RTA v Ashfield Municipal Council

[2005] NSWCA 234

Reported Decision: 141 LGERA 278

Court of Appeal

CITATION:	RTA v Ashfield Municipal Council & Anor [2005] NSWCA 234
HEARING DATE(S):	30 June 2005
JUDGMENT DATE:	1 August 2005
JUDGMENT OF:	Giles JA at 1; Tobias JA at 2; Hunt AJA at 120
DECISION:	(1) Appeal allowed; (2) Set aside the declaration and orders made by Palmer J on 8 November 2004 and 22 November 2004 with respect to the first respondent's Amended Summons and in lieu thereof order that the Amended Summons be dismissed; (3) The respondent to pay the appellant's costs of the proceedings at first instance with respect to the Amended Summons and on the appeal but to have with respect to the latter a certificate under the Suitors' Fund Act 1951, if otherwise qualified

CATCHWORDS:	LOCAL GOVERNMENT - Whether RTA required consent of local council under s 138(1) of Roads Act 1993 to carry out road work - Whether ss 64 and 72 authorised RTA to carry out road work without need to obtain council consent - Whether exemption in Schedule 2 clause 5 from need to obtain consent applied to RTA - STATUTORY CONSTRUCTION - Construction that would promote underlying object or purpose of Act - Whether recourse to extrinsic material permissible - Interpretation Act 1987 ss 33, 34
LEGISLATION CITED:	Roads Act 1993 Interpretation Act 1987 Environmental Planning and Assessment Act 1979
CASES CITED:	Baiada v Waste Recycling and Processing Service of NSW (1999) 130 LGERA 52 Palgo Holdings Pty Ltd v Gowans (2005) 215 ALR 253 Allianz Australia Insurance Ltd v GSF Australia Pty Ltd (2005) 215 ALR 385
PARTIES:	Roads & Trafficity Authority of New South Wales Ashfield Municipal Council Connell Wagner Pty Limited
FILE NUMBER(S):	CA 41055/04
COUNSEL:	A: B Walker SC / R Lancaster 1R: T Robertson SC / J Lazarus 2R: Submitting appearance
SOLICITORS:	A: Clayton Utz, Sydney 1R: Pike Pike & Fenwick 2R: Deacons, Sydney

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 5287/04
LOWER COURT JUDICIAL OFFICER:	Palmer J

CA 41055/04
SC 5287/04

GILES JA
TOBIAS JA
HUNT AJA

Monday 1 August 2005

ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES v ASHFIELD MUNICIPAL COUNCIL & ANOR

This appeal arose out of a proposal by the appellant (the RTA) to undertake road work on or under certain roads for which the respondent (the Council) was the relevant roads authority pursuant to the Roads Act 1993 (the Act). The issue at both first instance and on the appeal was whether in the present circumstances the RTA was required to obtain the consent of the of the Council, pursuant to s 138(1) of the Act, before it carried out the relevant work.

Section 138 relevantly provided that a person could not, inter alia, dig up or disturb the surface of a public road otherwise than with the consent of the appropriate roads authority. The Act specified that public roads were either “classified” or “unclassified”. All of the roads the subject of the proceedings were public roads; some were classified and some unclassified. Also relevant were

· s 64(1) which relevantly provided that the RTA could exercise the functions of a roads authority with respect to any classified road;

· s 72(1) which relevantly provided that the RTA could carry out road work on an unclassified public road subject to certain conditions (the meeting of which was not challenged in this case); and

· clause 5(1) of Schedule 2, which relevantly provided that the requirement to obtain consent under s 138 did not apply to a “public authority” (the Dictionary definition of which, it was not disputed, included the RTA);

The question was whether, on a proper construction of the Act, the prohibition contained in s 138(1) applied to the RTA.

The primary judge found that, notwithstanding the authority conferred upon the RTA by s 64(1) to assume the functions of a roads authority in relation to classified roads, and by s 72 to carry out road work on unclassified roads, the RTA was nevertheless required to obtain the consent of the Council as the appropriate roads authority pursuant to s 138(1) before performing the relevant work. The primary judge further found that, despite the Dictionary definition, the reference to a “public authority” in clause 5(1) of Schedule 2 was not intended to include the RTA which, accordingly, was still required to obtain consent from the Council under s 138. In making this finding, the primary judge had recourse to the Second Reading Speech. The RTA appealed against these findings to the Court of Appeal.

HELD per Tobias JA (Giles JA and Hunt AJA agreeing) allowing the appeal:

1. The primary judge erred in holding that ss 64(1) and 72(1) did not authorise the RTA to carry out road work on classified and unclassified roads respectively without first obtaining the consent of the Council under s 138(1) ([89], [98])

2. The underlying object or purpose of the Act is to distribute the functions conferred by the Act between the RTA on the one hand and other roads authorities, such as the Council, on the other in a manner which creates a hierarchy in which the RTA is the paramount authority ([26], [39], [55], [61], [82]).

3. Sections 64(1) and 72(1) not only empower the RTA to carry out road work on classified and unclassified roads respectively but also authorise the actual exercise of that work without the need for consent first to be obtained from the appropriate roads authority under s 138(1) ([80]).

4. Such a construction is necessary to promote the underlying purpose or object of the Act referred to above (as mandated by s 33 of the Interpretation Act 1987) ([82]-[83]).

5. The primary judge erred in holding that the reference in clause 5(1) of Schedule 2 to a “public authority” did not include the RTA ([113]).

6. There is nothing in the context relevant to clause 5 that justifies the primary judge’s reading of it as excluding the RTA from its application. Its meaning is plain and unambiguous and a literal reading does not produce absurd or unreasonable results. Accordingly, recourse to the Second Reading Speech for the purpose of determining the meaning of “public authority” was impermissible: Interpretation Act s 34(1)(b) ([106], [110]).

7. Even if recourse to the Second Reading Speech was permissible, there was nothing in that speech that was inconsistent with including the RTA within the application of clause 5(1).

CA 41055/04
SC 5287/04

GILES JA
TOBIAS JA
HUNT AJA

Monday 1 August 2005

ROADS & TRAFFIC AUTHORITY OF NEW SOUTH WALES v ASHFIELD MUNICIPAL COUNCIL & ANOR

Judgment

1 GILES JA: I agree with Tobias JA.

2 TOBIAS JA: The issue in this appeal arises out of a proposal by the appellant (the RTA) to undertake road work on or under certain public roads, the fee simple of which was vested in the respondent (the Council) as the roads authority under the Roads Act 1993 (the Act) with respect to public roads within its local government area.

3 Specifically, the work involved the drilling of a number of bore holes for the purposes of geotechnical investigations required for the preparation of an environmental impact statement (the EIS) for what was known as the M4 East Motorway project (the project). As the preferred route of the project contemplated twin tunnels running generally under Parramatta Road, it was necessary to take rock samples from each of the proposed bore holes to assist in the determination of the subsurface conditions in and around the proposed route of the tunnels for the purpose of planning their final route and preparing the EIS.

4 For the foregoing purposes the RTA retained the services of the second respondent (Connell Wagner), a building and engineering firm. However, in the litigation which followed the proposal by the RTA for Connell Wagner to drill the relevant bore holes, the latter took no active part but filed submitting appearances both at first instance and in the appeal.

The nature and course of the litigation

5 On or about 1 June 2004, Connell Wagner notified the Council that it intended to undertake certain geotechnical investigations on public roads and parks within its local government area for the purpose of the proposed M4 East tunnels. On 14 September 2004, the RTA advised the Council that Connell Wagner would commence those works on or after 21 September 2004. This prompted the Council to respond to the effect that it would take court action against the RTA and Connell Wagner should the latter commence work without first obtaining the Council's consent under s 138(1) of the Act.

6 Thereafter correspondence ensued between the RTA and the Council, the RTA asserting that the Council's consent to the proposed work was not required and the Council asserting that it was. Consequently, on 28 September 2004 the Council instituted proceedings in the Equity Division of the Supreme Court against the RTA and Connell Wagner seeking a declaration that the carrying out of work in, on or under, or the digging up or disturbing of, the public roads specified in the schedule to the Council's Amended Summons, by the RTA and or Connell Wagner, would be in contravention of s 138(1) of the Act unless the consent of the Council, as the appropriate roads authority, was first obtained. Upon the basis that that declaration was made, consequential orders were sought restraining the RTA and Connell Wagner from authorising or permitting the performance of any part of the proposed work unless and until the Council's consent was obtained.

7 On 1 October 2004 the RTA filed a cross-claim seeking, inter alia, orders in the nature of mandamus or by way of mandatory injunction requiring the Council to determine any application for consent under s 138(1) of the Act according to law together with certain declarations as to the manner in which the Council's discretion in relation to any such application should be exercised.

8 The primary judge, Palmer J, heard the proceedings on 13 October 2004 and, on 8 November 2004, upheld the contentions of the Council and made a declaration substantially in the terms sought by it. His Honour did not grant the injunctive relief sought by the Council but granted leave for it to apply for such relief if it became necessary. His Honour dismissed the RTA's cross-claim, a decision which is not the subject of challenge before this Court. The appeal to this Court is only against the making of the declaration.

9 Subsequent to the primary judge's judgment of 8 November 2004, the Roads (General) Amendment (M4 East Motorway Declaration) Regulation 2005 (the Regulation) was made and came into operation. The Regulation declared the RTA to be the appropriate roads authority for all of the unclassified roads the subject of the primary judge's declaration, except for two. It was expressed to have effect for a period of two months. The effect of the Regulation was that the RTA assumed the Council's consent function under ss 138 and 139 of the Act with respect to the public roads to which the declaration applied. On 28 January 2005, the RTA issued to itself consent under that provision to carry out the relevant geotechnical works on the relevant roads.

10 Furthermore, on 18 November 2004 the RTA, as envisaged by the primary judge, notified the Council pursuant to s 64(1) of the Act that it had determined to take over and exercise the functions of the Council as a roads authority including its consent functions under s 138 with respect to specified parts of one of the relevant roads which was a classified road.

11 As a result of the foregoing, the geotechnical investigations the subject of proceedings before the primary judge were duly completed. Nevertheless, it was submitted by the RTA , and but faintly denied by the Council, that the appeal by it against the declaration made by the primary judge had utility for a number of reasons which it is now unnecessary to state. Suffice it to say that the parties agreed and the Court proceeded upon the basis that it would decide whether the RTA, when performing road works upon both classified and unclassified public roads the fee simple of which was vested in a local government council as the appropriate roads authority, required the consent of that council pursuant to s 138 of the Act before it carried out any such works.

The relevant legislative framework

12 It is convenient at this point to refer to the relevant provisions of the Act that bear upon the resolution of the appeal issue and which explain the structure of the Act in terms of the hierarchy of responsibilities which it seeks to achieve.

13 Section 3 in Part 1 of the Act sets out its objectives. Relevantly, they include the following:

"(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 Part 5 of the Act deals with the classification of public roads. Relevantly, public roads are either "classified" or "unclassified". The Dictionary in the Act (in which expressions used in the Act are defined and have by force of s 4, but subject to s 6 of the Interpretation Act 1987, the meaning there set out) defines an "unclassified road" as "a public road that is not a classified road". The expression "classified road" is defined to mean any of the following:

"(a) a main road,

(b) a State highway,

(c) a freeway,

(d) a controlled access road,

(e) a secondary road,

(f) a tourist road,

(g) a tollway,

(g1) a transit way,

(h) a State work."

15 In the present case, all of the roads the subject of the proceedings were public roads: some were classified and some unclassified.

16 Responsibility for public roads the subject of the Act is vested in a "roads authority" which is defined in the Dictionary to mean the "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".

17 Section 7 of the Act is headed "Roads authorities" and specifies the roads authority for the various kinds of roads. It is in the following terms:

“(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.
(5) A roads authority has such functions as are conferred on it by or under this or any other Act or law.”

18 At the time of the primary judge's decision, the Council was the roads authority in relation to all of the roads the subject of the proceedings, including both the unclassified and classified roads. None was a freeway or Crown road and no regulation declaring the RTA to be the roads authority for any of the roads had, at that point, been made pursuant to s 7(3).

19 Pursuant to Division 1 of Part 5 of the Act, the Minister is relevantly empowered by order published in the Gazette to declare a public road to be a main road; a main road to be a State highway, a freeway or a controlled access road; a public road to be a secondary road, a tourist road or a transitway; and any road that is owned by the RTA or constructed on land owned by the RTA to be a tollway: see ss 46-52A (inclusive).

20 However, by s 54(1) the Minister may not make an order pursuant to the provisions referred to otherwise than on the recommendation of the RTA. By Division 2 of Part 5, the RTA may not make a recommendation for the making, amendment or revocation of an order made by the Minister under Division 1 with respect to the declaration of a road as a main road unless it has given notice of the proposed action to the relevant roads authority and taken into consideration, before deciding what to recommend to the Minister, the submissions made by that authority: see ss 57-59.

21 Division 3 of Part 5 is of particular relevance to the present case. It is headed "Distribution of certain functions between RTA and other roads authorities". The division contains provisions relating only to classified roads. It is convenient to set out the relevant parts of those sections in full:

" 61 Road works on certain classified roads
(1) It is exclusively the function of the RTA to make decisions as to what road work is to be carried out:
(a) …

(b) on any other classified road in respect of which the carrying out of that kind of road work is, by virtue of an agreement or direction under this Division, the responsibility of the RTA.

(2) …
62 Roads agreements between RTA and roads authorities
(1) The RTA and a roads authority may enter into an agreement under which some or all of the functions of the roads authority with respect to a classified road become, to the extent provided by the agreement, the responsibility of the RTA.
(2) While an agreement under this section has effect, the functions of the roads authority with respect to the road are, to the extent provided by the agreement, to be exercised by the RTA.
(3) This section does not limit the power of the RTA to exercise any function conferred on it by or under any other provision of this Act with respect to a classified road.
63 Ministerial directions
(1) The Minister may, if of the opinion that special circumstances so require, direct that some or all of the functions of a roads authority with respect to a classified road are to become, to the extent provided by the direction, the responsibility of the RTA.
(2) While a direction under this section has effect, the functions of the roads authority with respect to the road are, to the extent provided by the direction, to be exercised by the RTA.
64 RTA may exercise functions of roads authority with respect to certain roads
(1) The RTA may exercise the functions of a roads authority with respect to any classified road, whether or not it is the roads authority for that road and, in the case of a classified road, whether or not that road is a public road.
(2) The roads authority for a classified road with respect to which the RTA is exercising a particular function may not exercise its functions with respect to the road in any manner that is inconsistent with that in which the functions is being exercised by the RTA.

While exercising the functions of a roads authority under this Division with respect to a road for which it is not the roads authority, the RTA has the immunities of a roads authority with respect to that road."

22 The expression "road work" referred to in s 61(1) is defined in the Dictionary to include, relevantly,

"any kind of work, building or structure (such as a … tunnel …) that is constructed or installed on or in the vicinity of a road for the purpose of facilitating the use of the road as a road … but does not include a traffic control facility, and carry out road work includes carry out any activity in connection with the construction, erection, installation, maintenance, repair, removal or replacement of a road work."

Furthermore, the expressions " function " and " exercise a function " referred to in s 64 in particular are defined in the Dictionary as follows:

" function includes power, duty and authority, confer a function includes imposes a duty and exercise a function includes perform a duty."

23 The difference between ss 61-63 on the one hand and s 64 on the other is not easy to discern, but appears to be this. Where an agreement has been entered into between the RTA and a roads authority pursuant to s 62, or the Minister has made a direction pursuant to s 63, the effect of ss 62(2) and 63(2) is that the relevant functions of the roads authority, the subject of the agreement or the Minister's direction, become the responsibility of the RTA and, in all probability, its exclusive responsibility. Certainly, by s 61(1), it is the exclusive function of the RTA to make decisions as to what road work is to be carried out on a classified road in respect of which any such agreement or Ministerial direction has been entered into or made respectively.

24 On the other hand, s 64(1) empowers the RTA to exercise any of the functions of a roads authority with respect to a classified road, whether or not the RTA is the roads authority for that road, but not to do so exclusively. In this respect, s 64(2) provides for the roads authority for that road to maintain its functions with respect thereto but subject to the function being exercised with respect to that road by the RTA. On one view of s 64(2), it only applies where the RTA is exercising a particular function with respect to a classified road so that the roads authority's functions, other than the particular function, with respect to that road, may still be exercised by it but only in a manner that is not inconsistent with the particular function which is being exercised by the RTA. An alternative construction is that, notwithstanding that the RTA is exercising the functions of the relevant roads authority, those functions still remain vested in that authority who may only exercise them in a manner that is not inconsistent with the manner of exercise of the same functions by the RTA.

25 For present purposes it is unnecessary finally to decide the questions of construction referred to in the preceding paragraphs. What is important is that by s 64(1), notwithstanding the absence of any agreement entered into pursuant to s 62 or any Ministerial direction made pursuant to s 63, the RTA is empowered and authorised to exercise any of the functions of a roads authority with respect to a classified road and to do so in a manner which denies to the roads authority for that road the power or authority to exercise either that function or any other function in a manner which is inconsistent with the function being exercised by the RTA. In other words, the RTA is the paramount authority and may intervene and exercise the functions of a roads authority with respect to a particular classified road at any time.

26 Part 6 of the Act is headed "Road work". I have already set out the relevant parts of the definition of that expression in the Dictionary. Sections 71 and 72 contained in Division 1 of Part 6 are also of particular relevance for present purposes and I therefore set them out in full:

" 71 Powers of roads authority with respect to road work

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.

72 RTA may carry out road work on unclassified roads

(1) The RTA may carry out road work on a public road that is not a classified road:
(a) if, in the opinion of the RTA, it is necessary to do so in connection with the carrying out of road work on an adjoining classified road, or
(b) if, in the opinion of the RTA, the carrying out of the work would be of benefit to classified roads in the vicinity of the road on which the work is being carried out, or
(c) if the carrying out of the road work by the RTA is funded by money appropriated by Parliament for that purpose, or
(d) if the carrying out of the road work has been requested by, and is to be funded by, some other public authority.
(2) When carrying out road work on a public road under this section, the RTA has the immunities of a roads authority with respect to that road.”

27 It will be noted that so far as s 71 is concerned, it only applies directly to the RTA in respect of those public roads for which it is the roads authority. As at the relevant time it was not the roads authority for any of the subject roads, it follows that road work proposed to be carried out by Connell Wagner on its behalf was not directly authorised by s 71.

28 However, the relevance of s 71 to the present case is that it provides that one of the functions of a roads authority is to carry out road work on any public road for which it is the roads authority. In this respect, a roads authority has such functions as are conferred on it by, inter alia, the Act. One of those functions is the carrying out of road work on a public road pursuant to s 71. Accordingly, the RTA is empowered by s 64(1) to exercise that same function with respect to a classified road, namely, to carry out road work, and it was common ground that the drilling of the bore holes for the purpose of the geotechnical investigation with respect to the project constituted "road work" as defined in the Dictionary.

29 There are, of course, many other functions of a roads authority provided for by the Act such as those set forth in Part 7 dealing with protection of public roads and traffic. Pursuant to s 64(1), all these functions are capable of being exercised by the RTA in respect of any classified road even though it is not the roads authority for that road.

30 With respect to unclassified roads, s 72 empowers the RTA, subject to meeting certain conditions, to carry out road work on an unclassified public road including those in respect of which it is not the roads authority. It was common ground that the conditions referred to in s 72(1)(a) and (b) had been satisfied by the RTA in the present case.

31 After setting out the provisions to which I have referred above, the primary judge summarised their effect (at [34]) in the following terms, with respect to which neither party took issue on the appeal:

· Generally, a local council will be the roads authority whose function it is to carry out road work on all public roads, classified and unclassified, in its area: s 71;

· The RTA may, to the exclusion of a council, take over the functions of a council with respect to the carrying out of road work on a classified road if it chooses to exercise its power under s 64(1) or if there is an agreement to do so under s 62 or if there is a direction of the Minister under s 63;

· The RTA may carry out road work on an unclassified road in the circumstances provided in s 72;

· An unclassified road may be brought under the control of the RTA if, inter alia, the RTA is declared to be the roads authority for that road pursuant to s 7(3).

32 I have already referred to the definition of "road work" and to the empowerment of the RTA to carry out such work on a classified road pursuant to s 64(1) and upon an unclassified road pursuant to s 72(1). However, the definition of that expression excludes traffic control facilities. The carrying out of traffic control work is governed by s 87 which is contained in Division 3 of Part 6 of the Act. Relevantly, s 87(1) empowers the RTA to carry out traffic control work on all public roads, which must include both classified and unclassified roads. However, pursuant to s 87(2), the appropriate roads authority may carry out such work on any classified road but only with the RTA's consent. So far as traffic control work on any unclassified road is concerned, s 87(3) provides that the appropriate roads authority may carry out such work except where the RTA has notified that authority that it proposes to carry out that work. Again, it is clear that, in terms of the provision of traffic control facilities, the RTA is the governing or primary authority.

33 Part 8 of the Act is headed "Regulation of traffic by roads authorities". Section 115(1) empowers a roads authority to regulate traffic on a public road by means of barriers or by means of notices conspicuously displayed on or adjacent thereto. However, s 115(2) provides for the exercise of that power by the RTA for any purpose whereas the power may only be exercised by any other roads authority for the limited number of purposes set forth in that sub-section. Again, the emphasis is on the over-arching authority of the RTA.

34 Part 9 of the Act is headed "Regulation of works, structures and activities". Division 1 is headed "Footway restaurants". Section 125 empowers a council in whom the fee simple of the public road is vested to approve the conduct of the restaurant on part of the footway. However, by s 125(3) such an approval may not be granted in respect of the footway of a classified road except with the concurrence of the RTA. Similar provisions apply with respect to the erection of a public gate across an unfenced public road. Again, where it is proposed to erect such a gate across a classified road, the concurrence of the RTA is required.

35 Division 3 is headed "Other works and structures". It is in this division that s 138 appears. As it is the primary provision of the Act the subject of this appeal, I set it out in full:

" Works and structures
(1) A person must not:
(a) erect a structure or carry out a work in, on or over a public road, or

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

(c) remove or interfere with a structure, work or tree on a public road, or

(d) pump water into a public road from any land adjoining the road, or

(e) connect a road (whether public or private) to a classified road,
otherwise than with the consent of the appropriate roads authority.
Maximum penalty: 10 penalty units.
(2) A consent may not be given with respect to a classified road except with the concurrence of the RTA.
(3) If the applicant is a public authority, the roads authority and, in the case of a classified road, the RTA must consult with the applicant before deciding whether or not to grant consent or concurrence.
(4) This section applies to a roads authority and to any employee of a roads authority in the same way as it applies to any other person.
(5) This section applies despite the provisions of any other Act or law to the contrary, but does not apply to anything done under the provisions of the Pipelines Act 1967 or under any other provision of an Act that expressly excludes the operation of this section."

36 Part 10 of the Act is headed "Other road management functions". Division 1 is headed "Functions with respect to land generally" of which s 145 is presently relevant. It is headed in the following terms:

" 145 Roads authorities own public roads
(1) All freeways are vested in fee simple in the RTA.
(2) All Crown roads are vested in fee simple in the Crown as Crown land.
(3) All public roads within a local government area (other than freeways and Crown roads) are vested in fee simple in the appropriate roads authority.
(4) All public roads outside a local government area (other than freeways and Crown roads) are vested in fee simple in the Crown as Crown land."

37 However, the application of this provision is subject to clauses 6 and 6A of Schedule 2 to the Act which is headed "Savings, transitional and other provisions" and which is given effect to by s 267. In essence, those clauses provide that s 145(3) is not to operate to divest any public road vested in a public authority other than the council of a local government area within which the road is located so long as the clause remains in effect with respect to that road.

38 The Council also emphasised s 150 which also falls within Division 1 of Part 10 of the Act and which empowers the Minister, by order published in the Gazette, to transfer a public road from one roads authority to another but only with the consent of the roads authority from which (and to which) the road is to be transferred. The Council submitted that that provision evidenced the jealously guarded powers of the roads authority for a particular road against any trespass by some other public authority, including the RTA in its capacity as a roads authority, upon its functions. Whether this is so with respect to public authorities such as other councils may be one thing; whether it relevantly restricts the powers of the RTA is another. In any event, I regard the provision as neutral given the terms of s 150(2).

39 Part 1 of Schedule 2 is headed "Preliminary". Clause 1 provides that the regulations made pursuant to s 264 may contain provisions of a savings or transitional nature consequent on the enactment by the Parliament of a package of legislation of which the Act was part.

40 Part 2 of Schedule 2 is headed "Provisions consequent on the enactment of this Act". Clause 5 of this Part is of particular relevance as it bears directly on s 138. I set it out in full:

" 5 Application of section 138
(1) Section 138 does not require a public authority, or a network operator within the meaning of the Gas Supply Act 1996 , to obtain a roads authority's consent to the exercise of the public authority's or gas distributor's functions in, on or over an unclassified road other than a Crown road.
(2) This clause ceases to have effect on a day to be appointed by proclamation."

Notwithstanding that the Act commenced on 1 July 1993, no proclamation has been made to give effect to clause 5(2) as a consequence whereof clause 5(1) was, and still is, in force.

41 Clause 5(1) of Schedule 2 exempts a "public authority" from compliance with the provisions of s 138 where that authority is exercising its functions on or over an unclassified road. The expression "public authority" is relevantly defined in the Dictionary to mean

"a public or local authority constituted by or under any Act or a statutory body representing the Crown, and includes a Minister …."


It was common ground that the expression included the RTA as well as the Council.

The relevant findings of the primary judge

42 The primary judge dealt separately with those public roads the subject of the proceedings which were classified and those which were unclassified. With respect to the former, his Honour accepted (at [40]) that the subject drilling work was work which the Council, as the appropriate roads authority by virtue of s 7(4), was empowered to carry out pursuant to s 71 of the Act in respect of both the classified and unclassified roads within its area. Accordingly, pursuant to s 64(1) the RTA was empowered to exercise those same functions with respect to those roads which were classified. However, his Honour disagreed with the contention that if the Council was carrying out the relevant work pursuant to s 71 it would not have to apply to itself under s 138 for consent to dig up the subject roads. He therefore rejected the submission that the fact that the RTA was stepping into the shoes of the Council in carrying out that work pursuant to s 64(1) meant that it did not need the Council's consent when exercising its functions as the appropriate roads authority to carry out the same work.

43 In his Honour's opinion (at [42]), it did not follow that the exercise by the RTA of a power to carry out road work by the combined operation of ss 64(1) and 71 automatically carried with it either a dispensation from the requirement to seek the Council's consent under s 138 or otherwise automatically vested in the RTA the consent function of the Council thereunder.

44 His Honour concluded (at [43]) that the function of the Council as a roads authority to carry out road work under s 71 was separate and distinct from its function to grant consents under s 138. He considered that if the Council itself was carrying out road works in its capacity as the appropriate roads authority, it could and must, if the work was to proceed, grant to itself any necessary consent under s 138. Therefore, if the RTA pursuant to s 64(1) exercised the Council's function under s 71 to carry out particular road work on a classified road but not its consent function with respect to that work under s 138(1), it was first required to obtain the consent of the Council before carrying out the relevant work. It was also open to the RTA pursuant to s 64(1) to exercise the consent function of the Council under s 138(1) in respect of a particular classified road. His Honour held that it did not do so, although it did so subsequently: see [10] above.

45 Even if it be accepted that the purpose of s 64(1) was to vest in the RTA an overriding control of classified roads (as was made plain by s 64(2)), it was still necessary, according to his Honour, for the RTA, as a matter of choice, to overtly identify the functions of a roads authority which it was exercising pursuant to the power to do so under s 64(1). His Honour thus said (at [47]):

"If the RTA chooses to exercise any particular function of a roads authority with respect to a classified road, it must communicate that decision to the roads authority concerned."

46 In the present case, the primary judge considered that the RTA had sufficiently communicated to the Council that by its agent or independent contractor, Connell Wagner, it proposed to exercise the function of the Council in carrying out road work by the drilling of bore holes: see s 253. However, his Honour did not consider that the RTA had chosen to exercise the function of the Council under s 138(1) to give consent to Connell Wagner as the RTA's agent for the carrying out of that work. As a matter of fact, his Honour considered that the opposite was the case given that both the RTA itself, as well as Connell Wagner, had expressly applied to the Council for its consent under s 138(1) for the carrying out of the drilling work.

47 His Honour's conclusion (at [49]) was, therefore, in these terms:

"In the result, as matters stand, the position is that the RTA has power under s 64(1) and s 71 to carry out the proposed drilling work on classified roads in the Ashfield Municipality, but subject to obtaining the Council's consent under s 138(1). The RTA would not need the Council's consent if the RTA chose to exercise the s 138 consent function, pursuant to its power to do so under s 64(1)."

48 Going to unclassified roads, the RTA had made two submissions as to why the Council's consent under s 138(1) was not required in respect of the work proposed with respect to such roads. Firstly, it had submitted that such consent was not required as a consequence of clause 5(1) of Schedule 2. Secondly, it had submitted that it was empowered by s 72 to carry out road work on classified roads without the consent of the Council under s 138(1). Both submissions were rejected by his Honour.

49 The primary judge accepted (at [54]) that the RTA was a "public authority" as defined in the Dictionary for certain purposes of the Act. However, he did not consider that the RTA was intended to fall within the expression "public authority" for the purposes of clause 5(1) of Schedule 2, for two reasons.

50 The first was that s 138(4), which applied the section to "a roads authority and to any employee of a roads authority in the same way as it applies to any other person", expressly applied the section to the RTA as it was a roads authority. At [55] his Honour observed:

"It is difficult to believe that an overriding right of the RTA to dispense with a Council's consent under s 138 with respect to unclassified roads is intended to be conferred in what, from clause 5(2) of the Schedule, is obviously a transitional provision. No policy reason for such a curious temporary measure has been suggested."

51 Secondly, the primary judge considered (at [56]) that there was an ambiguity in the intended scope of the expression "public authority" in clause 5(1) of Schedule 2 which entitled recourse to the Second Reading Speech: Interpretation Act s 34(1)(b)(i). In relation to clause 5 the Minister had said (Hansard, Legislative Assembly, 11 March 1993, p 730):

"A transitional provision [Clause 5, Schedule 2] has also been included which exempts public authorities and gas distributors from the need to obtain council’s consent under clause 137 [now s 138] to the exercise of its functions on an unclassified road other than a Crown road.

This provision has been inserted to give sufficient time for further consideration with utility bodies to clarify and resolve the difficult question of the respective powers and functions of councils and the utility bodies.”

52 In the primary judge's view (at [57]), the Minister's observations made it clear that the expression "public authority" where used in clause 5(1) was intended to refer, not to the RTA or any other roads authority identified in s 7 of the Act, but to State owned "utilities" responsible for the supply of gas, electricity, water and other services. It thus followed as a matter of construction, that the expression "public authority" in clause 5(1) was confined to a public utility authority providing a "utility service", an expression defined in the Dictionary as including "any water, sewerage, drainage, gas, electricity, telephone, telecommunication or other like service".

53 The RTA's second submission was founded upon s 72 of the Act and upon the proposition that, provided it had formed the opinion required by s 72(1)(a) or (b) that the relevant work was necessary or beneficial to work being carried out on a nearby classified road (and it was not contended that it had not done so), then s 72 empowered the RTA to carry out the relevant work without first obtaining the consent of the Council under s 138.

54 This submission was also rejected by his Honour (at [59]) upon the basis that s 72 merely empowered the RTA to carry out certain work on unclassified roads in the sense that it vested in it the legal capacity to carry out such work. Like s 64(1) in its application to classified roads, s 72 did not automatically carry with it a dispensation from the requirement to obtain the Council's consent under s 138.

55 Consistent with the approach of the primary judge, the parties in their submissions differentiated between the position of the RTA with respect to the carrying out of the relevant work on the relevant classified roads (of which the Council was the roads authority) and those which were unclassified. I shall adopt a similar approach but before doing so, I will refer to the respective general approaches adopted by each of the parties on the appeal.

The submissions on the appeal with respect to the structure of the Act

56 In essence, the RTA analysed the structure of the Act in order to establish that the relevant underlying object or purpose thereof was to distribute the functions conferred by the Act between the RTA on the one hand and other roads authorities, such as the Council, on the other in a manner which created a hierarchy in which the RTA was the paramount, governing or primary authority. As is apparent from the observations made by me in [26] and [39] above, I concur in that submission.

57 On the other hand, the Council's approach adopted a different perspective. According to its analysis of the Act, the paramount authority was the roads authority for the particular road, in this case the Council. The underlying objective or purpose of s 138, according to its submissions, was to protect the interests of those members of the public who, perforce of s 5(1) of the Act, were entitled as a right to pass along a public road and the owners of land adjoining a public road who, perforce of s 6(1), were entitled as of right to access across the boundary between their land and the public road. It was these rights that s 138 was intended to protect by requiring the consent of the roads authority for a particular road before any person, including a public authority or another roads authority (including the RTA) could relevantly interfere with that road and, therefore, with the rights of the public to which I have referred.

58 According to the Council, s 138 was

"the pivotal provision which enables the designated repository of that regulatory power to modulate the rights and interests of the various persons who would be affected by such proposals. So it sits as a central regulatory power in the structure of the Act."

59 It must follow from that submission that even where the Minister, who by definition is also a "public authority", seeks to erect a structure or carry out any of the works referred to in s 138(1), he or she will be unable to do so without the consent of the local council where it is the "appropriate roads authority" for the road in question and that this is so even where that road is a classified road (other than a freeway the fee simple of which is vested in the RTA) such as a main road, a controlled access road, or a secondary road (the fee simple of which, subject to the regulations, is vested in the council of the local government area within which the road is situated: s 7(4)).

60 To require the Minister to obtain a council's consent under s 138 in these circumstances would, in my opinion, be an odd result for a number of reasons. Firstly, although by s 138(2) consent may not be given with respect to a classified road except with the concurrence of the RTA, that concurrence is not required where the council proposes to refuse consent. Secondly, the only stricture upon refusal by a council of consent is that, before doing so, it and the RTA must consult with the applicant for consent, in the example postulated, the Minister. However, once having consulted, it would be open to the council to refuse to grant the consent. Thirdly, there is no appeal from any such refusal. The only remedy for the dissatisfied Minister would be to seek judicial review of the council's decision but, of course, any such review excludes a review on the merits. Essentially, the Minister would only be able to overturn a decision by a council to refuse consent if he or she were able to establish that that decision was Wednesbury unreasonable. The burden of doing so is not insignificant.

61 I know of no other case where a Minister of the Crown is prohibited from carrying out work the subject of his or her portfolio without the consent of the council within whose area the work is to be undertaken. Such a situation would require a clear expression of the Parliament's intention given that it is the very reverse of what one would expect. In my view, those comments apply with equal force to the RTA given its position in the hierarchy with respect to the authorities having responsibilities for public roads under the Act.

62 In my opinion, s 138 is not entitled to any greater weight in the scheme of the Act than any other provision. Rather, for the reasons I have indicated, the structure of the Act is such as to vest paramountcy in the RTA with respect to the carrying out by it of the functions of a roads authority in respect of a public road notwithstanding that neither the fee simple of the particular road is vested in it nor is it the declared roads authority for that road.

63 In this regard it is to be noted that although each of the RTA, the Minister and the local council is "a public authority" as defined in the Dictionary, a council is the roads authority for a specified road or for all public roads within its local government area where it has been so declared either by or under the Act. Section 7(4) so declares with respect to all public roads within it is the council's area except those for which some other public authority (which would include the RTA) has been declared by the regulations to be the roads authority pursuant to s 7(3). It is also to be noted that the fact that pursuant to s 145 the fee simple of a particular public road is vested in a particular public authority including a council does not, by force of that fact, constitute a declaration by or under the Act that that authority is also the roads authority for that road.

Was the RTA required to obtain the Council's consent under s 138 with respect to the relevant classified roads?

64 Firstly, the primary judge, whilst accepting that pursuant to s 64(1) of the Act the RTA was empowered to exercise the functions of a roads authority under s 71, held that that fact did not automatically carry with it a dispensation from the requirement to seek the Council's consent under s 138; nor did it constitute an automatic vesting in the RTA of the consent function of the Council under that provision. Secondly, although accepting that s 64(1) empowered the RTA to exercise the Council's consent function under s 138, his Honour held that the RTA had not on the facts purported to exercise that particular function.

65 The RTA submitted that the combined operation of ss 64(1) and 71 was not only to empower the RTA to exercise the function of a roads authority to carry out road works upon a classified road, but also to confer authority to exercise that power and to undertake the relevant work without more. It was submitted that this followed because otherwise a roads authority such as the Council, which was authorised to carry out road work on a public road pursuant to s 71, would be required to apply to itself under s 138 to carry out that very same work. In this respect, it was submitted that the matters referred to in s 138(a) and (b) and, possibly, those referred to in sub-paragraphs (c) and (d), fell within the definition in the Dictionary of "road work". It would be absurd, so it was submitted, to require the "appropriate roads authority" to apply to itself for consent under s 138 where it would be both the applicant for the consent as well as well as the consent authority.

66 Although it was acknowledged that by s 138(4) the section was expressly applied to "a roads authority", it was submitted that that was a reference to such an authority that was not "the appropriate roads authority". In this respect it was stressed that the Act potentially differentiates, where the context requires it, between "a roads authority" and "the roads authority", the latter relating only to the authority which has been declared as such with respect to the particular road pursuant to s 7 of the Act. In other words, s 138(4) related to a person or body who had been declared a "roads authority" by or under the Act, but not with respect to the particular road upon which it was sought to carry out the work or erect the structures referred to in s 138(1).

67 Accordingly, the RTA submitted that the structure of s 138 was such that it was directed to require the consent of the appropriate roads authority to the erection of the structures and the works referred to in s 138(1) where the erection of those structures or the carrying out of those works was not elsewhere authorised under the Act. It followed that, pursuant to s 138(3), the reference to "a public authority" related to an authority which was not the "appropriate roads authority" in respect of the particular road upon which the erection of the structure or the carrying out of the work was proposed. Similarly, as I have noted, it was submitted that s 138(4) applied only to a public authority which, although "a roads authority" which had been declared as such with respect to a road, was not the roads authority for the road the subject of the application for consent.

68 The RTA submitted that such a construction achieved two outcomes. Firstly, it avoided what was submitted as a lack of utility and manifest absurdity of a roads authority applying to itself for consent to the carrying out of the relevant work. Secondly, it avoided the RTA and the Minister, each of which was a "public authority" (as defined) and a "roads authority" (as defined), from being subject to the whim of a council who was the "appropriate roads authority" for the road in respect of which the work was to be performed in circumstances where otherwise under the Act the Minister or the RTA was expressly authorised to carry out that work.

69 In particular the RTA relied upon s 72 of the Act which, although applying to unclassified roads, empowered it to carry out road work on an unclassified public road in the circumstances set forth in sub-paragraphs (a)-(d) thereof. It was submitted that, once the RTA had formed the necessary opinion referred to in sub-paragraph (a) and particularly (b) to carry out work which would be of benefit to classified roads in the vicinity, it would be an odd result that that work, notwithstanding the formation of that opinion, could not be carried out unless and until the local council had granted its consent thereto. The only statutory stricture on the council refusing such consent would be its obligation under s 138(3) to consult with the RTA as applicant for the council's consent.

70 The foregoing argument received further support, so it was contended, from the terms of s 72(1)(c) which empowers the RTA to carry out road work on an unclassified public road where that work is funded by money appropriated by Parliament for that purpose. Again, it would be an odd outcome if, Parliament having appropriated the necessary funds for the particular road work, the carrying out of that work could then be frustrated by the refusal of the local council to grant its consent to the work in respect of which those funds had been expressly appropriated. If this were so with respect to an unclassified road, the argument applied a fortiori to a classified road.

71 If the foregoing arguments were rejected, the RTA submitted that s 64(1) empowered it to exercise the function of the Council under s 138 and that it had, in fact, done so as evidenced by what was referred to as the RTA's act of "self approbation" in actually carrying out the work. It was further submitted that a consideration of the relevant correspondence revealed that it was not reasonably open to the primary judge on the evidence before him to find that the RTA had left that function with the Council rather than taken it upon itself. It was submitted that it was implicit in the RTA's conduct that any necessary exercise of the power to "take over" the Council's consent role under s 138 and any necessary exercise of that role with respect to the proposed work had in fact occurred.

72 It is appropriate at the outset and before turning to the Council's submissions, to reject the alternative submission of the RTA that it had assumed pursuant to s 64(1) the function of the Council under s 138 and in fact exercised that function by an act of self-approbation. In my opinion, a consideration of the relevant correspondence between the parties upon which the RTA relied revealed the precise opposite.

73 Although I agree with the primary judge's finding (at [47]) that the exercise by the RTA of a function of a roads authority under s 64(1) is a matter of choice, I cannot agree that having exercised that choice it was not open to the RTA to exercise the particular function without first having communicated its decision to do so to the appropriate roads authority. Where the RTA proposes to exercise the consent function of the appropriate roads authority under s 138, what is required in my opinion, is that it do so by reference to some overt act or conduct which evidences that it has in fact granted to itself a consent under that provision: Baiada v Waste Recycling and Processing Service of NSW (1999) 130 LGERA 52 at 62 [38]. Of course such an act would generally serve, as a matter of fact, to communicate to the appropriate roads authority the adoption of the consent function.

74 However, in the present case there was, in my view, no such overt act or conduct by the RTA. A consideration of the evidence relied upon by the RTA to support the proposition that it did in fact grant itself consent to the proposed work makes it tolerably clear that at all times the RTA denied that it was required to obtain the consent of the Council under s 138 whereas the Council maintained its assertion to the contrary. Accordingly, at no point in that correspondence did the RTA, either by itself or through its solicitors, purport to exercise the Council's functions under s 138. To the contrary, and after the Council instituted the proceedings on 28 September 2004, the RTA by letter dated 1 October 2004 expressly requested the Council's consent to carry out the relevant work pursuant to s 138 of the Act. Although this application was made "without prejudice" to the RTA's denial that it was required to obtain that consent, the fact is that it applied for it.

75 In my opinion, the primary judge was therefore correct in finding that, as a matter of fact, the RTA had not chosen pursuant to s 64(1) to exercise the function of the Council under s 138(1). Furthermore, it expressly applied for that consent, an act which corroborated its choice not to exercise that function. That it did not do so because it maintained the view that that consent was not required does not militate against the above finding of fact by his Honour made upon the basis that the Council's consent was required in the absence of a choice by the RTA to exercise that function itself.

76 I return now to the RTA's primary argument. The Council submitted that s 64(1) of the Act did not extend to the function of a roads authority under s 138. It was contended that s 64(1) was directed to the construction functions of a roads authority and not to its regulatory functions.

77 It was accepted by the Council that this submission had not been included in its written submissions on the appeal but it should be observed that, although the proposition was advanced, it was neither elaborated upon nor were reasons advanced in support of it.

78 I would in any event reject the submission. There can be no doubt that, as an "appropriate roads authority" within the meaning of s 138(1), the Council's function under that provision was to consider an application for consent and either to refuse or grant it, conditionally or unconditionally: see s 139. Section 138 appears in Part 9 of the Act which, as I have already noted, is headed "Regulation of works, structures and activities". There is nothing either on the face of s 64(1) or in the context in which it appears in Part 5 of the Act which, in my opinion, would justify construing the expression "functions" as excluding a roads authority's regulatory powers as set out in Part 9 of the Act. Nothing in the context applicable to s 64(1) requires the expression "functions" to be read otherwise than in accordance with its definition in the Dictionary as including a power as well as an authority. Accordingly, in my opinion, this aspect of the Council's submissions should be rejected.

79 The Council further submitted, in response to the submission of the RTA recorded in [67] above, that there was nothing that was either absurd or lacking utility in requiring a roads authority, including the RTA, if it chose to exercise the Council's functions under s 138 pursuant to its power to do so under s 64(1), to grant consent to itself. Certainly, it is common knowledge that where a council is acting as a developer in respect of its own land, it is required to seek from itself development consent where that consent is necessary under the relevant planning instrument and the Environmental Planning and Assessment Act 1979: cf Baiada v Waste Recycling at 64 [50]. In conjunction with this submission, the Council submitted that, although the RTA had power to exercise the functions of a roads authority including the carrying out of road work pursuant to s 71, the primary judge was correct in holding that s 64(1) only empowered the RTA, or only vested in it the legal capacity, to carry out road works, and that, unless it also sought to exercise the Council's functions under s 138, the requirement would remain that the Council's consent as the appropriate roads authority was still required.

80 For reasons to which I shall refer and upon which I have touched in [69] and [70] above, once the RTA satisfies one or more of the conditions referred to in s 72(1), it is not only empowered to carry out road work on an unclassified public road but is also authorised to do so without obtaining the consent of the appropriate roads authority under s 138.

81 In my opinion this is similarly so in the case of a classified road where the RTA, pursuant to s 64(1), may exercise the functions of a roads authority with respect to any classified road. Like s 72, s 64(1) not only empowers the RTA to exercise the functions referred to but also, in my view, authorises their actual exercise. This is because s 65(1) does not content itself with merely vesting the functions (powers and authorities) of a roads authority in the RTA but expressly states that it may exercise them, that is, perform them (see the definition of the expression "exercise a function" in the definition of "function”).

82 If it be the case that, in carrying out road work on a classified road in respect of which it is not the roads authority, the RTA is not required to obtain the Council's consent under s 138, there would appear to be no reason either in logic or common sense why, if it is also empowered to carry out road works in or upon an unclassified road, having satisfied one or more of the pre-conditions set forth in s 72(1), the exercise of that power should be able to be frustrated by the Council, as the appropriate roads authority, refusing its consent thereto.

83 In my opinion, there is nothing in s 138 which justifies the imposition of a requirement to obtain a local council's consent to the carrying out of work by the RTA which is otherwise a function of a roads authority under the Act given what I consider to be the paramount position of the RTA in the structure of the Act to which I have earlier referred. If one is to construe those provisions of the Act which empower the RTA to exercise the functions of a roads authority in a manner which promotes the purpose or object underlying the Act (as s 33 of the Interpretation Act mandates), then, having determined that the distribution of the functions conferred by the Act between the RTA and other roads authorities is structured so as to vest paramountcy in the RTA, that objective can only be promoted by construing ss 64 and 72, where they otherwise apply, as empowering the RTA with, and authorising the actual exercise of, the functions of the roads authority with respect to classified roads and the carrying out of road works with respect to unclassified roads.

84 In each case where the RTA is not the roads authority for those roads, promotion of the paramount position of the RTA in the hierarchy of responsibilities imposed on roads authorities by the Act requires that ss 64(1) and 72(1) be construed in a manner which would not subject the RTA to the unappealable refusal of a council's consent under s 138 or to unacceptable conditions imposed pursuant to s 139(1)(d): cf Palgo Holdings Pty Ltd v Gowans (2005) 215 ALR 253 at 262-264 [35]-[40] per Kirby J (dissenting).

85 I have no difficulty in accepting the submission of the Council that s 138 empowers it, as the appropriate roads authority, either to refuse consent or impose conditions in order to protect the travelling public or the community generally from any adverse impacts resulting from the erection of the structures or the carrying out of the work identified in s 138(1). No doubt, those powers are of particular importance where the applicant for consent is a person or body, including a public authority, who otherwise does not have the responsibilities of a roads authority. However, the RTA does have those responsibilities in relation to freeways and for those public roads in respect of which it has been declared the roads authority pursuant to s 7(3). It would not be unreasonable to expect that it would be very conscious, as a major government instrumentality, of the possible adverse impacts of any road works it may carry out and of the necessity to minimise those impacts, a consciousness which other persons and bodies may not be so concerned to acknowledge and appreciate.

86 It is true that s 138(4) extends the provisions of the section to other roads authorities which, on a literal reading, includes the RTA and also, for that matter, the Minister. But I see no inconsistency in construing s 138 as, on the one hand, inapplicable to the RTA or the Minister and, on the other hand, applicable to any other roads authority.

87 In this regard, it also seems to me that s 138(3) proceeds upon the assumption that the applicant public authority is a public authority other than the RTA. Although, as the Council submits, there is a proper basis for an appropriate roads authority granting consent to the works and structures referred to in s 138(1) which it desires to erect or carry out itself, the same cannot be said for the proposition that s 138(3) requires the RTA to consult with itself where it is the relevant public authority. That would indeed lead to an absurd result and should be avoided if otherwise the words of the provision permit it. In my opinion they do. As I have said, s 138(3) makes complete sense by excluding the RTA therefrom, an exclusion which, in my view, is authorised by ss 64(1) and 72(1).

88 Again, where an agreement has been entered into between the RTA and a roads authority pursuant to s 62 or a Ministerial direction given pursuant to s 63 so that it becomes the exclusive function of the RTA to make decisions as to what road works are to be carried out on the roads referred to in these provisions (other than a freeway), it would again be manifestly absurd to suggest that in any of those circumstances any decision of the RTA under s 64(1) to carry out road work for which it is responsible on the classified roads, the subject of that agreement or Ministerial direction, was nevertheless subject to the RTA first obtaining the consent of the appropriate roads authority. If that is so with respect to s 61(1), there seems no rational or logical reason for superimposing upon the exercise by the RTA of the functions referred to in s 64(1) the further requirement that the consent of the appropriate roads authority be obtained before the function is exercised.

89 As I have already noted, it would appear that the difference between ss 61 to 63 on the one hand and s 64 on the other is that, under the former provisions, the responsibility for carrying out the road work becomes the exclusive function of the RTA whereas, under the latter, the appropriate roads authority maintains its functions although it is embargoed against exercising them in a manner inconsistent with that in which the function is being exercised by the RTA. However, the retention by the roads authority of that function does not, in my view, require s 64(1) to be construed differently from ss 61 to 63 so as to impose upon the exercise of functions under the former the requirement to obtain the appropriate roads authority's consent under s 138.

90 Accordingly, in my opinion the primary judge erred insofar as he found (at [44]) that, notwithstanding that the purpose of s 64(1) was to vest in the RTA "an overriding control of classified roads", the exercise by the RTA of the power to carry out road works upon the relevant classified roads pursuant to the combined operation of ss 64(1) and 71 did not authorise the carrying out of that work without the RTA first obtaining the consent of the Council under s 138.

Was the RTA required to obtain the Council's consent under s 138 with respect to the relevant unclassified roads?

91 The RTA submitted that formation of the opinions pursuant to s 72(1)(a) and (b) as to the necessity to carry out the subject road work on the one hand and its benefit to classified roads in the vicinity on the other was a powerful textual indication that the RTA was both empowered and authorised to carry out that work, uncontrolled by the necessity to obtain the consent of a public authority at the bottom end of the hierarchy which was responsible neither for carrying out the work nor for the ramifications of it beyond its own local government area where as in the present case , the work extended into other local government areas. It thus submitted that the general provisions of s 138 relevantly yielded to the specific authorisation granted by s 72 so as to avoid the "anti-purposive outcome" of giving to a local government council not responsible for the overall functions of the RTA an effective veto over road work of a kind that in the opinion of the RTA was both necessary and beneficial.

92 It was further submitted that, as mandated by s 33 of the Interpretation Act, the underlying object or purpose of the Act with respect to the allocation of functions or responsibilities as well as their regulation would not be promoted by construing the Act in a manner which gave rise to contradictory controls as part of that regulation whereby the RTA, as the statutory authority charged with functions which transcended the boundaries of local government areas, would be subject to the veto power under s 138 of individual councils of the local government areas in which the RTA sought to exercise its functions.

93 Given the unqualified authority of the RTA pursuant to s 72 to carry out road work on any unclassified road once the conditions, which were extraneous to any local council, were satisfied, the underlying objective or purpose of the Act would not be promoted by giving s 138 a construction that enabled each local council, as the appropriate roads authority within its area, the unqualified power to frustrate the carrying out of roadwork which, in the opinion of the RTA, was necessary or beneficial or which had been funded by money appropriated by Parliament for that particular work. To decide otherwise would be to give to a council a controlling role rather than a controlled role whereas it was the RTA who had the controlling role rather than the controlled role.

94 In further support of the foregoing submissions, the RTA called in aid the provisions of s 87 to which I have already referred in [32] above. Given the structure of that provision, it would be odd indeed if the power of the RTA to carry out traffic control work on all public roads was subject to the consent of the local council, being the appropriate roads authority, under s 138. In my opinion, that this is not so is supported in particular by the provisions of s 87(2) where it is expressly provided that an appropriate roads authority may only carry out traffic control work on classified road with the consent of the RTA. Although traffic control work is excluded from the definition of "road work", it is work which would fall within the scope of s 138(1).

95 As with ss 64, 71 and 72, s 87 is located in Part 6 of the Act. The Council's submission that, this notwithstanding, the powers in question only invest the RTA with the legal capacity to carry out the work to which those provisions relate and does not constitute an unqualified authority actually to carry them out in that their exercise is subject to the overriding obligation to obtain the consent of the appropriate roads authority under s 138 would, so the RTA submitted, defeat the clear purpose of those provisions and, in particular, s 87. There was no logical or rational reason, so it contended, to treat the unqualified nature of the powers in ss 64(1) and 87 on the one hand and the qualified powers in s 72(1) on the other as being subjected to the overriding power of a local government council under s 138 to veto the carrying out of the work so authorised.

96 The Council nevertheless submitted that the words of s 138 were clear. In particular, as already observed, s 138(4) applies the section to a roads authority and the RTA so qualified. No reason existed for implying a limitation on the clear words of the section. However, the Council's submissions were founded upon its contention that the overriding legislative objective was that s 138 was the pivotal regulatory provision of the Act giving exclusive power to the appropriate roads authority, which otherwise had responsibility for the relevant roads, to control the carrying out of road work by those authorities (including the RTA) who were not so responsible. The significance of s 138 was underlined, so it was submitted, by the fact that breach of s 138(1) had criminal consequences.

97 The Council further submitted that, unlike s 61(1) which provided in the circumstances so postulated that the functions of the RTA as to what road work was to be carried out upon the roads in question were its exclusive responsibility, the same could not be said for s 72. Had it been Parliament's intention to confer upon the RTA the exclusive responsibility for unclassified roads, it would have expressly so provided as it did in relation to freeways, State highways and the other roads referred to in s 61(1).

98 Even if s 72 does not vest in the RTA the exclusive right to carry out the road work to which it refers, nevertheless the importance and significance of the RTA carrying out that road work is emphasised by it satisfying the particular conditions set forth in s 72(1), which underpin the rationale for the carrying out by the RTA of road work on an unclassified public road which would otherwise be carried out by the roads authority for that road. The same importance and significance is to be found in the exclusivity of the RTA's functions referred to in s 61(1). I see no reason why s 72 should be given a lesser role in terms of the responsibilities of the RTA than s 61(1). As I have already opined with respect to classified roads, the same observation applies to the exercise of a roads authority's function by the RTA pursuant to s 64(1) where it is tolerably clear that the RTA does not exercise the function to the exclusion of the relevant roads authority. The latter retains the function although s 64(3) enjoins it from exercising it in a manner inconsistent with that in which the function is being exercised by the RTA. Accordingly, I do not consider that the Council's submissions should be accepted.

99 It follows that, in my respectful opinion, the primary judge erred in holding that s 72(1) did not empower the RTA to carry out the road work to which it referred without first obtaining the consent of the appropriate roads authority under s 138.

100 The primary argument advanced by the RTA with respect to what was referred to in argument as the "disapplication" of s 138 to it was founded on what it submitted were the clear words of clause 5(1) of Schedule 2 to the Act. It was thus submitted that the clause should be given its literal meaning so that, as the RTA was by definition a "public authority" it followed that it was not required to obtain the Council's consent under s 138 to the exercise by it of its functions in on or over an unclassified road. If clause 5(1) is read literally, the submission cannot be gainsaid.

101 As I have already noted, the primary judge considered, firstly, that, as s 138(4) made it clear that the section was to apply to the RTA as a roads authority and as clause 5 was "obviously a transitional provision", it was difficult to construe clause 5(1) as giving the RTA an overriding right to dispense with the Council's consent under s 138. Secondly, his Honour considered that the "intended scope" of the expression "public authority" in clause 5(1) was ambiguous thus entitling recourse in determining its meaning to the Minister's Second Reading Speech, the relevant portion of which has been reproduced in [51] above. Thirdly, as a consequence of what the Minister said in that part of the speech referred to, his Honour construed the expression "public authority" in clause 5(1) as referring only to those

"State-owned 'utilities' responsible for the supply of gas, electricity, water and other services."

102 The Council sought to support his Honour's construction of clause 5(1) by observing that s 138 referred, relevantly, to three different authorities, namely, the RTA, a public authority and a roads authority. Each was referred to notwithstanding that the RTA and the council of the local government area, declared to be the roads authority for all public roads within its area, were each a "public authority" as defined in the Dictionary. Given that clause 5(1) seeks to "disapply" s 138 to a "public authority", it was submitted that that expression should take its context from s 138 itself with the consequence that it should be given the same meaning as in that provision. Because of the trichotomy in s 138 between a "public authority", "a roads authority" and "the RTA", it was contended that the expression "public authority" in clause 5(1) should exclude a roads authority and the RTA.

103 It is true, as the Council submitted and as McHugh J pointed out in Allianz Australia Insurance Lt v GSF Australia Pty Lt (2005) 215 ALR 385 at 388 [12], that definitions are not intended to enact substantive rules of law and that the meaning of the definition depends on the context and objectives of the substantive provision in which the defined expression is used. But in my opinion, neither the context nor objective of clause 5(1) nor the relationship between that provision and s 138 required the expression "public authority" as used in clause 5(1) to be construed otherwise than in accordance with its defined meaning.

104 Thus it was necessarily accepted by the Council that its primary case was that not only was a public authority which was neither the RTA nor a roads authority subject to s 138 but so also were the RTA and any other roads authority, especially where the latter was not the roads authority for the public road in question. In these circumstances, in oral argument the question was asked: why should it be that the expression "a public authority" where used in clause 5(1) should be construed to exclude a public authority which is either the RTA or a roads authority? In my opinion, the Council was unable to respond satisfactorily to this question.

105 The Council also placed reliance upon subsections (2), (3) and (4) of s 138. However, in my opinion, each deals with a particular situation. Thus s 138(2) assumes that the RTA is not the applicant for the consent as a consequence whereof its concurrence to the granting of consent is required where the public road in question is a classified road. Section 138(3) again assumes that the public authority that is the applicant is not the RTA and thus requires the appropriate roads authority to consult with it before deciding whether or not to grant consent and, in the case of a classified road, requires the RTA also to consult with it before deciding whether or not to grant concurrence. So far as s 138(4) is concerned, its purpose is not entirely clear. It is true that a "roads authority" is defined in the Dictionary in a manner which would include the RTA, the Minister, a specified public authority or a council of a local government area (see s 7). However, its scope should, in the context of the Act as a whole, be read down in accordance with the view expressed above that the RTA, as the paramount roads authority under the Act, is not required to obtain the appropriate roads authority's consent under s 138 where it is otherwise expressly empowered and authorised by the Act to carry out road work on roads in respect of which it is not the roads authority. In passing it should be noted that s 138(4) also extends the section to an employee of a roads authority which might not otherwise have been thought to be the case without it being confirmed by that provision.

106 The Council then submitted that there would be no reason to "disapply" s 138 to the RTA and a roads authority in respect of unclassified roads but not classified roads. This, so it was contended, would be an inversion of the road hierarchy which the Act sets up, making it an unlikely consequence of the construction of clause 5(1) advanced by the RTA.

107 However, I do not consider that there is merit in these submissions. Had it been the intention of the legislature to exclude the RTA and a roads authority from clause 5(1), it would have been a simple matter to state that exclusion expressly. There is nothing in the context relevant to clause 5 which, in my opinion, justifies in accordance with the authorities the rewriting of clause 5(1) which the Council's submissions necessarily involve. As written, it is unambiguous. As literally applied the result is neither absurd nor unreasonable. The fact, if such it be, that clause 5 was intended to be either a transitional provision, or perhaps more accurately a provision of only temporary operation, supports rather than, as the primary judge suggested (at [55]), detracts from the notion that the expression "public authority" should be construed in clause 5(1) in accordance with its defined meaning.

108 The primary basis upon which the Council submitted that clause 5(1) excluded the RTA and roads authorities from its operation was founded upon the Minister's Second Reading Speech referred to above. However, that speech is only engaged for the purpose of determining the meaning of a provision of an Act where the provision is ambiguous or obscure: Interpretation Act s 34(1)(b)(i). It was not suggested that the ordinary meaning conveyed by the text of the provision led to a result that was manifestly absurd or unreasonable within the meaning of s 34(1)(b)(ii).

109 The primary judge considered that there was ambiguity in the "intended scope" of the expression "public authority" in clause 5(1) which justified recourse to the Second Reading Speech. The basis of the Council's support for this finding was that it was appropriate to consider clause 5(1) as merely an additional subsection to s 138. Accordingly, when read in conjunction with s 138 (and, in particular, subsections (2), (3) and (4)) the scope of the expression "public authority" was rendered ambiguous. Alternatively, the Council submitted, as I have already observed, that clause 5(1) and s 138 should be read "cognately" upon the basis that an understanding of s 138 is required before one can determine the purpose of clause 5(1) in "disapplying" it.

110 For the reasons referred to above, I do not consider this submission should be accepted. Of course, if s 138 does not apply in the first place to the RTA where it carries out road work on an unclassified road pursuant to s 72 or on a classified road pursuant to s 64(1), then the present argument becomes academic. Accordingly, the question of construction with which I am presently concerned assumes the contrary, namely, that s 138 applies in both situations. However, on the basis of this assumption, the section also applies to a roads authority as well as to any other public authority. As by definition a "public authority" includes the RTA, the Minister and a roads authority, it is difficult to discern any purpose or objective of excluding the RTA or a roads authority from the "disapplication" of s 138 effected by clause 5(1).

111 In my opinion, whether or not one reads clause 5(1) in conjunction with s 138, its meaning is plain and does not admit of ambiguity. Accordingly, recourse to the Minister's Second Reading Speech for the purpose of determining the meaning of the expression "public authority" in clause 5(1) was impermissible.

112 But even if recourse to the speech was permissible, as the RTA submitted, the Minister said that clause 5(1) had

"been included which exempts public authorities and gas distributors from the need to obtain council's consent under clause 137 to the exercise of its functions on an unclassified road other than a Crown road." (emphasis added)

Had the Minister intended as a consequence of the second paragraph of the Second Reading Speech upon which both the primary judge and the Council relied to confine his use of the expression " public authorities " to only those public authorities which provided utilities, then one would have expected him to have said so in the first paragraph of his speech upon which reliance has been placed.

113 In my opinion, the Minister's asserted reason for inserting clause 5(1), namely, to give sufficient time for further consideration with utility bodies to clarify and resolve the question of the respective powers and functions of councils and such bodies, is not inconsistent with "disapplying" s 138 to any "public authority" including the RTA and a roads authority. After all, for the carrying out by the RTA or another roads authority of the type of work to which, in particular, s 138(1)(b) refers may well involve each of those authorities in providing, removing or altering the location within a public road of utility services. In these circumstances, no rational reason has been advanced as to why the expression "public authority" in clause 5(1) should not be given the meaning ascribed to it in the Dictionary. In terms of s 6 of the Interpretation Act, there is nothing in the context or the subject matter of the Act which justifies a departure from the defined meaning of that expression.

114 It follows that the primary judge erred in holding that clause 5(1) of Schedule 2 to the Act did not apply to the RTA which, accordingly, was required to obtain the consent of the Council to the subject work prior to it being carried out by or on its behalf.

The Council's Notice of Contention

115 The Council contended that even if the RTA was not required to obtain its consent under s 138 prior to commencing the relevant work, Connell Wagner was required to obtain that consent as it was not a "public authority" within the meaning of clause 5(1) of Schedule 2. Nor was it the RTA's agent.

116 The RTA sought to answer this contention by reference to s 253 of the Act which provided as follows:

" Roads authority may act through employees, agents and contractors
A roads authority may exercise a function under this Act by its employees … by its agents or by independent contractors."

117 The primary judge did not deal with this submission, no doubt because Connell Wagner did not take an active part in the proceedings and had filed a submitting appearance. Accordingly, there was no issue at first instance that, even if it were the case that s 138 did not require the RTA to obtain the Council's consent with respect to the subject work, nevertheless that work could not be carried out unless and until Connell Wagner obtained that consent.

118 As has been emphasised by the Council, failure to comply with s 138(1) constitutes a criminal offence, the maximum penalty of which is ten penalty units. In these circumstances, I consider that it would be entirely inappropriate to determine the issue raised by the Council's Notice of Contention in the absence of Connell Wagner. This is so notwithstanding that at a later point of time, the issue may again be raised if Connell Wagner is engaged to carry out further work upon the roads identified in the Schedule to the Council's Amended Summons. In the present circumstances, it is neither appropriate nor necessary to consider further the issue raised by the Notice of Contention.

Conclusion

119 In my opinion, the RTA has succeeded on each of the issues which have been debated before this Court. Accordingly, I would propose the following orders:

(1) Appeal allowed.

(2) Set aside the declaration and orders made by Palmer J on 8 November 2004 and 22 November 2004 with respect to the first respondent's Amended Summons and in lieu thereof order that the Amended Summons be dismissed.

(3) The respondent to pay the appellant's costs of the proceedings at first instance with respect to the Amended Summons and on the appeal but to have with respect to the latter a certificate under the Suitors' Fund Act 1951, if otherwise qualified.

120 Hunt AJA: I agree with Tobias JA.

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