The Northern Eruv v Ku-ring-gai Council - [2012] NSWLEC 1058

Land and Environment Court

New South Wales

Medium Neutral Citation: The Northern Eruv v Ku-ring-gai Council [2012] NSWLEC 1058
Hearing dates: 6-8 February 2012
Decision date: 16 March 2012
Jurisdiction: Class 1
Before: Morris C
Decision:
Directions made: To allow the making of Orders in this matter, the parties are to file agreed conditions in regard to the development applications and only that part of the Roads Act consent which would permit the connection of the individual sites to the adjacent street poles to reflect the findings made by 4pm 23 March 2012. Final Orders will be made in Chambers.

Catchwords: Development applications, whether works within public roads are works which are the subject of those applications, consent under the Roads Act
Legislation Cited: Roads Act 1993
Land and Environment Court Act 1979
Environmental Planning and Assessment Act 1979
Ku-ring-gai Planning Scheme Ordinance
Cases Cited: Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) [2009] NSWLEC 226
Goldberg v Waverley Council [2007] NSWLEC 259
Texts Cited: Ku-ring-gai Development Control Plan No. 38 - Residential Design Manual; AS4373 - 2007 Pruning of Amenity Trees; Amenity Tree Industry Code of Practice 1998
Category: Principal judgment
Parties:
The Northern Eruv (Applicant)
Ku-ring-gai Council (Respondent)
Representation:
Counsel
Mr P Clay SC with Ms A Hemmings (Applicant)

Mr J Robson with Mr A Pickles (Respondent)
Solicitors
Mr A Schwarcz
Morgan Lewis (Applicant)
Ms L Finn
HWL Ebsworth (Respondent)

File Number(s): 10554-9, 10561-2 and 10564 of 2011

Judgment

These proceeding relate to nine appeals against determinations by Ku-ring-gai Council of nine development applications that proposed the erection of poles and installation of non-live wiring at nine different residential properties in St Ives. The applicant, The Northern Ervu Incorporated, also sought approval from the council under the provisions of the Roads Act 1993 (the Roads Act) to carry out works within a number of public roads throughout St Ives.

The description of the proposed activity included in the Review of Environmental Factors lodged with the council in association with the applications for the works within the public roads described the purposes of the works as being for the construction of the St Ives Eruv. The application describes the propose of the Eruv as follows:

An Eruv permits observant Jewish people to carry objects or push children in prams on the Sabbath (which commences Friday evening at sunset and lasts until nightfall on Saturday night) and Jewish holy days.

The Eruv is created using mainly existing street infrastructure such as Foxtel cabling and Energy Australia street poles. These public land poles are required to ensure the continuous 'circle' or perimeter of the Eruv in association with the already submitted eleven development applications.

The issues between the parties are whether:

(1) the applications are supported by sufficient information to allow proper assessment of the applications;

(2) the proposal is in the public interest;

(3) the erection of 6 metre high poles and wiring will adversely impact on the streetscape, amenity of the subject and neighbouring properties and through loss of tree canopies;

(4) the cumulative impact of the proposal is appropriate or if it could be minimised through utilisation of alternatives.

The council has also questioned whether the Court has jurisdiction to determine the Roads Act applications.

Background and the proposals

The council originally considered development applications for the installation of poles and wiring on eleven residential properties and applications seeking approvals under the Roads Act to connect those poles using non-live catenary wire between the poles on private land to which the development applications related and the existing street power poles, the installation of nine new poles within a number of road reserves and the installation of non-live catenary wire between new poles in public land and existing Ausgrid Street poles.

The council provided notification of the proposals in June 2010 and received 653 submissions in response. A second round of notification to clarify the extent of the proposals upon private and public land was undertaken in February 2011 and a total of 676 submissions were received in response to that notification. As detailed in the council's Statement of Facts and Contentions (Exhibit 8) the submissions raised concerns regarding the following:

visual character and streetscape,
amenity,
impact upon views and outlook,
tree impacts,
unnecessary proliferation of poles and wires,
discrimination,
social segregation,
adverse sentiment to Jewish population,
open floodgates to other religions,
inadequate extent of resident notification,
inadequate provision of DA documentation,
owner's consent not provided for works to public land,
traffic safety (i.e. clearance heights),
personal safety,
creation of Jewish enclave,
decrease in property value and
maintenance and liability issues.

Copies of all of the submissions received have been reviewed and the Court notes that the council received many objections to the proposal as well as submissions in support. Those submissions were provided as Exhibits 3 (against) and 4 (in support) and have been reviewed and considered by the Court.

The council refused all of the development applications at its meeting held on 6 September 2011 and the Roads Act applications at the meeting held on 23 August 2011. The applicant lodged individual appeals against the council's refusal of the development applications. Those appeals were heard concurrently.

A conciliation conference under s34 of the Land and Environment Court Act 1979 (the LEC Act) was held in December 2011 and as a result of that process and the subsequent joint conferencing between experts, the applicant has amended the proposals. This has involved the reduction in the number of poles proposed within the road reserve to one and the reduction in the number of poles proposed within private property. The applications still include additional wiring.

During the hearing, the applicant discontinued proceedings in two matters which resulted in the nine applications now before the Court. The applications that were discontinued related to properties at 3 Ovens Place, St Ives (Matter No. 10563 of 2011) and 29 Lynbara Avenue, St Ives (Matter No. 10560 of 2011). The issue of costs was reserved in those matters.

The remaining nine development applications relate to the following properties:

Matter No. 10554 of 2011 27 Catherine Street, St Ives
Matter No. 10555 of 2011 33 Toolang Road, St Ives
Matter No. 10556 of 2011 16 Paul Avenue, St Ives
Matter No. 10557 of 2011 7 Carcoola Road, St Ives
Matter No. 10558 of 2011 21 Catherine Street, St Ives
Matter No. 10559 of 2011 62 Catherine Street, St Ives
Matter No. 10561 of 2011 26 Marlborough Place, St Ives
Matter No. 10562 of 2011 20 Yarrabung Road, St Ives
Matter No. 10564 of 2011 18 Lawson Parade, St Ives

The applicant sought and was granted leave to amend seven of the applications during the hearing. Of those matters, the Court determined that all of the amendments were minor for the purposes of s 97B(1) of the Environmental Planning and Assessment Act 1979 (the EPA Act) with the exception of those for 26 Marlborough Place and, with regard to the issue of costs, the Court determined those costs to be as agreed or assessed. In finding that the changes to the plans for 33 Toolang Road were minor, the Court required the changes were to be detailed on amended plans to verify the location of the poles.

The applications propose the installation of poles within nine individual residential properties. Those poles are identical with the exception of two proposed at 26 Marlborough Place that would be of less height. The typical pole would be 6m in height, 80-100mm in diameter, fabricated from hot dip galvanised steel and dark green in colour. The poles are similar to those used to provide power to dwellings in the area. The applicant advised during the hearing that the poles could all be 80mm in diameter to reduce any perceived impact and any colour that the council considered appropriate.

The associated applications under the Roads Act propose the connection of those poles with wiring to the existing cabling and telegraph poles within the adjoining road reserve. In addition, the proposal includes the installation of additional wiring along a proposed wire link around the suburb of St Ives, the attachment of plastic conduit to 571 power poles along that route and the replacement of one existing traffic sign with a higher pole. That pole is adjacent to a traffic-calming device in Lynbara Avenue, south of its intersection with Shinfield Avenue.

The applications are accompanied by conditional approvals from Telstra, the owners of the wires (fibre coaxial [PayTV](HfC) aerial network cabling) and EnergyAustralia, the owners of the street poles.

The Development Applications

27 Catherine Street, St Ives

This application is now for the construction of one pole in the north-western corner of the property, 500mm from the western property boundary and 100mm inside the northern front boundary. Originally three poles were proposed. The associated wiring shown on the plans which accompany the amended application would link the pole to an existing pole (PY21622) in Catherine Street, to the west of the site on the southern side of the roadway.

33 Toolang Road, St Ives

This application was amended during the course of proceedings following the site view. The current proposal is for the installation of three poles, two at the front, southern site boundary, one 6m from the eastern and one 800mm from the western property boundaries and the third also adjacent to the eastern side boundary but setback 9.5m north of the south-eastern corner of the main dwelling. The changes made to the location of the poles are to reduce the internal wire length and need to prune trees within the property. The two front poles would be connected with additional wiring to two existing street poles, the front eastern pole to a pole (PY101) adjacent to the south eastern corner of the site and the western front pole to a pole (MC12417) on the opposite side of Toolang Road.

16 Paul Avenue, St Ives

This application proposes one pole (originally two were proposed) in the south-western corner of the site, 150mm inside the front boundary and 200mm from the southern property boundary. The wiring from the pole would connect to an existing pole (PP7336) on the western side of the street, south-west of the site.

7 Carcoola Road, St Ives

No changes to this application have been made and it involves the construction of two poles within the property adjacent to its eastern boundary, one sited 150mm from the front fence and 450mm from the side boundary and the second adjacent to the north-eastern corner of the existing dwelling house set 240mm from the side boundary. Wiring within the site would connect the two poles running parallel to that boundary and then extend from the front pole across Carcoola Road to an existing pole (PY22401) to the north east of the site.

21 Catherine Street, St Ives

One pole located within the property immediately adjacent to the existing front fence and 1.5m from the eastern property boundary is proposed for this site. The original application was for two poles. The wiring from the proposed pole would connect to an existing pole (PY21622) on the southern side of Catherine Street to the east of the site.

62 Catherine Street, St Ives

Two poles were originally proposed and are still proposed however the location of one adjacent to the front property boundary has been amended so that it is now more centrally located on the site. The reason the pole has been relocated is to ensure no pruning of an existing street tree is required. The second pole would be constructed 150mm inside the eastern property boundary on the building alignment of the existing dwelling house. The wiring would connect to an existing pole (PYMB189) located adjacent to the south-western corner of the site.

26 Marlborough Place, St Ives

Plans for the poles to be erected on this site were also amended as a result of the site inspection and objections made by neighbours. It became apparent that the locations originally identified had the appearance of being located within the neighbouring property. The plans did not accurately reflect the existing driveway and hardstand parking areas and accordingly, the application was amended and the number of poles reduced from four to three. One pole would be located in the north-eastern corner of the site 1.5m from the side boundary and connect to an existing pole (MC10290) to the east of the site. A second connection to a street pole at the centre of the site (MC10291) from a pole, maximum of 4m high, at the north-western corner of the hardstand carparking area that links to the third pole, maximum 2m in height, to be located at the rear of the site 500mm off the southern or rear property boundary is also proposed. It is these two poles that are of a reduced height due to the topography of the site.

20 Yarrabung Road, St Ives

Four poles were originally proposed and the plans now provide for three, two adjacent to the southern side boundary, one adjacent to the front boundary and one 15m to its east. Those two poles would be internally linked by wiring that would extend from the front pole to a street pole (PY23018) to the south west of the site. The third pole would be constructed adjacent to the northern side boundary and setback approximately 6m from the front fence. That pole would be connected to an existing street pole (PY23017) to the north of the site's driveway crossing.

18 Lawson Parade, St Ives

One pole setback 18.5m from the front property boundary and constructed adjacent to the eastern property boundary is proposed. Wiring running parallel to that side boundary and connecting to an existing pole (PY22387) adjacent to the south-eastern corner of the site forms part of the application.

The Roads Act application

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 e.g. across Rosendale Road. That wiring is show on a plan prepared by the council for the proceedings (Exhibit A) and 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 the development applications, is located at various points along it.

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. Telstra require a minimum separation of 150mm from the top of the conduit to its cabling. Between one and three pieces of conduit would be installed on the poles and, according to 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 applications initially proposed a total of nine additional poles within roads along the proposed circuit. The applicant is now only seeking approval to replace one traffic sign located adjacent to an existing speed-hump in Lynbara Avenue with a 6m high pole and re-attach the road signs to the new pole. The new pole would be designed to meet the council's traffic safety considerations and would provide for a crossing and re-crossing of the circuit at this point.

The planning controls

All of the sites that are the subject of development applications are zoned Residential C under the provisions of the Ku-ring-gai Planning Scheme Ordinance . 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.

Ku-ring-gai Development Control Plan No. 38 - Residential Design Manual contains assessment criteria and outcomes required for developments within the residential area and, relevant to the applications, includes objectives and controls for streetscape, visual character and public domain and communal spaces.

The Roads Act

Section 3 of the Roads Act sets out its objects which are:

(a) to set out the rights of members of the public to pass along public roads, and

(b) to set out the rights of persons who own land adjoining a public road to have access to the public road, and

(c) to establish the procedures for the opening and closing of a public road, and

(d) to provide for the classification of roads, and

(e) to provide for the declaration of RMS and other public authorities as roads authorities for both classified and unclassified roads, and

(f) to confer certain functions (in particular, the function of carrying out road work) on RMS and on other roads authorities, and

(g) to provide for the distribution of the functions conferred by this Act between RMS and other roads authorities, and

(h) to regulate the carrying out of various activities on public roads.

Section 5 sets out provisions relating to right of passage along public roads by members of the public and states:

(1) A member of the public is entitled, as of right, to pass along a public road (whether on foot, in a vehicle or otherwise) and to drive stock or other animals along the public road.

(1A) The right conferred by this section extends to the right of passage of members of the public in a light rail or other railway vehicle.

(2) The right conferred by this section does not derogate from any right of passage that is conferred by the common law, but those rights are subject to such restrictions as are imposed by or under this or any other Act or law.

(3) For example, those rights are subject to such restrictions as are imposed:

(a) by or under the road transport legislation within the meaning of the Road Transport (General) Act 2005, or

(b) by or under section 72 of the Crown Lands Act 1989 (Cultivation of enclosed roads).

Section 6 makes provision for right of access to a public road by owners of adjoining land and states:

(1) The owner of land adjoining a public road is entitled, as of right, to access (whether on foot, in a vehicle or otherwise) across the boundary between the land and the public road.

(2) The right conferred by this section does not derogate from any right of access that is conferred by the common law, but those rights are subject to such restrictions as are imposed by or under this or any other Act or law.

In Division 3 of the Roads Act, Section 138 requires consent to be obtained from a road authority to undertake works or erect a structure in public roads. Relevant sections are:

(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.

(2) A consent may not be given with respect to a classified road except with the concurrence of RMS.

Section 139 specifies the nature of any consent and states:

(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 specific 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.

Section 140 provides for the revocation of any consent (other than a street vending consent) granted under Division 3 by the roads authority at any time and for any reason by notice in writing served on the holder of the consent.

Section 142 provides for the maintenance of structures for which consent has been granted under Division 3 and those parts relevant to the application state:

(1) A person who has a right to the control, use or benefit of a structure or work in, on or over a public road:

(a) must maintain the structure or work in a satisfactory state of repair, and

(b) in the case of a structure (such as a grating or inspection cover) located on the surface of the road, must ensure that the structure is kept flush with the surrounding road surface and that the structure and surrounding road surface are so maintained as to facilitate the smooth passage of traffic along the road,

and the person is, by this section, empowered to do so accordingly.

(4) If:

(a) a roads authority has granted a consent under this Division to the doing of anything, and

(b) that thing has been or is being done otherwise than in accordance with the consent,

the roads authority may direct the holder of the consent to take specified action to remedy any damage arising from the doing of that thing otherwise than in accordance with the consent.

The applicant acknowledges that some of the works required within the road reserve include a section of Mona Vale Road. Ku-ring-gai Council is not the roads authority for that road, it is a road under the control of Roads and Maritime Services (RMS) and therefore, concurrence would be required from RMS for works along that portion of roadway. No application has been lodged seeking concurrence or consent for that work.

The site view

The hearing commenced with a view of the sites that are the subject of the development applications. The Court, the parties and their experts undertook an inspection of each of those sites, travelled around the route of the proposed Eruv and inspected the location of the proposed replacement pole within the road reservation at Lynbara Avenue. Evidence was heard from a number of objectors at points along the way. At the conclusion of the site view, further evidence was heard from a number of residents at the Council's Chambers and on the second day of the hearing, one further objector provided evidence in Court.

The evidence

The Court has reviewed the submissions received by the council in response to the exhibition of the applications. In addition, it heard from a number of residents during the hearing. The matters raised in those submissions are summarised as being:

Adverse visual impacts of the poles, contrary to the character of the area, physical and visual intrusion, detract from the amenity of the area;
Poles too close to objector's property;
Use of public infrastructure for religious purposes;
Concern about impact of additional tree pruning;
Objection to the creation of the Eruv;
Contrary to the council's objective of encouraging underground wiring;
Additional conduit is unsightly;
If there are only 11 development applications, why is over 20k of wiring required?
Use of public land for private purposes;
Proposal is unnecessary;
Proposal will force social integration;

Expert evidence was heard from Mr Castor (for the applicant) and Mr Paroissien (for the council) on trees and Mr Moody (applicant) and Dr Lamb (council) on visual and planning issues.

The applicant amended the plans following the discussions held during the s 34 conference and Mr Paroissien and Mr Castor reviewed those plans prior to the preparation of their expert report. They also held a joint conference that resulted in a series of recommendations. Those recommendations have been reflected in the final plans now before the Court. They agree that:

The pruning that would be required on private property is acceptable provided it is carried out in accordance with specified conditions. Those conditions include the work is undertaken by appropriately qualified persons in accordance with the relevant Australian Standard, AS4373 - 2007 Pruning of Amenity Trees and complies with WorkCover NSW Amenity Tree Industry Code of Practice 1998 is done to coincide with the installation of the non-live catenary wire and where new poles are proposed within the Tree Protection Zone of existing trees, footings are dug by hand . Six conditions are recommended to ensure compliance.
No trees need to be removed.
No vegetation clearance pruning is required around Telstra's Hybrid Fibre Coaxial aerial network wires although in most instance clearance is achieved as part of pruning works for overhead Ausgrid electrical wires.
The amended plans satisfactorily resolve the aboricultural issues identified in the Statement of Facts and Contentions.

When questioned whether the applications would result in the need for any further pruning of street trees apart from that regularly carried out on behalf of the electricity providers, Mr Castor said that no other work would be required at the premises to which the development applications related and Mr Parroissien said that it was unlikely, although it may happen. They had not assessed the impacts of the additional wiring subject to the Road Act application so could not comment if additional pruning works would be required along the route.

The planning and visual impact experts also considered the applicant's proposed ameliorations/conditions which have been reflected in the amended development application plans. Dr Lamb says that the amendments would ensure that the proposed developments would not have an unreasonable impact in terms of the streetscape and describes the visual impact of the proposed developments on the streetscape and the adjoining properties as "minor" whilst Mr Moody considers that the impact would be "very minor". With regard to the works within the roads, Mr Moody estimates that between 30-50% of existing poles in the roads have existing conduit on either side of the street and therefore, he considers that the attachment of additional conduit to 574 poles would be visually innocuous and reflect part of the visual scenery that is currently evident in the St Ives area. He acknowledges that it would be visible, but says that would be in a very minor manner and the change proposed would be inconsequential.

Dr Lamb had not carried out an analysis of the impact of the conduit however said that he considered that the impact in terms of streetscape would be "mysterious" and therefore would have an impact by causing a person to wonder what they are for, to look up and see where the wires go. When asked whether the addition of conduit to poles that do not currently accommodate it could be differentiated from those that currently exist, Dr Lamb said that the proposed poles are compatible with the existing poles and conduit and would not have an impact because they are foreign.

The experts agree that, if the Court was of a mind to approve the development applications as proposed, the proposed developments would not have an unreasonable cumulative impact. They agree that the impacts of the poles within private properties, that are the subject of the nine development applications, are acceptable. Mr Moody did say that additional planting could further ameliorate the impact of the pole proposed at 62 Catherine Street.

The Court was provided with a copy of the Ku-ring-gai Contributions Plan 2010 and referred to page 221 of that document and the associated Town Centres Facilities Plan - St Ives. That plan provides for the collection of contributions for the undergrounding of power in four streets within the St Ives Town Centre, Cowan Road, Mona Vale Road, Memorial Avenue and Rosedale Road. The route of the proposed Eruv follows that part of Memorial Avenue and Mona Vale Road that are the subject of the plan. It was noted that the plan was made to support the now revoked Town Centre LEP.

Other than the s94 Contributions Plan, there was no evidence provided to the Court of any other council policy to underground power lines within the suburb of St Ives.

Conclusion and findings

The parties agree that there are a number of ways the Court can determine the proceedings in these cases. I consider that the most appropriate way to deal with these matters is by the determination of each individual development applications. The Roads Act application has two components; the first is the work that is shown on the plans (the connection of the poles and wires from the property to the street poles) which form part of the development application and the second is the works that relate to the additional pole, wiring and conduits within the road reserves. The council does not dispute that the first component of the Roads Act applications for wires to connect private poles to existing power poles on public land is integrally connected with the development applications.

What is in dispute is the additional pole in Lynbara Avenue, wiring at various locations and attachment of conduit to 574 poles along the route of the proposed Eruv. It is the council's case that neither the Review of Environmental Factors submitted under Part V of the EPA Act, nor the Roads Act, sought approval for the conduit on power poles or specifies the additional wires between existing poles as forming part of the applications. It contends that the Roads Act application only sought consent for the erection of nine new poles on public land (now one replacement pole in Lynbara Avenue) and the installation of non-live catenary wire between those new poles on the public land and the existing EnergyAustralia street poles. With the reduction in the number of poles within the public roads, the council's position is that the application would now only relate to that wiring required to link the Lynbara Avenue pole to the existing street poles in that roadway.

The applicant takes a different view and contends that the proposal was always to create the Eruv and that the plans lodged with the Roads Act application identify its route around the suburb of St Ives. The plan identifying the route is included in the council's bundle of documents, (Exhibit 2 at Folio 97). At Folio 100, a plan of the proposed poles and wire attachment to adjacent cabling is shown. The Court notes that this plan also indicates the locations where the applicant proposed to erect wires within the roadway at locations that are remote from the proposed poles and also the sites the subject of the development applications. There is no plan that identifies the location of poles to which the varying numbers of conduit are to be attached.

There is no dispute that the works within Mona Vale Road require the concurrence of the RMS, that concurrence has not been obtained and the Court is not being asked to consider that issue. Mr Clay for the applicant advised that separate approval from the RMS would be sought for that work.

The Development Applications

The expert evidence in these proceedings with regard to the amended plans now before the Court, and the subject of nine individual development applications, is that the impacts of the proposed poles within the nine private properties is acceptable and will not detrimentally affect trees on those sites or trees on the roadway immediately adjacent to the sites. I concur with the evidence of Mr Moody that additional landscaping around the proposed pole at 62 Catherine Street would ameliorate the impact of the relocated pole and that any consent issued for that site should incorporate a condition requiring appropriate screen planting.

The parties agree that the work proposed under the development applications is permissible with consent. The site view demonstrated that the poles are similar in style, size and nature to poles used at several properties to connect power to individual dwellings. Several such poles were observed in the locality.

Having regard to the planning controls and evidence provided to the Court by the planning and visual experts and the arborists, that the proposals will not have any adverse visual impacts nor effect any trees in the vicinity of the developments over and above the regular maintenance conducted on behalf of the electricity providers, in my view it is clear that each of the nine remaining development applications should be approved subject to the draft conditions of consent (that require further amendment and are yet to be provided to the Court) including an additional condition to be imposed on DA No 0334/10 (Matter No 10559 of 2011) relating to property 62 Catherine Street, St Ives that requires additional planting that would achieve a maximum height of 4m adjacent to the proposed pole to be erected within the front property boundary of the site. Amended plans identifying the works within the property at 27 Marlborough Street and 33 Toolang Road were tendered to reflect changes made in response to the issues raised during the site view (Exhibit Q).

The Roads Act application

Section 39 of the LEC Act sets out the Powers of the Court on Appeals. Subsection (2) states:

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

Subclause (4) provides:

In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.

Section 138(1)(a) of the Roads Act requires a person to obtain consent to erect a structure or carry out a work in, on or over a public road. There is no appeal provision against a determination of the council to refuse consent under s 138 of the Roads Act. Therefore, for the Court to determine the application that is before it, it must be satisfied that it is a matter the subject of the appeal and in this instance, it is the development applications that are the subject of the appeals.

The Northern Eruv is seeking consent under s 138 to connect the poles and wires the subject of the development applications to existing poles and wiring within the adjoining street, erect the replacement pole in Lynbara Avenue, link wire from that pole to existing street poles, attach wires at various locations along a 20 kilometre circuit around the St Ives suburb and attach one, two or three sections of conduit to 574 poles along that route.

A public road is defined in the Roads Act as:

public road means:

(a) any road that is opened or dedicated as a public road, whether under this or any other Act or law, and

(b) any road that is declared to be a public road for the purposes of this Act.

It is agreed that all of the roads within the works are proposed are public roads and are all under the control of Ku-ring-gai Council with the exception of Mona Vale Road and that the RMS is the roads authority for that road. The Court was not asked to consider that part of the application that related to works within traversed Mona Vale Road.

Section 139 of the Roads Act makes it clear that an application for consent to carry out works within a public road may be granted on the roads authority's initiative or on the application of any person, may be granted generally or for a particular case, and may relate to structures or works of a specified class. Any consent granted may be the subject of conditions as thought fit including a condition that permits or prohibits the use of the structure for a specified purpose.

There are no prescribed matters to be considered in determining applications under s138 for the works proposed. Therefore, it is the Objects of the Roads Act that guide consideration of the application for works within the road reserves. The right of passage along a road as described in s5 must also be considered however these do not exhaust the enquiry. The public interest is another consideration. Preston CJ in Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) [2009] NSWLEC 226, when considering the exercise of power to grant consent to use a footway adjacent to a restaurant, said at [74]:

The public interest may, by implication from the subject matter, scope and purpose of the stature, be a relevant matter to be considered: Minister for Planning v Walker [2008] 161 LGERA 423 at [39], [43]. In this case, the public interest is central to the task of a council fulfilling functions under the Roads Act, including approving under s 125 the use of a footway in a public road for restaurant purposes. The public interest is multi-faceted and includes the public interest in members of the public being able to pass along and use public roads, in persons who own land adjoining the public road having access to the public road and in regulating the carrying out of various activities on public roads.

The requirement to obtain consent under the Roads Act is independent to the need to obtain consent under the EPA Act and one is not subordinate to the other. Both require proper and separate assessment and consideration. Having found that the development applications should be approved does not mean that the applications under the Roads Act should also be approved. It is also necessary to determine whether the Court's power would extend to determination of the additional works proposed.

The questions posed by Biscoe J in Goldberg v Waverley Council [2007] NSWLEC 259 provide guidance where, at [51] he states:

51There are two questions under s 39(2). First, what is the " matter the subject of the appeal "? Secondly, do the " functions and discretions " which the council " had in respect of the matter the subject of the appeal " include its functions and discretions as the roads authority in granting consent under s 138 of the Roads Act and (in relation to that consent) its functions and discretions as the determining authority under Pt 5 of the EPA Act ?

52 As to the first question, the matter the subject of this appeal, in my view, is the proposal to demolish the existing dwelling, subdivide the land into two parts and to provide vehicular access from Birrell Street as a result of the proposed roadwork. The "matter " the subject of an appeal is a wider concept than the " decision" the subject of the appeal: see the authorities cited at [33] above. Although the proposed roadwork does not require development consent, it is a vital part of the overall proposal and many of the council's reasons for refusing the development consent were to do with the proposed roadwork and the consent under s 138 of the Roads Act . Thus, in the particular circumstances of this case, the refusal of development approval, the proposed roadwork and the matter of a s 138 consent were inextricably intertwined such as to constitute the "matter" contemplated by s 39(2).

53 As to the second question, if the proposed roadwork on Birrell Street had required a development application, this Court on appeal from a refusal of development consent, would have had power to grant consent under s 138 of the Roads Act : Gibson v Mosman Municipal Council (2001) 114 LGERA 416 and Connery v Manly Council (1999) 105 LGERA 451. The applicant in the present case relied on those decisions. In Gibson the applicant appealed to this Court from the respondent council's refusal of its development application to carry out work on a property and within a public road. The proposed works included the rebuilding of existing stairs and construction of a new driveway on the public road. Development consent was required for the proposed work on the public road as well as consent under s 138 of the Roads Act. Talbot J held that the matter the subject of the appeal was the works proposed within the applicant's property and within the public road. His Honour held that the Court had jurisdiction, by reason of s 39(2) of the Court Act , to grant consent pursuant to s 138 of the Roads Act .

In my opinion, the matter the subject of the appeals is the erection of poles and wires on individual properties.

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.

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).

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 consent should require that all works, including maintenance to the wires, are the responsibility of the applicant and that the requirements of Telstra and EnergyAustralia are met, no additional pruning to street trees is undertaken apart from that undertaken by those agencies and the applicant is responsible for any damage caused as a result of the works. The consents would be granted on the understanding that in the event the street wiring is undergrounded at any time in the future, the consent would be revoked.

Whether the power of the Court extends to the other matters within the road reserves that are proposed by the applicant requires careful consideration.

As stated at [65], the matter the subject of the appeals is the erection of one or two poles on nine, non-related properties. None of those properties adjoin any other properties the subject of the applications and there is only one instance where more than one property is in the same street. In the case of Catherine Street, there are three properties the subject of individual development applications. Seven of the sites are located within reasonable proximity of each other but in different streets, those streets being Catherine Street, Paul Avenue, Lawson Parade, Carcoola Road and Yarrabung Road which are located to the east of the suburb of St Ives. The remaining two properties are in Marlborough Street and Toolang Road, at the western extent of the suburb a distance of approximately two kilometres from the others. In accordance with Goldberg there has to be evidence that the development applications and the Roads Act application are "enmeshed". There needs to be a nexus between the works the subject of the development application and the works to be carried out within the road reserves.

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 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.

The application clearly proposes to create an Eruv. There is no Eruv at the present time. The approval of all of the development applications does not create an Eruv, nor does it create any nexus to that work within roads that are not in proximity to the individual sites. Whilst the applicant's intention is that all of these works are related and it is the focus of the applications, there is no nexus between the individual components of the applications. As I have stated above, there are two clear components to the application under the Roads Act and I find that only one has a clear nexus to the works the subject of the matter. That is the direct connection of the poles the subject of the development applications to the existing poles adjoining the individual sites the subject of those applications.

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. For the reasons stated above, that is not the case. Therefore, I determine that the Court cannot grant consent to the works within the road reserve that include the attachment of conduit to the 574 poles, the intermittent wire connections or the replacement of the pole in Lynbara Avenue.

If I am wrong in this determination, it is appropriate that I conduct the necessary merit assessment of the works. The evidence provided is that the works, in Mr Moody's opinion, would be minor and not immediately discernable from the existing conduit already evident in all of the streets although he does acknowledge that it would increase the accumulation of poles with attachments to 100%. Dr Lamb says that the poles would be compatible with the existing poles and conduit. For that reason, I find that the works would, on a merit assessment, be appropriate in terms of streetscape.

In view of my findings, it is appropriate that development consent is granted to each of the nine development applications. Final conditions of consent have not been filed with the Court and further amendments would be required to reflect the amended plans and the landscaping works required at 62 Catherine Street. Consent under s139 of the Roads Act for the connection of those poles the subject of the nine development applications is also granted and the terms of that consent should reflect the findings contained within this judgment.

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.

To allow the making of Orders in this matter, the parties are to file agreed conditions in regard to the development applications and only that part of the Roads Act consent which would permit the connection of the individual sites to the adjacent street poles to reflect the findings made by 4pm 23 March 2012. Final Orders will be made in Chambers.

Sue Morris

Commissioner of the Court

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Decision last updated: 16 March 2012

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Citations

The Northern Eruv v Ku-ring-gai Council [2012] NSWLEC 1058

Most Recent Citation

The Northern Eruv Incorporated v Ku-Ring-Gai Council [2012] NSWLEC 249

Cases Citing This Decision

1

The Northern Eruv Incorporated v Ku-Ring-Gai Council [2012] NSWLEC 249

Cases Cited

2

Statutory Material Cited

4

Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) [2009] NSWLEC 226

Goldberg v Waverley Council [2007] NSWLEC 259

Medium Neutral Citation:	The Northern Eruv v Ku-ring-gai Council [2012] NSWLEC 1058
Hearing dates:	6-8 February 2012
Decision date:	16 March 2012
Jurisdiction:	Class 1
Before:	Morris C
Decision:	Directions made: To allow the making of Orders in this matter, the parties are to file agreed conditions in regard to the development applications and only that part of the Roads Act consent which would permit the connection of the individual sites to the adjacent street poles to reflect the findings made by 4pm 23 March 2012. Final Orders will be made in Chambers.
Catchwords:	Development applications, whether works within public roads are works which are the subject of those applications, consent under the Roads Act
Legislation Cited:	Roads Act 1993 Land and Environment Court Act 1979 Environmental Planning and Assessment Act 1979 Ku-ring-gai Planning Scheme Ordinance
Cases Cited:	Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) [2009] NSWLEC 226 Goldberg v Waverley Council [2007] NSWLEC 259
Texts Cited:	Ku-ring-gai Development Control Plan No. 38 - Residential Design Manual; AS4373 - 2007 Pruning of Amenity Trees; Amenity Tree Industry Code of Practice 1998
Category:	Principal judgment
Parties:	The Northern Eruv (Applicant) Ku-ring-gai Council (Respondent)
Representation:	Counsel Mr P Clay SC with Ms A Hemmings (Applicant) Mr J Robson with Mr A Pickles (Respondent) Solicitors Mr A Schwarcz Morgan Lewis (Applicant) Ms L Finn HWL Ebsworth (Respondent)
File Number(s):	10554-9, 10561-2 and 10564 of 2011