Makram Constructions Pty Limited v North Sydney Council

[2002] NSWLEC 4

Reported Decision: 119 LGERA 42

Land and Environment Court

of New South Wales

CITATION:	Makram Constructions Pty Limited v North Sydney Council [2002] NSWLEC 4
PARTIES:	APPLICANT: Makram Constructions Pty Limited RESPONDENT: North Sydney Council
FILE NUMBER(S):	10204 of 1999
CORAM:	Bignold J
KEY ISSUES:	Question of Law :- Preliminary questions in modification application to modify development consent granted by the Court.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 96 Land and Environment Court Act 1979, s 39(2)
CASES CITED:	Allen Commercial Constructions Pty Ltd v North Sydney Council (1970) 123 CLR 490; Coalcliff Community Association Inc v Minister for rban Affairs and Planning (1999) 106 LGERA 243; Connery v Manly Council (1999) 105 LEGRA 451; Gibson v Mosman Municipal Council (2001) 114 LGERA 416; McDougall v Warringah Shire Council (1993) 80 LGERA 151; North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 97 LGERA 437
DATES OF HEARING:	18 January 2002
EX TEMPORE JUDGMENT DATE :	01/18/2002
LEGAL REPRESENTATIVES:	APPLICANT: Mr A Pickles, Barrister SOLICITORS Staunton Beattie RESPONDENT: Mr A Galasso, Barrister SOLICITORS Mallesons Stephen Jaques

JUDGMENT:

IN THE LAND AND

Matter No. 10204 of 1999

ENVIRONMENT COURT OF

Coram: Bignold J.

NEW SOUTH WALES

21 January 2002

MAKRAM CONSTRUCTIONS PTY LIMITED

Applicant

v

NORTH SYDNEY COUNCIL

Respondent

PUBLICATION OF REASONS FOR JUDGMENT

Bignold J:

A. INTRODUCTION

1. The Council has raised for determination three questions of law preliminary to the hearing on the merits of the Applicant’s Notice of Motion filed 3 October 2001 seeking modification pursuant to the Environmental Planning and Assessment Act 1979, s 96 (the EP&A Act) of a development consent granted by the Court on 23 November 1999 when upholding an appeal pursuant to the EP&A Act, s 97 and granting development consent subject to specified conditions to the erection of a residential flat building on land known as No 263 Alfred Street, North Sydney.

2. On the hearing of the questions of law, the Applicant has obtained leave to amend its modification application so that the modification sought to the development consent is as follows:

1. Amend condition 26 by adding the following words to the beginning of condition 26:

Subject to condition 26A.

26A This consent also operates as a consent permit or authority to install the 21.9 metre work zone in Alfred Street adjacent to the site in the position shown on the attached plan for use in connection with the construction of the development the subject of this consent for a period of 52 weeks in accordance with the attached construction management program. All truck movements shall be limited to Whaling Road south and the southern end of Little Alfred Street. All persons using the construction zone must comply with clauses 1, 2, 3 & 5 of North Sydney Council Work Zone Guidelines.

3. Condition 26 imposed by the Court when granting development consent is in the following terms:

Eg Cranes, concrete pumps, cherry-pickers, etc. – restrictions apply to the hours of operation, the area of operation, etc. Separate permits are required for each occasion and each piece of equipment. It is the applicants, owners and builders responsibilities to take whatever steps are necessary to ensure that the use of any equipment does not violate adjoining property owners rights

(Reason: Safety)

Permits are required to erect Class A and Class B hoardings. If an A Class hoarding is to alienate a section of Council’s property, that section will require a permit for the occupation of Council’s property.

(Reason: Safety)

Permits to utilise Council property for the storage of building materials and building waste containers (skips) are required for each location. Failure to obtain the relevant permits will result in the building materials or building waste containers (skips) being impounded by Council with no additional notice being given.

(Reason: Safety)

The applicant’s attention is drawn to the existing kerbside restrictions adjacent to the development. Should the applicant require alteration of existing kerbside restrictions, or the provision of a construction zone, the appropriate application must be made and the fee paid. Applicants should note that the alternatives of such restrictions may require referral to Council’s Traffic Committee and may take considerable time to be resolved. An earlier application is suggested to avoid delays in construction programs.

(Reasons Safety)

4. I should note in passing that the Court’s reasons for judgment do not address the conditions of consent imposed upon the grant of the development consent. However, Order 3 imposing the conditions did so by reference to Exhibit 8 (which was retained in the Court File) and which contained the Council’s suggested conditions, including the precise terms of Condition 26.

B. THE PRELIMINARY QUESTIONS OF LAW

5. The questions of law raised by the Council put in issue the Court’s power to grant the modification of the development consent as sought by the Applicant’s Notice of Motion.

6. There were three questions as originally propounded but in the course of hearing, and by consent of the parties, the number of questions was expanded to the following five questions:
1. Does the power to create a work zone arise under the Road Transport (Safety and Traffic Management) Act 1999?
2. In the light of the nature of the present proceedings is the power vested in the Council as referred in question 3 available to the Court pursuant to s 39(2) of the Land and Environment Court Act?
3. Can the Court exercise the power of the Roads and Traffic Authority delegated to the Council by instrument of delegation dated 26 October 2001 (the Delegation) to create a works zone pursuant to the aforesaid Act when the Council’s exercise of the power in accordance with the delegation is subject to an appeal to a Regional Traffic Committee?
4. If the answer to question 3 is yes, is the Land and Environment Court Act constrained by the terms of that delegation?
5. If the answer to question 3 is yes, does the Land and Environment Court Act s 39(5) operate to extinguish the right of appeal conferred by the said Delegation?

7. At the conclusion of the helpful competing arguments in the case, I announced my adjudication on the disputed questions by providing the following answers—

Question 1	Answer	Yes
Question 2	Answer	No
Question 3	Answer	In view of my answer to Question 2 this question does not arise – however, but for the answer to question 2, the answer would be yes –but subject to all of the limitations imposed upon the Council by the Delegation.
Question 4	Answer	Yes
Question 5	Answer	No

8. I now publish my reasons for those adjudications.

C. THE BACKGROUND FACTS

9. Before considering each of the questions of law raised, I should say something about the true nature and scope of the questions and the essential background circumstances which have given rise to them. (These circumstances are included in the Applicant’s Statement of Facts, which the Council has been content to adopt).

10. Following the grant of development consent, the Applicant on 25 July 2001 lodged with the Council a “Works Zone” application seeking the creation of a works zone 25 metres in length on the kerbside of Little Alfred Street adjacent to the development site for a period of 52 weeks commencing on 30 July 2001.

11. The “Works Zone” application was considered by a Traffic Planning Assistant employed by the Council who reported on the application, noting that the granting of it would cause the temporary loss (during the currency of the permit) of two “No Standing” zones (across the two existing driveways to the development site) and one 1 hour kerbside parking space. She recommended the grant of the permit by creating a works zone 21.9 m in length subject to some specified conditions.

12. However, following reference of the application to the North Sydney Traffic Committee, that Committee recommended to the Council that the application be refused and on 27 August 2001, the Council adopted that recommendation.

13. The Council has adopted and published Guidelines for work zone applications. (It is assumed that the Applicant’s application was made in accordance with those guidelines.)

14. The Council is, by virtue of the Roads Act 1993, s 7(4), the roads authority for most public roads within its area, including Little Alfred Street.

15. By Instrument of Delegation dated 26 October 2001 pursuant to the Transport Administration Act 1988, the Roads and Traffic Authority delegated to councils constituted under the Local Government Act 1993 various functions vested in the Authority under the Roads Act 1993; the Road Transport (Safety and Traffic Management) Act 1999; and the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 subject to specified limitations.

16. It is common ground that the Council, by virtue of the aforesaid Delegation, is vested with the statutory power to create a “Works Zone” in respect of Little Alfred Street but that power is subject to the following limitations expressly imposed by the Instrument of Delegation (Schedule 4):
1. A council or its sub-delegate must not exercise a function until they have notified the Commissioner of Police and the Authority of any decision taken to exercise a function except where:
(1) the advice of the Local Traffic Committee is unanimous; and
(2) the council or its sub-delegate propose to follow such advice
1. Where a council or its sub-delegate has notified or should have notified the Commissioner of Police and the Authority of a decision to exercise a function, the council or its sub-delegate must not exercise a function for a period of fourteen (14) days from the date of notification
2. Where an appeal has been made to the Chairperson of A Regional Traffic Committee in respect of a decision taken by a council or its sub-delegate to exercise a function, a council or its sub-delegate must not exercise the function until the Chairperson of the Regional Traffic Committee determines the appeal.
3. Where the Chairperson of the Regional Traffic Committee has determined an appeal, the council and its sub-delegate must not exercise the function in respect of which an appeal has been made, otherwise than in accordance with the determination of the Chairperson.

17. By further Instrument of Delegation dated 26 October 2001, the Roads and Traffic Authority has delegated to each Chairperson of a Regional Traffic Committee appointed by the Authority the functions of the Authority “to determine appeals by the NSW Police Service or the Authority in connection with the exercise of any of the functions delegated by the Authority to a Council….in respect of” the aforesaid Acts and Regulation (of which specified functions are the subject of the aforesaid Delegation to Councils).

18. I should note that the precise nature of, and statutory source for, an appeal to the Chairperson of a Regional Traffic Committee (that is referred to in condition 8 of the express limitations on the power delegated to councils) was not identified in the course of argument. The Delegation to Chairpersons of Regional Traffic Committees necessarily presupposes the existence of an appellate function vested in the Roads and Traffic Authority, but it is to be noted that the relevant appeal is limited to an appeal “by the NSW Police Service or the Authority”.

19. It is in these circumstances that the Applicant submitted that it has no right of appeal on the merits against the Council’s decision to refuse its “Works Zone” application. If this submission is correct (and the Council did not advance any contrary submission), it may expose an unintended difficulty for the carrying out of a development in accordance with a development consent granted under the EP&A Act. This may especially be so in a situation, such as the present case, where the consent was granted by this Court following the hearing of a development appeal, because the broad jurisdiction and powers vested in this Court should not be allowed to be frustrated: cf the observations of Kirby P in McDougall v Warringah Shire Council (1993) 80 LGERA 151 at 161 and 162 in support of a wider view of the power conferred upon this Court by the LEC Act, s 39(2) favoured and adopted by his Honour in that case.

20. That such a difficulty may arise is readily attested by the facts of the present case, for as I have earlier noted, the question of the practicalities of actually constructing the approved development do not appear to have been specifically addressed at the hearing of the development appeal except for the imposition on the grant of consent of Condition 26 as drafted in the Council’s suggested conditions, together with the imposition of related Conditions 27 to 35 inclusive (again as drafted in the Council’s suggested conditions).

21. In saying this, I am not suggesting that such matters concerning the construction processes of approved developments, as are included in the relevant conditions of the development consent, are insignificant matters for the environment and for local amenity. Obviously they are significant for environment and amenity protection (see Allen Commercial Constructions Pty Ltd v North Sydney Council (1970) 123 CLR 490) but what I am saying is that because these matters have generally come to be appropriately addressed by well settled conditions of development consent, they are generally not specifically addressed on the hearing of a development appeal, precisely for that reason.

22. In the present case, the Applicant, faced with the apparently unreviewable decision of the Council refusing the Applicant’s application for the creation of a “Work Zone”, now seeks to obtain from the Court by the exercise of the statutory modification power conferred by the EP&A Act, s 96 the creation of the “Work Zone”. Although cast as a modification of Condition 26 of the development consent, the application, in effect, seeks the creation of the “Works Zone” by decision of the Court, not by way of appeal against the Council’s decision in respect of the “Work Zone” application (because no such statutory right of appeal exists) but pursuant to the statutory modification power conferred by the EP&A Act, s 96.

23. The assumption underlying each of the questions of law that have been raised is that if the statutory power conferred by what I shall compendiously refer to as the Roads legislation to create the “Works Zone” is available to the Court in determining the Applicant’s modification application, it is only so available by virtue of the operation of the LEC Act, s 39(2) which relevantly provides as follows:

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

24. In my judgment, this assumption is legally correct and the Court’s power to grant the modification sought is wholly dependent upon s 39(2) of the LEC Act operating to make available to the Court the relevant power conferred by the Roads legislation to create the “Work Zone”. The Council submits that the statutory power conferred by the Roads legislation is not available to the Court and the Applicant submits that it is. In this respect, it is important to appreciate that this case is not concerned with the question whether as a matter of planning law simpliciter there is power to create a “Works Zone” etc as a means for carrying out an approved development. (Even if such a power existed and were exercised in favour of a developer it would not displace the operation of the relevant restrictions on the creation of a “Work Zone” that are imposed by the Roads legislation.)

D. ADJUDICATION ON THE QUESTIONS OF LAW

25. I shall separately consider each of the questions.
(i.) QUESTION 1: Does the power to create a work zone arise under the Road Transport (Safety and Traffic Management) Act 1999?

26. It is not in dispute that the relevant statutory power to create a “Work Zone” is conferred by the Roads legislation and by the Road Transport (Safety and Traffic Management) Act 1999 in particular. Whether the relevant power is conferred by the last mentioned Act operating by itself or a combination with other Acts forming the Roads legislation is not material.

27. Accordingly, I would answer this question in the affirmative.
(ii.) QUESTION 2: In the light of the nature of the present proceedings is the power vested in the Council as referred in question 3 available to the Court pursuant to s 39(2) of the Land and Environment Court Act?

28. During the course of argument this question emerged as the crucial question.

29. In respect of the possible application to the present case of the LEC Act, s 39(2), it is common ground that the nature of the “appeal” in the present proceedings which the Court is required “to hear and dispose”, is an application to modify the development consent that the Court granted in 1999. That modification application is relevantly an “appeal” by virtue of the operation of s 39(1) which provides as follows:

(1) In this section appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.

30. The modification application is relevantly “an application under the EP&A Act, s 96” within the meaning of the LEC Act, s 17(1)(d) which confers class 1 jurisdiction on the Court to hear and dispose of “appeals, objections and applications under sections……96 of the EP&A Act”.

31. The EP&A Act, s 96 conferring the statutory modification power refers in subsections (1), (1A) and (2) to “an application being made by the applicant or any other person entitled to act on a consent granted by the consent authority” and confers upon “a consent authority” in respect of such an application the power “subject to and in accordance with the regulations” to modify a development consent.

32. Clause 116(1) and (2) of the Environmental Planning and Assessment Regulation 2000 relevantly deems the Court to be “the consent authority” for the purposes of the EP&A Act, s 96(1)(1A) and (2) in respect of a development consent granted by it, by providing as follows:

116. (1) The object of this clause is to vary the requirements of the Act in relation to the modification of development consents granted by the Land and Environment Court or by the Minister.

(2) For the purposes of section 96(1), (1A) and (2) of the Act, the Court is taken to be the consent authority for a development consent that, by virtue of section 83(4) of the Act, is taken to have been granted as referred to in that subsection.

33. The effect of cl 116(2) the Regulation and s 96 of the EP&A Act is that the Court is the relevant consent authority for the purpose of determining the Applicant’s modification application and that the right of appeal to this Court conferred by s 96(6) upon “an applicant who is dissatisfied with the determination of the application or the failure of the consent authority to determine the application within 40 days” is by subsection (7) expressly declared to be not available in the case of an application to modify a development consent granted by this Court. Thus, the Court, in determining the Applicant’s modification application is exercising original and not appellate jurisdiction.

34. The importance of the foregoing analysis of the facts pertaining to the present proceedings to the operation of the LEC Act, s 39(2) is now readily apparent, because it is the clear purpose and effect of that provision to vest the Court with “all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter, the subject of the appeal”.

35. Since in the present case there is no person or body “whose decision is the subject of the appeal” it follows that the LEC Act, s 39(2) simply has no application to the Court’s determination of the Applicant’s modification application. In particular, it is incapable of vesting in this Court “for the purposes of hearing and disposing” of the present “appeal” (namely the modification application) the statutory power conferred by the Roads legislation to create a “Works Zone” that is vested in the Council, pursuant to the Instrument of Delegation granted by the Roads and Traffic Authority. This is because the Council simply has no decision making function in respect of the Applicant’s modification application.

36. Counsel for the Applicant sought to avoid this legal impasse by advancing two arguments, one of which was expressly abandoned in the course of argument, in favour of a variant argument.

37. The original argument was that the relevant “appeal” for the purposes of the LEC Act, s 39(2) was the development appeal that was determined by the Court in 1999. However, the Applicant recognised the impossibility of sustaining this argument (which had depended upon the fiction that the Court was still determining the original development appeal some two years after it had been regularly concluded by the grant of development consent) and formally abandoned the argument. Instead, the Applicant argued that by virtue of the LEC Act, s 39(5) the Court’s 1999 determination of the development application was deemed “to be the final decision” of the Council and the legislative mandate that that decision “shall be given effect to accordingly” required the conclusion for the purposes of s 39(2) that that decision of the Council was relevantly the decision “the subject of the present appeal”.

38. However, this argument is as flawed as the original argument, insofar as it confuses the nature of the present appeal (the Applicant’s modification application) by equating it with the original appeal (the development appeal determined by the Court in 1999). But such a submission does violence both to the language of s 39(2) and to the true nature of the present proceedings and more particularly to their separateness from the earlier proceedings which were concluded by the Court’s decision in 1999.

39. The Applicant’s lament that since the statutory power conferred by the Roads legislation would have been available to the Court by virtue of the LEC Act, s 39(2) in hearing and disposing of the development appeal in 1999, it should likewise be held to be available to the Court in hearing and disposing of the modification application is not only a proposition that is not accommodated by the text of s 39(2) but fails to recognise (i) that a modification application under the EP&A Act, s 96 is not the same as a development application made under s 77 of that Act (see s 96(4)); and (ii) that the exercise of the modification power is not the exercise nunc pro tunc, of the planning function conferred by the EP&A Act, s 80 to determine a development application.

40. The last-mentioned distinction is not eliminated by the requirement of s 96(3) that the consent authority, in determining a modification application must take into consideration such of the matters referred to in s 79C(1) as are of relevance to the development, “the subject of the application” as that requirement has been interpreted by the Court of Appeal in North Sydney Council v Michael Standley and Associates Pty Ltd (1998) 97 LGERA 437 and Coalcliff Community Association Inc v Minister for Urban Affairs and Planning (1999) 106 LGERA 243. In Coalcliff, Stein JA (who delivered the leading judgment) stated at 261 that the majority decision in Standley did not require “a complete review of the original development application” and did not “render the assessment of a modification application indistinguishable from the assessment of a development application”.

41. Accordingly, for all of the foregoing reasons, I would answer this question in the negative.

42. In so concluding, I note that in Connery v Manly Council (1999) 105 LEGRA 451 Cowdroy J held that on the hearing of a modification application in respect of a development consent granted by this Court, the Court possessed, by virtue of the LEC Act, s 39(2) the power vested in the Council pursuant to the Roads Act 1993, s 138.

43. However, it appears from the reasons for his Honour’s judgment, that his attention was not specifically called to the precise nature of the proceedings and to the effect of that upon the operation of the LEC Act, s 39(2).

44. Significantly, in the course of argument in the present case, the Applicant did not rely upon the decision in Connery to support its argument that I have rejected.

45. In the present case, the Council’s argument is founded upon the precise nature of the present proceedings (namely a modification application) and it is with respect to that application (being the relevant “appeal” for the purposes of the LEC Act, s 39(2)) that s 39(2) must be held, as a matter of statutory construction, to operate. For the reasons that I have earlier given, I do not think that it is possible or open to construe the reference in s 39(2) to “the appeal” (that is to be heard and disposed of, by the Court) otherwise than as a reference to the true nature of the proceedings before it, ie in the present case, the modification application. In particular, the reference cannot be construed as a reference to the development application which was determined by the Court’s decision in 1999 granting development consent.

46. It is for the foregoing reasons that I do not think the decision in Connery governs the adjudication of the present question.

47. My answer to this crucial question means that it is not strictly necessary to answer the remaining questions. However, since they were fully argued, I shall nonetheless answer them, albeit briefly, on the assumption that the questions are not confined to the case of a modification application to modify a development consent granted by the Court.
(iii.) QUESTION 3: Can the Court exercise the power of the Roads and Traffic Authority delegated to the Council by instrument of delegation dated 26 October 2001 (the Delegation) to create a works zone pursuant to the aforesaid Act when the Council’s exercise of the power in accordance with the delegation is subject to an appeal to a Regional Traffic Committee?

48. I did not understand the Council’s argument to go so far as to submit that the relevant statutory power conferred by the Roads legislation and vested in the Council by virtue of the delegation from the Roads and Traffic Authority was incapable of being available to the Court in an appropriate case by virtue of the operation of the LEC Act, s 39(2).

49. I take it that the deliberate restraint in the Council’s submissions recognises the extent to which recent decisions in this Court (Connery and Gibson v Mosman Municipal Council (2001) 114 LGERA 416) have applied s 39(2) so as to render available to the Court the powers vested by s 138 of the Roads Act 1993 in a local council, qua road authority.

50. In these circumstances, I am prepared to assume that in an appropriate case s 39(2) may render available to this Court in hearing and disposing of an appeal, various statutory powers vested in a council under the Roads legislation.

51. Rather, the Council’s argument focuses upon the express limitations on the relevant delegated power in the present case which are contained in pars 6 to 9 inclusive of Schedule 4 to the relevant Delegation that I have earlier recited (see par 16) in support of its submission that where these limitations operate, the Court’s capacity to exercise the relevant statutory power is either curtailed or at least qualified by such limitations.

52. In my judgment, the existence and operation of the limitations on the statutory power delegated to the Council, do not have the effect that the power otherwise available to the Court by force of the LEC Act, s 39(2) is thereby curtailed.

53. Rather, in such circumstances, the conventional approach to the interpretation and application of s 39(2) is that, except where the Court’s powers are expressly enlarged (eg by s 39(6) and (6A)), the Court has the same powers (including the same duties and limitations on those powers) as are vested in the Council.

54. Since there is nothing in the present case that would justify or require any departure from that conventional approach, I would accordingly answer this question in the affirmative but only in the sense that in exercising the available power, the Court would be bound to observe all of the limitations that are imposed on the power vested in the Council by virtue of the Delegation.
(iv.) QUESTION 4: If the answer to question 3 is yes, is the Land and Environment Court Act constrained by the terms of that delegation?

55. The Applicant properly concedes that this question, which is related to question 3, must be also answered affirmatively consistent with the affirmative answer to that question.

56. For similar reasons, that led me to answer question 3 in the affirmative, I would answer this question in the affirmative.
(v.) QUESTION 5: If the answer to question 3 is yes, does the Land and Environment Court Act s 39(5) operate to extinguish the right of appeal conferred by the said Delegation?

57. The Applicant’s submission founded upon the LEC Act, s 39(5) is to the effect that if the Court were to exercise the relevant statutory power conferred by the Roads legislation by creating the “Works Zone” the resultant decision would be deemed to be the final decision of the Council with the legal consequence that the right of appeal conferred by (or expressly recognised by) the Instrument of Delegation would thereby be extinguished. Section 39(5) provides as follows:
(1) The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly.

58. In my judgment, this submission misapprehends the nature of the limitations imposed by the Instrument of Delegation and in particular the nature of the right of appeal to the Chairperson of the Regional Traffic Committee thereby conferred, insofar as it necessarily contemplates and is premised upon a decision by the Court, made otherwise than in accordance with the limitations imposed upon the delegated power.

59. Consistent with my answer to question 4 (which was conceded by the Applicant), the relevant statutory power available to the Court by virtue of the LEC Act, s 39(2) cannot validly be exercised while the right of appeal has been exercised and where it has been exercised, otherwise than in accordance with the decision on appeal, by the Chairperson of the Regional Traffic Committee (vide pars 8 and 9 of Schedule 4 to the Instrument of Delegation).

60. However, where the appeal right to the Regional Traffic Committee is not invoked, there is no impediment on the exercise of the statutory power and its exercise is not subject to any appeal right.

61. Accordingly, I would answer this question in the negative.
E. CONCLUSIONS AND ORDERS

62. For all the foregoing reasons, I determine that the five questions of law be answered as follows:

Q1. Does the power to create a work zone arise under the Road Transport (Safety and Traffic Management) Act 1999?	Answer:	Yes
Q2. In the light of the nature of the present proceedings is the power vested in the Council as referred in question 3 available to the Court pursuant to s 39(2) of the Land and Environment Court Act?	Answer:	No
Q3. Can the Court exercise the power of the Roads and Traffic Authority delegated to the Council by instrument of delegation dated 26 October 2001 (the Delegation) to create a works zone pursuant to the aforesaid Act when the Council’s exercise of the power in accordance with the delegation is subject to an appeal to a Regional Traffic Committee?	Answer:	In view of any answer to Question 2 this question does not arise – however, but for the answer to question 2, the answer would be yes –but subject to all of the limitations imposed upon the Council by the delegation.
Q4. If the answer to question 3 is yes, is the Land and Environment Court Act constrained by the terms of that delegation?	Answer:	Yes
Q5. If the answer to question 3 is yes, does the Land and Environment Court Act s 39(5) operate to extinguish the right of appeal conferred by the said Delegation?	Answer:	No