Section 71 states:
"A roads authority may carry out road work on any public road for which it is the roads authority and on any other land under its control."
39 If otherwise applicable, s 71 would authorise Ku-ring-gai Municipal Council to carry out "road work" on Fiddens Wharf Road, since Fiddens Wharf Road is a public road for which the Council is the roads authority. However, the definition of "road work" in the dictionary to the Act specifically excludes a "traffic control facility". If the proposed roundabout is a "traffic control facility", then s 71 would not authorise the Council to construct it.
40 "Traffic control facility" is defined in the dictionary to the Act as having the same meaning as it has in Part 6 of the Transport Administration Act 1988 (NSW). Section 45E(1) of the latter Act includes in the definition of that expression "(c) any … structure or device that is intended to promote safe or orderly traffic movement on roads or road related areas". In my opinion a roundabout is, in its nature, intended to promote safe and orderly traffic movement. Further, there is specific evidence that the roundabout and turning bay are intended to promote "traffic calming" and therefore safe traffic movement on Fiddens Wharf Road. Consequently the roundabout and its associated turning bay constitute a "traffic control facility" within the definition.
41 Therefore s 71 cannot be a source of authority for the Council to construct the roundabout and turning bay.
42 Section 87(1) empowers the RTA to carry out traffic control work on all public roads, whether or not it is the appropriate roads authority for the road in question. Section 87(3) empowers the appropriate roads authority to carry out traffic control work on an unclassified road, except where the RTA has notified the authority that it proposes to carry out traffic control work. If otherwise applicable, s 87(3) would authorise the Council, as the appropriate roads authority, to carry out traffic control work on Fiddens Wharf Road, which is an unclassified road for the reasons I have given. "Carry out traffic control work" is defined in the dictionary to the Act to include carrying out any activity in connection with the construction, erection, or installation of a traffic control facility. Therefore s 87(3) would authorise the Council to construct the roundabout and turning bay, if it were otherwise applicable.
1.5 Relationship between Part 6 and Part 8
43 The reason for questioning whether s 87(3) is otherwise applicable to the present circumstances arises out of s 114, which (as I have said) states that a roads authority may not regulate traffic on a public road otherwise than in accordance with Part 8. The question is whether this prevents the Council from relying on an authority contained in Part 6, where the activity that it proposes falls within the definition of "regulating traffic" and it has not purported to comply with the procedures set out in s 116ff.
44 A similar question was considered by Bryson J in Lane Cove Council v Roads and Traffic Authority of New South Wales. In that case the Lane Cove Council erected some structures to limit use of a road, Bellevue Avenue, for which it was the responsible road authority, to one-way traffic. The RTA subsequently decided that two-way traffic operations should be re-instated to that road, not by demolishing any structures erected by the Lane Cove Council on the road but by removing existing "No Entry" signs and replacing them with "Give Way" signs. It relied on s 87(1) as the source of its power to do so. The Lane Cove Council unsuccessfully sought an injunction to restrain the RTA from acting.
45 The question before Bryson J related to the interaction between Part 6 and Part 8, but it was not the question before me now. The question for his Honour was whether the RTA (which was not the roads authority in relation to Bellevue Avenue) could rely on s 87 as a plenary source of power to carry out traffic control work, in a fashion that would override Lane Cove Council's exercise of its power (as the relevant roads authority in relation to Bellevue Avenue) to regulate traffic under Part 8. The facts before Bryson J did not raise the question whether the roads authority in relation to a particular public road can invoke a Part 6 power as a source of authority for work that will regulate traffic, where the work has not been properly authorised under Part 8.
46 The main submission advanced on behalf of Lane Cove Council was as follows. The Council was the roads authority for Bellevue Avenue, for the purposes of Part 8, and the power to regulate traffic on that road was therefore given, under ss 115 and 116, to the Council rather than to the RTA. Consequently any traffic control work carried out by the RTA under s 87 was to be carried out to give effect to Lane Cove Council's regulation of traffic along Bellevue Avenue, not to change or defeat it or substitute some other regulation for it.
47 Bryson J disagreed with this submission. He said (at 727):
"Essentially, the Lane Cove Council's position is to the effect that it is necessary, in order to give a harmonious construction to the whole of the Roads Act, to qualify the provisions of s 87 conferring power on the RTA so that the exercise must be ancillary to any regulation of traffic which has taken place under Part 8. To my reading the conferral of power in s 87 is distinct, clear, full and unqualified. There can only be some implication limiting the power by reference to some other provision or to the general operation of the Act where the basis for the implication is clear and the implication is necessary for the provisions as a whole to have a reasonable operation."
48 After deciding that the terms of s 87 themselves, taken alone or read with the terms of Part 8 or the Act as a whole, do not give any rise to any difficulty about the extent of what s 87 empowers, he continued:
"I see no reason for thinking that it is necessary to treat the power conferred by s 87 as ancillary to or subordinate to any exercise of regulation of traffic under Part 8 which may have taken place, and for that matter I do not see any basis for the reverse process; neither is made subject to the other, either by expression of intent or by necessary implication. It may or may not be inconvenient, in practical affairs, that one authority should exercise a power which will change matters after another authority has exercised the power to bring those matters about; the situation may or may not be inconvenient, depending on how well the practicalities are handled, but that does not make it necessary to imply subordination of one power to the other, and does not indicate which is to be subordinated."
49 He concluded:
"I see no inconsistency between the operation of s 87 to confer on the RTA the powers for which the RTA contends, and the operation of Part 8. The operation of Part 8 is to confer on the relevant roads authority power to regulate traffic. I do not see that either s 87 or Part 8 has any claim to primacy over the other. The existence and full exercise of any power conferred by s 87 to carry out traffic control work is not inconsistent with and is in no way an anomaly in relation to the exercise by the Lane Cove Council of its power to regulate traffic and the state of affairs brought about by that. If that state of affairs is altered by a later exercise by the RTA of its power, I see no anomaly. The Lane Cove Council's power of regulation was exercised and produced results; if those results have since been altered by later exercise of another power by another authority, that is no anomaly or inconsistency, and no ground upon which to base some exercise of reading down or qualifying the circumstances in which that other power exists."
50 Taken in isolation, some parts of these extracts from his Honour's reasoning might appear to govern the present case. In particular, his assertion that s 87 is not in any way subordinate to Part 8 could be taken to mean that the Ku-ring-gai Council in the present case can look to s 87(3) as a source of plenary power to carry out traffic control work, even where what is to be done will regulate traffic and there is no proper authority under Part 8. But, in my opinion, that would be to misread Bryson J's reasoning. In the facts before his Honour, the power under s 87 was to be exercised by the RTA, rather than the relevant roads authority for Bellevue Avenue. Therefore s 114, which prevents a roads authority from regulating traffic on a public road otherwise than in accordance with Part 8, had no application to restrict the RTA's use of its Part 6 power (a point acknowledged by his Honour at 726, paragraphs 38 and 39). Bryson J's reasoning was directed to establishing that there is no implied limitation to s 87 that would make it subject to the exercise of a Part 8 power by another entity. In a case such as the present, where the body purporting to exercise power under s 87 is the roads authority for the relevant road for the purposes of Part 8, its exercise of power is expressly constrained by s 114, which has the effect that where the traffic control work that is proposed is work that will "regulate traffic" on a public road, it must be carried out under Part 8, and s 87(3) is not a separate source of authority.
51 This interpretation of Bryson J's judgment is borne out by some of his Honour's own remarks. He made it specifically clear (at 717) that the question whether the Lane Cove Council was authorised by law to make the partial closure of the road was not a matter before him for decision. However, he observed (at 722) that, as the Lane Cove Council held a delegation from the RTA for the exercise of all the RTA's functions under Division 2 of Part 8, and the works carried out for the partial closure were not carried out for any of the purposes in paragraphs (a)-(g) of s 115(2), "the question whether the Lane Cove Council was or was not in breach of the prohibition in s 114 in constructing the partial closure depends on whether the Lane Cove Council itself gave consent under s 116 while that delegation was in effect." Significantly for present purposes, he did not suggest that s 87(3) would have any role to play.
52 For these reasons, my opinion is that Ku-ring-gai Council, being the roads authority for Fiddens Wharf Road, cannot rely on s 87(3) as an independent source of power to construct the roundabout and turning bay, because installation of the roundabout and turning bay would amount to regulating traffic, and under s 114 that cannot be done otherwise than in accordance with Part 8.
1.6 Conclusion as to statutory power
53 In summary:
· s 116 is not available as a source of power to construct the roundabout, at this stage, because the procedure described by ss 116-118 has not been followed;
· s 115 is inapplicable because what is proposed is not a barrier or notice, and the proposal is not for any of the purposes stated in s 115(2);
· ss 71 and 87(3), both in Part 6, are not available as independent sources of power because the proposed roundabout and turning bay will regulate traffic, and s 114 prevents the Council from regulating traffic otherwise than in accordance with Part 8;
· additionally, s 71 is inapplicable because the roundabout and turning bay constitute a traffic control facility, and therefore their construction would not be the carrying out of "roadwork" as defined.
54 No other source of authority to construct the roundabout and turning bay has been identified. The construction would therefore be unauthorised and illegal. On the basis that she has the standing to restrain the Council from engaging in unlawful activity that would directly affect her rights (a proposition not challenged by the defendant), the plaintiff is entitled to declaratory and injunctive relief on this ground. In my view paragraph 1 of the summons sets out an appropriate form of declaration. Paragraph 2 sets out an appropriate form of injunction, except that the injunction should be qualified by adding some such words as "without complying with Division 2 of Part 8 of the Roads Act 1993 (NSW)".
55 In my opinion the fact that the Council is in a position, as delegate of the RTA, to make the same substantive decision again after following the procedure in ss 116-118 should not cause the Court, in the exercise of its discretion, to decline declaratory and injunctive relief on the ground of futility. It is far from self-evident that the relief will be futile. The decision taken on 16 October 2001 was controversial amongst Councillors. The Court is not in a position to assume that if the matter is re-committed to them in the same terms, they will vote in the same way. Further, it appears (as I shall describe below) that Council officers have prepared yet another modification of the roundabout proposal, in response to the expert evidence in the present proceeding, and therefore it cannot be assumed that the same proposal would be committed to the Council, if indeed any version of the roundabout proposal is persisted with. Nor is the Court in a position to assume that the RTA will stand by and permit its general delegation to be used by the Council in the present controversial circumstances.
2. Administrative law grounds
56 The conclusion just expressed is enough to dispose of the case. However, I have heard substantial evidence and submissions on matters going to "broad ultra vires". It is necessary for me to make relevant findings of fact in case the matter goes further, and it is appropriate that in doing so, I should express my views on the legal issues in contention.
2.1 Facts
57 A great deal of correspondence and documentary evidence has been placed before me on what has obviously become an emotionally charged issue for local residents and Councillors. Plans for "traffic calming" on Fiddens Wharf Road have waxed and waned over the last decade. Some measures have been tried and abandoned, decisions had been taken, reversed, and deferred, and ultimately the Council has reached the position reflected in its resolution of 16 October 2001, notwithstanding active and trenchant opposition by the plaintiff. I shall outline the chapters in this saga.
58 As I have said, the Council commissioned a report by PPK Consultants, completed in May 1993 and entitled the "Lindfield Traffic Management Report". The report, prepared after community consultation, recommended "traffic calming" rather than traffic diversion as the correct policy to deal with problems in Fiddens Wharf Road. Traffic calming was to be achieved by a combination of measures, including thresholds of elevated height to alert drivers that they were approaching an area where speed would be controlled by special devices; pedestrian refuges; wombat crossings; speed humps; two-way slow points; and roundabouts. The report proposed a mini-roundabout at the intersection of Fiddens Wharf Road and Cook Road. The authors observed at page 14 of the report that "Ku-ring-gai Council is expected to consult with residents who live near these locations and to determine exact locations that avoid driveways and other access points."
59 On 4 March 1994 the Council published in the New South Wales Government Gazette a notice under s 116 of the Roads Act of a proposal to install a traffic management scheme in the Lindfield/West Lindfield area, to improve traffic safety by reducing vehicular speeds and discouraging through-traffic. Written submissions were invited. The proposed scheme was essentially the scheme proposed in the PPK Report.
60 On 6 September 1994 the Council approved a Lindfield Local Area Traffic Management Scheme, based on the PPK Report, for staged implementation. The Scheme included proposals for six roundabouts, including the one at the intersection of Fiddens Wharf and Cook Roads. However, funding constraints prevented commencement of work until 1998. In September 1996 the Council wrote to residents in the immediate vicinity of the proposed roundabout, inviting their comments. It was made clear that there had been no funding allocation or a construction timetable, and only a survey and design were being undertaken.
61 By March 1999 only limited steps had been taken to implement the Scheme. A 50km/hr speed limit had been introduced in 1998, and one roundabout had been constructed with financial assistance from the RTA. In a letter to residents dated 16 March 1999, Mr Tucker of the Council explained that "due to the high cost of roundabouts, their negative impact on access to private property when constructed at T-intersections and the loss of kerbside parking in their vicinity, it has been decided to defer further roundabout construction and concentrate on installation of lower-cost slow points". The letter said that some funding had become available and proposed that it be used to install 38 slow points or speed humps in the area.
62 In April 1999 the Ku-ring-gai Traffic Committee received a report by Council officers on resident reactions to the proposals for slow points. The report recommended that the Lindfield Local Area Traffic Management Plan (evidently based on the Scheme previously approved by the Council, but with modifications introduced over time) be approved, and that the precise locations of the slow points be marked out by reference to various local factors. The Traffic Committee disagreed with these recommendations, and decided instead to recommend to the Council that the implementation of the current phase of the Plan (installation of the 38 slow points) be deferred to allow further investigations to be undertaken regarding the need for low impact devices.
63 On 4 May 1999 the full Council decided not to adopt the Traffic Committee's recommendation. Instead, the Council approved the Plan in accordance with the recommendations in the officers' report, including installation of the 38 slow points. Slow points were installed in Fiddens Wharf Road in June/July 1999.
64 In response to a letter from the plaintiff, Mr Koolik behalf of the Council wrote to her on 1 July 1999, reiterating the view expressed in the letter to residents of March 1999 that roundabout construction had been deferred in favour of the installation of lower-cost slow points. He expressed the opinion that it was unlikely that the Council would make any alterations to the approved scheme until a review had been undertaken of the impact of the slow points.
65 Evidently the installation of the 38 speed humps was unpopular with some residents. On 5 October 1999 the Council adopted a Mayoral minute resolving to remove the 38 recently installed speed humps and to refer the matter to the Traffic Committee for attention. It appears that this resolution was not immediately acted upon. The Council set up a "Lindfield Speed Humps Committee". The Committee met on 29 August 2000, and at that meeting residents raised a number of issues in opposition to speed humps. There was consensus at the meeting that raised devices should not be used on bus routes. The Committee proposed that a report be prepared for an alternative scheme, involving replacement of the existing raised devices with "at-grade treatments".
66 Such a report was prepared by Mr Koolik and Mr Baker, entitled "Lindfield/West Lindfield Traffic Scheme", for a meeting of the Council's Urban & Environmental Assets Committee on 12 September 2000. The report recommended an alternative scheme after removal of the speed humps on Fiddens Wharf Road, identified by sketch plan LATM 9/00, which showed "roundabout or intersection channelisation" and the intersection of Fiddens Wharf and Cook Roads. The report said that "roundabouts are preferred treatments, although 'Y' channelisation could be an alternative treatment." These alternatives were shown on the sketch plan. The Committee resolved that Council approve the sketch plan, and that residents be consulted.
67 A letter enclosing a copy of the sketch plan was sent to residents on 13 September seeking their views on the proposal by 11 October. The plaintiff wrote a strong protest, emphasising that a roundabout or intersection channelisation in front of her house would make it dangerous for her to drive her vehicle out of her property on to the road. A report analysing residents' responses was presented to the Ku-ring-gai Traffic Committee on 26 October 2000. While noting that "roundabouts were seen by many residents as an acceptable alternative if a speed management device was required", the report observed that preliminary on-site investigations at a number of intersections including Cook Road/Fiddens Wharf Road had indicated that "due to carriageway limitations, bus route manoeuvres or tree preservation issues, the proposed intersection treatment was not feasible". The report proposed re-locating the intersection treatment at Cook Road, which was "not feasible due to tree issues". Various proposals were costed, and a new sketch plan (LATM 10/00) was annexed that did not show an intersection treatment at Cook Road.
68 On 6 November 2000 Mr Baker, the Director Technical Services for the Council, wrote a memorandum to the Mayor and Councillors referring to the report to the Traffic Committee meeting on 26 October, and stating that since that time he had met and had discussions with residents. He said that local residents considered the Scheme as advertised (presumably, as recorded in LATM 90/00) to be more effective than the one currently recommended (shown in LATM 10/00, with no roundabout at Cook Road). He noted that the provision of a roundabout at Cook Road would impact on two established brush box trees, but also that residents had referred to a number of unreported crashes at the Cook Road intersection. He said that "a resident at the Cook Road intersection [presumably the plaintiff] objected to the proposed roundabout as it would create a safety problem in accessing her property". But he observed that "the construction of driveways within roundabouts is not unusual and it is considered that this should not be an issue preventing the device from proceeding". He recommended reversion to the proposal for a roundabout at Cook Road.
69 At the Council's meeting on 7 November 2000 a proposal to approve the scheme outlined in sketch plan LATM 10/00 was deferred and referred back to the Traffic Committee. The plaintiff wrote to Councillors and members of the Traffic Committee, reiterating her objection to the roundabout on safety grounds. The matter was referred to the Traffic Committee's meeting of 23 November 2000, with comments in the agenda paper reiterating Mr Baker's view that the construction of driveways within roundabouts is not unusual. The Traffic Committee resolved that Council approve proposed changes to the Lindfield (West) Traffic Scheme as outlined in sketch plan LATM 11/00. The minutes of the Traffic Committee's meeting note the Committee's discussion of the Cook Road roundabout proposal, as follows.
"The Committee noted that this would not be a unique treatment because a number of driveways have direct access to the existing roundabout in Grosvenor Road and that these operate effectively. The driveway to the property concerned could be splayed to assist access. Further, vehicles could be reversed into the garage of the property concerned so that they are not reversed into the proposed roundabout. The roundabout would provide a slower speed environment."
70 The plaintiff wrote to Councillor Roach reiterating her objection to the roundabout on 28 November 2000. On 29 November the Council wrote to all residents who had written regarding the proposals, including the plaintiff, informing them of the Traffic Committee's recommendation and saying that the Council would consider it on 5 December 2000.
71 The Council's decision on 5 December 2000 was to approve the proposed changes to the Lindfield (West) Traffic Scheme outlined in sketch plan LATM 11/00, "with a roundabout at Cook Road being a temporary measure until such time as the adjoining owner's entry and egress to the property and effect of the device has been trialled".
72 On 14 December 2000 Mr Ross Nettle of Transport and Traffic Planning Associates wrote to the plaintiff, evidently after she had approached him for an opinion. Mr Nettle expressed concern about the roundabout proposal on safety grounds, and noted that there was confusion as to whether the plaintiff would have right of way when driving out of her property. He recommended that Council should consider alternative measures, and enclosed plans for a "centre blister", "diamond blister" and a "mid-block device". The plaintiff forwarded Mr Nettle's letter to the Council.
73 At about the same time the plaintiff had a discussion with Mr Simon Cusack of the Roads and Traffic Authority, in which (she said) he supported her concerns about the safety of the proposed roundabout. She wrote to the RTA on 19 December 2000 setting out her concerns and asking for their assistance. The RTA replied on 16 January 2001, saying that "in general it is not desirable practice for vehicles to either enter or exit a roundabout in a reverse direction", while observing that it would be important to "assess every situation on its merits, which would include reviewing the detailed design for the site and assessing if other measures could deliver the same desired outcome (ie speed reductions)". Later Mr Koolik of the Council contacted Mr Cusack and Mr Moon of the RTA, after the plaintiff had reiterated in correspondence that Mr Cusack had supported her concerns. In his memorandum to Mr Baker dated 20 February 2001, Mr Koolik said that Mr Cusack's personal view was that roundabouts should not be adjacent to driveways and could be unsafe, but they were acceptable with design modifications such as flaring to assist residents to enter and leave their properties. Mr Moon, according to the memorandum, had seen the intersection and considered that a roundabout located there would not be unsafe.
74 There was a site inspection by Councillors on 9 December 2000, after which the plaintiff wrote to them reiterating her concerns. In her letter she referred to a proposal that there would be a "refuge area" on the side of the road into which she would be able to back her car, but she objected to that proposal as impractical and ineffective. She recorded some conflicting advice she had received as to who would have the right of way when she drove her car out of her property.
75 Mr Baker wrote a fairly detailed response to the plaintiff's representations on 5 February 2001. He rejected Mr Nettle's suggestion for mid-block devices on the ground that they can have greater impact on adjacent residents than roundabouts, in terms of loss of parking, and are often not as effective in reducing traffic speeds because there is no requirement to give way to other motorists. He reviewed her safety concerns and suggested she might try reversing into the driveway. The plaintiff responded in detail by her letter dated 9 February 2001.
76 A motion for rescission of the Council's resolution of 5 December 2000, so far as it related to the installation of a temporary roundabout at Cook Road, was considered by the Council at its meeting on 20 February 2001. The rescission motion was carried, and Council resolved that the Director of Technical Services provide a further report on the representations and technical advice provided by Transport and Traffic Planning Associates. On 4 April 2001 Mr Koolik and Mr Baker reported to the Traffic Committee, recommending that the Council reaffirm its decision to install a roundabout at Cook Road as a temporary measure. The Traffic Committee considered this report on 19 April 2001. The plaintiff addressed the Committee. Some other residents addressed the Committee to support the roundabout proposal. The Committee discussed the merits of providing a turning bay on the footpath area to the east of her driveway, to assist the plaintiff to drive her car into and out of her garage. The representative of the RTA advised the Committee that "it would not be viable to provide a formal reversing area on the road pavement within the roundabout and still provide adequate vehicle defection through the intersection". The Committee recommended
"That consideration be given by the Ku-ring-gai Traffic Committee to the provision of a turning bay, not to be used for parking, on the footpath area near the driveway to No 27 Fiddens Wharf Road in the design of the trial roundabout in Fiddens Wharf Road at Cook Road."
77 At its meeting on 1 May 2001, the Council received a petition with signatures of 87 local residents opposing the roundabout. The Council decided that the matter be deferred to have the Traffic Committee "consider alternative traffic calming devices, including the mid-block design".
78 Mr Koolik and Mr Baker prepared a report for the Traffic Committee's meeting of 24 May 2001, setting out 5 alternative options for traffic calming. Option 1, two mid-block treatments, in a "tadpole design", was rejected because it would result in significant loss of on-street parking and might have a negligible impact on average speeds. Option 2 was the roundabout, with a turning bay to the east of the plaintiff's property, approximately as proposed at the Traffic Committee's meeting on 19 April. Option 3 proposed a roundabout, with a turning bay to the west of the plaintiff's property. That would require removal of a significant tree, and therefore option 2 was preferred. Option 4 proposed "channelisation" at the intersection by causing traffic on Fiddens Wharf Road to be deflected right and left to follow the contours of splitter islands placed both at the east and at the west of the Cook Road intersection. That was considered to be excessive. Option 5 proposed a "propeller island" located east of the intersection with Cook Road, which, like Option 4, would cause the traffic to be deflected to follow the contours of the island. The report recommended that Options 2 and 5 be advertised to residents for comment.
79 I should explain a little more about Option 2, which was the option eventually preferred by the Council. On the western side of the intersection of Cook Road with Fiddens Wharf Road, there would be a "splitter island" that would direct east-bound traffic closer to the curb. On the north-eastern side of the roundabout there would be a turning bay bounded by lay-back crossing, running from the front of the plaintiff's driveway on the roundabout, and continuing for some distance to the east along the edge of Fiddens Wharf Road. It was to be "largely over the existing road pavement". The idea was that, when coming home, the plaintiff would drive off the roundabout nose first onto the turning bay, and then reverse back into her driveway, so that she would next leave her property in a forward direction.
80 At the plaintiff's request, Mr Nettle wrote a comment on this report on 21 May 2001. He expressed the opinion that the cost of Option 1 would be much lower than the report had estimated, and he was sceptical about the report's reasons for rejecting Option 1. The plaintiff sent Mr Nettle's letter to Mr Baker for distribution to the members of the Traffic Committee. She also addressed the Traffic Committee at its meeting on 24 May. The Traffic Committee decided to recommend, as its first preference, tadpole treatment at a single location substantially to the west of the Cook Road intersection, adjacent to Nos 40, 40A and 40B Fiddens Wharf Road, with the Cook Road roundabout with turning bay (Option 2) as its second preference, and a tadpole treatment immediately east of Cook Road as its third preference. Predictably, this produced objections from residents in and about the location of the proposed tadpole treatment, and a residents' petition supporting the Cook Road roundabout as the best and safest solution.
81 The issue returned to the Council at its meeting on 5 June 2001. The plaintiff addressed the Council, as did other residents including the occupier of 40A Fiddens Wharf Road. The Council resolved to advertise to residents the three preferences recommended by the Traffic Committee, and to it establish a temporary roundabout at Cook Road for 6-12 months to establish the feasibility of a permanent roundabout.
82 Residents were in due course notified of the three preferences, and Mr Koolik and Mr Baker prepared another report for the Traffic Committee on 7 September 2001, considering the residents' responses. The report noted that the Council's second preference, a roundabout at Cook Road, received the highest level of first preference resident support, although overall the community support for the first and second preferences was relatively even. Noting the plaintiff's safety concerns, the report said that they had been addressed by the proposed turning area, "which would assist entry into the roundabout in a forward direction". The report recommended that the Council, after considering resident feedback, should approve Option 2 (that is, a roundabout at Cook Road with a turning bay to the east) for construction.
83 The plaintiff wrote to the Council asking that the Traffic Committee defer its consideration of the report as she would be overseas. However, the Traffic Committee receded to consider the matter at its meeting on 20 September 2001, tabling the plaintiff's letter and hearing presentations by other residents. The Committee decided to adopt the recommendations in the report, noting that the roundabout proposal should incorporate widening of the turning area and removal of a street tree.
84 The plaintiff returned from overseas on 16 October 2001, the day on which the Council considered the Traffic Committee's recommendations. She was able to attend and address the Council meeting, although she protested that she had had insufficient time to prepare. The meeting was addressed by other residents, including some who objected to the tadpole treatment that had been Council's first preference. One speaker was the Consul General for the Republic of Lithuania, who resided at 40B Fiddens Wharf Road. He said he had also been away overseas quite often and had been unable to speak to the Council previously.
85 The Council resolved to adopt the Traffic Committee's recommendations. This is the resolution that the plaintiff challenges in the present proceeding. The text of the resolution was as follows:
"That the Council note the resident responses to the advertising of three treatment options for Fiddens Wharf Road at/near Cook Road, and that after considering this feedback and previous technical input, that Option 2, that is a roundabout at Cook Road, be approved for construction, incorporating widening of the turning area and removal of the street tree."
86 The evidence includes a transcript and full minutes of the meeting. After the residents addressed the Council, Council Little moved the Traffic Committee's recommendation. He said:
"I think the safety issue has been addressed over a considerable time on this particular matter. The new design does not involve reversing into the roundabout. I think that needs to be clearly understood by Councillors here. The safety issues raised by Mrs Davies really arose from the fact that the original design had a reversal into the roundabout necessary. Now, the roundabout has been offset from the garage, a tree is being removed so there is a wide turning circle which allows for a large vehicle to reverse quite comfortably out of that garage. I have actually tried it myself in my car which has a very wide turning circle and I believe it is quite comfortable. I don't believe there is any basis at all for not proceeding with the new design where there is a parking bay especially provided for Mrs Davies so that she can reverse out of that garage safely and then go in a forward direction into the roundabout."
87 Councillor Malicki asked for an explanation from the Acting Director because "it appears when somebody backs out of that driveway that they are in the wrong lane facing the wrong correction". The Acting Director replied, "When they back out of the driveway they'll be behind a curb line." Councillor Malicki persisted, asking "So they are in fact facing into direct oncoming traffic even though they're behind …". The Acting Director replied, "Facing into the roundabout so they turn left into the roundabout as a normal intersection". Councillor Malicki said he could not support the proposal because it created more difficulties that had previously existed. Councillor Hall supported Councillor Malicki. Councillor Little summed up, reiterating that the safety issues had been addressed, but evidently still believing that vehicles would back out onto the turning bay and move onto the roundabout while facing directly into the oncoming traffic. Councillors then voted.
88 It is plain that Councillor Little, and perhaps also the Acting Director, misunderstood the concept of the turning bay and the way it was to be used. As I have said, as it emerged from discussions, the idea was that the plaintiff's vehicle would turn out of the roundabout nose-first into the turning bay, and then reverse, turning into the garage so that on completion of the manoeuvre, the car would be parked in the garage with its nose facing towards the roundabout, ready to enter the roundabout forwards upon departure. Councillor Little's idea appears to have been that the plaintiff's car would turn out of the roundabout directly into her garage, finishing up with the tail of the car pointing towards the roundabout, and then reverse and turn into the turning bay upon departure. Her car would commence to enter the roundabout from the turning bay pointing in the wrong correction, facing the oncoming traffic.
89 The plaintiff drew attention to this misunderstanding in subsequent correspondence. Eventually the Mayor wrote to her on 21 November 2001. The Mayor said, correctly, that the turning bay was intended to allow the plaintiff to leave Fiddens Wharf Road in a forward direction, enter the bay, and reverse into her garage. She said that the turning bay was not intended to be used where turning vehicles would face oncoming traffic in Fiddens Wharf Road. She said that the Council's decision, consistent with the recommendation of the Traffic Committee, would remain and the staff would proceed with the detailed design process.
90 On 7 November 2001 the Council advertised in the North Shore Times that it had approved the roundabout at Cook Road for construction, and that work was expected to be undertaken by early 2002. The advertisement was not expressed to be, and could not be regarded as, an advertisement for the purposes of s 116(2) of the Roads Act. On 21 December 2001 the Council wrote to the plaintiff saying that a detailed survey of the work had been completed and design plans should be completed by late January 2002. The construction work was to commence in February. The commencement of the construction work has been deferred pending the outcome of the present proceeding.
91 Expert traffic engineering evidence was prepared for the hearing, and the experts (Mr McLaren for the plaintiff and Mr Hutcheson for the Council) met together shortly before the hearing. Subsequently, days before the hearing, Council officers produced and showed Mr Hutcheson a modification of the turning bay plan. In the modified version, in the splitter island to the west of the roundabout would be accompanied by a blister island at the curb, so as to cause east-bound traffic along Fiddens Wharf Road to be deflected towards the centre of the roundabout when approaching it, and therefore to turn more sharply left when entering the roundabout. The exact status of the new sketch plan is unclear and in particular, it does not appear to have been adopted by the Council. But its existence suggests that, whatever happens in the present proceeding, Council officers may wish to recommend to the Council that it reconsider the precise terms of the decision made on 16 October 2001.
2.2 The plaintiff's "broad ultra vires" grounds
92 At the hearing, the plaintiff relied on the following contentions, which I shall consider in turn:
(a) the Council's decision is beyond the scope of any available power because, by its decision, the Council has approved a construction that will necessarily result in some traffic breaching the Australian Road Rules;
(b) in making its decision the Council has failed to take into account the following relevant considerations:
(i) the effect of its decision upon compliance with the Australian Road Rules;
(ii) the contents of the PPK Consultants report;
(iii) safety generally;
(iv) the risk of vehicles mounting the lay-back sides of the turning bay due to inadequate deflection;
(v) the confusion likely to be experienced by drivers in encountering the turning bay arrangements;
(c) the Council's decision was so unreasonable that no reasonable Council could have reached it.
93 In Points of Claim filed on 28 March 2002, the plaintiff advanced some other "broad ultra vires" claims. She contended that the Councillors who voted for the resolution of 16 October 2001 did so for the purpose of adhering to their commitment that they would remove speed humps from Fiddens Wharf Road and secure their replacement by other traffic control devices. This was said to be an extraneous and improper purpose. At the hearing and in written submissions the plaintiff did not develop this claim or expressly rely on it. In my view the claim is not supported by the evidence, which shows that, although the Council decided to remove the speed humps and replace them with other means of "traffic calming", the decision of 16 October 2001 was taken on the basis of considerations about safety, misguided though they may have been.
2.3 Decision would cause breach of Australian Road Rules
94 The plaintiff claims that if the Council's decision of 16 October 2001 is implemented, from the plaintiff will be forced to breach the Australian Road Rules while driving into and out of her property.
95 The Australian Road Rules are part of the law of New South Wales by virtue of the following statutory provisions. First, the Road Transport (Safety and Traffic Management) Act 1999 (NSW) makes extensive provisions on matters of safety and traffic management. The objects of that Act include "to provide for a system of safety and traffic management that is consistent with the uniform national approach envisaged by the agreements scheduled to the National Road Transport Commission Act 1991 of the Commonwealth" (s 3(a)), and "to improve safety and efficiency of transport on roads and road related areas" (s 3(c)). Section 71 and Schedule 1 create a broad authority for the making of regulations in respect of safety and traffic management. That takes us to regs 5 and 6 of the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999 (NSW), made pursuant to that authority. These provisions incorporate the Australian Road Rules published by the National Road Transport Commission into the regulation and therefore make them part of New South Wales law.
96 The following provisions of the Australian Road Rules are relevant for the purposes of the present case:
"109 A roundabout is an intersection with:
(a) one or more marked lanes, or lines of traffic, all of which are for the use of vehicles travelling in the same direction around a central traffic island; and
(b) a roundabout sign at each entrance."