Gibson v Mosman Municipal Council

The applicant has not made a separate application for consent under s 138 of the Roads Act to carry out the works in James Street and the council has not given its consent to carry out the work pursuant to that Act.

The applicant concedes that the works proposed in James Street require consent under s 138 of the Roads Act.

Ms Duggan, who appears for the council, concedes that the LEP does not contemplate that development consent is required for work within a road. The council's position is that development consent is not required for the works proposed in James Street, except to the extent specified in cl 31 of the LEP which stipulates that the consent of council must be obtained in respect of works or any other development on land which has the effect of materially altering the shape or natural form of the land. The applicant's proposal includes an excavation for the purpose of the driveway in James Street.

In the light of the agreed facts and concessions made by both parties in the course of the hearing the remaining question of law to be determined as a preliminary issue is as follows:- Whether or not the Court has jurisdiction to grant consent to the works pursuant to s 138 of the Roads Act 1993.

The parties agree that there is no express jurisdiction to deal with any application for consent to the works pursuant to s 138 of the Roads Act. Accordingly, the applicant must persuade the Court that s 39(2) of the Land and Environment Court Act 1979 ("the Court Act") vests the Court with all the functions and discretions which the council has under s 138 of the Roads Act.

Pursuant to s 138, the applicant must not erect a structure or carry out a work in, on or over a public road, or dig up or disturb the surface of a public road otherwise than with the consent of the appropriate roads authority.

Pursuant to s 7(4) of the Roads Act, the council is the roads authority for all public roads within the Mosman area.

Section 39(2) of the Court Act provides as follows:-

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.

In s 39, "appeal" means an appeal which may be disposed of by the Court in proceedings in class 1, 2 or 3 of its jurisdiction. The present proceedings are in class 1 of the Courts jurisdiction.

The council's principle submission is that in order for the Court to exercise the power under s 39(2) of the Court Act there must be some nexus or relationship between the determination of the appeal and the exercise of the function or discretion sought to be discharged. Ms Duggan says there must be something more than a mere identification that the council, as consent authority, has vested in it more than one function for the Court to assume that function.

There is no argument that the Court has before it an appeal within the meaning of s 39 of the Court Act and that the function and discretion which is sought to be discharged under s 138 of the Roads Act resides in the council, as the decision-maker from whom the appeal lies.

In the course of their respective submissions counsel have had regard to the following authorities:- (1) McDougall v Warringah Shire Council (1993) 80 LGERA 151; (2) Kogarah Municipal Council v Kent (1981) 46 LGRA 334; (3) Strathfield Municipal Council v Drew (1985) 1 NSWLR 338; (4) North Sydney Municipal Council v P.D. Mayoh Pty Ltd (1988 ) 66 LGRA 352; (5) Claude Neon Ltd v Sydney City Council (1986) 61 LGRA 195; (6) Sydney City Council v Claude Neon Ltd (1989) 67 LGRA 181; (7) Codlea Pty Ltd v Byron Shire Council (1999) 105 LGERA 370; (8) Helman v Byron Shire Council & Anor (1995) 87 LGERA 349; (9) Morris v Sydney City Council (1987) 69 LGRA 30; (10) Alumino Australia Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 & Ors (1995) 88 LGERA 388; (11) Figgis & Jefferson Pty Ltd v Mosman Municipal Council (1993) 81 LGERA 423; (12) Mirvac Projects No. 2 Pty Ltd v Concord Municipal Council (1993) 81 LGERA 441; (13) Connery v Manly Council (1999) 105 LGERA 451; (14) Ross Karp & Associates Pty Limited v Randwick City Council (1999) 106 LGERA 397; (15) Pimas Group Pty Ltd v Maritime Services Board of New South Wales (1994) 82 LGERA 205; (16) Hornsby Shire Council v Gosper (1993) 82 LGERA 1; (17) Paino v Woollahra Municipal Council (1990) 71 LGRA 62; (18) Hayden v Eurobodalla Shire Council (1988) 66 LGRA 337; (19) Shellharbour Municipal Council v Rovilo Pty Ltd (1989) 68 LGRA 231; (20) Canterbury Municipal Council v Philip Morris Ltd (1985) 58 LGRA 178; and (21) Claude Neon Ltd v Manly Municipal Council (1981) 50 LGRA 281. 17. Not all of these cases demand a close analysis. Nevertheless it has been necessary to examine some of the leading judgments, particularly by the Court of Appeal, as the parties have attempted to persuade the Court to draw different conclusions from a common line of authority. Furthermore, there appears to be a conflict between the decision of Bannon J in Figgis & Jefferson and the subsequent decision by Cowdroy J in Connery .

Ms Duggan and Mr Preston SC, who appears for the applicant, agree that the Court must first focus its attention on the matter the subject of the appeal before determining whether the Court has all the functions and discretions which the council had in respect of that matter.

In Kent , Reynolds and Hutley JJA accepted that the language of s 39(2) of the Court Act is wide and clear and means that the Court in order to dispose of an appeal could do whatever the council could do.

Glass JA expressed the power in equally broad terms when he said the application is such as to trigger the exercise of any relevant power vested in the council or court charged with the responsibility of accepting or rejecting the application absolutely or conditionally. In his opinion it would be entirely within power to decide as an instance of any such approval that a building line should not apply to a proposed structure.

In Drew , Mahoney JA first dealt with a submission that s 51(2) of the Public Health Act 1902 ("the Public Health Act") was impliedly repealed by the enactment of the Environmental Planning & Assessment Act 1979 ("the EP&A Act") and the Court Act in 1979. He did not express any final conclusion about the extent of the power granted by s 39(2) of the Court Act. He left the final consideration of that question to be considered at a later time.

The question to be decided by the Court of Appeal in Drew arose in class 4 proceedings, where the applicant sought declaratory relief after Bignold J had decided that the consent of the council under the Public Health Act to permit the setting up of a crematory was not required following the enactment of the EP&A Act.

Samuels and McHugh JJA both expressed doubt that the power under the Public Health Act was related to the development application and accordingly s 39(2) of the Court Act did not enable the court to review the council's decision under the Public Health Act matter. Samuels JA , like Mahoney JA, did not express a final view about the ambit of the power under s 39(2).

None of the judges in Drew doubted the correctness of the decision in Kent . Even if they had, two of the judges did not express a final view as to the width of power of s 39(2), thereby apparently leaving the ratio of the decision in Kent intact.

In Mayoh , the Court of Appeal was asked to consider whether the Land and Environment Court could determine a question which arose as to what was a reasonable period for the purpose of cl 10(2) of the North Sydney Planning Scheme Ordinance ("the NSPSO") and how the period is to be measured. Under the clause in the NSPSO, if it appeared to the council that the purpose for which the land was reserved could not be carried into effect within a reasonable period, it may approve the erection of buildings and the carrying out of work thereon. McHugh JA, who delivered the judgment of the Court of Appeal, thought that it sufficiently appeared that the formation of the opinion or conclusion under cl 10(2) was a matter "in respect of" the refusal of the application for development consent. He found that a function of the council was at the heart of the matter which was the subject of the appeal. Therefore, within the meaning of s 39(2) of the Court Act, it was a function which the council "had in respect of the matter the subject of the appeal" ( Mayoh at 358). His Honour went further and said that even if "the Council gives no reasons so that it is impossible to know whether the Council thought that the condition could be fulfilled or whether it dismissed the application on the merits, the function of the Council is still involved in the appeal" . However, as McHugh JA was careful to note, it does not follow that the court will always be in a position to form the conclusion or opinion required. He recognised that there could be relevant social, financial, political and environmental priorities, together with potential changes in the administration of the council which will ordinarily make it impossible for the court to say that the purpose, which the court had to consider in that case, cannot be carried into effect within a reasonable period after the date of the application.

McHugh JA found it persuasive that the formation of the opinion or conclusion that was required by cl 10(2) of the NSPSO had a temporal connection, in that it must exist concurrently with the grant of the application for consent. He concluded that the conditional nature of the power which the council exercises in formation of the conclusion was "in respect of the matter the subject of the appeal".

However, the temporal connection was only a relevant factor in that case, rather than a necessary element in every case where the court proceeds to exercise power pursuant to s 39(2) of the Court Act.

In Claude Neon , Hope JA, with whom Priestley and Meagher JJA agreed, had no doubt that the giving of the council consent, as an owner of the land, to the making of an application for development approval is a function of the council and it is a function the exercise of which is basic to its function to grant development approval in such a case. If the council gives development approval to a structure which in part projects over a public road it is doing two things. Firstly, it is consenting as owner of the road to the making of the application and secondly, it is also approving the application. The first consent being necessarily implicit in the second consent. Hope JA discerned no difference between the nature of the act of the council in giving its consent as owner and the nature of the giving by it of development consent such as to enable it to be said that the actions have nothing to do with each other.

In Rovilo , the Court of Appeal expressly approved the reasoning and conclusions in Claude Neon and found that the power to grant the consent to the making of an application should be seen as an instance of the power to grant or refuse the application. The exercise of that power should be understood as falling within s 20(2)(b) of the Court Act.

The decision of the Court of Appeal in McDougall was unanimous to the effect that s 39(2) of the Court Act empowered the Court, on appeal against refusal of a building application in respect of alterations to a pigeon loft, to also vary, modify or rescind a resolution controlling and regulating the property by prohibiting the keeping of pigeons. However, the individual judges expressed different reasons for so finding.

Kirby P found that the result of an interpretation of the language and apparent purpose of s 39(2) is that all the functions and discretions that council could have exercised when considering the application are open to this Court on appeal and not only those strictly necessary to the appeal. In his view, it would be to frustrate parliament's clear purpose if the Court were unduly to narrow the facility of appellate review by rendering it nugatory or diminishing its utility in appropriate cases.

Mahoney JA considered that the function to control and regulate the keeping of pigeons, pursuant to the Local Government Act 1919, is sufficiently analogous to the function to be performed in relation to a building or development application to warrant the conclusion that the function is "in respect of the matter the subject of the appeal" . After considering the previous decisions of the court, including Drew in particular, Mahoney JA stated that each function must be considered in its own context. He did not accept, however, that all functions that have a relationship to the grant or refusal of an application will be a function which is within the relationship "in respect of" that matter.

In the opinion of Cripps JA the power exists provided there is a relevant nexus between the matter the subject of appeal and the discretion or function proposed to be exercised. He also made reference to the effective functioning of the court, which should not be thwarted or frustrated by council passing or failing to rescind resolutions dealing with the subject matter of the appeal.

In Gosper , Sheller JA expressed the view that it is better that the ambit of s 39(2) of the Court Act be explored on a case by case basis for the reasons expressed by Mahoney JA in McDougall at 271. Although Sheller JA, with whom Powell JA agreed, did not think s 39(2) is directed to the land acquisition function of the council, Mahoney JA expressly declined to express a final conclusion regarding the power of the court to impose a drainage easement.

In Codlea , Stein JA delivered a judgment with which Handley and Sheller JJA agreed. He made the distinction between the making of arrangements for water services as a condition precedent to the granting of development consent and the satisfaction as to whether those prior adequate arrangements had been made. In his opinion, the making of the arrangement is exclusively the province of the council, although on appeal the court acquires the function of being satisfied about the making of any prior arrangement by the council.

In Paino , Hemmings J was not prepared to confine the decisions in Claude Neon and Rovilo to applications made to erect a structure on private land which then projects over a public road. The applicants made a development application for change of use of a road, from existing pedestrian access way to proposed vehicular and pedestrian access way and the construction of works for that purpose. In His Honour's opinion, a refusal by the council to give consent to the application, as owner of the land, would deny a statutory right to a review of the decision of council on the merits of the proposed application. In his opinion, in the circumstances of that case such functions should be exercised pursuant to s 39(2) and the Court should therefore determine the appeal pursuant to the provisions of the EP&A Act

In Alumino , I distinguished between the function of a consideration pursuant to s 90 of the EP&A Act and the formation of the opinion about the capital investment value of the development, in order to determine whether the Minister or the council was the appropriate consent authority. I held that the latter was not at the heart of the matter the subject of the appeal and that the formation of that opinion was not implicit in the determination of the application as the consent of the owner in Claude Neon was. In the course of the judgment at p 395 I made reference to Figgis & Jefferson where Bannon J held that the Court could not on a merit appeal exercise a primary administrative discretion committed to a statutory body as a designated person. In the earlier case, Bannon J was considering whether the Court had power pursuant to s 39(2) of the Court Act to approve a footpath crossing over a road reserve, pursuant to the Roads Act and as owner of the relevant road. His Honour disagreed with the propositions put to him because in his view "the functions and discretions of the Council in respect to the subject matter of the appeal, namely the building application, do not include the Council's separate statutory authority to grant permits under the Roads Act 1993". He considered the decision in Drew's case to be in point.

In John Bowyer v Manly Council (No 10700 of 1995 and 10151 of 1996, 10 May 1996, unreported) Bignold J, in the light of a concession that the council was the relevant authority in terms of the Roads Act, agreed with the further concession that the giving by the council, as roads authority, of formal approval for traffic calming devices was a function or discretion possessed by the Court in hearing and disposing of an appeal under s 97 of the EP&A Act, pursuant to s 39(2) of the Court Act.

Notwithstanding the earlier decision in Figgis & Jefferson , Cowdroy J in Connery relied upon Drew and McDougall , to conclude that the function of the council to grant or refuse consent, pursuant to s 138 of the Roads Act, is a function in respect of the matter the subject of the appeal. Notwithstanding his apparent acceptance that there could be an appeal from decisions from the Roads and Traffic Authority in relation to a refusal to grant consent under s 138 of the Roads Act, His Honour appeared to be in no doubt that the subject matter of the appeal concerned the entitlement of the applicant to use the road and that same issue formed part of the "matter" the subject of the appeal. He declined to follow Bannon J for the reasons expressed at 456.

Ms Duggan submits that the distinction raised between the power under the Public Health Act, the subject of the decision in Drew , and the power under the Roads Act, considered by Cowdroy J, is illusionary, there being no relevant distinction between the respective powers.

According to the submissions made by Ms Duggan, Cowdroy J made a number of fundamental errors as follows:- (1) The extent of the jurisdiction of the Court adopted by Cowdroy J was not available from the decision by the Court of Appeal in McDougall ; (2) Cowdroy J misunderstood the principle of the council's power as a property owner; (3) Cowdroy J misunderstood the operation of the integrated development provisions of the Act; and (4) His reasoning disclosed a belief that the authorities established principles which were not related to the facts. 42. Although the observations made by Kirby P in McDougall have not been expressly adopted by others, it nevertheless must be accepted that the authorities establish that the exercise of a function, pursuant to s 39(2) of the Court Act, must be considered in the context of the individual case, even to the extent that a function and discretion might be properly exercised in one case but not necessarily in another (see for example the observations by Mahoney JA in Gosper at p 6; McHugh JA in Mayoh at pp 358 - 359; Mahoney JA in McDougall at p 165; and Cripps JA in McDougall at pp 171- 172).

Ms Duggan points to other provisions in the Roads Act which would cause the Court to regard the functions and discretions, which the council has in respect of that Act, as not being in respect of the matter the subject of the appeal. For example, s 139(1)(d) of the Roads Act provides that a consent to erect a structure in a public road may be granted on such conditions as the appropriate roads authority thinks fit. These conditions could include the requirement for a lease pursuant to s 153 or s 149 of the Roads Act. Furthermore, it may necessitate a variation to the existing levels of a public road, thereby triggering the procedural requirements of s 29 of the Roads Act which go beyond the matter which is the subject of the appeal. In that respect, regard should be had to the consideration of public submissions made pursuant to s 30, as required by s 31, and the prospect of the payment of compensation to adjoining landowners pursuant to s 32 of the Roads Act.

Mr Preston relies upon the construction of s 39(2) of the Court Act which directs the Court to consider "the matter the subject of the appeal" . Once that matter is established then it follows that the Court has all the functions and discretions that the council had in respect of that matter.

The Court agrees that the matter the subject of the appeal is the works proposed within the applicant's property and within James Street. Before that work can be carried out the applicant requires development consent as well as the consent to carry out work in the public road pursuant to s 138(1)(a), (b) and (c) of the Roads Act.

In all of the cases where the Court has held that it is appropriate to exercise a function pursuant to s 39(2) of the Court Act, the matter the subject of the appeal was also the matter in respect of which the council was empowered to exercise another function or discretion. I do not propose to analyse each of the authorities in order to demonstrate the self-evident conclusion that the functions and discretions were being exercised in respect of the same matter in every case where it has been decided that the Court had the power to deal with the other matter pursuant to s 39(2).

I agree with Mr Preston that the reasoning adopted by Cowdroy J in Connery is orthodox and entirely consistent with the wide approach adopted by the Court of Appeal, originally outlined in Kent and followed subsequently, particularly in McDougall.

There is nothing in the judgment in Connery to show that Cowdroy J failed to understand that a consent granted for the purposes of s 138 of the Roads Act went beyond the mere consent of the council as owner, as was the case in Claude Neon .

Even if Cowdroy J did not understand the effect of the integrated development provisions of the EP&A Act, which I do not necessarily accept, his observations in that regard did not in my opinion lead to error about the effect of s 39(2) of the Court Act.

If, when the facts are established on the hearing of the appeal, it becomes apparent that there are matters which bear upon the exercise of the discretion pursuant to s 138 of the Roads Act and those matters are not in respect of the matter the subject of the appeal from the decision of council then the Court must refuse to exercise the power of the council in that respect. However, as I have already indicated in paragraph 42, the fact that there may be such matters does not necessarily mean that the Court can never exercise the power pursuant to s 39(2) of the Court Act.

The submission by Ms Duggan that it is necessary for there to be a temporal connection between the exercise of the function in respect of the separate matters, is rejected. The words of s 39(2) do not impose such a requirement. The subsection only requires that the functions and discretions which the Court exercises shall be in respect of the matter the subject of the appeal.

At this preliminary stage of the appeal the Court is not prepared to preclude the prospect that it may exercise the functions and discretions that the council has as the appropriate roads authority pursuant to s 138 of the Roads Act. Where those functions and discretions are directly in respect of the matter the subject of the appeal, namely the work described in the development application, then pursuant to s 39(2) of the Court Act the Court is entitled to exercise those functions and discretions for the purposes of hearing and disposing of the appeal.

It is appropriate, therefore, that the question which is directed to the jurisdiction of the Court to grant consent to the works pursuant to s 138 of the Roads Act be answered in the affirmative, subject to the qualification and reservation expressed in paragraph 50 of these reasons.

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