Roads authorities
(1) The RTA is the roads authority for all freeways.
(2) The Minister is the roads authority for all Crown roads.
(3) The regulations may declare that a specified public authority is the roads authority for a specified public road, or for all public roads within a specified area, other than any freeway or Crown road.
(4) The council of a local government area is the roads authority for all public roads within the area, other than:
- (a) any freeway or Crown road, and
(b) any public road for which some other public authority is declared by the regulations to be the roads authority.
18 Section 71 authorises a roads authority to carry out road work on any public road for which it is the roads authority.
19 Section 87 is in these terms:
- 87. Traffic control facilities
(1) The RTA may carry out traffic control work on all public roads, on all parts of transitways that are not public roads and on all roads or road related areas within the meaning of the Road Transport (General) Act 1999 (other than roads or road related areas that are the subject of any declaration made under section 9 (1) (b) of that Act relating to all of the provisions of that Act).
(2) The appropriate roads authority may carry out traffic control work on any classified road, but only with the consent of the RTA.
(3) The appropriate roads authority may carry out traffic control work on any unclassified road, on any part of a transitway that is not a public road and on any road or road related area within the meaning of the Road Transport (General) Act 1999 (other than a road or road related area that is the subject of any declaration made under section 9 (1) (b) of that Act relating to all of the provisions of that Act) that is not a public road, other than one in respect of which the RTA has notified the authority that the RTA proposes to carry out traffic control work.
(4) However, the construction, erection, installation, maintenance, repair, removal or replacement of a traffic control light may not be carried out otherwise than by or with the consent of the RTA.
20 “Carry out traffic control work” has a definition of inclusion in the Dictionary to the Roads Act 1993 in these terms:
- ‘traffic control facility’ has the same meaning as it has in Part 6 of the Transport Administration Act 1988, and carry out traffic control work includes carry out any activity in connection with the construction, erection, installation, maintenance, repair, removal or replacement of a traffic control facility.
21 The definition of Traffic Control Facility in Pt.6 of the Transport Administration Act 1988 is found in s.45E of that Act and is in these terms:
- "traffic control facility" means:
(a) traffic control lights on roads or road related areas, and equipment used in connection with traffic control lights, or
(b) any sign, marking, structure or device containing or relating to a requirement or direction, contravention of which is an offence arising under:
- (i) this Act or the regulations, or
(ii) any other Act, regulation or by-law prescribed for the purposes of this subparagraph, or
(d) any bridge or subway or other facility for use by pedestrians over, across, under or alongside a road or road related area, or
(e) any other thing prescribed as a traffic control facility by the regulations.
22 Subparagraphs (b) and (c) of this definition are relevant. Counsel for LCC accepted that the signs which the RTA proposes to erect fall within one or both of paras.(b) and (c). Subparagraph (b) is applicable because contravention of the proposed signs would be an offence having regard to rr.70 and 100 of the Australian Road Rules, which are incorporated into New South Wales law by the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999, (N.S.W.) Pt.2 Div.1. It follows that if RTA erects its proposed signs it will carry out traffic control work within the defined meaning.
23 The powers in Pt.8 to regulate traffic are a qualification of the right of passage referred to in subs.5(1), and of common law rights of passage. Sections 114 and 115 appear in Pt.8 Div.1 of the Roads Act 1993 and are in these terms:
- 114. Roads authorities may only regulate traffic in accordance with Part
- A roads authority may not regulate traffic on a public road otherwise than in accordance with this Part.
- 115. Roads authority may regulate traffic in connection with road work etc
(1) A roads authority may regulate traffic on a public road by means of barriers or by means of notices conspicuously displayed on or adjacent to the public road.
(2) The power conferred by this section may be exercised by the RTA for any purpose but may not be exercised by any other roads authority otherwise than:
- (a) for the purpose of enabling the roads authority to exercise its functions under this Act with respect to the carrying out of road work or other work on a public road, or
(b) for the purpose of protecting a public road from serious damage by vehicles or animals as a result of wet weather, or
(c) for the purpose of protecting earth roads from damage caused by heavy vehicles or by animals, or
(d) for the purpose of protecting members of the public from any hazards on the public road, or
(e) for the purpose of protecting vehicles and other property on the public road from damage, or
(f) for the purpose of enabling a public road to be used for an activity in respect of which a permit is in force under Division 4 of Part 9, or
(g) for a purpose for which the roads authority is authorised or required, by or under this or any other Act or law, to regulate traffic.
(4) A person:
- (a) must not, in wilful contravention of any such notice or in wilful disregard of any such barrier, pass along, or cause any vehicle or animal to pass along, a length of public road, and
(b) must not damage, remove or otherwise interfere with a notice or barrier erected for the purposes of this section.
(5) It is the duty of a roads authority by which a notice or barrier has been erected under this section to remove the notice or barrier if there is no longer any need to regulate traffic for the purpose for which the notice or barrier was erected.
24 In Pt.8 Div. 2 s.116 is in these terms:
- 116. Applications for consent
(1) A roads authority may apply to the RTA for consent to:
- (a) the erection of any notice or barrier, 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, or
(b) the removal of any notice or barrier, the demolition of any work or the ceasing of any action for which it has been given consent under this Division.
(3) The notice:
- (a) must specify the particular action for which the roads authority is applying for consent, and
(b) must state that any person is entitled to make submissions to the RTA with respect to the granting of consent, and
(c) must indicate the manner in which, and the period (being at least 28 days) within which, any such submission should be made.
25 Sections 117, 118 and 119 go on to prescribe the procedure to be followed when a roads authority makes an application under subs.116(1); public submissions are obtained and considered by the RTA, consent may be granted unconditionally or subject to conditions, or may be refused, and the roads authority may obtain review by the Minister of the RTA’s decision. In Pt.8 Div.3 ss.120 and 121 provide for the Minister to order a roads authority to take action with respect to regulation of traffic, and the Minister may take action if the roads authority fails to comply. In 1996 and 1997 LCC held a delegation dated 20 May 1994 granted by RTA under s.50 of the Transport Administration Act 1988 for the exercise of all the functions of the authority under Div.2 of Pt.8, that is, for functions which included giving consent to action for the purpose of regulating traffic on a public road for purposes otherwise than those referred to in subs.115(2)(a). The works carried out for the partial closure were not carried out for any of the purposes in subparas. (a) to (g) of subs.115(2), so the question whether LCC was or was not in breach of the prohibition in s.114 in constructing the partial closure depends on whether LCC itself gave consent under s.116 while that delegation was in effect. There were later delegations, one granted on 27 March 1998 and one on 13 December 1999 but these authorised LCC to consent in circumstances which were not fulfilled. For reasons explained earlier, I do not regard it as necessary to decide whether LCC was in breach of the prohibition in s.114.
26 LCC’s submissions. LCC’s counsel submitted that RTA’s power to carry out traffic control work conferred by subs.87(1) is a power to carry out traffic control work to give effect to traffic regulation measures pursuant to the Act, particularly pursuant to Pt.8. Counsel contended that authorisation to regulate traffic on a public road must flow from s.115 or s.116; in the present circumstances, that authorisation is given to LCC as the roads authority for Bellevue Avenue, and the power to regulate traffic is given only for the purposes stated in s.115 and s.116 (and it is s.116 which is immediately relevant). The roads authority for Bellevue Avenue, as for all public roads within the municipality, is LCC, and Pt.8 operates to enable regulation of traffic on a road to be carried out by the roads authority for that road, not by any other roads authority and not by anybody else. Any traffic control work carried out by the RTA under s.87, including the erection of any signs, is to be carried out to give effect to LCC’s regulation of traffic, and not to change Council’s regulation of traffic, nor to defeat it or substitute other regulation for it. LCC’s counsel contended that the purpose of the traffic control facilities authorised by s.87 is to make clear what the function of the roadway is, not to change its function; and that this is so because the function is determined by decisions relating to regulation of traffic pursuant to Pt.8. At another point LCC’s counsel contended that s.87 is concerned with traffic control facilities which give effect to the state of the roadway as it exists, and serve the state of the roadway as it exists, whether it exists in an unencumbered form or in a regulated form. As examples of what can be done under s.87 he gave taking measures which would make prosecution effective, or would contribute to road safety in the context of the road as it exists.
27 In my interpretation an effect of Counsel’s submissions would be that s.87 and conduct under it do not provide means of regulating traffic; s.87 and traffic control work carried out under it must be understood to have been intended to be ancillary to regulation of traffic carried out under Pt.8. Another effect is that s.87 should not be understood as covering the field or subject matter dealt with by Pt.8, nor should s.87 be understood as dealing with the subject matter of Pt.8 in a different way and potentially with the effect of defeating regulation of traffic authorised by Pt.8.
28 Legislative history. LCC’s counsel contended that his construction of the Roads Act 1993 is assisted by considering the legislative history of Pt.8 and antecedent provisions in s.269A of the Local Government Act 1919. Section 269A was added to the Local Government Act 1919 by amendment in 1974 after judicial consideration of the powers of Councils to regulate traffic by closing parts of roads permanently, in decisions including Attorney General for New South Wales ex rel Chopin v. North Sydney Municipal Council [1973] 1 NSWLR 186 and Mutton v. Ku-ring-gai Municipal Council [1973] 1 NSWLR 233. Section 269A qualified what had earlier been determined to be the power of Councils by making their power subject to machinery provisions including authorisation by the predecessor of the RTA, and (after amendments of s.269A, of which there were many) by RTA. Moffit P (with whom Samuels and Glass JJA concurred) in Attorney General for New South Wales v. Lane Cove Municipal Council (1976) 2 NSWLR 1 at 4 said:
- In my view s.269A was intended to provide the code of power and restriction in relation to obstructions and barrier. The section now provides the source of power. If the words of s.269A(1) and (2) are plain, I see no justification for limiting them according to previous powers now terminated and decisions upon the fact of some particular case which preceded the enactment.
29 At p.5 Moffit P said:
- A dominant purpose of the amending Act appears to have been to prevent the erection of barriers and obstructions by Council acting entirely alone and without due consideration of the interest of those coming from outside into the Council area.
30 In his Second Reading Speech in support of the Bill which became the Roads Act 1993 and several other bills, the Minister for Local Government and Minister for Co-operatives the Hon. Mr Peacocke incorporated in Hansard the principal minor changes to those bills which had occurred since their first introduction; see Hansard 11 March 1993 - Assembly - p.725 col.1, and he referred to Pt.8 at 730 col.1. The passage dealing with Pt.8 is in these terms:
- Part 8 of the Roads Bill 1993 which deals with the regulation of traffic by Roads Authorities contains a number of new provisions.
- A provision similar to s.269A(2) of the Local Government Act 1919 has been included. This makes it clear that the regulation of traffic by Roads Authorities is pursuant to Pt.8.
31 In my respectful view this passage and the Second Reading Speech do not assist in resolving the construction of the Roads Act and the relation between Pt.8 and s.87. The Minister did not deal with the operation of s.87. He said that a provision similar to s.269A(2) of the Local Government Act had been included; s.269A(2)said: Nothing in this Act except this section, authorises Councils to control or regulate the use by traffic of a public road. Insofar as the reference to subs.269A(2) has any force, it suggests that the Minister saw his Bill as continuing earlier provisions limiting the power of Councils to regulate traffic by making them follow a procedure which included obtaining the consent of RTA. This continued, in a broad way, provision limiting the decisions which Councils could make. The Minister made no reference to any limitation on what RTA was to be empowered to do, and considerations based on what appeared in s.269A(2) would not lead to limits on what RTA was empowered to do. There are no close similarities of drafting between Pt.8 of the Roads Act 1993 and the earlier provisions. I have derived no assistance from the legislative history.
32 LCC’s submissions continue. Counsel also contended that LCC’s argument is supported by the provisions of s.116 and its machinery under which a roads authority (which in the context can only be a roads authority other than the RTA) may apply for and obtain consent of the RTA for carrying out work for a purpose not referred to in subs.115(2). In my view this consideration does not support the argument. The provisions of subs.115(2) and s.116 emphasise the obvious conclusion that in some circumstances the RTA is a roads authority to which Pt.8 applies and in other circumstances other bodies may be the roads authorities to which Pt.8 applies, but that conclusion is made obvious by other provisions in the Act, very distinctly by reference to s.7, and s.115 and s.116 do no more than add a little emphasis to the obvious distinction.
33 LCC’s counsel contended that it would be nonsensical that a Council being a roads authority should apply to the RTA for consent and obtain consent for carrying out some work yet that the RTA should have power derived from s.87 or from some other provision of the Roads Act to reverse that decision by the erection of signs. He contended that no other sensible understanding of the relationship between s.87 and Pt.8 is possible than an understanding in which s.87 can only authorise work ancillary to or in aid of regulation under Pt.8. I do not accept this argument. It is not nonsensical and it is not a marked anomaly at all that RTA should have power to do something which deprived of practical effect a road work to which RTA had earlier given consent. Making changes in road works and departing from earlier decisions about what form they should take is an altogether normal and unremarkable event, just as change is a normal aspect of almost all experience. The powers derived from s.87 would very often be exercised in circumstances where there had been no relevant action under Pt.8, but where there had been relevant action under Pt.8 that circumstance could not affect the meaning or the operation of s.87, in my opinion.
34 I regard it as an anomaly of the argument that it may very well be that action may be taken under s.87 in a situation to which there has never been any relevant action under Pt.8, so that there can have been no regulation under Pt.8 to which action under s.87 might be ancillary.
35 LCC’s counsel contended that I should have regard to the consideration that it was probably intended that all provisions of the Roads Act should work together in a harmonious way, and that none should operate to defeat the workings of others, and put this consideration forward as supporting a view that powers in s.87 may only be exercised so as to give effect to traffic regulation powers which are the exclusive province of Pt.8.
36 RTA’s counsel submitted that s.87 is expressed in very broad terms in conferring power on RTA. He pointed out that no express provision cuts down or impairs its operation in any way, or suggests that it is subject to Pt.8 or that it is subordinate in any way to any other provision of the Roads Act or to any other power conferred by it. Counsel submitted that the definition of “carry out traffic control work” found in the Dictionary could not be expressed in broader terms.
37 The roads authority in s.114. Counsel for LCC at first submitted that the provisions of s.114 in referring to a roads authority refer to any roads authority, not just to the roads authority for the relevant road. Counsel contended that this reading is assisted by a consideration of the distribution of functions identified in the statements in s.3 of the objects of the Act. Counsel contended that this reading is also assisted by consideration of the Minister’s Second Reading Speech. In my view the argument derives no assistance from s.3, or from the Minister’s Second Reading Speech; if it has any force the Minister’s Speech, which referred back to subs.269A(2) and its prohibition directed to the Council, may be adverse to the argument. In my understanding this submission was not an important part of LCC’s case, when I take the whole of its counsel’s submissions together.
38 It was not LCC’s argument that any prohibition directed to RTA by s.114 or other express provisions found in Pt. 8 is relevant to the operation of s.87 in the circumstances. RTA’s counsel contended that the prohibition in Pt.8 is not in the circumstances directed at RTA because RTA is not the roads authority for Bellevue Avenue; LCC’s counsel accepted and contended that this was a correct view. That is to say, it is not LCC’s case that by erecting the signs RTA was undertaking regulation of traffic on Bellevue Avenue in the face of a prohibition in s.114 against doing so. In my opinion the position taken by both counsel in this respect was correct. Section 114 must be understood in a distributive way as a prohibition directed to the roads authority for each particular public road under consideration, and the same distributive approach should be taken to s.115 and later provisions of Pt.8, as their own terms generally show and notwithstanding expressions in subs.115(2) which seem to treat both the RTA and other roads authorities as roads authorities; there is no real anomaly if the distributive understanding of the provisions is maintained. RTA’s counsel took the position that as there is no relevant prohibition in s.114 or elsewhere in Pt.8 directed to the RTA the power conferred on the RTA by s.87 is not qualified or cut down or affected at all by Pt.8. This does not in my opinion meet LCC’s argument which is not based on a contention that there is a prohibition in Pt.8 from which RTA must find some escape, but is rather based on attributing to s.87 an ancillary function so that it cannot work to defeat regulation under Pt.8.
39 Some other contentions. Counsel for RTA contended at one part of his argument that in the work which it proposes the RTA will not be regulating traffic within the definition of “regulate traffic” in the Roads Act; the proposed signs are facultative and will remove the restriction imposed by LCC’s works and signs on the general right of passage declared in s.5 of the Roads Act. I do not accept this contention; in my view the proposed signs regulate traffic by indicating that traffic in one direction is to give way to the traffic in the other. In any event as I have held elsewhere the prohibition in s.114 is not directed at the RTA for any relevant purpose because RTA is not the roads authority for Bellevue Avenue.
40 Counsel for RTA referred to various provisions which it was contended have a bearing upon the relation between powers conferred on RTA and powers conferred on LCC. Counsel pointed to the constitution of RTA by s.46 of the Transport Administration Act 1988, and to the provisions of s.49, s.52A and s.53A. He contended that the scheme of transport legislation as a whole including the Roads Act is that RTA has a supervisory function, and that in many respects local government authorities are often seen to be subordinate to RTA in relation to particular functions. Counsel observed that it should be seen as incongruous that the Council must come to RTA in the first place under s.115 to obtain consent to regulation of traffic and that the RTA should then be tied to the outcome of giving its consent for all time subject only to a Ministerial direction under later provisions of Pt.8. Counsel observed that according to LCC’s argument the position is fixed unless the Minister acts under s.120. He observed that it is anomalous that RTA has an instrumental role throughout the process yet at relatively late point is sidelined if it comes to the conclusion, after the regulation of traffic has been operating for some period, that the situation is dangerous or should not continue. In my opinion these considerations do not produce any conclusion about the relative positions of RTA and LCC which is useful in the construction of s.87.
41 Decision. Essentially LCC’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 Pt.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.
42 The terms of s.87 themselves do not to my reading raise any doubt or difficulty as to their application to the circumstances of Bellevue Avenue and the action which LCC has taken there. Nor when they are taken with the terms of Pt.8, or of the whole of the Roads Act, do I see any anomaly or absurdity or any real difficulty at all about understanding the extent of what s.87 empowers. Consideration of the purposes of the Roads Act 1993 as revealed by s.3 does not introduce any difficulty of those kinds, or any need to resort to promoting the purpose or object of the Act in order to interpret it, as is authorised by s.33 of the Interpretation Act 1987.
43 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 Pt.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 a 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.
44 I see no inconsistency between the operation of s.87 to confer on RTA the powers for which RTA contends, and the operation of Pt.8. The operation of Pt.8 is to confer on the relevant roads authority power to regulate traffic. I do not see that either s.87 or Pt.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 exercise by LCC 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 RTA of its power, I see no anomaly. LCC’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. In my opinon RTA has power to do the work described in para.10 of its Defence.
45 ORDERS: I give judgment for the defendant with costs.
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