Stonnington City Council v Roads Corporation

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

Not Restricted

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

No. 1101 of 2010

STONNINGTON CITY COUNCIL	First Plaintiff
and
YARRA CITY COUNCIL	Second Plaintiff
v
ROADS CORPORATION	First Defendant
and
MINISTER FOR ROADS AND PORTS FOR THE STATE OF VICTORIA	Second Defendant

---

JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	24, 25, 27 May 2010
DATE OF JUDGMENT:	7 October 2010
CASE MAY BE CITED AS:	Stonnington City Council & Anor v Roads Corporation & Anor
MEDIUM NEUTRAL CITATION:	[2010] VSC 454

---

ADMINISTRATIVE LAW – Proposed extended and standardised clearway hours on arterial roads – Validity of directions by Minister to implement proposal – Minister’s power not conditioned by obligation to accord plaintiffs procedural fairness – Effect of Minister’s direction on prior decisions of first defendant – Minister’s direction justiciable in respect of requirements of s 22 Road Management Act 2004 – Effect of determination by Minister under s 125 Road Management Act 2004 – Determination binding on parties but subject to judicial review – Road Management Act 2004 ss 1(1), 1(2), 3, 4(1), 4(2), 5(1), 5(2), 5(3), 20(2), 21, 22, 33, 34(1), 34(2), 34(3), 35(1), 35(2), 35(3), 36, 37(1), 37(2), 38(1), 38(2), 39(1), 39(6), 44, 119A, 125, Schedule 4 clauses 1 and 2, Schedule 4 clauses 4 to 14, Schedule 5 clauses 1 and 2 – Road Safety Act 1986 s 95 – Transport Act 1983 ss 15, 16(1), 16(2), 16(3), 31(1), 38(1), 38(2), Part II – Local Government Act 1989 ss 3C, 3D, 3E, 3F, 205, 206, 207, 208(1), Schedule 11, Part 1A – Planning and Environment Act 1987 s 20(4) – Interpretation of Legislation Act 1984 s 35(b) – Constitution Act 1975 s 85 – Road Safety (Traffic Management) Regulations 2009 regs 8(1), 8(2), 8(3), 10(2), 10(3), 10(4), 20, 22(1), Schedule 1 clauses 22 and 23.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J Hammond QC Mr P Gray	Maddocks
For the First Defendant	Ms D Mortimer SC Ms S Burchell Mr C Young	VicRoads Legal Services
For the Second Defendant	Ms D Mortimer SC Ms P Neskovcin Ms E Latif	Department of Transport Legal Division

TABLE OF CONTENTS

Summary.............................................................................................................................................. 1

Background facts................................................................................................................................ 4

The Transport Act 1983................................................................................................................... 15

The Local Government Act 1989.................................................................................................... 17

VicRoads’ role under the Road Management Act 2004............................................................. 18

The Road Safety (Traffic Management) Regulations 2009........................................................ 38

Summary of VicRoads’ powers..................................................................................................... 40

Question 1 - Was the Minister’s second direction invalid on the ground that it directed VicRoads to perform a function or exercise a power conferred on VicRoads under sub-regs 8(2) and (3) of the Road Safety (Traffic Management) Regulations 2009 made under s 95 of the Road Safety Act 1986, rather than a function or power conferred on VicRoads by the Road Management Act 2004? 42

The terms of the direction.......................................................................................................... 44
The power to make policy decisions under section 39(1) of the Road Management Act 2004 46
The power to co-ordinate the installation of infrastructure................................................. 47
The management of the use of roads and traffic.................................................................... 48
Other considerations................................................................................................................... 51

Question 2 - Was the exercise of the Minister’s power under s 22 of the Road Management Act 2004 to make the Minister’s second direction conditioned by an obligation to afford procedural fairness to the plaintiffs before exercising that power?.......................................................................... 54

(a) The statutory framework..................................................................................................... 57
(b) The public interest................................................................................................................ 59
(c) The class affected.................................................................................................................. 62
(d) The plaintiffs’ interest.......................................................................................................... 62
(e) The Minister’s general power to direct............................................................................. 66

Question 3 - Is the effect of the Minister’s second direction to supersede and render hypothetical and/or futile any challenge to the validity of VicRoads’ decisions?..................................... 67

Question 4 - As a matter of law, are the plaintiffs bound by the Minister’s determination made under s 125 of the Road Management Act 2004 and thereby precluded from seeking judicial review of any decision or conduct by VicRoads which was the subject matter of such determination?.............................................................................................................................................................. 69

Question 5 - Was the Minister’s second direction, by reason of the statutory regime and/or the nature of the direction, a political or policy decision and therefore not subject to judicial review?.............................................................................................................................................................. 73

Question 6 - Were VicRoads’ decisions by reason of the statutory regime and/or the nature of those decisions, political or policy decisions and therefore not subject to judicial review?....... 73

Conclusion......................................................................................................................................... 73

HIS HONOUR:

Summary

By this proceeding, the plaintiffs (‘the councils’) seek to challenge an alteration of hours of clearway operation on arterial roads within their municipalities.

A clearway is a portion of the roadway which might otherwise be available for car parking, but is designated for use by through traffic during the ‘clearway’ period in question.

The dispute between the councils and the defendants has progressed through a sequential decision making process.

Following a decision in April 2008 by the Victorian Government to implement a policy called ‘Keep Melbourne Moving’ and extend and standardise clearway times on arterial roads leading into central Melbourne, the first defendant (‘VicRoads’) decided to implement this policy in August 2008.

The councils disputed the appropriateness and validity of the policy and referred their disputes with VicRoads over the policy to the Minister pursuant to s 125 of the Road Management Act 2004 (‘the RM Act’). That provision enables the Minister to determine disputes between road authorities arising under that Act.

The State Government subsequently modified the clearway policy in March 2009 reducing the proposed clearway hours to some extent. VicRoads then adopted the modified policy in April 2009. This further decision by VicRoads was included in the disputes previously referred to the Minister under s 125.

On 29 December 2009, the Minister determined the disputes between the councils and VicRoads and upheld VicRoads’ policy decisions.

On 15 January 2010, the Minister directed VicRoads to implement standardised clearway times pursuant to s 22 of the RM Act. This provision gave him power to make directions to perform functions and exercise powers under that Act in the public interest. That direction was modified in early February 2010 to extend the time for compliance.

The proceedings before the Court comprise a series of challenges to the validity of the policy decisions of VicRoads, the Minister’s determination of the s 125 dispute and the validity of the Minister’s direction pursuant to s 22 as modified in February 2010.

It can be seen, however, that if the steps taken by the Minister in and after December 2009, were effective at law, they may be resolutive of the disputes relating to prior matters and in particular resolutive of the disputes with respect to VicRoads’ policy decisions.

Accordingly, the parties have agreed to formulate a series of preliminary questions which go to the validity of the Minister’s second direction given under s 22 and the Minister’s determinations made under s 125.

The first question embodies the contention of the councils that the Minister’s second direction was beyond power because it was not a direction to act under the RM Act as required by s 22 but a direction to exercise powers under the Road Safety Act 1986 (‘the RS Act’), that being the Act which provides for the erection of clearway signage in prescribed form.

I do not accept this contention because:

(a)The direction was not expressed by reference to functions and powers under the RS Act;
(b)The RM Act gave VicRoads the power to adopt policy with respect to road management functions including by definition the exercise of powers under the RS Act;
(c)The RM Act gave VicRoads power to co-ordinate the installation of road related infrastructure upon arterial roads. Road related infrastructure includes parking signs erected under the RS Act;
(d)The RM Act gave VicRoads the specific power to manage clearways on arterial roads and that power extends to managing the alteration of hours of clearways;
(e)VicRoads has further general powers to manage the use of, and traffic upon, arterial roads as the responsible road authority for the arterial roads on which the clearways are proposed to be implemented; and
(f)VicRoads has a general power to manage traffic as the State Road Authority which is the co-ordinating road authority for the roads in question.

Question 2 reflects the councils’ contention that the exercise by the Minister of the power under s 22 of the RM Act was conditioned by a requirement to afford procedural fairness to the councils and in particular the right to a hearing.

I reject this contention. The combination of the specific but limited provision for consultation made under s 22 within the context of the Act as a whole, and the overriding requirement that the exercise of the power be triggered by an opinion as to the public interest, lead to the view that the power was not so conditioned. This conclusion is supported by other contextual considerations including the difficulty of defining the class of those who might be said to have a special interest in the decision, the nature of the councils’ interest in the decision, and the general subordination of VicRoads to the Minister’s direction pursuant to the Transport Act 1983 (‘the Transport Act’).

Question 3 reflects the defendants’ contention that the effect of the Minister’s second direction is to supersede and render hypothetical or futile any inquiry as to the validity of VicRoads’ prior decisions.

If the second direction is valid VicRoads is required to give effect to it irrespective of the validity or appropriateness of the preceding decisions of VicRoads. If the answers to questions 1 and 2 are no, then the answer to question 3 is yes save for the resolution of any further questions raised by the pleadings but not resolved by questions 1 and 2

Question 4 reflects the further contention of the defendants that the councils are bound by the Minister’s determination under s 125. I accept that the councils are so bound, recognising that the effect of such determination is limited by the ambit of the matters referred to the Minister and that the Minister’s determination is itself potentially subject to judicial review.

Question 5 embodies the defendants’ contention that the Minister’s second direction could not be subject to judicial review because it is in the nature of a political or policy decision. I do not accept that this is so. Compliance with the terms of s 22 remains justiciable.

Question 6 asks a further like question concerning the policy decisions of VicRoads. It is unnecessary to answer this question by reason of the answers to the previous questions.

Before elaborating the reasons for the conclusions I have summarised, I will set out the background facts and elaborate the relevant statutory framework in greater detail.

Background facts

On 29 April 2008, the Premier, Mr John Brumby, issued a media statement headed “New congestion plan to ease peak pressure” announcing the institution of a new plan entitled “Keeping Melbourne Moving” that would “standardise the more than 150 clearways within 10 kilometres of the Melbourne CBD from 6.30am to 10am and from 3pm to 7pm, helping traffic flows during peak traffic times. Clearways will also be more strictly enforced”[1] (‘the Victorian Government’s 2008 clearways decision’).
[1]Department of Premier and Cabinet, ‘New congestion plan to ease peak pressure’ (Media release, 29 April 2008) viewed at on 28 september 2010.

Subsequently the first defendant (‘VicRoads’) published a list of the clearways in issue including clearways within each of the councils’ municipalities.

The effect of the proposed plan was to extend and standardise clearway hours upon these roads.

In June 2008, VicRoads proposed a communication strategy to the second defendant (the Minister) which recommended an advertisement and public submission process. The Minister approved this strategy and the proposed policy was the subject of written notice to the councils inviting submissions from them and of advertisement to the general public also inviting submissions.

A consultation process followed which the councils complain was inadequate, but following it VicRoads decided on 15 August 2008 to implement the new policy. VicRoads decided to implement the Victorian Government’s 2008 clearways decision on declared arterial roads within 10 kilometres of the Melbourne Central Business District through clearway times for the morning traffic peak from 6:30 am to 10:00 am and for the afternoon traffic peak from 3:00 pm to 7:00 pm. (‘VicRoads’ 2008 clearways implementation decision’).

On or about 18 August 2008, VicRoads provided the Minister with a briefing note in which VicRoads advised the Minister of the outcome of the clearways public submission process, and recommended that VicRoads proceed to implement the morning clearway changes on the nominated routes.

VicRoads then notified the councils of the proposed implementation. The councils made clear to the defendants that they disputed the validity and merit of the proposed implementation and opposed it.

The councils also refused to alter council owned parking signs on the relevant arterial roads which designate the parking regimes applicable to those roads.

The RM Act provides for the determination of disputes between road authorities by the Minister. The dispute between the councils and VicRoads was referred to the Minister by the councils and a determination process was undertaken first by a delegate of the Minister and then, as the dispute proceeded, ultimately by the Minister himself.

On 25 March 2009, the Victorian Government modified the Victorian Government’s 2008 clearways decision as follows:

(a)all PM clearways at intersections with traffic lights would commence from 3.00 pm and extend for approximately 100 meters on either side of the intersection. All other PM clearways that currently start at 4.00 pm or later would start at 4.00 pm;
(b)existing clearways that start earlier than 4.00 pm would all change to start at 3.00 pm along the full length of the road;

(c) all PM clearways would end at 7.00 pm; and
(d)AM extended clearway hours would continue to run from 6.30 am to 10.00 am (‘Victorian Government’s 2009 clearways decision’)

The modification was responsive to the concerns which had been expressed by local traders and councils although plainly it did not go as far as they would have liked.

On or about 3 April 2009, VicRoads adopted the Victorian Government’s 2009 clearways decision (‘VicRoads’ 2009 clearways adoption decision’).[2]
[2]Joint statement of agreed facts for the purposes of proposed questions for determination under Rule 47.04, dated 14 May 2010, [27] and [29].

Shortly afterwards, VicRoads notified the councils of VicRoads’ 2009 clearways adoption decision. This decision was then included in the subject matter of the dispute referred to the Minister under s 125 of the RM Act.

In October and November 2009, the councils provided submissions to the Minister in respect of the s 125 dispute.

In a letter dated 29 December 2009 to Gary Liddle, Chief Executive of VicRoads, the Minister advised:

I refer to my letter of 7 October about my determination of the dispute between councils and VicRoads under section 125 of the Road Management Act 2004.
I believe it is in the public interest for there to be a consistent approach to clearway times across Melbourne, helping to ease congestion, improve the punctuality and reliability of on-road public transport and improve traffic flow across the road network.
I therefore propose to use the Ministerial power under section 22 of the Road Management Act 2004 to direct road authorities, to direct VicRoads in the performance of its functions and powers to manage clearways on arterial roads and to change clearway signs on arterial roads to give effect to the following standardised clearway times on High Street and Victoria Pde/Street. Implementation in these streets is a priority because of identified public transport and network benefits …
I enclose a draft direction to this effect. I consider that it is in the public interest for me to give this direction. I invite VicRoads to comment on the proposed direction by within 7 days of the date of this letter.

and the letter enclosed a draft direction.[3]

[3]Joint statement of agreed facts for the purposes of proposed questions for determination under Rule 47.04, filed 14 May 2010, [35].

On 29 December 2009, the Minister determined the dispute between the councils and VicRoads and notified the councils of his determination. The letters to the councils stated in part:

Merits of the policy decision
9.Based on the submissions, the issues in respect of which the parties are in dispute concerning the merits of the policy decision appear to be:
·     whether VicRoads has made a correct policy decision based on its merits and
·     whether VicRoads, in making the purported policy decision, gave adequate consideration to the social, economic, environmental and traffic related impacts of the policy.
Process of the policy decision
10.Based on the submissions, the issues in respect of which the parties are in dispute concerning the process of the policy are:
·     whether VicRoads undertook required consultation prior to making the policy decision
·     whether the policy decision made by VicRoads was validly made in accordance with the law.
Determination
11.On the basis of the submissions I have received, I determine the dispute as follows.
Merits of the policy decision

12.It is my determination that VicRoads had made a valid policy decision based on its merits.
· Stonnington[/Yarra] disputed the merits of the policy decision on a number of bases, including the following contentions which were set out in its submission:
·There was a lack of proper policy development inherent in the proposal.
·The policy is a ‘one size fits all’ and poorly planned approach.
·VicRoads applied inadequate consideration to the economic impact on Stonnington’s [Yarra’s] retail shopping strips.
·VicRoads applied inadequate consideration to the community safety and wellbeing concerns.
·There is a lack of benefit for public transport users in the policy.

· However, it is my determination that:
·VicRoads did properly develop the policy and apply a planned approach.
·VicRoads did adequately consider economic and social impacts on traders and strip shopping. VicRoads also considered broader financial, economic, social and environmental factors.
·The policy decision appropriately balances the benefits associated with immediate reduced traffic congestion and the relief of pressure on public transport with any economic and social impacts on traders and strip shopping.
·Additionally, the interests of local traders have been specifically taken into account in the amendments to the proposed PM clearway times, which will allow an extra hour of parking on key arterial roads (except within 100 metres of certain intersections), compared to the original proposal.
·The standardised clearway times will also provide more certainty as to when clearway times apply.

13.It is also my determination that VicRoads gave adequate consideration to the social, economic, environmental and traffic related impacts of the policy, as follows:
·     VicRoads’ analysis of public submissions included consideration of issues raised in relation to specific locations and municipalities, as well as a broader analysis of the issues raised by an area-wide clearways policy.
·     VicRoads did consider economic and social impacts on traders and strip shopping. As a result, VicRoads amended the original proposed PM clearway times. It also considered broader financial, economic, social and environmental factors.
·     VicRoads also considered the traffic implications and need for the policy both in respect of local areas and in a network-wide sense.
Process of the policy decision
14.It is my determination that the consultation undertaken by VicRoads met the requirements of the RMA,[4] as follows:
·     In exercising its powers and functions to manage clearways, VicRoads is required to have regard to any relevant Code of Practice (RMA section 38; Schedule 4, clause 2(2)). It is not obliged to follow any strict relevant Code.
·     VicRoads did have regard to the Code of Practice for Clearways on Declared Arterial Roads. Having regard to that Code, it developed and followed guidelines for consultation in considering an area-wide clearways scheme.
15.It is also my determination that VicRoads has made a valid policy decision in accordance with the law, as follows:
· VicRoads’ decision was based substantially on factors which are financial, economic, social and environmental. The decision is therefore a valid policy decision within the meaning of section 39 of the RMA.
Alteration of parking signs
16.Based on regulations 10 and 22 of the Road Safety (Traffic Management) Regulations 2009, if VicRoads erects new clearways signs on arterial roads to implement the clearways policy, (Stonnington/Yarra) will be required to alter its parking signs to make them consistent with the clearway signs.[5]
…
37.By email dated 15 January 2010 from VicRoads to the Minister, VicRoads commented on the draft direction …[6]

[4]The Road Management Act 2004.

[5]Attachments 22 & 23 to the joint statement of agreed facts for the purposes of proposed questions for determination under Rule 47.04, dated 14 May 2010, [9]-[16].

[6]Joint statement of agreed facts for the purposes of proposed questions for determination under Rule 47.04, dated 14 May 2010, [37].

On 15 January 2010, the Minister gave VicRoads a direction relying on s 22 of the RM Act in the following terms (omitting formal parts) (‘Minister’s first direction to VicRoads’):

I refer to my letter of 29 December 2009 which provided a draft direction under section 22 of the Road Management Act 2004 for comment by VicRoads.
Following our discussion about that draft direction, I now enclose a formal direction to VicRoads on the same terms as the draft previously provided for comment.
VicRoads is to comply with this direction by 8 February 2010.
I ask that VicRoads notify affected local councils that it will be changing the relevant clearways signs.[7]

[7]Attachment 25 to the joint statement of agreed facts for the purposes of proposed questions for determination under Rule 47.04, dated 14 May 2010. Emphasis as in document.

The attached direction was as follows:

Road Management Act 2004

Section 22

DIRECTION WITH RESPECT TO MANAGEMENT OF CLEARWAYS ON ARTERIAL ROADS

To: THE ROADS CORPORATION (VicRoads)

I, Tim Pallas, Minister for Roads and Ports, considering it to be in the public interest to do so, hereby direct VicRoads to perform its functions and exercise its powers to manage clearways on arterial roads by implementing the following standardised clearway times on

·     High Street, between Malvern Road and Punt Road, both sides of the street

·     Victoria Pde, between Wellington and Cromwell Streets, north side

·     Victoria St, between Hoddle Street and Burnley Street, both sides of the street

AM clearway times:

·     Clearways are to operate from 6:30 am to 10:00 am; and

PM clearway times:

·     all clearways that currently start at 4:00 pm or later will start at 4:00 PM, except at signalised intersections where PM clearways are to start at 3:00 pm and extend for approximately 100 metres on either side of the intersection;

·     existing clearways that currently start earlier than 4:00 pm are to start at 3:00 pm along the full length of the road; and

·     all affected PM clearways are to end at 7:00 pm.

VicRoads are required to comply with this direction by 8 February 2010.

This direction is given under section 22 of the Road Management Act 2004.

In this direction:

‘arterial roads’ has the same meaning as set out in section 3 of the Road Management Act 2004

‘signalised intersections’ means intersections where the traffic is controlled by red/green and amber traffic lights.

Dated 15/1/2010

[Signed]

Tim Pallas MP

Minister for Roads and Ports

The councils then requested that the implementation of the Minister’s first direction to VicRoads be delayed. In early February 2010, the Minister advised the councils that he intended to direct VicRoads to implement the standardised clearways on the streets nominated by him by 22 February 2010 rather than 8 February 2010 (‘Minister’s second direction’).

The clearways referred to in the Minister’s second direction are situated in the municipal districts of Stonnington and Yarra.[8]
[8]Joint statement of agreed facts for the purposes of proposed questions for determination under Rule 47.04, dated 14 May 2010, [47].

The eleven other Councils affected by the Victorian Government’s 2008 clearways decision (and the decisions and modifications consequent upon it) have altered, or authorised alteration by VicRoads, of their permissive parking signs (one council doing so on a ‘trial basis’) to be consistent with the extended clearway times policy in their municipalities.[9] In total some 174 roadsides are affected by the policy.
[9]Joint statement of agreed facts for the purposes of proposed questions for determination under Rule 47.04, dated 14 May 2010, [48].

The councils have both a direct and indirect interest in the management of clearways on arterial roads in the municipalities. First, the councils have property rights in the parking signs located beside arterial roads affected by the proposed policy.

Secondly, the extension of clearway hours will reduce the parking revenue the councils receive.

Thirdly, traders within the municipalities claim their businesses will be affected by the extension and standardisation of clearway hours and the councils oppose the proposed change on behalf of their local communities including traders.

The councils have issued proceedings in this Court seeking the following substantive relief:

A. A declaration that [VicRoads’] decision made on 15 August 2008, as varied or substituted by [VicRoads’] decision made on or before 23 April 2009, to the effect that clearway hours of operation on arterial roads within a 10 kilometre radius of the Melbourne Central Business District be extended and standardised as follows:
a)all PM clearways at intersections with traffic lights will commence from 3:00pm and extend for approximately 100 metres on either side of the intersection. All other PM clearways that currently start at 4:00pm or later will start at 4:00pm;
b)existing clearways that start earlier than 4:00pm will all change to start at 3:00pm along the full length of the road;
c)all PM clearways will end at 7:00pm; and
d)AM clearways extended clearway hours will run from 6:30am until 10:00am;
in its application to:
e)High Street, between Malvern Road and Punt Road, both sides of the street;
f)Victoria Pde, between Wellington and Cromwell Streets, north side;
g)Victoria St, between Hoddle Street and Burnley Street, both sides of the street;
is invalid, void and of no legal effect.

B. A declaration that the direction of the Minister for Roads and Ports to [VicRoads] given on 3 February under section 22 of the Roads Management Act 2004 is invalid, void and of no legal effect.
C. A declaration that neither Stonnington nor Yarra is required by regulation 10(4) or regulation 22 of the Road Safety (Traffic Management) Regulations 2009 to alter their minor traffic devices in High Street, Victoria Pde and Victoria Street to be consistent with clearway signs altered and erected by [VicRoads] on and from 20 February 2010.
D. A declaration that clearway signs altered or erected by [VicRoads] on and from 20 February 2010 in:
a)High Street, between Malvern Road and Punt Road, both sides of the street;
b)Victoria Pde, between Wellington and Cromwell Streets, north side;
c)Victoria St, between Hoddle Street and Burnley Street, both sides of the street;
are invalid, void and of no legal effect.

E. Injunctions (interim, interlocutory and permanent) restraining [VicRoads] by itself, its employees or agents or howsoever otherwise from giving effect to, or taking any further step to give effect to, either or both of:
a)the decision referred to in paragraph A above; and
b)the decision referred to in paragraph B above.

F. Injunctions (interim, interlocutory and permanent) restraining the Minister for Roads and Ports by himself, his agents or howsoever otherwise from giving effect to, or taking any further step to give effect to, either or both of:
a)the decision referred to in paragraph A above; and
b)the decision referred to in paragraph B above.[10]

[10]First Amended Statement of Claim, filed 18 March 2010.

VicRoads counterclaims for relief in substance as follows:

A. A declaration that the first and second plaintiffs are required by regulations 10(4) and/or 22 of the Road Safety (Traffic Management) Regulations 2009 to alter their parking signs to be consistent with first defendant’s traffic signs.
B.An order in the nature of mandamus that within such time as the Court determines the first and second plaintiffs do all things as are necessary to alter their parking signs to be consistent with the first defendant’s major traffic signs.[11]

[11]Amended Defence and Counterclaim of the First Defendant filed 19 April 2010.

By order of 14 May 2010 the Court ordered by consent that the following issues be tried by way of preliminary questions:

I Was the Minister’s Second Direction invalid on the ground that it directed VicRoads to perform a function or exercise a power conferred on VicRoads under sub-regulations 8(2) and (3) of the Road Safety (Traffic Management) Regulations 2009 made under section 95 of the Road Safety Act 1986, rather than a function or power conferred on VicRoads under the Road Management Act 2004?

II Was the exercise of the Minister’s power under section 22 of the Road Management Act 2004 to make the Minister’s Second Direction conditioned by an obligation to afford procedural fairness to the Plaintiffs before exercising that power?

III Is the effect of the Minister’s Second Direction to supersede and render hypothetical and/or futile any challenge to the validity of VicRoads’ Decisions?

IV As a matter of law, are the Plaintiffs bound by the Minister’s determination made under section 125 of the Road Management Act 2004 and thereby precluded from seeking judicial review of any decision or conduct by VicRoads which was the subject-matter of such determination?

V Was the Minister’s Second Direction, by reason of the Statutory Regime and/or the nature of the Direction a political or policy decision and therefore not subject to judicial review?

VI Were VicRoads’ Decisions, by reason of the Statutory Regime, and/or the nature of those decisions, political or policy decisions and therefore not subject to judicial review?[12]

[12]In this Order, ‘Statutory Regime’ means the following legislation:

i.Parts I to III of the Transport Act 1983 (Vic);

ii.Parts 1, 3, 4, 7, and Schedule 4 of the Road Management Act 2004 (Vic);

iii.Parts 1A, 5 and 9 and Schedule 11 of the Local Government Act 1989 (Vic);

iv.Part 8 and Schedule 2 of the Road Safety Act 1986 (Vic);

v.Parts 1 and 2 and Schedule 1 of the Road Safety (Traffic Management) Regulations 2009;

vi.Part 3 of the Road Safety (Road Rules) Regulations 1999 (repealed on 9 November 2009 and replaced by item (v) above).

All other terms with the Order are as defined within these reasons.

Before turning to these questions it is convenient first to set out the statutory framework bearing on the role of VicRoads under the RM Act and the Regulations made under the RS Act concerning powers to implement clearways and erect clearway signage. I will commence by summarising underlying provisions of the the Transport Act and the Local Government Act 1989 (‘the Local Government Act’).

The Transport Act 1983

VicRoads is established by s 15 of the Transport Act and its provisions provide threshold elements of the context for the dispute agitated in this proceeding.

Its functions, amongst others, include:

(1) The Roads Corporation has the following functions—
(a)to maintain, upgrade, vary and extend the State's declared road network in accordance with the Road Management Act 2004;
(b)in conjunction with municipalities, to assist in the maintenance, upgrading and construction of other roads;
…
(h)to develop and implement road safety strategies, and to develop, promote and administer road safety education and training programs;
(i)to develop and implement traffic management strategies and practices; …[13]

[13]Transport Act, s 16(1)(a), (b), (h) and (i).

The notion of development and implementation of strategies is one which falls for further consideration within the context of the RM Act.

Section 16(2) recognises that VicRoads has powers, duties and functions under other Acts including the RS Act and the RM Act. Section 16(3) provides that in exercising its function VicRoads must have regard amongst other things to the following objects:
(a)to make use of available transport resources in ways which are most beneficial to the community and with due regard to the enhancement of the environment;
(b)to operate within Government policy;
(c)to achieve the efficient and safe movement of road traffic;
…
(f)to improve the State's principal road network to facilitate the efficient vehicular movement of people and goods;…[14]
[14]Transport Act s 16(3)(a), (b), (c) and (f).
Section 31(1) gives the Minister supervising power over VicRoads.

Section 38 provides:

(1)The Corporation has power to do all things that are necessary or convenient to be done for or in connexion with, or as incidental to, the performance of its functions and the achievement of its objects.
(2)The generality of subsection (1) shall not be taken to be limited by any other provisions of this Act conferring a power on the Corporation.

The Local Government Act 1989

The councils are constituted pursuant to Part 1A of the Local Government Act.

They are constituted to represent the interests of local communities.[15]
[15]Section 3C.

Their role is stated to be to provide leadership for the good governance of the municipal district and local community.[16]
[16]Section 3D.

It includes advocating the interests of the local community to other communities and governments.[17]
[17]Section 3D(2)(d).

The functions of a council include:
(a)advocating and promoting proposals which are in the best interests of the local community;
(b)planning for and providing services and facilities for the local community;
(c)providing and maintaining community infrastructure in the municipal district;
(d)undertaking strategic and land use planning for the municipal district;
(e)raising revenue to enable the Council to perform its functions;
(f)making and enforcing local laws;
(g)exercising, performing and discharging the duties, functions and powers of Councils under this Act and other Acts;
(h)any other function relating to the peace, order and good government of the municipal district.[18]
[18]Section 3E(1).
A council is in turn granted the power to do ‘all things necessary or convenient to be done in connection with the achievement of its objectives and the performance of its functions’.[19]
[19]Section 3F(1).

Section 207 provides:

207 Powers of Councils over traffic
Subject to the Road Safety Act 1986 and any regulations made under that Act, but without limiting any other powers of a Council as a road authority, the powers include the specific traffic management powers set out in Schedule 11.
Example
A Council must obtain the consent of VicRoads before exercising a power under Schedule 11 which if exercised under a regulation made under the Road Safety Act 1986 in respect of a major traffic control item would require the consent of VicRoads.[20]

[20]Section 207.

The power over traffic set out in Schedule 11 includes powers concerning parking to which I shall return.[21]
[21]Schedule 11, clause 1.

Section 208(1) provides:
(1)A Council must not exercise its powers under this Division inconsistently with the functions and powers of the Roads Corporation under the under the Transport Act 1983, the Road Management Act 2004 and the Road Safety Act 1986 and the regulations under those Acts.
It follows that a council’s powers over traffic and including those relating to parking under the Local Government Act, are expressly conditioned by a requirement not to act inconsistently with the functions and powers of VicRoads under the RM Act and the RS Act.

VicRoads’ role under the Road Management Act 2004

In overview, the RM Act sets out preliminary matters in Part 1. It provides for the rights of road users in Part 2. It provides for the road system in Part 3. It provides critically for the management of roads in Part 4. It provides for the protection of roads in Part 5 and for civil liability in Part 6.

The RM Act at the relevant time commenced by stating:
The purpose of this Act is to reform the law relating to road management in Victoria and to make related amendments to certain Acts.[22]
[22]RM Act, s 1(1).
VicRoads is defined by s 3 of the RM Act to mean the Roads Corporation established under Part II, Division 3 of the Transport Act.[23]
[23]Transport Act 1983, s 15.

The primary object of the RM Act was as follows:
The primary object of this Act is to establish a coordinated management system that will promote safe and efficient road networks at State and local levels and the responsible use of road reserves for other legitimate purposes. [24]
[24]RM Act, s 4(1).
In seeking to achieve this primary object s 4 states that the RM Act amongst other things:
(2) …
(b)establishes a system for the management of safe and efficient public roads that best meet the needs and priorities of State and local communities;
(c)establishes a system of classification for roads and sets clear principles about the division of responsibilities between State and local road authorities;
(d)provides mechanisms for coordinating the placement and maintenance of infrastructure on road reserves, and the carrying out of related works, so as to—
(i) minimise interference with road use;
(ii)facilitate the effective and efficient provision of utility and public transport services;
(iii)minimise interference with other infrastructure and the provision of utility and public transport services;
(g)sets out the powers and duties of road authorities to manage roads, the duties of infrastructure managers which install and maintain infrastructure on roads and the duties of works managers which carry out works on roads;
(h)confers adequate operational powers and imposes corresponding accountability on road authorities in relation to the management of roads;…[25]
[25]RM Act, s 4(2)(b), (c), (g) and (h).
‘Management’ is not defined but as the fourth edition of the Macquarie Dictionary[26] indicates, its ordinary meaning includes:

1. the act or manner of managing; handling, direction, or control…
3.the person or persons managing an institution, business, etc: this shop is under new management…

[26]Yallop, C (ed) Macquarie Dictionary (4^th ed, 2005).

‘Manage’ in its ordinary meaning includes:

2.        to take charge or care of: to manage an estate…
4.        to handle, direct, govern, or control in action or use…
9.        to conduct affairs…[27]

[27]Ibid.

The sixth edition of the Shorter Oxford English Dictionary[28] includes the following meanings for ‘manage’:

3.Conduct or carry on (a war, a business, an undertaking, an operation); control the course of (affairs) by one’s own action; control and direct the affairs of (a household, institution, state, etc); be the manager of (a team etc); take charge of, attend to (cattle etc).
5Administer, regulate the use or expenditure of (finances, provisions etc); (now rare) deal with or treat carefully, use sparingly or with judgement, husband (one’s health, life, money, etc)
6Control the use or exploitation of (land etc); manipulate for a purpose. Formerly also, till.

[28]Trumble, William, Shorter Oxford English Dictionary (6^th ed, 2007).

‘Management’ includes:

1.The action of managing; the manner of managing; the application of skill or care in the manipulation, use, treatment, or control of things or persons, or in the conduct of an enterprise, operation, etc; the administration of (a group within) an organization or commercial enterprise.[29]

[29]Ibid.

The use of the words ‘traffic management powers’ in s 207 and Schedule 11 of the Local Government Act to include powers to regulate parking on roads accords with the breadth of the ordinary meaning of management.

Section 4(2)(b) expressly anticipates that the RM Act will establish a system for the management of public roads which addresses the needs and priorities of both State and local communities. It is the resolution of perceived local, metropolitan and State priorities which underlies the current dispute.

Section 4(2)(c) also expressly anticipates a clear division of responsibilities between State and local road authorities.

Section 4(2)(d) anticipates provision for a co-ordination of the placement of infrastructure in road reserves.

Section 4(2)(g) distinguishes between the powers of road authorities to manage roads and the duties of infrastructure managers.

Section 4(2)(h) anticipates the conferring of adequate operational powers and corresponding accountability on road authorities with regard to management of roads.

Section 5(1) evinces a clear intent that the road management regime established under the RM Act prevail over that created by any other Act:

Subject to this section, if there is an inconsistency between this Act and any other Act in relation to the performance of a road management function, the provisions of this Act prevail.

‘Road management function’ is defined by section 3 to specifically include functions under other Acts as follows:

road management function means a function, power or duty conferred or imposed on—
(a)       a road authority by or under—
(i)        this Act;
(ii)      the Road Safety Act 1986;
(iii) the provisions of the Local Government Act 1989 referred to in section 5(2);

(iv) the Transport Act 1983;
(v) any other Act dealing with the management of roads;
(b)a utility, provider of public transport, infrastructure manager or works manager by or under this Act;

Sections 5(2), (3) and (4) provide as follows:

(2)If a road authority is a municipal council, the provisions of section 3E, Division 2 of Part 9 and Schedules 10 and 11 of the Local Government Act 1989 apply and are to be construed for the purposes of this Act as if those provisions formed part of this Act.
(3)If the road authority is VicRoads, the provisions of the Transport Act 1983 relating to VicRoads are to be construed as being in addition to and not in derogation from the provisions of this Act.
(4)This Act applies to infrastructure managers and works managers in relation to the installation of non-road infrastructure on roads despite the provisions of any other Act or law to the contrary.

‘Infrastructure manager’ is defined by s 3 to mean:

infrastructure manager means—
(a)in relation to road infrastructure, the responsible road authority under section 37; or
(b)subject to subsection (5), in relation to non-road infrastructure, the person or body that is responsible for the provision, installation, maintenance or operation of the non road infrastructure.

‘Road infrastructure’ is defined to mean:

road infrastructure means—
(a)the infrastructure which forms part of a roadway, pathway or shoulder, including—
(i) structures forming part of the roadway, pathway or shoulder;
(ii)materials from which a roadway, pathway or shoulder is made;

(b)the road-related infrastructure—

but does not include—
(c)if the irrigation channel, sewer or drain is works within the meaning of the Water Act 1989, any bridge or culvert over an irrigation channel, sewer or drain, other than a bridge or culvert constructed by a road authority; or
(d)a bridge or culvert over a sewer or drain constructed under section 132 of the Melbourne and Metropolitan Board of Works Act 1958;

Examples
Materials such as asphalt, bitumen, gravel, lane markers and lines would be materials from which a roadway, pathway or shoulder is made.[30]

[30]RM Act, s 3.

‘Road-related infrastructure’ is further defined to mean:

road-related infrastructure means infrastructure which is installed or constructed by the relevant road authority for road-related purposes to—
(a) facilitate the operation or use of the roadway or pathway; or
(b) support or protect the roadway or pathway;
Examples
A traffic control sign, traffic light, street light, road drain or embankment would be road-related infrastructure.
A noise wall, gate, post or board installed on the road reserve by the relevant road authority for road-related purposes would be road-related infrastructure.[31]

[31]RM Act, s 3. Regard may be had to the example pursuant to s 36(3A) of the Interpretation of Legislation Act 1984.

It follows signs which control the duration and nature of parking on roadways and/or create clearways are ‘road-related infrastructure’, both by reason of the terms of the definition and by reference to the stated example. In turn, they are ‘road infrastructure’ as defined.

They are not ‘non-road infrastructure’ which is defined as meaning:

non-road infrastructure means infrastructure in, on, under or over a road which is not road infrastructure;
Note
See the definition of road infrastructure.
Examples
Non-road infrastructure would include gas pipes, water and sewerage pipes, cables, electricity poles and cables, tram wires, rail infrastructure (including boom gates, level crossings and tram safety zones), bus shelters, public telephones, mail boxes, roadside furniture and fences erected by utilities or providers of public transport.[32]

[32]RM Act, s 3.

Part 4 of the RM Act relates to the management of roads. Division 1 is headed ‘Co-ordination of Road Management’.

Section 1(2) states in part that the RM Act:
·establishes a new statutory framework for the management of the road network which facilitates the coordination of the various uses of road reserves for roadways, pathways, infrastructure and similar purposes.
In turn, s 20 which commences Division 1 of Part 4 stated at the relevant dates with which I am concerned:
Principal object and management principles
(1)The principal object of road management is to ensure that a safe and efficient network of roads is provided primarily for travel and transport and that road reserves are available for other appropriate uses.
(1A) In giving effect to the principal object of road management, the road network is to be managed to reflect the priorities of different modes of transport having regard to the intended function or functions of different parts of the road network.
(1B) Subject to subsection (1C), priority is to be given to the following modes of transport in respect of the specified roads for that mode of transport—
(a) trams on specified tram roads;
(b) buses on specified bus roads;
(c) bicycles on specified bicycle roads;
(d) pedestrians on specified pedestrian roads;
(e) freight on specified freight roads;
(f) any other mode of transport on specified roads for that mode of transport.
(1C) Subsection (1B) has effect—
(a) without limiting the generality of subsection (1A); and
(b) to the extent that it is reasonably practicable having regard to the works and infrastructure management principles..
(2) The following principles apply in respect of the management of works and infrastructure under this Act—
(a) the minimisation of road safety hazards;
(b) the avoidance or minimisation of damage or disruption to infrastructure on roads;
(c) the avoidance or minimisation of disruption to plans for the development of road infrastructure and non-road infrastructure;
(d) the avoidance or minimisation of disruption to traffic;
(da) the priority of different modes of transport on specified roads;
(e) the avoidance or minimisation of disruption to the effective and efficient delivery of utility and public transport services;
(f) the efficient use of resources of road authorities and infrastructure managers and the minimisation of cost to the community of infrastructure and services.
The matters referred to in s 20(2) are defined as comprising the ‘works and infrastructure management principles’.[33]
[33]RM Act, s 3.

It can be seen that both the principal object of road management and the works and infrastructure management principles could potentially justify the creation of clearways.

VicRoads is a State road authority as defined by s 3 of the RM Act. By virtue of s 36 VicRoads is the co-ordinating road authority for arterial roads.[34] By virtue of s 37(1)(b)(i) it is also the responsible road authority for the portion of arterial roads used by through traffic.[35]
[34]Coordinating road authority is defined by s 3:
coordinating road authority in relation to a road, means the road authority which has coordination functions as determined in accordance with section 36;
[35]Responsible road authority is defined by s 3:
responsible road authority in relation to a road, means the road authority which has operational functions as determined in accordance with section 37;

VicRoads is therefore both the co-ordinating and responsible authority for the roads on which clearways are proposed in this case. It also possesses certain specific powers as a State road authority and in its own right.

By reason of s 37(1)(b)(ii), (v) and (vi) the plaintiff councils are the responsible authorities for footpaths and road related areas forming part of arterial roads not used by through traffic (including those areas containing parking signs).

In turn, s 37(2) provides:
(2)In relation to road-related infrastructure on a road, the responsible road authority is—
(a)subject to paragraph (b), the responsible road authority for the roadway or pathway to which the road-related infrastructure relates; or
(b)if a road authority other than the responsible road authority specified in paragraph (a) has responsibility under any other Act for the road-related infrastructure, that road authority.
Example
VicRoads would be the responsible road authority for speed signs and traffic lights on an arterial road even though the speed signs are located on a roadside for which the municipal council would be the responsible road authority. However, a municipal council would be the responsible road authority for a parking meter installed on the arterial road in the exercise of powers under the Local Government Act 1989.
By parity of reasoning to that given in the example relating to parking meters, municipal councils would be the responsible authority in respect of permissive parking signs installed on a road under the RS Act. The responsible road authority for the roadway to which the signs relate is VicRoads. The councils are road authorities other than VicRoads which have responsibility under another Act for the signs.

Section 33 provides that in performing road management functions a road authority must have regard to ‘the principal object of road management and the works and infrastructure management principles’ set out in s 20.

Section 34 then provides for the following general functions:
(1) A road authority has the following general functions—
(a)to provide and maintain, as part of a network of roads, roads for use by the community served by the road authority;
(b)to manage the use of roads having regard to the principle that the primary purpose of a road is to be used by members of the public and that other uses are to be managed in a manner which minimises any adverse effect on the safe and efficient operation of the road and on the environment;
(c)to manage traffic on roads in a manner that enhances the safe and efficient operation of roads;
(ca)to design, construct, inspect, repair and maintain roads and road infrastructure;
(d)to coordinate the installation of infrastructure on roads and the conduct of other works in such a way as to minimise, as far as is reasonably practicable, adverse impacts on the provision of utility or public transport services;
(e)to undertake works and activities which promote the functions referred to in paragraphs (a), (b), (c) and (ca) and to undertake activities which promote the function in paragraph (d).
(2)The general functions conferred on a road authority under subsection (1) are not to be construed as limiting any other functions conferred on a road authority by or under this Act or any other Act.
(3) In seeking to achieve its functions, a road authority should—
(a)consult with the community and disseminate information in relation to the exercise of those functions;
(b)take steps as are reasonably practicable to ensure the structural integrity and safety of public roads in accordance with this Act.
It can be seen that s 34(1)(a) would embrace the providing and maintenance of a network of roads used in part as clearways. Section 34(1)(b) and (c) would embrace the management of roads to create periods of clearway. The creation of clearways directly regulates the use of roads for parking and the activity of traffic upon them. Section 34(1)(e) would embrace the function of undertaking ancillary works associated with the functions provided for in s 34(1)(a), (b) and (c).

Section 34(2) makes clear that the general functions conferred on VicRoads as a road authority under s 34(1) do not limit its functions under other Acts such as the RS Act.

Section 34(3) envisages that the road authority should act in consultation with the community and disseminate information in relation to the exercise of its functions.

In turn, s 35 provides for general powers to undertake these functions.

35 Powers of a road authority
(1)Subject to this Act, a road authority has power to do all things necessary or convenient to be done for or in connection with the performance of its functions under this Act.
(2)The generality of subsection (1) is not limited by the conferring of specific powers on a road authority by or under this Act or any other Act.
(3)Schedules 1 to 7A do not limit the functions or powers conferred on a road authority by or under this Act or any other Act.
(4)If a road authority has specific powers under any other Act, this section—
(a)is to be construed as being in addition to those powers; and
(b)is not to be construed as overriding any requirements, restrictions, limitations or conditions to which the specific powers are subject.

Note
If a road authority is a municipal council it has the powers specified in Division 2 of Part 9 and Schedules 1, 10 and 11 of the Local Government Act 1989.

The distinction between functions and powers embodies on the one hand a designation of function for particular purposes and on the other hand necessary powers to act for those purposes.[36]
[36]Cf Mercantile Mutual Life Insurance Co Limited v Australian Securities Commission (1993) 40 FCR 409, 421-22 (Lockhart J); 439-40 (Gummow J).

If it be accepted (as I do) that the functions stated in s 34(1) embrace the management of roads to create periods of clearway then s 35(1) in turn provides the power to do all things necessary or convenient to be done in performance of that function.

The power granted pursuant to s 35(1) to do ‘all things necessary or convenient’ is general and broad. It requires only that a rational causal relationship exists between the functions and powers created by the RM Act (including its objects and purposes)[37] and the actions that are permissible under the scope of ‘all things necessary and convenient’. As the High Court stated in Morton v Union Steamship Company of New Zealand:

The ambit of the power must be ascertained by the character of the statute and the nature of the provisions it contains.[38]

[37]See eg, Evans v State of New South Wales (2008) 168 FCR 576, 591-2; Anthony Lagoon Station Pty Ltd v Maurice (1986) 13 FCR 262, 264; Shanahan v Scott (1957) 96 CLR 245, 250.

[38](1951) 83 CLR 402, 410.

Section 35(2) makes clear that this general power is not limited by the grant of specific powers under other Acts including powers such as the power to erect signage under the RS Act.

Section 35(3) in turn makes clear that the grant of specific powers under Schedule 4 including the power to manage clearways does not derogate from the general power granted by s 35(1) or powers such as the specific powers granted under the RS Act.

Section 38 in effect amplifies the requirements of s 33 by further stating the matters a road authority must have regard to in exercising its powers and functions. It also returns to the question of the relationship between a road authority and the community. It expressly requires regard to be had to the policies and priorities of the State government. On the other hand, it also requires regard to be had to any matters arising from consultation with the community and other stakeholders (which in the present context would include municipalities). Section 38(1) states:

(1)In exercising the functions and powers conferred on a road authority by or under this Act or any other Act, the road authority must have regard to—
(a)       the principal object of road management;
(b)       the works and infrastructure management principles;
(c)       the rights of road users;
(d)the need to exercise the functions and powers within its overall policy and budgetary context;
(e)policies and priorities in relation to transport, the environment and other matters determined by the Government of Victoria;

(f) any relevant Code of Practice;
(g) any other law affecting the management of roads;
(h)any roadside management plan developed to protect flora and fauna;
(i)any matters arising from consultation with the community, utilities, providers of public transport and other stakeholders.

Section 38(2)(a) provides:

(2)Without limiting the generality of the principles specified in subsection (1), a road authority should—
(a)determine policies and priorities for the construction and maintenance of roads after considering—
(i)the priorities and social and economic needs of the community and of road users and the special needs of any sector of the community and, in the case of VicRoads, also the needs of the national and State road networks;
(ii)any relevant environmental, economic, social or financial policies or objectives determined by the Government of Victoria;

(iii) the volume and nature of road usage.

Section 38(2)(b) endorses a co-operative approach to road management.

manage its road network in cooperation with other road authorities, utilities, providers of public transport, government agencies, community organisations and the private sector.

Section 38(2)(c) restates fundamental objectives of efficiency and safety by providing that a road authority should:

seek to ensure—
(i)the efficient and effective management and use of the road network and infrastructure to meet the needs of the community and road users;
(ii)the most efficient use of the resources available for road management;
(iii)that the public road network and infrastructure are as safe for users as is reasonably practicable;

Section 38(2)(d) endorses the co-ordinating role of a co-ordinating road authority in respect of the development and use of the road reserve generally:

in the case of a coordinating road authority, coordinate the development and use of the road reserve generally, including the carrying out of works and the installation of infrastructure on roads so as to—
(i)ensure the safety of road users and the community;
(ii)minimise disruption and inconvenience to road users;
(iii)protect the environment;
(iv)protect the physical integrity of the road and infrastructure in the road reserve.

Section 39 provides specifically for the making of policy decisions relating to the performance of road management functions. (Remembering that such phrase is defined by s 3 to embrace functions both under this Act and other Acts including the RS Act and the Local Government Act ).

Road authority may make a policy or policy decision relating to road management functions
(1)Without limiting the decision making processes of a road authority, a road authority may make a policy or policy decision relating to the performance of a road management function.
(2)For the purposes of this Act, a decision made by a road authority is a policy decision if having regard to the broad range of activities of the road authority the decision is based substantially on factors or constraints which are financial, economic, political, social or environmental.
(3)Without limiting the generality of subsection (2), a policy decision includes decisions about—
(a)the circumstances in which a road management function is to be performed;
(b)the manner in which a road management function is to be performed;
(c)the standard to be achieved in performing a road management function.

(4)A road authority is to be taken to have made a policy or policy decision relating to a road management function if the road authority has made a road management plan that includes provisions relating to the performance of that road management function.
(5)For the purposes of any proceedings, unless a policy or policy decision made by a road authority is so unreasonable that no road authority in that road authority's position acting reasonably could have made that policy or policy decision, any decision or standard which is a policy or policy decision relating to the exercise of a road management function by the road authority is to be taken to satisfy the statutory duty and any common law duty of the road authority in relation to the exercise of that road management function.
Note
Section 27 enables a relevant Code of Practice to be used as evidence of the reasonableness of a road management plan.
(6)For the avoidance of doubt, the power of a road authority to make a policy or policy decision is subject to any direction given to the road authority by the relevant Minister in accordance with section 22.[39]

[39]RM Act, s 39.

Decisions of VicRoads with respect to clearways on arterial roads to adopt policy in accordance with the Minister’s directions were policy decisions within the meaning of s 39 because they were based substantially on political factors or constraints and/or were decisions about the manner in which a road management function was to be performed.

Section 44 gives further specific management powers to State road authorities (including VicRoads).

44 Specific traffic management powers of State road authorities
(1)Subject to the Road Safety Act 1986 and any regulations made under that Act, but without limiting any other powers of a State road authority, the powers include the specific traffic management powers set out in Schedule 4.
(2)Schedule 4 has effect.
Example
A State road authority, other than VicRoads, must obtain the consent of VicRoads before exercising a power under Schedule 4 which if exercised under a regulation made under the Road Safety Act 1986 in respect of a major traffic control item would require the consent of VicRoads.

The councils draw particular attention to the introductory qualifications referred to in subsection (1) and I shall return to the relationship between the RS Act and the specific powers granted under this section in addressing Question 1.

Schedule 4 clauses 1 and 2 provide as follows.

1 General power to manage traffic
A State road authority has the power to manage traffic on any road—
(a)in respect of which it is the coordinating road authority; or

(b) on land managed by the State road authority.

2 Powers concerning parking
(1)A State road authority may with respect to non-arterial State roads fix, rescind or vary—
(a)the days, hours and periods of time for which, and the conditions on which, vehicles may stand in a parking area in a non-arterial State road or other parking area; and
(b)fees for any vehicles standing in a parking area and the manner of payment of those fees; and
(c)the fee for residents of any area which the State road authority sets aside as an area in which a resident parking scheme is to operate that allows a vehicle to stand in a parking area in any road in the area regardless of the fixed parking periods for that area.

(2)VicRoads may with respect to arterial roads—
(a)manage clearways; and
(b)make policy decisions in relation to traffic management after consultation with any affected municipal councils.

(3)In this clause parking area has the meaning it has in the Road Safety Act 1986 or any regulations made under that Act.
(4)A municipal council must exercise the powers conferred on a municipal council under the Local Government Act 1989 in a manner which is consistent with this clause.[40]

[40]RM Act, Schedule 4, clauses 1 and 2.

The effect of Schedule 4 is a matter of substantial dispute in this case. A central concern is the proper interpretation of clause 2(2)(a). The councils contend that the power contained in clause 2(a) is a power to do no more than manage clearways in the sense of removing obstructions from them and taking like operational actions. It is submitted such a power would not extend to the ‘establishment’ of clearways.

I do not accept this construction. First, the ordinary meaning of the word ‘manage’ would extend to the management of the hours during which clearways operate on a particular road. It is the management of an alteration of such hours which is in issue in this case, not the establishment of such clearways. In any case, the terms of Schedule 4 clause 2(2)(a) are not ‘to manage existing clearways’.

Secondly, the notion of management expressed in the RM Act is related to functions which embrace the management of clearway hours. The provisions of the RM Act as a whole including the objects of the Act, objects of management, and functions and powers of road authorities reflect a broad notion of management.

Thirdly, clause 2(2)(a) is found under the heading ‘Powers concerning parking’. These powers form the first of specific powers which follow the general power to manage traffic set out in clause 1. Clause 2(1) gives a State road authority power to regulate parking on non arterial state roads. Clause 2(2) couples the power to manage clearways with the power to make policy decisions in relation to traffic management. The relevant power to manage clearways is one concerning parking and the relevant power to make policy decisions in relation to traffic management is also one concerning parking. Regard may be had to the heading pursuant to s 36 of the Interpretation of Legislation Act 1984.

Fourthly, clauses 4 to 14 of Schedule 4 give specific operational management powers to State road authorities which deal with the type of operational matters with which the councils submit clause 2(2)(a) is concerned. Likewise s 119A gives VicRoads the power to remove stationary vehicles from freeways on other roads to which the Minister declares the section applies.

The relevant powers include the power to remove unregistered or abandoned vehicles, the power to remove vehicles causing obstruction or danger, the power to remove other obstructions, the power to restrict traffic near a construction site, the power to erect and remove works and structures, and the power to place obstacles or barriers on a road. The specific and separate inclusion of these powers points strongly to the conclusion that the phrase ‘manage clearways’ is not directed to such matters. If it is, then the power is nugatory. The better construction is one which gives meaning to each of the provisions granting special powers under Schedule 4.[41]
[41] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, 381-82.

Fifthly, by reason of Schedule 5 of the RM Act property in arterial roads vests in the Crown and not in the municipal council.[42] In turn the councils do not have the care and management of arterial roads pursuant to s 205 of the Local Government Act.[43] This division of functions also suggests the word ‘manage’ should be given its ordinary and ample meaning.
[42]RM Act, Schedule 5, clauses 1 and 2:
1Vesting of roads and public highways
(1)Subject to this clause, the Crown has absolute property in—
(a)the land over which there is a freeway or arterial road (whether the freeway or arterial road is constructed at the level of the surface of the land or not); and
(b)all land reserved or proclaimed as a road under the Crown Land (Reserves) Act 1978, the Land Act 1958, the Forests Act 1958 or the National Parks Act 1975—
whether before or after the commencement of this Schedule.
(2)The declaration of a freeway or arterial road under section 14 as a freeway or arterial road may provide that the declaration has effect in respect of a specified part of the land over which there is a freeway or arterial road of vesting in the Crown absolute property only in a specified stratum.
(3)Subclause (1) is subject to any lease or licence granted under—
(a)this Act; or
(b)the Local Government Act 1989; or
(c)the Land Act 1958; or
(d)clause 13(3) of Schedule 5 of the Transport Act 1983 as in force before the commencement of this Schedule.
(4)Subject to subclause (6), a road vests in fee simple in the municipal council of the municipal district in which it is located upon becoming a road.
(5)The public highway vests in the municipal council free of all mortgages, charges, leases and sub-leases.
(6)Subclause (4) does not apply to—
(a)a freeway or an arterial road;
(b)a road that becomes a road if it is agreed between the municipal council and VicRoads that the road should vest in VicRoads;
(c)roads on Crown land;
(d)roads vested in a Minister or in any public authority (other than a municipal council).
2Nature of ownership of road
(1)Clause 1 does not have effect to—
(a)impose any duty on the Crown, a municipal council or a public statutory authority as owner of the land in a road that it would not have if it were not the owner of the land but were only the road authority;
(b)allow adverse possession or easements by long user to be acquired over the road;
(c)authorise the disposition of the fee simple or any estate or interest in the land except as authorised by clause 9;
(d)make a road subject to the compulsory acquisition powers under the Land Acquisition and Compensation Act 1986.
(2)Subject to clause 1 and subclause (1), for the purposes of the management of a road, a road authority has the powers that a freehold owner in possession of the land would have.
[43]Local Government Act, s 205:
205Councils to have the care and management of certain roads
(1)A Council has the care and management of—
(a)all public highways vested in the Council; and
(b)all roads that are the subject of a declaration under section 204(2); and
(c)all public highways on Crown land and roads vested in a Minister (other than freeways and arterial roads within the meaning of the Road Management Act 2004 and public highways and roads vested in a public authority); and
(d)all roads that the Council has agreed to have the care and management of.
(2)This section is subject to the Road Management Act 2004.

Schedule 11 clause 1 of the Local Government Act provides:

Powers concerning parking
(1) A Council may fix, rescind or vary—
(a)the days, hours and periods of time for which, and the conditions on which, vehicles may stand in a parking area in any highway or other parking area; and
(b)fees for any vehicles standing in a parking area and the manner of payment of those fees; and
(c)the fee for residents of any area which the Council sets aside as an area in which a resident parking scheme is to operate that allows a vehicle to stand in a parking area in any road in the area regardless of the fixed parking periods for that area.

(2)In this clause highway and parking area have the meanings they have in the Road Safety Act 1986 (or any regulations made under that Act).

It can be noted that although Schedule 11 clause 1 provides for the fixing of parking conditions it does not in terms provide for the establishment of signage giving effect to such fixing. The distinction may be regarded as directly parallel to the regime for the making of management decisions under the RM Act.

Reference was made in submissions on behalf of the councils to the well known distinction between ‘prohibition’ and ‘regulation’ of an activity. It was said that a similar distinction should be drawn between the ‘establishment’ and ‘management’ of clearways. I doubt the relevant shades of meaning can be satisfactorily defined in this way. As VicRoads submits, the proposition that the power to regulate is not a power to prohibit, does not mean that a power to manage does not include a power to establish or alter. If the analogy is to be applied, however, in my view the extension and standardisation of existing clearway hours is closer to a ‘regulation’ of them than to a ‘prohibition’ of parking. In an underlying sense what is proposed is a regulation of parking for the purpose of the regulation of traffic.

If I am wrong in my above conclusions and the phrase ‘manage clearways’ in clause 2(2)(a) is restricted to the undertaking of operational matters such as the removal of obstacles, then this limitation still leaves standing the general power to manage traffic contained in clause 1 and granted to all State road authorities. In my view, both the establishment of clearways and the extension of clearway hours are properly characterised as measures undertaken for the purpose of traffic management.

It might be argued the general power to manage traffic would not authorise VicRoads to make policy decisions of the category contemplated by clause 2(2)(b) without consultation. But if this view of clause 1 be taken the general powers to manage the use of roads and traffic under ss 34 and 35(1) remain unaffected by reason of the express provisions of ss 34(2) and 35(2).

Likewise the broad power to make policy decisions relating to road management functions under s 39 cannot be read down because of the express provisions of s 35(3).

The Road Safety (Traffic Management) Regulations 2009

The Minister’s determination of 29 December 2009 refers to regs 10 and 20 of the Road Safety (Traffic Management) Regulations 2009 (‘the RSTM Regulations’).

Regulations 8(1), (2) and (3) of the RSTM Regulations provide:
(1)VicRoads may, on a road or road related area forming part of a freeway, erect, display, place, remove or alter a traffic control device.
(2)VicRoads may, on a road or road related area forming part of an arterial road, erect, display, place, remove or alter a traffic control device other than—
(a)a stopping or parking traffic control device; or
(b)a traffic control device that is associated with a children's crossing.
(3)In subregulation (2) stopping or parking traffic control device means a traffic control device for the control of stopping or parking of vehicles in accordance with Part 12 of the Road Rules but does not include a traffic control device specified in item 22 or item 23 of Schedule 1.[44]
[44]Where Road Rules are defined within reg 4 of the RSTM Regulations as the Road Safety Road Rules 2009.
Schedule 1 lists what are designated to be major traffic control devices.[45] Clauses 22 and 23 of Schedule 1 relate to clearway signs:

22A traffic sign that is a reasonable likeness of a diagram of a clearway sign mentioned in rule 176 of the Road Rules.

The notion of what is in the public interest is given to the Minister to determine. It is the intention of Parliament that the judgment be made by a democratically elected member of the Government entrusted with ministerial responsibility in respect of the relevant field. As Brennan J observed in South Australia v O’Shea,[62]

When we reach the area of ministerial policy giving effect to the public interest, we enter the political field. In that field a Minister or Cabinet may determine general policy or the interests of the general public free of procedural constraints; he is or they are confined only by the limits expressed or implied by the statute.

[62](1987) 163 CLR 378, 411.

The notion of the public interest is inherently flexible and may embrace a broad range of policy considerations. As French CJ, Gummow and Bell JJ observed in Osland v Secretary v Department of Justice:[63]

It is, like many common law standards, "predicated on fact-value complexes, not on mere facts",[64] to be applied by the decision-maker.

[63][2010] HCA 24, [14].

[64]Stone, J Legal System and Lawyers' Reasonings (1964), 264.

It would extend at the very least to the sort of matters stipulated at s 38(1)(d) and (e) as amongst the matters to which VicRoads itself must have regard.

In Botany Bay City Council v Minister for Transport[65] Lehane J referred to a series of authorities in which distinctions are drawn between the public interest on the one hand and individual interests on the other, or between the public interest and matters of public interest in the sense of those which attract the attention or concerns of members of the public. These include Director of Public Prosecutions v Smith.[66] They also include the statement by Mason CJ, Brennan, Dawson and Gaudron JJ in O’Sullivan v Farrer:[67]

Indeed, the expression "in the public interest", when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only "in so far as the subject matter and the scope and purpose of the statutory enactments may enable ... given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view".

[65](1996) 66 FCR 537.

[66](1991) 1 VR 63, particularly at 75.

[67](1989) 168 CLR 210, 216.

Earlier Lehane J had referred to the well known observations of Mason J in Minister for Aboriginal Affairs v Peko-Wallsend[68] in which his Honour stated that in the context of judicial review on the ground of taking into account irrelevant considerations, the High Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except insofar as there may be found in the subject-matter, scope and purpose of the statute some implied limitation.
[68](1986) 162 CLR 24, 39-40.

It may be that in a particular case it could be demonstrated that the Minister did not form the necessary opinion. Nevertheless, when what is in issue is a policy decision involving potentially competing social and economic considerations it will be difficult to say that the Minister could not conclude that a particular policy outcome was in the public interest.

A judgment by the relevant Minister as to the public interest has been adopted as a criterion for the abrogation of rights to notice under other land use legislation in this State. Section 20(4) of the Planning and Environment Act 1987 permits the relevant Minister to exempt himself or herself from notice requirements relating to a proposed amendment to a planning scheme, ‘if the Minister considers that compliance with any of those requirements is not warranted or that the interests of Victoria or any part of Victoria make such an exemption appropriate’.

The nature of this exemption was examined by the Court of Appeal in East Melbourne Group Inc v Minister for Planning.[69] The discretion conferred on the Minister was described by the Chief Justice as ‘a broad power exercised in the public interest’.[70] The nature of the relevant discretion was analysed by Ashley and Redlich JJ at [185]-[203]. The terms of the legislative scheme there in issue point up the fact that it is necessarily implicit in the plaintiffs’ submission that even if the Minister forms the view that it is not in the public interest to delay a decision for the purposes of a public consultation, the plaintiffs would contend that they had a right to be consulted and make submissions. It is difficult to reconcile this position with the language of s 22.
[69](2008) 166 LGERA 1.
[70]Ibid, [126].

The fact that the exercise of the power pursuant to s 22 is conditioned by the formation of an opinion by the Minister as to the public interest counts against the implication of the right of procedural fairness for which the councils contend for four reasons:

(a)It embraces cases in which judgments of urgency be required for road related, economic, social, administrative or political reasons;

(b) It raises considerations of potentially significant breadth and complexity;
(c)It raises considerations which are not apt to affect individual interests but are rather concerned with the interests and expectations of citizens generally; and
(d)The question of whether consultation is necessary is itself a factor which may be subsumed in consideration of the public interest.

(c) The class affected

The class of persons who might claim an economic interest above that of the public generally in the outcome of the Minister’s decision in the present case is potentially huge. All those benefiting from the availability of parking outside their premises or suffering loss as a result of congestion upon the arterial roads might claim such an interest. The latter category would include affected operators of public transport, courier services, emergency services, and regional facilities of all types served by the arterial roads in question. If the touchstone of the Minister’s decision is the public interest it is difficult to see why one would imply an intention that there be consultation only with those adversely affected as a result of the decision to give a direction and not include those potentially adversely affected by a refusal to direct.

(d) The plaintiffs’ interest

Insofar as the plaintiffs claim a special interest in the subject matter of the direction because of ownership of existing parking signage and a potential diminution in parking revenue as a result of the Minister’s direction, the interest in issue is that of a road authority responsible for road related infrastructure. Such interest is directly regulated by, and provided for, in the RM Act.[71] Furthermore, economic interests may in any event be affected in a way which does not attract the implication of the duty alleged. The instance of ratepayers cited by Mason J in Kioa demonstrates this.
[71]I put to one side the question of whether parking signage affixed to a road vested in the Crown in fact remains the property of the councils.

In Queensland Medical Laboratory v Blewett[72] a Minister’s decision to replace the fee schedule governing the fees payable to pathologists under relevant Commonwealth legislation was regarded as not affecting the rights, interests or expectations of pathologists, who had an obvious financial interest in the outcome, in a sufficiently individual direct and immediate way as to attract the duty to act fairly in respect of persons in that group. Gummow J stated at 637:

The making of the determination by the Minister, under s 4A(8) of the Act that a table be substituted for the existing pathology services table in accordance with the recommendation of the committee, affected the interests of the Australian public at large and certain classes or groups of the public. It affected the interests of those providing the pathology services, of the patients and their medical advisers for whom the services are provided and of government (that is to say of the Australian community as a whole) in efficient administration of the law and proper disbursement of public moneys. I believe there is much to be said for the view that the making of a recommendation by the committee and the decision of the Minister to make a determination in accordance with the recommendation of the committee, did not affect the rights, interests and expectations of pathologists, other medical practitioners and patients in a sufficiently individual direct and immediate way as to attract with regard to persons in these groups the duty to act fairly: see Kioa v West 159 CLR 550, 584 per Mason J.

[72](1988) 84 ALR 615.

Insofar as the plaintiffs claim a special interest as representing ratepayers and in particular traders within their municipalities that interest is for like reasons one of the kind referred to by Mason J in Kioa as constituting the interest of a class of the public.

In Botany Bay Council v Minister for Transport and Regional Development[73] Lehane J held that decisions about the third runway at Sydney Airport did not affect the local council and persons it represented as ‘individuals’ in giving rise to an entitlement to procedural fairness and in particular, giving rise to an entitlement to be heard. Lehane J observed:[74]

The cases to which counsel referred all concerned administrative decisions directly affecting the interests of particular individuals. Annetts v McCann concerned a coronial inquiry into the deaths of two boys: the question was whether the coroner was justified in denying to counsel for the boys' parents the right to make a closing address on the evidence. Kioa and Haoucher both concerned deportation orders. There is a clear distinction, and authorities binding on me treat it as an important distinction for these purposes, between decisions affecting the rights or interests of particular individuals and those affecting the interests, indiscriminately, of the members of the public at large or of the members of a section of the public.

His Honour then referred to the judgment of Mason J in Kioa at page 548 to which I have already referred and the ‘policy’ or ‘political’ nature of decisions affecting the public or classes of the public generally.

[73](1996) 66 FCR 537, 554 subsequently affirmed by the Full Federal Court (1996) 45 ALD 125.

[74]At 553.

Lehane J went on to refer to the decision Queensland Medical Laboratory v Blewett[75] and then after referring to further authority his Honour said:[76]

Counsel for the applicants argued that the decisions of the first and second respondents (and in this respect there is no relevant distinction between them) are not decisions of general application: they are decisions which have application in respect of the residents of areas surrounding the airport, particularly to the east and west; the applicants, in effect, represent the ratepayers and residents of their areas, whose interests are affected by the decisions and are not those of the public at large. Attractively as that submission was put, I cannot accept it. It is, I think, contrary to the authorities to which I have referred. No doubt it is possible to say that each person living or working under a flight path within an area for which one of the applicants is responsible is affected in a way which differs from the way "the public at large" -- including not just those who live to the north of the airport but also those out of earshot of any conceivable flight path -- are affected. But that is clearly not the distinction to which the authorities refer. Each applicant represents the interests of a section, or perhaps several sections, of the public; and, within each section, individuals are affected indiscriminately.
It remains to consider whether there are any particular circumstances relating to the decisions which should be held to have imposed on the decision-maker an obligation which might not otherwise exist. The effect of the decisions on the environment within the applicants' areas or, for that matter, their effect on "the health, comfort, amenity, convenience, safety, well-being or property values" of people within the areas, cannot make a difference: as I have held, people within the applicants' areas are not affected, in the terminology used in the authorities, in an individual capacity.[77]

[75](1988) 84 ALR 615.

[76]At 555.

[77]Lehane J’s decision was affirmed by the Full Federal Court in Botany Bay Council v Minister for Transport and Regional Development (1996) 45 ALD 125.

His Honour subsequently observed that the concept of standing to sue is not necessarily to be equated to the right to claim procedural fairness. I respectfully agree.

There is one further matter relating to standing. The argument, as I think is not uncommon, proceeded on the basis that there was a relationship between the questions of standing and, in the context of procedural fairness, of a right to be heard. Where, of course, a decision affects an individual interest it is highly likely that a conclusion on one matter will dictate a conclusion on the other: it is of course inconceivable that someone entitled to a hearing in relation to a proposed deportation order would not, if denied a hearing, be entitled to challenge the order once made. It is, however, different I think in what may be described loosely as a public interest case, such as the present. In such a case it would not be at all unusual, I think, to find that a person with standing to challenge a decision once made had, nevertheless, no right to be heard in relation to its making: as will be apparent, I think this is such a case. Ogle v Strickland (1987) 13 FCR 306 was, I should think, another; and North Coast Environment Council may well have been a third. In reality, they are in my view separate questions, in relation to each of which there is a distinct set of principles, emerging from strikingly separate lines of authority.[78]

[78]Botany Bay Council v Minister for Transport and Regional Development (1996) 66 FCR 537, 568. Citations omitted.

In Transport Action Group Against Motorways Inc v Roads and Traffic Authority (NSW)[79] the New South Wales Court of Appeal held that decisions made in relation to the construction of a motorway had impacts that were complex, indirect and general, and involved political or policy considerations. Decisions implementing the motorway proposal could not be said to affect members of the public in a way that attracted procedural fairness obligations.
[79](1999) 46 NSWLR 598, 622-625.

The better view in the present case is that the councils represent a class of the public which is part of a broad sector generally affected by a political decision as to policy. Such a decision does not attract the rights claimed.[80]
[80]Cf Shire of Beechworth v Attorney-General [1991] 1 VR 326, 332 (Vincent J).

The implementation of the direction will consequently constrain the councils’ operational control over parking on affected roads, insofar as clearway times are extended, but that is simply a function of the statutory division of responsibilities of road management functions made under the RM Act.

At one point senior counsel for the councils submitted that the Minister’s second direction should not be regarded as a policy decision because it was made to resolve an impasse. I am at a loss to understand this submission. The impasse was political. The underlying dispute was in large part as to perceived differences between State and local interests and the weight that should be given in choosing policy. The question was whether a proposed metropolitan policy should be implemented or not. Delay in implementation of the policy granted by the second direction was sought by the councils on an expressly political basis, namely in order for them to have time to resolve their political positions within the framework of local government. The fundamental character of the Minister’s direction was a policy decision.

(e) The Minister’s general power to direct

Lastly, for completeness, reference should be made to s 31 of the Transport Act.[81] This gives the Minister general power to give directions to VicRoads. The statute which establishes VicRoads as a corporation provided, at the relevant date:

(1) The Corporation must exercise its powers and discharge its duties subject to the general direction and control of the Minister, and to any specific directions given by the Minister.
(2) Where the Corporation has been given a direction by the Minister it may cause that direction to be published in the Government Gazette.[82]

[81]Since renamed the Transport (Compliance and Miscellaneous) Act 1983.

[82]This provision was repealed by Transport Integration Act 2010, s 2(2) and Schedule 3 on 31 July 2010.

Further, by s 16(3) of the Transport Act, VicRoads must have regard in exercising its functions to the achievement among other objects of the following:

(b) to operate within government policy.

Although I accept that s 22 is specifically directed to the performance of functions and the exercise of powers under the RM Act, nevertheless these provisions of the Transport Act tend to confirm the intention of Parliament that the Minister have the power to give VicRoads directions with respect to matters of policy when the Minister considers it is in the public interest to do so.

For the above reasons the answer to question 2 is no.

I should add for completeness that if a right to procedural fairness were to be inferred, then I accept the defendants’ submission that such right would not be one to a hearing as claimed in the Amended Statement of Claim. Such a right would be greater than that accorded to the directly affected road authority under s 22. It would also be greater than that contemplated by the RM Act generally by way of consultation.

Question 3 - Is the effect of the Minister’s second direction to supersede and render hypothetical and/or futile any challenge to the validity of VicRoads’ decisions?

The effect of the Minister’s second direction was to supersede and render hypothetical or futile any challenge to the validity of VicRoads’ decisions, provided that the Minister’s second direction was itself valid.

The asserted grounds of invalidity raised directly and inferentially by questions 1 and 2 fail for the reasons I have stated above. The plaintiffs’ supplementary outline of submissions dated 24 May 2010 states:

1.Question III – In response to the Defendants’ Submissions at [69], the Plaintiffs agree that, if question III is answered “yes”, the proceeding between the Plaintiffs and VicRoads will be resolved. The Court will only need to determine question III in the event that, contrary to Part 1 of the Plaintiffs’ First Outline, the Court answers question I “no”.

The supplementary outline of submissions further stated:

5.Further to questions III and V and paragraphs 1 and 3 above, if question I is answered “No” the following considerations apply:
(a)if question I is answered “no”, that would not dictate a conclusion that the Minister’s Second Direction is valid. There would remain for determination by the Court after a final hearing, the Plaintiffs’ allegations that the Minister’s Second Direction is invalid on grounds of:
(i)failure to accord procedural fairness (Amended Statement of Claim [56] and [57]);
(ii)failure to fulfil a precondition of validity, or failure to take into account a relevant consideration, in purporting to consider the public interest without consideration of the likely effect of the direction on the Plaintiffs (Amended Statement of Claim [58(a) and (b)];
(iii)inflexible application of a policy (Amended Statement of Claim [58(c) ];

(iv)Wednesbury unreasonableness (Amended Statement of Claim [58(d)].

The answer to question 2 is determinative of the procedural fairness argument. As to the other matters referred to in this submission, it is desirable to set out the pleading at paragraph 58 of the Amended Statement of Claim.[83]
[83]Filed 18 March 2010.

58.Further or in the alternative to paragraphs 56 and 57 above, when the Minister gave the second direction to VicRoads, the Minister:
(a)failed to fulfil a precondition for the valid exercise of power under section 22(1) of the Road Management Act 2004, in that when the Minister purported to consider the public interest, he failed to consider the likely effect of the direction on Stonnington and Yarra; and/or
(b)failed to take into account a relevant consideration, in that the Minister when he purported to consider the public interest, failed to consider the likely effect of the direction on Stonnington and Yarra; and/or
(c) applied a policy, namely the Victorian Government’s 2009 clearways decision, inflexibly and without regard to the merits of the case, in that the Minister did not consider whether or not to direct VicRoads to implement extended and standardised clearway hours in light of the particular circumstances of the municipal districts of Stonnington and Yarra; and/or
(d)by reason of the matters set out in paragraph 57 above and the particulars subjoined thereto and subparagraphs (a) to (c) (both inclusive) above, the Minister acted so unreasonably that no reasonable Minister would have so acted.
Particulars to subparagraphs (a), (b) and (c)

The matters set out in paragraph 40 above and the particulars subjoined thereto are repeated. The matters set out in subparagraphs (a), (b) and (c) above are to be inferred from the Minister’s formulaic reference to the “public interest” on the face of his second direction to VicRoads, the Minister’s failure to consult with, or to otherwise accord an opportunity to be heard to, Stonnington and Yarra with regard to the Minister’s second direction to VicRoads, and the absence of any reasons for giving the Minister’s second direction to VicRoads save for those which appear on its face. Further particulars will be provided after discovery.

On their face the paragraph 58 allegations are not resolved by the preliminary questions.

The answer to question 3 is yes subject to the matters raised by paragraph 58 of the Amended Statement of Claim.

Question 4 - As a matter of law, are the plaintiffs bound by the Minister’s determination made under s 125 of the Road Management Act 2004 and thereby precluded from seeking judicial review of any decision or conduct by VicRoads which was the subject matter of such determination?

Section 125 of the RM Act provides:

125 Resolution of disputes
(1)Any dispute arising under this Act between 2 or more road authorities is to be determined by the relevant Minister or his or her nominee or the relevant Ministers or their joint nominees.
(2)Any dispute arising under this Act between a road authority and a utility is to be determined by the relevant Minister and the relevant utility Minister or their joint nominees having regard to the works and infrastructure management principles.
(3)Any dispute arising under this Act between a road authority and a provider of public transport is to be determined by the relevant Minister and the Minister administering the Transport Act 1983 or their joint nominees.
(4)A Code of Practice may provide for mechanisms, processes and procedures which may be adopted for the purposes of this section.

In October 2008, each of the plaintiffs wrote to the Minister and requested that a dispute between it and VicRoads concerning VicRoads’ 2008 clearways implementation decision be determined pursuant to s 125 of the RM Act. After April 2009, VicRoads’ 2009 clearways adoption decision was included in the subject matter of the dispute. Each of the parties provided written submissions to the Minister.

On or about 29 December 2009, the Minister determined the dispute between each of the plaintiffs and VicRoads. The disputes referred by the plaintiffs concerned both the merits of VicRoads decisions and the processes followed by VicRoads in making the decisions. In relation to Stonnington, the Minister’s determination records:

I note that in its cover letter to its submission Stonnington indicates that its submission only relates to that part of the dispute concerning the merits of the VicRoads policy decision. Stonnington indicates that its submission does not address that part of the dispute concerning the process followed by VicRoads in making the policy decision. However, in its submission Stonnington states that its submission should be read in conjunction with its submission of 14 July 2008 to the Clearway Implementation Reference Group (CIRG). In its submission to CIRG, Stonnington does make some arguments regarding the process, and I have considered these in determining this aspect of the dispute.[84]

[84]Letter from Tim Pallas MP Minister for Roads and Ports to Counsellor Tim Smith Mayor of Stonnington City Council, 31 December 2009, paragraph 8.

Likewise in his determination concerning the dispute with Yarra, the Minister recorded at paragraph 8:

8.I note that in its cover letter to its submission Yarra indicates that its submission only relates to that part of the dispute concerning the merits of the VicRoads policy decision. Yarra indicates that its submission does not address that part of the dispute concerning the process followed by VicRoads in making the policy decision. However, Yarra does make some arguments regarding the process (eg under section 13.2 of Yarra’s response to VicRoads’ submission) and I have considered these in determining this aspect of the dispute.

VicRoads accepts that the Minister’s determination is itself susceptible to judicial review on conventional grounds.

Nevertheless, it contends in effect that the parties’ rights with respect to the matters nominated as being in dispute merged in the Minister’s determination. That determination is to be regarded as resolutive of the disputes in issue unless it is itself set aside.

I accept VicRoads’ submission. The power contained in s 125 is to be construed having regard to the purpose and objects of the RM Act, including the primary object of establishing a co-ordinated management system,[85] the principal object of road management and the principles applicable to the management of works and infrastructure particularly those stated at s 20(2)(c) and (d) of the RM Act:
[85]Section 4.

(2)The following principles apply in respect of the management of works and infrastructure under this Act—
(c)the avoidance or minimisation of disruption to plans for the development of road infrastructure and non-road infrastructure;

(d) the avoidance or minimisation of disruption to traffic;

The dispute which the Minister determined arose under the RM Act between two or more road authorities and was referred to the Minister on this basis by the councils. The dispute concerned the activities of VicRoads under the RM Act. It also concerned the rights of the councils under the RM Act. The councils are the responsible authorities pursuant to s 37(2)(b) of the RM Act in relation to parking signs because they constitute road related infrastructure for which they are the responsible authority under the RS Act.

Further, by reason of s 5(2) of the RM Act the provisions of the Local Government Act empowering the councils to fix parking requirements are to be construed for the purposes of s 125 as if those provisions formed part of the RM Act.

I also accept the defendants’ submission:

That road authorities, when performing functions and exercising powers under the Act, do so as part of the executive arm of the State government is confirmed by the Minister’s power to give directions to road authorities. Importantly for the construction of s 125, that means that the Minister’s power to determine disputes and to give directions are parallel powers intended to resolve disputes between such bodies. Road authorities do not exercise their powers and functions independent of ministerial control and the scheme of the RM Act is one designed to ensure that, ultimately, what the executive determines to be appropriate policy about road use and management can be achieved through implementation by those road authorities with responsibility to do so.

The power to determine the dispute must be given effect. The Minister’s power is part of the administrative scheme established by the RM Act for the objects I have referred to. The word ‘determination’ should be given its plain meaning.

VicRoads is bound by the Minister’s determination and so are the councils.

The precise effect of the determination depends upon the definition of the matters referred to the Minister. The determination cannot of course authorise VicRoads to act beyond power but subject to its own validity, it is determinative of the matters referred to the Minister.

The councils submit that the dispute concerned the performance or exercise of VicRoads’ functions or powers under the RM Act, not the councils. In truth, the dispute also concerned the consequences of the performance of VicRoads’ functions and the exercise of its powers and the refusal of the councils to alter road related infrastructure. The dispute was in my view fairly characterised as a dispute arising under the RM Act.

The councils also submit that the case is to be distinguished from the Attorney General v Shire of Preston.[86] That case concerned s 541 of the Local Government Act which provided that any differences which might arise between two municipalities relating to the carrying out of the provisions of the Act or the exercise of the duties and powers of such municipalities should be referred to the Minister administering the Act. In turn, the Minister was given the same powers for the purposes of adjudicating upon the difference as a judge of the County Court. It was further provided that the Minister’s decision as to such difference should be final and might be made a rule of the Supreme Court. I accept that the regime there in issue was different. Section 125 of the RM Act envisages an administrative determination which, as I have said, the defendants accept would be subject to judicial review.
[86](1902) 28 VLR 402.

Nevertheless, the decision shows that statutory provisions requiring ministerial resolution of disputes between bodies involved in local government functions have a long lineage. The observations of the Chief Justice at page 406 also set out reasons why it might be thought that the Minister may well be the best arbiter of such disputes.

There is no inconsistency between s 125 of the RM Act and s 85 of the Constitution Act 1975 because such a scheme does not purport to exclude or restrict judicial review by the Court of any determination by the Minister pursuant to s 125 of the RM Act.

For the reasons above, the answer to question 4 is yes.

Question 5 - Was the Minister’s second direction, by reason of the statutory regime and/or the nature of the direction, a political or policy decision and therefore not subject to judicial review?

The Minister’s second direction was a political and policy decision.

Nevertheless, the Minister’s power to give the second direction was conditioned by the terms of s 22. Compliance with those terms is justiciable.

If the Minister’s opinion as to the public interest could be shown to be corrupt or otherwise based on improper or irrelevant considerations that opinion could be challenged. This is so despite the broad ambit of considerations which may be relevant to the notion of the public interest.

If the Minister failed to comply with the procedural requirements of either s 22(2) or (3) the non-compliance would also be justiciable.

The answer to question 5 is no.

Question 6 - Were VicRoads’ decisions by reason of the statutory regime and/or the nature of those decisions, political or policy decisions and therefore not subject to judicial review?

It is unnecessary to answer this question having regard to the answers to questions 1 to 5.

Conclusion

The answers to the preliminary questions are as follows:

Question 1

Was the Minister’s second direction invalid on the ground that it directed VicRoads to perform a function or exercise a power conferred on VicRoads under sub-regulations 8(2) and (3) of the Road Safety (Traffic Management) Regulations 2009 made under section 95 of the Road Safety Act 1986, rather than a function or power conferred on VicRoads under the Road Management Act 2004?

Answer: No.

Question 2

Was the exercise of the Minister’s power under section 22 of the Road Management Act 2004 to make the Minister’s second direction conditioned by an obligation to afford procedural fairness to the plaintiffs before exercising that power?

Answer: No.

Question 3

Is the effect of the Minister’s second direction to supersede and render hypothetical and/or futile any challenge to the validity of VicRoads’ decisions?

Answer: Yes, subject to the matters raised by the Amended Statement of Claim at paragraph 58.

Question 4

As a matter of law, are the plaintiffs bound by the Minister’s determination made under section 125 of the Road Management Act 2004 and thereby precluded from seeking judicial review of any decision or conduct by VicRoads which was the subject-matter of such determination?

Answer: Yes.

Question 5

Was the Minister’s second direction, by reason of the statutory regime and/or the nature of the direction a political or policy decision and therefore not subject to judicial review?

Answer: No.

Question 6

Were VicRoads’ decisions, by reason of the statutory regime, and/or the nature of those decisions, political or policy decisions and therefore not subject to judicial review?

Answer: Unnecessary to answer.

VicRoads to use parking audits as basis for improved parking availability signage and promotion eg local press and direct mailouts;
VicRoads to fund installation of parking availability signage;
VicRoads to fund improvements to Loading Zone and Taxi Zone signage and visibility in affected strip shopping centres;
VicRoads to work with Councils, VTA and TWU to promote loading zone changes;
VicRoads to fund updates to affected parking signage, and/or assist with partial cost of re-programming parking meters in affected strip shopping centres;

Trading/Shopping -

VicRoads to provide a monthly bulletin to all interested trader associations and local councils and other stakeholders and will post this on its website;
Production of a comprehensive ‘local guide/strip shopping guides/journey planners’ for each affected area, including public transport information, strip shopping access and parking information, relevant travel and tourism sites, and information about walking and cycling facilities – to be mailed to all addresses within a 10km [radius] of the CBD. The same information could be made available on local council and relevant travel and tourism sites;
Department of Transport to work with traders to provide free or discounted tickets to reward shoppers who take public transport to the shopping strip (for limited period as part of campaign);

Safety -

VicRoads to investigate opportunities to improve the operation of signals to give priority to pedestrians through strip shopping centres, and other priority locations;
VicRoads to investigate roll out 40km/h speed restrictions to high priority, arterial road, strip shopping sites within 10km radius of CBD as part [of] its Road Safety Program;

Amenity/Environment -

Department of Transport to fund enhancements in strip shopping centres – including bicycle racks, seats, landscaping;

Other modes of Transport -

Department of Transport to work with local councils to develop additional initiatives for funding consideration through TravelSmart and LAAP program.

[2010] VSC 454

7 October 2010