The Land and Environment Court (Court) has given recent judicial consideration to the scope of the Court’s power under section 39(2) of the Land and Environment Court Act 1979 (Court Act) to review approvals under section 138 of the Roads Act 1993 (Roads Act).
The Appellant proposed to construct an Eruv within the suburb of St Ives. An Eruv is a ritual enclosure which permits Jewish residents to undertake certain activities on Shabbat and holy days which would otherwise be prohibited.
The Appellant lodged development applications with Ku-ring-gai Council (Council) for consent to erect poles and associated non-live wire on 11 geographically separate residential properties (Development Applications), in order to construct the Eruv. Consent was also sought from Council as the relevant roads authority under the Roads Act for:
The Roads Act Applications are a requirement under section 138 of the Roads Act, which provides:
(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.
Council determined the Development Applications and Roads Act Applications by way of refusal. The Appellant commenced appeals against the refusal of the Development Applications and, in respect of the Roads Act Applications, contended that the Court had the requisite power to determine them by virtue of section 39(2) of the Court Act (set out below).
A Commissioner found in favour of the Appellant in relation to the Development Applications and the Connection Applications, but found that the Court did not have jurisdiction to determine the Further Wiring Application (The Northern Eruv v Ku-ring-gai Council  NSWLEC 1058).
The Appellant appealed against the Commissioner’s decision to a judge of the Court (Craig J) under section 56A of the Court Act, on a question of law, in respect of the finding in relation to the Further Wiring Application.
The Appellant identified two grounds of appeal in its summons. They were that:
The Appellant contended that section 39(2) of the Court Act allowed the Court to determine the Further Wiring Application, as it was ‘in respect of the matter the subject of appeal’. Section 39(2) states:
(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.
Craig J referred to the judgment of Biscoe J in Goldberg v Waverley Council  NSWLEC 259, whereby His Honour considered in detail the history of judicial treatment of section 39(2).
Craig J then undertook his own examination of the authorities, concluding that the engagement of the power under section 39(2) of the Court Act required a nexus, such that the exercise of power was legally indispensable to the exercise of power to determine the subject matter of an appeal.
Ultimately, the Court confirmed the decision of the Commissioner, holding that:
In particular, the Court had regard to the Commissioner’s reasons concerning:
The Court added that the nexus required by section 39(2) of the Court Act included a geographical proximity or direct physical connection to each site the subject of an appeal. The extent and nature of work the subject of the Further Wiring Application, being significantly greater than that sought in relation to the Development Applications, was also a vitiating factor in the circumstances and relevant to the determination of any nexus under section 39(2) of the Court Act.
Craig J’s judgment confirms that the Court does not have power to review a roads authority’s exercise of discretion to refuse an application made under the Roads Act, where the nexus required under section 39(2) of the Court Act to the exercise of another function is not satisfied.
For roads authorities, the judgment confirms that decisions in respect of consents under section 138 of the Roads Act are not able to be taken on appeal unless there is a direct nexus to a development application that is the subject of the appeal before the Court.
The Court’s decision also provides instruction to those persons seeking to undertake development which involves consent under the Roads Act. Where there is a concern to ensure that an appeal right exists in respect of the entirety of a development, including activities within a public road, a proponent should ensure that the activities for which Roads Act consent is required:
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