The Northern Eruv Incorporated v Ku-Ring-Gai Council
[2012] NSWLEC 249
•30 November 2012
Land and Environment Court
New South Wales
- Amendment notes
Medium Neutral Citation: The Northern Eruv Incorporated v Ku-ring-gai Council [2012] NSWLEC 249 Hearing dates: 6 August 2012 Decision date: 30 November 2012 Jurisdiction: Class 1 Before: Craig J Decision: 1. Appeal dismissed.
2. Appellant to pay the costs of the Respondent.
3. Exhibit may be returned.
Catchwords: APPEAL - s 56A Land and Environment Court Act 1979 - development applications to erect a pole or poles on residential allotments as a component of an Eruv - erection of pole or poles incidental to use as a dwelling house - development appeals pursuant to s 97 of the Environmental Planning and Assessment Act 1979 - application to respondent under s 138 of the Roads Act 1993 for consent to construct an Eruv along 20kms of public road - jurisdiction of Court to consent to the latter application when determining appeals pursuant to s 97 of the Environmental Planning and Assessment Act 1979 - scope of power under s 39(2) of the Land and Environment Court Act 1979 to determine the application under the Roads Act - power not available - no error of law Legislation Cited: Consumer Trader and Tenancy Tribunal Act 2001
Environmental Planning and Assessment Act 1979
Environmental Planning and Assessment Regulation 2000Ku-ring-gai Planning Scheme Ordinance
Land and Environment Court Act 1979Roads Act 1993
Uniform Civil Procedure Rules 2005Cases Cited: Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) [2009] NSWLEC 226; (2009) 172 LGERA 1
Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 5) [2012] NSWLEC 53
Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163
EDYP v Brazbuild Pty Ltd [2011] NSWCA 218
HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292
Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178
Kogarah Municipal Council v Kent (1981) 46 LGRA 334
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390
McDougall v Warringah Shire Council (1993) 30 NSWLR 258
North Sydney Municipal Council v PD Mayoh Pty Ltd (1988) 14 NSWLR 740
Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511
Shellharbour Municipal Council v Rovili Pty Ltd (1989) 15 NSWLR 104
Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724
Sydney City Council v Ipoh Pty Ltd [2006] NSWCA 300; (2006) 68 NSWLR 411
Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24; (1989) 167 CLR 45
The Northern Eruv v Ku-ring-gai Council [2012] NSWLEC 1058
Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110
Workers Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49; (1988) 165 CLR 642Category: Principal judgment Parties: The Northern Eruv Incorporated (Appellant)
Ku-ring-gai Council (Respondent)Representation: D M J Bennett QC with P Clay SC and A Hemmings (Appellant)
J E Robson SC with A M Pickles (Respondent)
HWL Ebsworth Lawyers (Respondent)
Morgan Lewis Solicitors (Appellant)
File Number(s): 10389-10397 of 2012
Judgment
The appellant proposes to construct an Eruv around a substantial area of the northern Sydney suburb of St Ives. In seeking to give effect to its proposal, the appellant lodged development applications with Ku-ring-gai Council (the Council) seeking consent under the Environmental Planning and Assessment Act 1979 (the EPA Act) to erect a pole or poles connected by non-live wire within 11 separate residential properties at disparate locations along the perimeter of the proposed Eruv. Consent was also sought from the Council under the Roads Act 1993 to erect the principal elements of the Eruv along a number of public roads for which the Council was the 'roads authority' under the Roads Act.
All applications made by the appellant were refused by the Council. The applications for development consent under the EPA Act having been refused, the appellant exercised its right to appeal to this Court pursuant to s 97 of that Act. No right of appeal was provided by the Roads Act from the Council's determination to refuse the application made to it under that Act. Ultimately, nine of the eleven appeals filed pursuant to s 97 of the EPA Act were pursued to hearing before this Court.
On 16 March 2012, a Commissioner of the Court upheld the appeals made under s 97 of the EPA Act and granted conditional development consents for the erection of poles and wires identified in plans prepared for each of the nine properties that were the subject of appeal (The Northern Eruv v Ku-ring-gai Council [2012] NSWLEC 1058 at [54]). However, the Commissioner held that the jurisdiction of the Court to determine the appeals under the EPA Act did not extend to granting consent under the Roads Act for those components of the Eruv that did not involve direct wire connection to the nine properties that were the subject of those appeals: at [73] and [76].
The appellant appeals from the Commissioner's decision. It does so pursuant to s 56A of the Land and Environment Court Act 1979 (the Court Act). Such an appeal is confined to the decision of the Commissioner "on a question of law". The decision on a question of law upon which the appellant relies is the decision that the Court lacked jurisdiction to determine the applications so far as they related to works within the road reserves in St Ives and required consent under the Roads Act. An erroneous determination as to jurisdiction involves a question of law (Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 177).
The appellant identifies two grounds of appeal in its Summons. They are:
(i) the Commissioner erred in law in misconstruing the subject matter of the appeals pursuant to s 39 of the Court Act; and
(ii) the Commissioner erred in law in finding that the Court did not have power to grant approval to the aspects of the applications under the Roads Act in respect of the works within the road reserve, that is, the replacement of the pole in Lynbara Avenue, the works along the 20km route involving the attachment of conduit to 574 poles and additional wiring at various locations along that route.
In order to understand and address the grounds of appeal, it is convenient briefly to state the background facts and statutory provisions considered by the Commissioner.
Background
An Eruv is the symbolic definition of an area within which certain activities may be carried out that are not otherwise permissible on the Sabbath and Jewish Holy Days. In an area defined as the Eruv, an observant orthodox Jew is permitted to carry items, push prams and wheelchairs and the like on the Sabbath and Jewish Holy Days when those activities would not otherwise be permitted. The practical consequence of there not being an Eruv within which activities of that kind can be undertaken is that a number of observant Jews are housebound on the Sabbath and Jewish Holy Days, such as the parents of very young children and the elderly with mobility difficulties.
According to orthodox Jewish law, the boundary of an Eruv must be an unbroken line defining that area, made up of either physical partitions or virtual partitions. A variety of physical features can mark the boundary of an Eruv, including existing power poles, utility cabling strung between those poles, fences, walls and the like. The intent is to identify and use these elements in order to form a 'circle' or perimeter identifying the boundary of the Eruv.
Each of the nine development applications made under the EPA Act and determined on appeal by the Commissioner related to a separate residential property. It is unnecessary to describe in detail the 'development' proposed for each property. Each application sought consent to erect one, two or three poles within the boundaries of the property in question, with those poles being linked by non-live wiring within the property where more than one pole was to be erected. A non-live wire from the pole or poles erected within each property was then to be connected to an existing utilities' pole standing within the road reserve adjacent to that property. The Commissioner found (at [13]) that the typical pole to be erected within the individual properties "would be 6m in height, 80-100mm in diameter, fabricated from hot dip galvanised steel and dark green in colour." Poles that were shorter than those just described were intended for one of the nine properties that was the subject of a development application.
The Commissioner observed at [70] that none of the properties that were the subject of the nine development applications were adjoining properties and in only one instance was there more than one property in the same street. Seven of those properties were described as being "located within reasonable proximity of each other but in different streets ... located to the east of the suburb of St Ives." The addresses of the remaining two properties were identified as being "at the western extent of the suburb a distance of approximately two kilometres from the others."
The application made to the Council under the provisions of the Roads Act is relevantly described by the Commissioner in the following way (at [25] and [26]):
"25 In addition to the wiring that would link the proposed poles that are the subject of the development applications to the street poles adjacent to each individual site, the applicant seeks approval under the Roads Act to install additional wiring to form a continuous link around the St Ives area. That wiring would be in locations where existing power transformers interrupt the continuous line to the Telstra wiring and also where street poles do not provide direct linkage to other poles... . That wiring ... is located at varying intervals along the proposed circuit to connect to the existing Telstra wiring so a continuous link is provided. That circuit has a length of approximately 20 kilometres and each site, the subject of development applications, is located at various points along it.
26 In addition to the wiring, the applicant advises that it also seeks approval to install plastic conduit on a total of 574 poles around the proposed circuit. That conduit would be approximately 6m high and installed and secured proud of the ground surface level and rise up each pole to a point slightly below the carrier point of attachment on the pole. ... Between one and three pieces of conduit would be installed on the poles and, according to the evidence provided during the hearing, 448 poles would have one additional piece of conduit, 115 would require two new sections and 11 would require three. This is in addition to any existing Telstra or EnergyAustralia conduit that is already attached to the street poles."
The Commissioner also recorded that part of the work to be carried out in accordance with the application made under the Roads Act was the replacement of a traffic sign "in Lynbara Avenue with a 6m high pole and re-attach the road signs to the new pole." That new pole was to be designed to meet both "traffic safety considerations" and also provide "for a crossing and re-crossing of the circuit at this point."
Planning controls
Land use for the sites that are the subject of each of the nine development applications is controlled by the Ku-ring-gai Planning Scheme Ordinance. It was accepted by the parties that consent was required under Pt 4 of the EPA Act for the development proposed on each of the nine properties, that development being permissible on the basis that the erection of the poles and wiring within each property was ancillary to its use as a dwelling house, a permissible purpose within the Residential C zone applicable to each property.
The statutory provisions
As I have earlier recorded, each of the appeals determined by the Commissioner were brought to the Court in exercise of the appellant's right under s 97 of the EPA Act. Presently relevant to the exercise of the Court's power when determining those appeals are the provisions of s 39 of the Court Act. Subsection (2) of that section provides:
"(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect to the matters the subject of the appeal."
As will later be apparent, the provisions of this subsection are fundamental to the determination of this appeal.
The necessity to obtain a consent for the carrying out of work or the erection of a structure on a public road is found in s 138 of the Roads Act which is found within Div 3 of Pt 9 of that Act. The section relevantly provides:
"138 Works and structures
(1) A person must not:
(a) erect a structure or carry out a work in, on or over a public road, or
(b) dig up or disturb the surface of a public road, or
(c) remove or interfere with a structure, work or tree on a public road, or
(d) pump water into a public road from any land adjoining the road, or
(e) connect a road (whether public or private) to a classified road,
otherwise than with the consent of the appropriate roads authority.
...
(5) This section applies despite the provisions of any other Act or law to the contrary, but does not apply to anything done under the provisions of the Pipelines Act 1967 or under any other provision of an Act that expressly excludes the operation of this section."
The hearing before the Commissioner was conducted on the basis that this section applied to those works, structures or activities proposed for the provision of the Eruv on or over the public roads within St Ives.
Section 139 of the Roads Act must also be noticed in relation to a consent required by s 138. The former section relevantly provides:
"139 Nature of consent
(1) A consent under this Division:
(a) may be granted on the roads authority's initiative or on the application of any person, and
(b) may be granted generally or for a particular case, and
(c) may relate to a specified structure, work or tree or to structures, works or trees of a specified class, and
(c1) in relation to integrated development within the meaning of section 91 of the Environmental Planning and Assessment Act 1979, is subject to Division 5 of Part 4 of that Act, and
(d) may be granted on such conditions as the appropriate roads authority thinks fit.
(2) In particular, a consent under this Division with respect to the construction of a utility service in, on or over a public road may require the service to be located:
(a) in such position as may be indicated in that regard in a plan of subdivision or other plan registered in the office of the Registrar-General with respect to the road, or
(b) in such other position as the roads authority may direct.
(3) In particular, a consent under this Division with respect to the erection of a structure may be granted subject to a condition that permits or prohibits the use of the structure for a specified purpose or purposes."
A roads authority is empowered to revoke a consent given under Division 3 by notice in writing served on the holder of the consent: s 140. The revocation of such a consent may be "for any reason".
By s 142 of the Roads Act, an obligation is imposed upon the holder of a consent given under Division 3 to maintain any structure or work that is the subject of that consent.
A section of the Eruv is proposed to pass along Mona Vale Road. The roads authority for that road is Roads and Maritime Services. No concurrence or consent has been sought from that authority for those components of the Eruv to be located within that section of public road. The Council is the roads authority for all other public roads within which the works and structures earlier described are to be located.
The Commissioner's decision
As I have earlier recorded, the Commissioner determined that development consent should be granted in response to each of the nine applications that were before her, taking account of the amendments made to those applications in the course of the hearing, and subject to the conditions that she identified ([54]). Having so determined, the Commissioner then turned her attention to the application under the Roads Act.
The Commissioner identified two components of the application made under the Roads Act. The first was work shown on plans forming part of each of the nine development applications, involving the connection of the poles and wires within the individual properties to the existing utilities' pole or poles erected in the public road, proximate to each property. The second component was for those works "that relate to the additional pole, wiring and conduits within the road reserves": at [48].
As to the first component, the Commissioner determined, as a matter of merit, that it would be appropriate to grant consent "to allow the connection of the poles to be erected within private property to the adjacent street poles" as shown on plans before her (at [67]). Having earlier made reference to s 39 of the Court Act, the Commissioner then said (at [68]):
"I am satisfied, on the evidence before me, that the works required to connect the poles and wires the subject of the individual development applications to poles in the adjacent road reserve is inextricably intertwined to that work, that those works are the matters the subject of the appeals and therefore, consent under s 139 of the Roads Act can be granted by the Court."
The Commissioner then turned attention to what she had identified as the second component of the application under the Roads Act, namely works relating to "the additional pole, wiring and conduits within the road reserves." Having observed that the nine properties that were the subject of the development appeals before her were at disparate locations, the Commissioner identified at [70] a need for evidence that "the development applications and the Roads Act application are 'enmeshed'." That requirement was restated as being the need for a nexus between the works the subject of the development application and works to be carried out within the road reserves. She then said at [71]:
"71 I am not satisfied that the nexus exists. There is no relationship between the individual development applications and that work in roads that are not proximate to the site. Whilst I agree with Biscoe J in Goldberg that the power to determine applications under the Roads Act is broad, it is not so board [sic] as to extend to the carrying out of works along a 20 kilometre route around the suburb of St Ives. The works the subject of the appeal have no nexus to the replacement of a pole in Lynbara Avenue or to the attachment of conduit to 574 poles along the 20k route. Nor do those development applications have a nexus to the intermittent placement of additional wiring along that route."
After further discussing the need for a "nexus" between the individual development applications and works generally proposed within the public roads, the Commissioner returned to consider that nexus in the context of s 39(2) of the Court Act. She said at [73]:
"73 Without that relevant nexus to the matter the subject of the appeal, the remainder of the works proposed within roads along the 20k route are not works that I consider are 'in respect of' the matters the subject of the appeal. Accordingly, without that nexus, I cannot 'throw a blanket' over both (as Biscoe J indicated in Goldberg). For this to be the case, there would need to be an Eruv in existence. That is not the case. It is not possible for nine individual development applications to create the Eruv. That requires separate approval and is outside the power of this Court as to do so must be a matter that is the subject of the appeals."
Finally, the Commissioner's decision as to the second component of the application under the Roads Act is summarised (at [76]) as follows:
"76 As I have found that the jurisdiction of the Court does not extend to the replacement of the pole in Lynbara Avenue nor the works along the 20 kilometre route involving the attachment of conduit to 574 poles and additional wiring at various locations along that route, that aspect of the Roads Act application is refused."
Additional matters
Development consent under Part 4 of the EPA Act was not required for components of the Eruv intended to be constructed or located within public road reserves under the control of the Council. As a consequence, the construction or location of those components not only required approval under the Roads Act but consideration of the application for that approval engaged the provisions of Pt 5 of the EPA Act. The location or construction of the Eruv within the road reserves thereby became an "activity" within the meaning of s 110 of the EPA Act. Relevantly, by s 111, the Council was required, when considering the Roads Act application, to "examine and take into account to the fullest extent possible all matters affecting or likely to affect the environment by reason of that activity." For this reason the application made to the Council for consent under the Roads Act was accompanied by a document entitled "Review of Environmental Factors", a document conventionally prepared for a determining authority when considering approval to an activity to which the provisions of Pt 5 apply. That is the document referred to by the Commissioner in her judgment. It described the Eruv in all its aspects and components. It differed from documents that formed part of or accompanied each of the nine development applications.
Each development application that was the subject of the nine s 97 appeals of the Court was made by completing a form that generally conformed to that required by the Environmental Planning and Assessment Regulation 2000. The representative form of the nine development applications considered by the Court was included in Exhibit A, as tendered before me. That form described the development proposed for a property in Catherine Street St Ives as "the erection of three poles and non-live wiring at" the nominated property. The number of poles to be located on each property varied between one and three and the appropriate number was nominated on each development application form.
Accompanying the development application form in each case was a statement of environmental effects (the SEE). The SEE described the "proposal" by again stating the number of poles to be erected on the land which was the subject of the particular application. Reference was also made to the installation of non-live wiring connecting those poles to each other "and the existing street poles within the road reserve". The SEE then stated:
"The application is one component of a proposed Eruv that will extend around the suburb of St Ives with a length of approximately 20kms. The exact Eruv route is outlined in the plan at Appendix 2."
A plan of the individual residential block was annexed to the SEE showing the location of proposed poles within the block and where the non-live wire would be connected from the pole or poles in that lot to the nearest utilities' pole or poles located within the road reserve.
The question for determination
The decision of the Commissioner, summarised at [75] of the judgment, that the Court lacked jurisdiction to entertain the appellant's application under the Roads Act, so far as it related to works described in that paragraph, is the decision relied upon by the appellant to engage its right of appeal under s 56A(1) of the Court Act. That section limits an appeal from a Commissioner exercising Class 1 of the Court's jurisdiction to
"an order or decision ... on a question of law."
As I have earlier stated, the determination by a court as to whether its jurisdiction is engaged for the purpose of determining a particular issue is a question of law.
When determining whether the Court had jurisdiction to entertain the appellant's application under the Roads Act, the Commissioner correctly identified the provisions of s 39(2) of the Court Act as being critical to that determination. In particular, it was necessary to consider whether the function of the Council to determine the application under the Roads Act, in all its aspects, was a function which the Council had "in respect of the matter" the subject of each appeal brought under s 97 of the EPA Act. If the conclusion was that it did, then conformably with s 39(2) the Court had power to exercise the function of the Council in determining the Roads Act application. If the exercise of that function was not "in respect of the matter the subject of the appeal", then the Court had no power to determine the Roads Act application for those aspects of it that did not meet the statutory requirement.
The grounds of appeal, as stated in the appellant's Summons, do not felicitously express the decision on a question of law, namely the denial of jurisdiction, articulated in oral submissions. The respondent's contention, that the grounds stated in the Summons did not identify a question engaging s 56A(1) of the Court Act, had substance. However, the matter was argued before me on the basis that the question of law giving rise to the appeal was the decision of the Commissioner, when determining the appeals before her, that s 39(2) of the Court Act did not found a power (jurisdiction) in the Court to consent to the application made by the appellant under the Roads Act for the works described in [76] of the Judgment. I have determined this appeal on that basis.
The appellant's submission
In essence, the appellant submits that the Commissioner has construed too narrowly the phrase "in respect of the matter the subject of the appeal" as it appears in s 39(2) of the Court Act. It submits that the word "matter" is to be given a broad meaning, consistent with its interpretation in a constitutional context, by doing no more than identifying the relevant justiciable controversy that is to be quelled (Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511). Further, it is submitted that the phrase "in respect of" is also to be given a wide meaning. In support of that proposition, the well known dictum of Mann CJ in Trustees Executors & Agency Co Ltd v Reilly [1941] VLR 110 (at 111) was cited where the Chief Justice said of the phrase that it has
"the widest possible meaning of any expression intended to convey some connection or relation between the two subject-matters to which the words refer."
The broad meaning which the appellant submits should be given to the entire phrase is said to be consistent with the facultative nature of the provision. The provision should be interpreted, according to its submission, so as to give it "full force and effect". Such an approach would be consistent with the dictum of Gaudron J in Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178 where her Honour said (at 205):
"It is contrary to long-established principle and wholly inappropriate that the grant of power to a Court (including the conferral of jurisdiction) should be construed as subject to a limitation not appearing in the words of that grant".
Applying the interpretation of s 39(2) for which the appellant contends, it submits that the work identified in the application made to the Council under the Roads Act, in its totality, provides the relevant nexus under the subsection "to the matter the subject of the appeal". On that basis, so it was submitted, the Commissioner erred by confining the relevant nexus to those works on public roads that had a geographical proximity or direct connection to each site that was the subject of an individual development application.
Finally, the appellant submits that the nexus required by the relevant phrase in s 39(2) must relate to the intended purpose of land use. The purpose for which it contends is this context is use for the Eruv, as the Roads Act application contemplated.
The provisions of s 39(2) of the Court Act considered
I accept that, read as an individual word or phrase in a statutory provision, both "matter" and "in respect of" may appropriately be afforded a "wide meaning". However, their ambit must yield both to the particular statutory provision in which they find expression and to the context of that provision within the statute being considered.
In the joint judgment of Dawson and Toohey JJ in Workers Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49; (1988) 165 CLR 642, their Honours concluded (at 653) that the breadth of meaning given to the phrase "in respect of" by Mann CJ in the passage I have earlier quoted from Trustees Executors Agency Co Ltd v Reilly went "somewhat too far". Their Honours observed that the phrase "gathers meaning from the context in which it appears and it is that context which will determine the matters to which it extends."
As Basten JA observed in HIA Insurance Services Pty Ltd v Kostas [2009] NSWCA 292 at [108], "with respect to" are words of connection and must identify "some discernible and rational link" between two elements. Citing the observations of Dawson J in Technical Products Pty Ltd v State Government Insurance Office (Qld) [1989] HCA 24; (1989) 167 CLR 45 at 51, Basten JA stated that the words in the phrase "take their colour from the context in which they are found".
While the decision of the Court of Appeal in Kostas was reversed by the High Court (Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390), I do not understand the judgments in that Court to have disagreed with the observations of Basten JA as to the manner in which the phrase "in respect of" should be considered in a particular statutory context. Indeed, in EDYP v Brazbuild Pty Ltd [2011] NSWCA 218 Allsop P applied the decision of the Court of Appeal in Kostas to construe the phrase "with respect to", when used in s 67 of the Consumer Trader and Tenancy Tribunal Act 2001 to identify the right of appeal to the Supreme Court under that legislation, as involving "words of limitation, not expansion" (at [34]). I see no reason to depart from that determination in the present case simply because the relevant phrase in s 39(2) is "in respect of" rather than "with respect to".
Section 39(2) of the Court Act has been described as a facultative provision. As Preston CJ observed in Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 5) [2012] NSWLEC 53 at [7], the provision facilitates the hearing and disposal of an appeal by the Court. However, as his Honour recognised, that facilitation "is subject to limitations." The second limitation identified by his Honour is presently relevant. As to that limitation he said (at [13]):
"The power under s 39(2) to exercise the functions and discretions of the Council whose decision under ... the EPA Act is the subject of the appeal ... is available only 'for the purpose of hearing and disposing of an appeal'. The width or narrowness of the functions and discretions of the Council, which can be exercised by the Court for the purposes of hearing and disposing of the appeal, will therefore be governed by the nature and subject matter of the appeal."
The decision of Biscoe J in Goldberg v Waverley Council [2007] NSWLEC 259; (2007) 156 LGERA 27 was relied upon by the appellant in support of its submissions. Consent had been sought for the demolition of an existing dwelling and subdivision of the land into two lots. The land had frontage to an unformed section of a public road. Access to the land via this unformed section of road was the means by which vehicular access to the subdivided site was to be provided. Part of the application to the council was to construct the unformed section of road, a road length of about 40m. Consent to carry out this part of the work was required under s 138(1) of the Roads Act.
In Goldberg, Biscoe J was required to consider, as a preliminary question of law, whether, in the context of that case, the power available to the Court under s 39(2)of the Court Act extended to the functions and discretions of the Council to consent to the construction of the unformed section of public road under s 138 of the Roads Act. In so doing, his Honour undertook a comprehensive consideration of cases in the Court of Appeal in which the ambit of s 39(2) of the Court Act had been considered.
I do not intend to repeat the review that his Honour undertook. As his Honour noted at the outset of that review, the Court of Appeal does not appear to have spoken "with one voice" as to the ambit of the section (at [26]). The language of the subsection was described by Reynolds JA in Kogarah Municipal Council v Kent (1981) 46 LGRA 334 at 336 as being "wide and clear" while described by Kirby P in McDougall v Warringah Shire Council (1993) 30 NSWLR 258 at 261 as being "wide and ambiguous".
His Honour's review of the decisions of the Court of Appeal directed to the ambit of s 39(2) revealed what was described as both a "wide view" and a "narrow view" of the power available to the Court under the subsection. That description of the range of decisions in the Court seems to have had its origin in the observations of Kirby P in McDougall, more recently repeated in the judgment of Tobias JA in Sydney City Council v Ipoh Pty Ltd [2006] NSWCA 300; (2006) 68 NSWLR 411 at [60]. Biscoe J favoured "the broad approach" to the scope of the subsection. In so doing, his Honour said (at [43]):
"I respectfully agree with the broad approach. The result of that interpretation, as articulated by Kirby P in McDougall at 264 is that 'all the functions and discretions the council could have exercised when considering the application are open to the Land and Environment Court on appeal and not only those strictly necessary to the approval'. Of course, the functions and discretions (as Cripps JA indicated in McDougall) must have a relevant nexus to the matter the subject of the appeal in order to be 'in respect of'' that matter. I take this to mean that if a development application is refused and something has a relevant nexus to it, s 39(2) throws a blanket over both, that is, empowers the Court to deal with both."
At a level of generality, it may be of interest to classify decisions as to the ambit of the subsection as either "broad" or "narrow". Ultimately, the focus must be upon the interpretation of the statutory provision and its application in a given case. This has been the task undertaken in each of the cases reviewed, it being noteworthy that the Court of Appeal has not seen fit in any of its decisions to qualify or overturn any statement of principle as to the manner in which the subsection should be interpreted, as that principle has been articulated in an earlier decision. Each decision may be seen as no more than "a refinement of the earlier" decision of the Court as to the proper construction of the subsection (cf McDougall per Kirby P at 160).
Although, as I have said, I do not intend to repeat the comprehensive review of prior decisions of the Court of Appeal addressing s 39(2) undertaken by Biscoe J in Goldberg, there are some matters emerging from the judgments of the Court of Appeal that I regard as being important when considering the issue in the present appeal.
The leading judgment in North Sydney Municipal Council v PD Mayoh Pty Ltd (1988) 14 NSWLR 740 was delivered by McHugh JA (Hope and Samuels JJA agreeing). There, the land in question was reserved under the statutory planning instrument for parks and recreation. The relevant planning instrument provided that where that public purpose could not be carried into effect "within a reasonable period", consent could be given by the council for other development, including residential development. The land so reserved was privately owned. At the time of lodgement of a development application for residential development, the purpose of the reservation for parks and recreation had not been implemented by the council.
It was contended by the respondent council that the power of the Court, when determining a development appeal under s 97 of the EPA Act, did not extend to exercising the function of the council to determine that the purpose for which the land was reserved could not be carried into effect within a reasonable period. That contention raised for consideration the ambit of s 39(2) of the Court Act. In the context of the subsection, McHugh JA observed (at 746) that "a function or discretion of a council which affects the subject matter of the appeal is not necessarily 'in respect of the matter the subject of the appeal'". In that case the function of determining whether the purpose of reservation could be implemented within a reasonable time did more than "affect the subject matter of the appeal" because the exercise of the function was legally and temporally a prerequisite to the determination to grant development consent. In that context his Honour observed that the function of the council directed to implementation of the purpose of reservation of the land was "at the heart of the matter" which is the subject of the appeal and was therefore a function comprehended by the subsection.
In the context of an appeal brought under s 97 of the EPA Act, the existence of a function necessary to be exercised by a Council in order to engage its power to grant development consent under that Act has been identified as the function which enlivens the operation of s 39(2). In Sydney City Council v Claude Neon Ltd (1989) 15 NSWLR 724, Hope JA (Priestley and Meagher JJA agreeing) referred (at 732) to "a function the exercise of which is basic to its function to grant development approval" as engaging the provisions of the subsection. The function there considered was the provision by the council of its consent to the making of a development application as owner of the land over which development consent was sought, the need for the consent of the landowner prior to the grant of development consent being a requirement of the EPA Act itself.
A factual circumstance similar to that which arose in Claude Neon was considered by the Court of Appeal in Shellharbour Municipal Council v Rovili Pty Ltd (1989) 15 NSWLR 104. Clarke JA (Samuels and Meagher JJA agreeing) said (at 112) that whether s 39(2) of the Court Act was engaged
"depends upon whether the giving of consent is a necessary incident to the power of the council to grant development approval."
His Honour then stated that the giving of consent to the making of a development application was "a function [of the council] the exercise of which is basic to its function to grant development approval", with the consequence that s 39(2) would be engaged in such a circumstance.
Unsurprisingly, this same reasoning was applied by the Court of Appeal in Sydney City Council v Ipoh Pty Ltd where, once again, the power of this Court to determine a development appeal was raised where the consent of the Council, as owner of the land over which development was sought, had been refused. Tobias JA (Hodgson and Santow JJA generally agreeing), reviewed the authorities addressing the ambit of s 39(2), including those to which I have referred, and concluded that the function of giving consent as landowner to the making of a development application was a function "in respect of the matter the subject of the appeal". Absent the performance of that function, the granting of development consent would be beyond power (at [77]). His Honour's conclusion is succinctly summarised at [78]:
"Accordingly, the giving of that consent to the making of the application by the Court is inextricably bound up with a function or discretion 'in respect of' the determination of the appeal."
In McDougall, Cripps JA described the power provided by s 39(2) as being available "provided there is a relevant nexus between the matter the subject of the appeal and the discretion or function proposed to be exercised" (at 170). His Honour's observation to that effect followed a consideration of a number of the cases to which I have referred, including North Sydney Municipal Council v PD Mayoh Pty Ltd and Sydney City Council v Claude Neon Ltd. He did not seek to qualify or depart from the observations made in those cases as to the ambit of s 39(2), being observations to which I have already referred. The "relevant nexus" which his Honour stated must therefore be understood as involving something more than a function or discretion "affecting" the subject matter of the appeal (Mayoh per McHugh JA at 746.).
This analysis of the authorities seems to me to suggest that to engage the power under s 39(2) of the Court Act, the 'nexus' must involve an exercise of power that is legally indispensable to the exercise of power to determine the subject matter of an appeal. Although it may be said that my reference to indispensability involves no more than replacing one term of indeterminate reference with another, the notion of indispensability to describe the operation of the statutory phrase seems apt to apply to the phrase in its context. It is an appropriate synonym for phrases taken from the decided cases such as "necessary or basic", "an incident of the power to grant consent", "a necessary precondition to the grant of consent" or "inextricably bound up" with the function to grant consent.
By construing s 39(2) in this manner, I do not reflect difference with the conclusion reached by Biscoe J in Goldberg. In that case, road construction to provide vehicular access to the land proposed to be subdivided and thereafter developed for residential purposes was a "vital part of the overall proposal" (at [52]). As a consequence, so his Honour held, at [52], the development proposal and construction of vehicular access along the unformed section of an existing public road "were inextricably intertwined". The owner of the land in question, as a frontager to an existing public road, was entitled, as of right, to have access to it: 6(1) of the Roads Act. This right was identified by his Honour at [7], a circumstance that was undoubtedly relevant to his Honour's determination.
No error is demonstrated
The Commissioner correctly identified the power available to exercise a function under the Roads Act as arising under s 39(2) of the Court Act: at [55]. Consistent with the observations of the Chief Judge in Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) [2009] NSWLEC 226; (2009) 172 LGERA 1 at [78], the Commissioner also recognised that the requirement to obtain consent under the Roads Act was "independent to the need to obtain consent under the EPA Act and one is not subordinate to the other": at [63]. Having then referred to the observations of Biscoe J in Goldberg as to the operation of s 39(2), the Commissioner said:
"66 The parties agree that the connection of the poles within private property to the adjacent street poles would be integrally connected to the matter the subject of the development application and accordingly, agree that the Court would have jurisdiction in standing in the shoes of the council to determine the applications to connect the power poles that are the subject of the development applications to the adjacent street poles. I accept this proposition, particularly as the extent of the connections is clearly detailed on the plans which accompany each application.
67 The evidence in the proceedings is that the additional wiring would be at least minor in terms of streetscape and would not have an unreasonable cumulative impact. For that reason, I find that it would be appropriate to grant consent under the provisions of the Road Act to allow the connection of the poles to be erected within private property to the adjacent street poles as shown on those plans which now form the plans that relate to each individual development applications. (The amended plans provided in Exhibit C and further revised in Exhibit Q)."
These findings must be considered in the context of the Commissioner's earlier determination that the development proposed on each of the nine residential properties that was the subject of a separate development application was permissible development. All of those properties were located within a residential zone. Having identified that fact, the Commissioner said, at [28]:
"Development for the purposes of dwelling houses is permitted with consent and the parties agree that the erection of the poles and wiring within the sites is ancillary to the use of the land as a dwelling house and would also be permissible in the zone."
That agreed position and determination by the Commissioner is important in the present context. Understandably, it was not challenged in the present appeal. Thus, the determination by the Commissioner at [65] that the subject matter of the appeals was the erection of poles and wires on individual properties must be seen in the context of the determination that the development so described was ancillary to the use of each site for the purpose of a dwelling house.
Connection of a wire or wires from poles erected on each property to a pole within a public road and adjacent to each property was then considered by the Commissioner to be "inextricably intertwined" with the work involved in each development application (at [68]). For this reason, consent under s 139 of the Roads Act was granted for that connection. The Commissioner's determination in that regard was not questioned by the appellant.
The Commissioner then sought to apply the principles applicable to the interpretation of s 39(2) of the Court Act to that part of the application made under the Roads Act involving general works associated with the Eruv to be carried out within the public roads of St Ives. Having identified the lack of any contiguity among the nine properties that were the subject of appeals under s 97 of the EPA Act, the distance that separated the nine individual properties from each other, together with the lineal extent of works necessary over the 20km route of the Northern Eruv, the Commissioner concluded that the necessary nexus did not exist. In this context, the Commissioner concluded that the necessity for the development applications and the application under the Roads Act to be "enmeshed" was not established. The critical determination of the Commissioner in this regard is found at [71] and [73] of the judgment which I have earlier quoted.
Applying the principles that I have discussed, I do not find any legal error in the Commissioner's articulation of the scope of the power afforded by s 39(2) of the Court Act. Nor do I find error in the application of the provision to the facts found by her. The exercise of the function available to the Council to determine the application under the Roads Act for works and structures along 20kms of public road were not indispensible to the power to determine the appeals under s 97 of the EPA Act for the erection of poles and wires on nine separate properties and which, in each case, was found to be "development" incidental to the use of each property as a dwelling house. The exercise of the former power "affected" the subject matter of the appeal but it was not "necessary or basic" to the exercise of power to grant the development consent sought nor was it an "incident" of or a "necessary precondition" to the exercise of power to determine the appeal.
The power to authorise the attachment of conduit to 574 power poles located within public roads along a 20km route, the intermittent linking of some of those street poles with non-live wire and the replacement of a street pole in one location along the route required the exercise of a statutory discretion informed by those provisions of the Roads Act to which I have earlier referred. Within the meaning of s 39(2) of the Court Act, the exercise of that power could not be said to be "incidental" to the power to determine any one of the nine appeals brought to the Court pursuant to s 97 of the EPA Act. On the contrary, the assessment of works within the road reserves of the nominated public roads would appear to involve the primary power to be exercised. So much is apparent from the Review of Environmental Factors, lodged in support of the application under the Roads Act identifying all of the elements necessary to be put in place so as to encircle the area of St Ives around which the Eruv was to be established.
In so concluding, I accept so much of the appellant's submission as contended that the nexus required by the provisions of s 39(2) must relate to the intended purpose of land use although not the purpose for which it contends. The "purpose" of land use intended for each site that was the subject of appeal was dwelling house use, an ancillary aspect which the Commissioner found to be the erection of one or two poles with non-live wire connection. That was the subject matter of each appeal which governed the functions and discretions of the Council to be exercised by the Court on appeal (Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 5)). The function of the Council directed to the authorisation of general works intended to be undertaken within the public roads was for provision of the Eruv. An Eruv, as such, was not incidental to the use of a dwelling-house. The function of the Council to consent to the general Eruv works was not authorised by s 39(2).
Contrary to the submission of the appellant, I do not consider that the Commissioner erred in confining the nexus required by s 39(2) to those works in public roads that had a geographical proximity or direct physical connection to each site that was the subject of appeal under s 97 of the EPA Act. While the appellant accepted that geographical and physical proximity were relevant, it submitted that they should not be the sole factors determining the existence of a nexus for the purpose of s 39(2).
A fair reading of the Commissioner's judgment reveals that her determination was not confined in the manner claimed by the appellant. The Commissioner fully appreciated the extent of work required to "construct" the Eruv within and along the nominated public roads of St Ives. That work is comprehensively described at [25] and [26] of the judgment. Thereafter, those works are compendiously referred to as the works to be carried out on public roads or road reserves. While the judgment certainly identifies the lack of proximity of some works to individual properties that were the subject of appeal (at [70]) and [71]), the comprehensive nature of work required to create the Eruv, including the length of public roads over which those works were to be undertaken are matters repeatedly referred to in the section of the judgment addressing the application of s 39(2) to general works. Not only was the absence of physical proximity to each of the nine appeal sites identified as being relevant to application of the statutory provision but also was the extent and nature of work required clearly identified as a relevant consideration in that regard. So much is made apparent in both [71] and [73] of the judgment, being paragraphs that I have earlier quoted.
In summary, the Commissioner did correctly address the ambit of the power available to the Court under s 39(2) when determining the applications before her. As Mahoney JA observed in McDougall (at 164):
"The application of s 39(2) requires that the court, in each case, determine whether the function in question is one 'in respect of' the relevant matter".
In making the determination that she did in the present case, the Commissioner did not err when determining that the power of the Council to consent to the work for the construction of an Eruv along public roads in St Ives was not a function "in respect of" the appeals seeking consent under the EPA Act to erect structures ancillary to a dwelling house on nine separate residential allotments.
I have earlier identified the limited power available to me under s 56A of the Court Act when determining this appeal. I have no jurisdiction to determine whether, as a matter of merit, the construction of the Eruv proposed by the appellant should be approved. In particular, I have no power, when determining this appeal, to review the exercise of the Council's discretion to refuse the application made to it under the Roads Act.
Orders
For the reasons that I have indicated, the orders that I make are:
1. Appeal dismissed.
2. Appellant to pay the costs of the Respondent.
3. Exhibits may be returned.
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Amendments
11 December 2012 - The word "felicitiously" replaced by "felicitously" (typographical error)
Amended paragraphs: 31
Decision last updated: 11 December 2012
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