Captive Vision Pty Ltd v Ku-ring-gai Council

The appeal

1. The applicant has appealed to this Court against the Council's refusal of its construction certificate application. In essence, it submits that the Court is not constrained, as was the Council, by the refusal of concurrence by the RMS to the grant of consent to its application under s 138(1) of the Roads Act.
2. Notwithstanding that the appeal is brought under s 8.16 of the EPA Act against the refusal to grant the construction certificate under Pt 6 of the EPA Act, Captive contends that the Court has jurisdiction to determine and grant the s138 consent under the Roads Act as part of its determination of the construction certificate appeal.

Contention

1. The legal issue that I must determine is whether the Court has power to grant consent under s 138(1) of the Roads Act, despite the absence of concurrence from the RMS, in the course of determining the appeal under s 8.16 of the EPA Act.

Overview

1. Section 138 of the Roads Act 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. Maximum penalty: 10 penalty units. (2) A consent may not be given with respect to a classified road except with the concurrence of RMS. [Emphasis added] (3) If the applicant is a public authority, the roads authority and, in the case of a classified road, RMS must consult with the applicant before deciding whether or not to grant consent or concurrence. (4) This section applies to a roads authority and to any employee of a roads authority in the same way as it applies to any other person. (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.
2. Captive seeks the following two orders: 1. that consent be granted pursuant to s 138 of the Roads Act; and 2. that the Construction Certificate No CC0004/17 be issued.
3. The sequence of the orders in the Class 1 application is said to be responsive to the terms of Condition 8(a) of the development consent. Although, Captive submits that at the moment of exercise of the jurisdiction to determine the appeal the orders are made simultaneously, it submits that nothing further needs to be said about the "bifurcation of the prayers" other than to observe that "strictly speaking the source of the approval is derived from two different Acts, and hence two separate prayers": Applicant's Written Submissions ("AWS") at par 14.
4. The Council has filed a submitting appearance. Apart from providing the SOFAC relied upon in the appeal, and a draft construction certificate, it had no involvement at the hearing.
5. The RMS, who was joined as a respondent in the proceedings on its own motion, contends that the Court has no jurisdiction to issue the construction certificate, as it lacks power to grant the requisite Roads Act consent in the absence of its concurrence under that Act. According to the RMS, Condition 8(a) of the development consent requires that the s138 Roads Act consent be granted as a factual precondition to the issue of the construction certificate for the signs that are the subject of the development consent. It is not a condition that provides for any state of satisfaction as to a matter, in respect of which an appeal right under s 8.7 of the EPA Act could possibly accrue: NSW Commissioner of Police v Rabbits Eat Lettuce Pty Ltd [2019] NSWCA 182.
6. Although the provisions of cl 146(c) of the Regulations have the effect that the issue of the construction certificate, absent the s138 Roads Act consent, is precluded by Condition 8(a) of the development consent, RMS maintains that the s138 consent is required by force of the Roads Act that operates independently of the EPA Act and Regulations to prohibit, amongst other things, the erection of a structure over a public road without the consent of the roads authority.
7. While the Council is the roads authority for the Pacific Highway (by dint of s 7.4 of the Roads Act), because the Pacific Highway is a classified road, under s 138(2), the RMS is the only concurrence authority in relation to the signage. As a consequence, no construction certificate could be issued without the Council granting consent under s 138(1), but the Council cannot grant that consent without the concurrence of the RMS under s 138(2) of the Roads Act.
8. In summary, the RMS contends that the precondition to the issue of the construction certificate was not and could not be satisfied. Therefore, the Council had no choice but to refuse to issue the construction certificate. Moreover, the RMS submits that as this Court is a Court of statutory jurisdiction and that jurisdiction only extends to determine any matter for which a statute provides.
9. In this instance, so it is submitted, the Court accrues jurisdiction from: 1. section 8.16 (formerly s 109K) of the EPA Act which allows an applicant for a construction certificate to appeal to the Court against the refusal by a council to issue that certificate; and 2. section 17(d) of the Land and Environment Court Act 1979 (LEC Act) which vests the Court with jurisdiction to hear appeals under s 109K of the EPA Act (now s 8.16 of the latter Act but referred in the LEC Act by its former numbering).
10. Part 4 of the LEC Act provides for the way in which that jurisdiction may be exercised, and sets out the Court's powers in doing so.
11. Division 4 of Pt 4 contains provisions relating to Class 1 proceedings, and of particular relevance is s 39 of the LEC Act. The section provides: 39 Powers of Court on appeals (1) In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction. (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. (3) An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal. (4) 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. (5) The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly. (6) Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 or a consent authority within the meaning of the Environmental Planning and Assessment Act 1979 and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body: (a) the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted, and (b) in a case where the concurrence or approval has been granted - the Court may vary or revoke any conditions imposed by that person or body or may impose any conditions that could have been imposed by that person or body. (6A) (Repealed) (7) The functions of the Court under this section are in addition to and not in derogation from any other functions of the Court. (8) This section (other than subsection (5)) does not apply to proceedings under section 30 or 31 of the Access to Neighbouring Land Act 2000.
12. The RMS submits that the applicant's case seems to rely on the proposition that the Court's jurisdiction arises by virtue of Condition 8(a) of the development consent which specifies that some other approval be obtained. By operation of s 39(6) the mere mention of s138 approval in Condition 8(a) vests jurisdiction in this Court (in a construction certificate appeal) to grant s138 consent.
13. In short, RMS submits that such an approach to the application of the statutory provisions is not correct. There is no appeal to this Court from the refusal of a consent sought under s 138 of the Roads Act. For example, this is not an application for integrated development and so s 8.14(4) of the EPA Act does not apply. The application for s138 consent is simply not an application in respect of which the Court may dispense with concurrence.
14. According to the RMS, the only legal effect of Condition 8(a) is to prescribe a time frame by which the s138 consent must be obtained, namely; prior to construction certificate. Irrespective of that "timing" under the development consent, a s138 consent is required by operation of the Roads Act. For Captive to succeed, the RMS submits it must demonstrate that the consent can create a jurisdiction for this Court to grant an approval in circumstances where the requirement for consent (not the timing) for the approval arises entirely independently of the consent and the EPA Act pursuant to which the consent gains its effect (AWS at pars 8-14). The Court's jurisdiction is either enlivened or it is not: there can be no relevant concept of "sufficient engagement".
15. For its part, the applicant contends that, in this appeal, the Court is not constrained by the refusal of concurrence by the RMS because s 39(6) of the LEC Act is "sufficiently engaged" to enable the Court to issue both the s138 consent and the construction certificate. Factually, the application for and the process concerned with the obtaining of the s138 consent from the Council was always part of the application for and the pursuit of the issue of the construction certificate. Notwithstanding that the appeal is in relation to the refusal to grant the construction certificate, Captive submits that the Court has jurisdiction to determine and grant the s138 consent under the Roads Act as part of its determination of the construction certificate appeal.

Outcome

1. For the reasons that follow, I have decided that I do not have jurisdiction to issue the construction certificate as I have no power in this appeal to grant consent under s 138(1) of the Roads Act in the absence of concurrence under s 138(2). Therefore, the appeal must be dismissed.

Captive's position in relation to the statutory framework

1. Let me begin by outlining in more detail Captive's case addressing my jurisdiction, as detailed in its written submissions dated 13 September 2019 and further articulated at the course of the hearing.
2. Captive accepts that the primary foundation for the Court's jurisdiction relevant to the contention is as contained in the LEC Act. In that regard, it submits that pursuant to s 39(1), a reference to "appeal" in the balance of s 39 is a reference to an appeal which may be disposed of in proceedings in the Court's Class 1 jurisdiction.
3. The Class 1 jurisdiction of the Court is addressed in s.17 and includes an appeal under s 109K (sic) of the Act. Section 39(2) the LEC Act provides: 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.
4. For the purposes of engaging the jurisdiction available under s 39(2), Captive submits the subject matter of the appeal can be said to be the refusal of the construction certificate. That is, the nature of the application identified in the Class 1 application. Captive's submissions on jurisdiction should then be quoted. "21. By dint of the terms of the Development Consent and the operation of the legislative scheme referable to the issuing of the construction certificate (as set out [in its written submissions at pars 4-11 and summarised above at pars 13-18]), even if the matter the subject of the appeal is confined to the construction certificate, one of the matters in respect of which the Council had a function and/or discretion in respect of that matter is the matter of the issuing of the s.138 approval. It (the s.138 approval) is inherently part of, both factually and legislatively, the issuing of the construction certificate; and upon that acknowledgment, it is quite clearly the case that pursuant to s.39(2) this Court, in the consideration of the appeal, has the Council's functions and discretions in that extended sense: see Goldberg v Waverley Council (2007) 156 LGERA 27 at [43], albeit that the circumstances of the present case apply arguably a fortiori because in Goldberg the s.138 approval which was held to be part of the scope of the powers in s.39(2) was on land in respect of which Part 5 of the EP&A Act applied. 22. Once s.39 (2) is engaged, which it must be in the circumstances of the present case, the deeming consequence is that this Court has the functions and discretions of the Council in the determination of the s.138 application. 23. The jurisdiction of the Court though does not stop at that point, but rather, pursuant to a specific statutory enabling provision related to that jurisdiction, the power of the Court in this appeal is extended to not being constrained by a prescription to comply with consultation or concurrence by another body. 24. Pursuant to s.39(6) of the LEC Act: 'Notwithstanding any other provision of this section, if an appeal relates to an application made to a council within the meaning of the Local Government Act 1993 … and that council may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body: (a) the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted…' 25. In applying s.39(6) to the circumstances of this appeal [Captive submits]: (a) the application (for the construction certificate) is made to the First Respondent, being a council within the meaning of the Local Government Act; (b) the Council may not approve the construction certificate because of condition 8(a) requiring the existence of a s.138 approval, which may not be issued with the concurrence of the RMS; (c) (accordingly) the approval (whether of the s.138 approval or for that matter the construction certificate) cannot be issued without the concurrence of the RMS. And, accordingly, s.39(6) is sufficiently engaged to enable this Court to issue both the s.138 approval and the construction certificate (which depends upon it) without the concurrence of the RMS. 26. The RMS has foreshadowed in prior submissions to this Court that s.39(6) can only extend to exempt the concurrence where such concurrence is required as a necessary part of the application made to the Council (in this case, the construction certificate). However, an appreciation of the statutory scheme makes it abundantly clear that the language adopted in s.39(6) specifically contemplates the application of the dispensing provisions within it to a wider class than that which is necessarily linked to the actual appeal that is before the Court. 27. That breadth is demonstrated by recognising a contrasting narrow circumstance in s.8.14(3). That section was, until March 2018, the former s.39A of the LEC Act. Section 8.14(3) applies to appeals related to development consents only (s.8.6 (1)), but its terms assist in construing and acknowledging the broader construction of s.39(6) as related to the circumstances of the present case. 28. In s.8.14(3) the relevant phrases are 'consult or obtain the concurrence' and 'before making the decision the subject of an approval under this Division'. That is, the consultation or the concurrence is directly tied to the making of the decision the subject of the appeal. 29. In contrast, s.39(6) talks of the Council not being able to 'approve of' or 'consent to' or 'deal with' or 'grant a permission' with respect to the application. They are phrases and words of far wider import than s.8.14 (3) (formerly s.39A) and enable the application of s.39 (6) to the circumstances of this case because, both factually and legislatively, the construction certificate (and the s.138 approval which relates to it) cannot be 'approved of, consented to, dealt with or granted permission' without the concurrence of the RMS." (AWS, 13 September 2019, pars 21-29)
5. In further support of its position, Captive submits the statutory interpretation for which it contends is not novel and has been accepted in the Court of Appeal. It refers to the decision in Roads and Traffic Authority v Muir Properties (2005) 143 LGERA 192 ("RTA v Muir"), a case concerning a claim for compensation following the compulsory acquisition of land. Captive submits that Tobias JA accepted as correct a submission in similar terms with respect to the (now repealed) provisions of s 39(6A): see [97]-[99] of RTA v Muir.
6. Therefore, if I have regard to the "collective legislative scheme" as outlined by Captive in its written submissions (as summarised above), that allows me to grant an approval without the concurrence of the RMS. In essence, Captive contends that the legislative scheme acknowledges "the non-participation (in terms of the concurrence role) of the RMS". The Council granted consent to Captive's development application (in consequence of which and to which this appeal relates) after a consideration of the provisions of SEPP 64. Accepting that Pt 3 Div 2 of that Policy provides for the matters for consideration of the signage the subject of the appeal, it submits that Div 3 of that Part, by the combined operation of cll 17 and 18, isolates signage of a certain dimension and provides that such signage cannot be the subject of a grant of consent without the concurrence of the RTA (now RMS): cll 17(1)(a) and 18(2).
7. As it happens, the facts in this case do not engage cl 17; although if the signs at issue had been larger and the Council was required to refuse the DA due to the absence of concurrence from the RMS, in any appeal before this Court, this Court can grant the consent notwithstanding the absence of concurrence of the RMS: s 8.14(3) of the EPA Act.
8. Ultimately, Captive contends that: "It is inherently inconsistent construction of the overall legislative scheme to find that the RMS holds a power of veto in relation to the issuing of a construction certificate when, in the antecedent phase of the determination of a development consent, its concurrence veto is specifically negatived by the legislative scheme". It makes no sense (and is in fact contrary to the legislative scheme) that in a non-development consent scenario with concurrence powers specifically not engaged, or for that matter even in the construction certificate scenario for a larger sign when the concurrence veto is specifically negatived, to say that notwithstanding that clear legislative neutralising of the concurrence role of the RMS that the RMS should maintain the veto power with respect to an approval for the undertaking of building works required in respect of the Development Consent already issued". For those reasons, Captive submits that the Court has jurisdiction both to order the issue of the construction certificate and determine to approve the s138 application.

RMS' position in relation to the statutory framework

1. As outlined at the outset of my judgment, the RMS contends for a different interpretation of the Court's jurisdiction in this Class 1 appeal. Its case has also been articulated in Court and also addressed in its written submissions dated 13 September 2019 and submissions in reply dated 19 September 2019.
2. To recap, it contends in respect of the signs that: 1. no construction certificate could be issued without the Council granting s 138(1) consent; and 2. the Council could not grant s 138(1) consent without the concurrence of RMS under s 138(2).
3. The concurrence of RMS was sought and was refused. Accordingly: 1. the Council had and has no power to grant s 138(1) consent; 2. the factual pre-condition under the development consent for issuing a construction certificate was not, and could not be, satisfied; and 3. the Council refused to issue the construction certificate.
4. As already noted, the RMS' case rests upon the proposition that the Court exists pursuant to statute and its jurisdiction is thus limited to that conferred by statute, relevantly the LEC Act. The RMS highlights that the jurisdiction and powers of this Court differ from Class to Class of its jurisdiction.
5. Relevantly, it submits, when acting within its jurisdiction in this Class 1 merit appeal, the power of the Court is set out in s 39 of the LEC Act. It is common ground, that by operation of s 39(2), the Court may exercise other functions of the Council - including the functions and discretions of the person or body whose decision is the subject of the appeal. That is, not only the functions of a council in its capacity as consent authority in relation to the actual application that founds the right of appeal itself, but also a council's other functions in relation to the decision under appeal. (That is the case even if there is no appeal right otherwise applicable in relation to a council's exercise of, or refusal to exercise, any other such function).
6. In circumstances where the development underlying an appeal from a council's decision involves work on a public road, the Court may exercise the functions of the council under the Roads Act even where there is no right of appeal to the Court in respect of an application for the s138 consent. However, the RMS emphasises that when exercising these other functions this Court is bound to the same limits imposed on the council by Parliament in the exercise of the relevant statutory function. If the other function were only exercisable in certain circumstances by a council then the Court is similarly constrained.
7. For that reason, the Council here could not issue the s138 consent without the RMS' concurrence, by operation of the express limitation contained in s 138(2). The RMS submits that the Court is similarly constrained on appeal because s 138(2) does not expressly make any provision to the contrary.
8. Expressed succinctly, the Court has been vested with the same function as the Council (the original consent authority) with respect to s 138 and subject to the same constraint on the exercise of that power: s 138(2). The function of concurrence of RMS under that provision is not a function of the Council. While the Parliament has made limited provision, in the circumstances as set out in s 39(6) of the LEC Act for the Court to proceed in the absence of concurrence, s 39(2) cannot be relied upon for the Court to assume, or grant, RMS' concurrence under s 138(2) of the Roads Act.
9. In this case, the requirement under Condition 8(a) for the s138 consent to be issued prior to the construction certificate does not affect the position. To illustrate this point the RMS refers to the decision in Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) (2009) 172 LGERA 1 ("Australian Leisure"). It concerned an application for modification of a development consent granted by the Court that authorised the use of land for a footway restaurant. Condition 50 of that consent required approval under s 125 of the Roads Act. This section is not dissimilar to s138, in that it requires a roads authority's consent for the operation of a footway restaurant: it also requires the concurrence of RMS when the restaurant abuts a classified road.
10. In Australian Leisure, the modification application was made directly to the Court pursuant to s 4.55(8). Therefore the appeal did not relate to a council's decision. The applicant asked that the Court grant the s 125 approval. The Court held that s 39(2) of the LEC Act did not extend to the Court exercising the council's function in circumstances where the proceedings concerned an application made directly to the Court, as there was no relevant body whose decision was being appealed. At [82]-[83], Preston CJ highlights the distinction between the independent operation of the Roads Act regime, and that of the EPA Act. His Honour states: "It is an error to say that the approval under s 125 of the Roads Act is only required in this case because of condition 50 of the development consent. That condition grants consent to use part of a roadway on a public road for outdoor eating and dining. The condition did not in terms require the applicant to apply for and obtain approval under s 125 of the Roads Act. The requirement to obtain such approval flows from the Roads Act itself. A person may not use a footway on a public road for the purposes of a restaurant without approval granted under s 125 of the Roads Act. The statutory requirement exists independently of any development consent. It is also an error to equate an approval under s 125 of the Roads Act to a construction certificate under the Planning Act on the basis that both give effect to conditions of development consent. Whether it be correct to say that a construction certificate gives effect to conditions of a development consent or not, an approval under s 125 of the Roads Act does no such thing. It is a stand alone power under one statute not dependent on, and having no relationship to, conditions of a development consent granted under a different statute."
11. The RMS submits that the same proposition can properly and correctly be made in the current situation where approval is also required under s 138.
12. That said, the RMS acknowledges that s 39(6) of the LEC Act operates to give the Court powers that a council does not have when determining the application to which an appeal relates, namely to determine the application in the absence of concurrence from another statutory body. Relevantly, s 39(6) provides: … if an appeal relates to an application made to a council . . .and that council or consent authority may not approve of, consent to, or deal with, or grant a permission in respect of, the application except after consultation with, or with the concurrence or approval of, any person or body: (a) the Court may determine the appeal whether or not the consultation has taken place and whether or not the concurrence or approval has been granted, … (b) …
13. The term "appeal" in s 39(6) is defined in s 39(1) as follows: In this section, appeal means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1, 2 or 3 of its jurisdiction.
14. Therefore, s 39(6) operates to dispense with the requirement for concurrence only where: 1. the appeal brought in Class 1, 2 or 3 of the Court's jurisdiction relates to an application made to a council; and 2. that application may not be approved without the concurrence of any body.
15. Contrary to the applicant's submissions, the RMS contend that the appeal at issue, to be disposed of by the Court in Class 1 of its jurisdiction, is the grant of a construction certificate under the EPA Act. The application to which the appeal relates, in terms of s 39(6), is therefore the application for the construction certificate. As an application for a s138 consent under the Roads Act is not a matter in respect of which an appeal may be made to the Court and so the application for the s138 consent is not an "application" within the meaning of that term in s 39(6) of the LEC Act.
16. Therefore, s 39(6) does not operate, in this case, to permit the Court to grant the s138 consent absent RMS' concurrence because: 1. the appeal is one falling within the Court's Class 1 jurisdiction being an appeal under s 8.16 of the EPA Act; and 2. the application to which that appeal relates is the application for the construction certificate, and not the application for the s 138 Roads Act consent, but 3. the concurrence that is required is to the consent under s 138 of the Roads Act.
17. Any power the Court has to grant a Roads Act approval relies on s 39(2) which is not a grant of jurisdiction; but rather a grant of special power that may be exercised when acting on an appeal of a certain type that is within its jurisdiction. The RMS submits that this "disjunct is fatal to reliance on s 39(6) in the circumstances of this case". Moreover, its interpretation of s 39 is consistent with - 1. the Roads Act statutory scheme, being separate to the EPA Act, having different focus from the latter Act, and 2. RMS having primacy over other roads authorities, both generally and particularly in respect of classified roads.
18. The RMS emphasises in its written submissions the fact that its powers, privileges and functions are directly from the Roads Act. While councils have certain functions under that Act as roads authority, these functions are very much subordinate to RMS' functions, both generally and particularly in respect of classified roads. In support of this submission, I am referred to the Court of Appeal decision of RTA v Ashfield Municipal Council (2005) 141 LGERA 278; [2005] NSWCA 234, which considered the statutory powers and functions of RMS (formerly the RTA) under the Roads Act at [56] and [83]. In fact, by reference to the Roads Act, the RMS describes its control of classified roads in most cases as exclusive and unqualified, unaffected by the powers and wishes of the roads authority, and in some cases even those of the Minister.
19. With that in mind, the RMS submits that the requirement for RMS concurrence under s 138(2) is entirely consistent with RMS having principal and paramount control over classified roads.
20. The RMS submits that the statutory scheme of the Roads Act makes it clear that Parliament intends to give full effect to the requirement in s 138(2) that RMS' concurrence is required in relation to works proposed on a classified road. Section 138(5)? provides that s 138 prevails over any other Act unless that Act expressly excludes the operation of the section. If the Court were to be granted the power to exercise RMS' concurrence function under s 138(2), s 39 of the LEC Act would require express words to exercise that function.
21. Finally, RMS submits in the absence of an express grant of power, the Court can neither exercise, nor assume, RMS' concurrence under s 138(2) of the Roads Act.

Consideration/ findings

1. The requirement to obtain a s138 consent derives from the Roads Act, not Condition 8(a) of the development consent for the reasons explained by the Court in Australian Leisure and as submitted by the RMS in this case. The statutory requirement exists independently of the development consent which approved the design and use of the signs.
2. Accepting that there is a distinction between the Roads Act regime and the regime under the EPA Act and that the applicant has no right of appeal against the RMS' decision to refuse its concurrence under s 138(2), I do not understand how s 39(6) of the LEC Act empowers me to do so.
3. When one asks, "who is the relevant body whose decision is the subject of appeal", the answer is plainly, "the Council".
4. When one asks, "what is the subject matter of the appeal", the answer is, "the decision to refuse the issue of a construction certificate".
5. This is a simple appeal against the Council's decision to refuse consent to Captive's application for a construction certificate.
6. The sole reason why it was refused is because the Council does not have power to grant concurrence under s 138(2) of the Roads Act and the RMS has declined to do so. Absent any express statutory provision, a consent under the EPA Act cannot bring an independent statutory scheme within the jurisdiction of the Court.
7. In this appeal, the terms of Condition 8(a) are irrelevant to the issue of the construction certificate.
8. On appeal, I have the functions of the Council (the original decision maker) and those available to me under s 39 of the LEC Act. While I accept that the Court has wide powers on appeal including in respect of the particular subject matter of the appeal, in this instance, these powers do not extend to the grant of the s138 consent. The application for that consent is simply not the application in respect of which the Court may dispense with concurrence. The Court's jurisdiction is either enlivened or not: there can be no relevant concept of "sufficient engagement". The precondition in the DA is not satisfied and therefore the construction certificate cannot issue. The term "sufficiently engaged" referred to by Captive is an unusual phrase. It appears to be something short of power but sufficient to empower me to dispense with concurrence and issue the s138 consent. While different facts bring about different outcomes under SEPP 64 (depending on the size of the sign and its proximity to a classified road,) these matters are not relevant to my determination of this appeal or to a different reading of the text of s 39(6). In short, I do not accept, as Captive submits that s 39(6) is "sufficiently engaged" to enable this Court to issue both the s138 consent and the construction certificate (which depends upon it) without the concurrence of the RMS.
9. As the RMS submits, the Court, in this Class 1 appeal concerning the refusal to issue a construction certificate has been vested with the same function as the Council (the original consent authority) with respect to s 138, with the same constraint on the exercise of that power: s 138(2). The function of concurrence of RMS under that provision is not a function of the Council. While the Parliament has made limited provision, in the circumstances as set out in s 39(6) of the LEC Act, s 39(2) cannot be relied upon for the Court to assume, or grant, RMS' concurrence under s 138(2) of the Roads Act.
10. While it is no doubt convenient that I do so, I am simply unable to import jurisdiction where there clearly and expressly is none. The words in s 39(6) are clear and when read in context they identify the extent and limitations of my power in respect of all Class 1, 2 and 3 matters. I am unable to veto the concurrence requirement under s 138 by operation of s 39(6) in this Class 1 appeal as the subject matter of the appeal is the construction certificate, not the Roads Act approval. The two Acts operate separately, with the RMS to have veto in this case over the grant of a s138 consent for this classified road.
11. The submission that s 39(6) of the LEC Act is broader than s 8.14(3) of the EPA Act, is of no assistance in vesting power to the Court to approve of the s138 consent application in this case.

Orders

1. Accordingly, the Court orders: 1. The appeal is dismissed. 2. The Exhibits are returned except for Exhibits A and 1.

Amendments 15 October 2019 - Correction to typographical error at [70] - replace "RTS" with "RMS" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 October 2019