Section 138 Roads Act Approvals and Judicial Review: The Northern Eruv Incorporated v Ku-ring-gai Council [2012] NSWLEC 249

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17 December 2012

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).

Facts

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 connection of poles and wiring to power poles along a number of public roads for which Council was the roads authority (Connection Applications). Consent for the Connection Applications was sought as part of the Development Applications submitted under Part 4 of the Environmental Planning and Assessment Act 1979; and
  • the erection of wiring along 574 power poles located along a 20km route within a public road (Further Wiring Application). Consent for the Further Wiring Application was sought pursuant to a separate application under Part 5 of the Environmental Planning and Assessment Act 1979.

    (collectively, the Roads Act Applications)

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).

Finding at first instance

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 [2012] 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 Commissioner erred in law in misconstruing the subject matter of the appeals pursuant to section 39 of the Court Act; and
  • 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.

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.

Decision

Craig J referred to the judgment of Biscoe J in Goldberg v Waverley Council [2007] 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:

  • the Connection Applications were ‘inextricably linked’ with the work involved in the Development Applications and that for this purpose, consent could be granted under the Roads Act by the Court in reliance upon section 39(2) of the Court Act; and
  • the exercise of a power to determine the Further Wiring Application would not ‘affect’ the subject matter of the appeal, was not ‘necessary or basic’ to the determination and was not an ‘incident of’ or a ‘necessary precondition’ to the exercise of power. As a result, the Court did not have power under section 39(2) of the Court Act to determine the Further Wiring Application.

In particular, the Court had regard to the Commissioner’s reasons concerning:

  • the lack of any contiguity among the properties the subject of the Development Applications;
  • the distance separating the properties the subject of the Development Applications; and
  • the lineal extent of the works forming part of the Further Wiring Applications, which extended over a route of 20km.

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.

Implications

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:

  • have the appropriate degree of geographical proximity or direct physical connection to the site the subject of a development application; and
  • are commensurate in scale with the work proposed to be undertaken pursuant to the development application.

The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.


Contacts

Louise Camenzuli

Partner. Sydney
+61 2 9210 6621

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