Metro Transport Sydney Pty Ltd v City of Sydney Council

Attorney-General v Great Eastern Railway Co (1880) 5 App Cas 473 Bonus Pty Ltd v Leichhardt Municipal Council (1954) 19 LGR 375 Burton v Honan (1952) 86 CLR 169 Cunliffe v Commonwealth (1993-1994) 182 CLR 272 Davis v Commonwealth (1988) 166 CLR 79 Foodbarn Pty Ltd v Solicitor-General (1976) 32 LGRA 157 GG Crespin & Son v Colac Co-operative Farmers Ltd (1916) 21 CLR 205 Grain Pool of Western Australia v Commonwealth [2000] HCA 14, (2000) 202 CLR 479 CASES CITED: Grannall v Marrickville Margarine Pty Ltd (1954-1955) 93 CLR 55 Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309 Neat Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35, (2003) 216 CLR 277 Nguyen v Minister for Health & Ageing [2002] FCA 1241 Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 Thompson v Council of the Municipality of Randwick (1950) 81 CLR 87 Victoria v Commonwealth (Second Uniform Tax Case) (1957) 99 CLR 575 Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23 Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710

APPLICANT: Ms S Duggan and M Seymour SOLICITORS Piper Alderman LEGAL REPRESENTATIVES: RESPONDENT: Mr J Kirk SOLICITORS City of Sydney Council

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

METRO TRANSPORT SYDNEY PTY LTD v CITY OF SYDNEY COUNCIL

JUDGMENT 1 HIS HONOUR: This is an application by Metro Transport Sydney Pty Ltd for judicial review challenging the validity of six orders to the applicant issued by the respondent, the Council of the City of Sydney (City), under s 121B of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act). The applicant is the operator of the Sydney Monorail. The orders required removal of third party advertising unrelated to the provision of Monorail services, which the applicant has permitted, for reward, to be placed on 17 support pylons of the Sydney Monorail. The 17 pylons are within the City's local government area, in Liverpool, Market and Pitt Streets. The orders are not directed to other advertising found on monorail pylons, including three of the subject pylons, giving directions to monorail facilities. 2 Section 121B of the EPA Act authorises a council to order a person to remove an advertisement displayed contrary to a provision of the EPA Act. The orders recite that they were displayed contrary to s 76A(1) of the EPA Act, which is within Part 4.

3 The issue for resolution is whether development consent under Part 4 of the EPA Act was required for the display of the advertising in question . No development consent has been sought or obtained. Development consent under Part 4 would be required pursuant to cl 37(2) of the Sydney Local Environmental Plan 2005 and s 76A(1)(a) of the EPA Act, unless s 104P of the Transport Administration Act 1988 (NSW) (TA Act) applies.

4 The case turns upon the construction and application of s 104P of the TA Act, which establishes an exemption from Part 4 of the EPA Act, available to the applicant, in particular terms. Section 104P provides: " 104P Part 5 of EPA Act to apply to development for light rail system

development has the same meaning as in Part 4 of the EPA Act. EPA Act means the Environmental Planning and Assessment Act 1979.

(2) Development for the purposes of a light rail system:

(a) may be carried out without the necessity for development consent under Part 4 of the EPA Act, and

(b) may be so carried out even if the development would be prohibited, or would require development consent, in the absence of this section.

(3) Development for the purposes of a light rail system is an activity within the meaning of Part 5 of the EPA Act and the Director-General is the proponent and a determining authority in relation to that activity for the purposes of that Part.

Note . By virtue of this subsection, the approval of the Minister administering the EPA Act is, if an EIS is prepared, required under Division 4 of Part 5 of that Act before the activity is carried out.

(4) Development for the purposes of a light rail system includes anything that is incidental to the carrying out of any such development." 5 Two questions arise:

(a) whether the display of the advertising constitutes "development for the purposes of a light rail system" within s 104P(2) of the TA Act ; (b) alternatively, whether the display of the advertising constitutes development "incidental to the carrying out of any such development" within s 104P(4) of the TA Act. 6 If the answer to either question is "yes", the applicant was not required to obtain development consent, the orders are invalid, and relief should be granted. If the answer to both questions is "no", the applicant was required to obtain development consent, it has failed to do so, the orders are valid, and the application should be dismissed. Factual context 7 The Sydney Monorail is a light rail transportation system operating in a loop between Darling Harbour, Chinatown and Sydney shopping precincts. It is comprised of some 3.6 km of track, elevated and supported by approximately 139 pylons, of which 57 are located within the City's local government area. The Monorail system has a passenger capacity of 3,600 passengers per hour and conducts approximately 3 million passenger trips annually. 8 The Monorail commenced operation in 1988, having been privately funded. The applicant has operated it since 1998, when it was purchased from TNT.

9 The third party type of advertising in question, on the Monorail pylons, did not occur until about late 2000, as a result of an approach made to the applicant by representatives of the hotel chain Swissotel who wished to place signs on the pylons directly adjacent to the Swissotel building.

10 Although the applicant has not obtained, and has made no attempt to obtain, approval from the City, recent contracts relating to the pylon advertising in question mostly contain the following statement: "Signage is conditional on acceptance from City of Sydney or Sydney Harbour Foreshore Authority - if either of these parties deems the signage unacceptable then it must be removed immediately and the unused portion of the Agreed Fee will be refunded." 11 The applicant says it relies on revenue from such advertising, but has not actively or directly approached businesses to market and/or sell such services. Whilst the applicant promotes other advertising opportunities on its website, advertising on the Monorail pylons is not promoted there. 12 Mr Warrell, the chief executive officer of the applicant, said in evidence that advertising activities on the Monorail and the revenue it generates is an essential part of the applicant's activities and that without advertising revenue the applicant "would have been forced to implement large fare increases as the only way to recover more revenue". He did not identify what proportion of total Monorail revenue is comprised of advertising revenue, nor what proportion is comprised of advertising revenue from the Monorail pylons at issue in this case. However, the summary profit and loss reports (annexed to his affidavit) reveal that total advertising revenue for the previous five years has ranged between 4.06 percent in 2007/8 to 6.17 percent in 2003/4, with the proportion in the other three years being about five percent.

13 The current contracts relating to the advertising pylons in question reveal that the applicant, with one exception, charges $2,500 plus GST per pylon per annum (with advertising allowed on each side of each pylon). In the case of Swissotel, this amount is provided in the form of services. The exception is the contract for Australian Opal Cutters, for which it appears a rate of $2,000 per pylon plus GST is charged. The total amount in question for the 17 pylons at issue here, therefore, is an amount of some $42,000 per annum. That amount constitutes 0.454 percent of total revenue for 2007/8, and a similar proportion in the earlier years.

Development for the purposes of a light rail system 14 Section 104P(2) of the TA Act provides as follows: "Development for the purposes of a light rail system:

(a) may be carried out without the necessity for development consent under Part 4 of the EPA Act, and

(b) may be so carried out even if the development would be prohibited, or would require development consent, in the absence of this section." 15 The word "development" is defined in s 104P(1) to have the same meaning in that section as in Part 4 of the EPA Act. 16 Section 104P(2) confers an immunity from Part 4 of the EPA Act. The provision does not establish a power, but defines the scope of a power (found elsewhere) to undertake certain activities without having to comply with Part 4. 17 The question that arises in relation to s104P(2) is whether the display of the challenged advertising on the 17 pylons is "development for the purposes of a light rail system". That question makes it necessary to identify what a "light rail system" is. Section 104N(1) of the TA Act provides that for the purposes of the Act a "light rail system" is the following: "a system for the provision of light rail services along a route declared under subsection (2), including tracks, catenaries, supports for tracks and catenaries, stops, access to stops, signalling and other control facilities, vehicles, vehicle depots and other facilities and equipment associated with the provision of those services." 18 Although the specific matters included in that definition are infrastructure, the definition is directed to the provision of "light rail services", which is defined in s 104M as including "railway passenger services, provided by light rail vehicles". Thus, a light rail system includes not only infrastructure but also such railway passenger services, for example, train drivers, conductors and ticket vending machines. An issue in the case is whether it includes third party adverting: discussed at [51]-[52] below.

19 The applicant submits that the exemption from Part 4 of the EPA Act for "development for the purposes of a light rail system" in s 104P(2) of the TA Act should be construed broadly. The purpose of the submission is to gain a better foothold for the proposition that such development includes third party advertising. The applicant's first argument for a broad construction is that a breach of an order under s 121B of the EPA Act carries penal consequences under s126 of the EPA Act (as well as civil consequence under s 123). I do not accept the argument for two reasons. First, if an exemption from the EPA Act is to be read up because otherwise it subjects the applicant to planning law penalties, the remarkable consequence, on the other side of the coin, must be that every matter of planning law which may ultimately lead to a s 121B notice is to be read down - because, ultimately, there may be a penal consequence if the notice is disobeyed. There is no authority for the radical proposition that this fundamental piece of state legislation should be read down in this way. It is inconsistent with the important and beneficial objects in s 5 of the EPA Act. Secondly, in any case, there is no problem with penal provisions if there is compliance with any need to obtain development consent, which is the central issue in the case. 20 The applicant's second argument for a broad construction of "development for the purposes of a light rail system" in s 104P(2) is by reference to existing use cases in which appear statements that a dominant purpose may characterise the "purpose" around which cluster incidental activities: Bonus Pty Ltd v Leichhardt Municipal Council (1954) 19 LGR 375 at 378; and to the effect that there is a need to find an appropriate level of characterisation for the activities carried on: Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 (CA) at 310. Existing use principles were recently analysed by me in Warlam Pty Ltd v Marrickville Council [2009] NSWLEC 23 at [18]. As the City submits, the classic test of categorisation of an existing use in Royal Agricultural Society of New South Wales v Sydney City Council is a "Goldilocks" test: not too wide, not too narrow, just right. That, in my opinion, is how s 104P should be construed. Meaning of "incidental"

21 Section 104P(4) of the TA Act provides as follows: "Development for the purposes of a light rail system includes anything that is incidental to the carrying out of any such development" 22 The phrase "Development for the purposes of a light rail system" refers back to the provision made in s 104P(2). Sub-section (4) makes it clear that sub-section (2) includes anything incidental to the carrying out of development for the purposes of a light rail system. 23 In my opinion, something is incidental to the carrying out of the development of the Monorail if it is reasonably necessary to effectuate that purpose. This notion of "incidental" has been adopted in the constitutional, corporations and administrative law contexts and I adopt it by analogy. However, the rather strong adjective "necessary" here does not mean strictly necessary. Rather, it means that something can reasonably be characterised as tied to achieving that purpose. It is a question of degree. Thus, for example, a caretaker's cottage in an industrial development and a bottling machine used in a retail business are ancillary to the dominant land use even though they are not strictly necessary: Foodbarn Pty Ltd v Solicitor-General (1976) 32 LGRA 157.

24 As to the constitutional analogy, two caveats, as submitted by the City, should be mentioned. First, the courts have manifested a degree of deference to the judgments of Parliament in the constitutional area, not wishing to intrude too far into the political sphere. That concern does not arise in the present context. Secondly, grants of power in the Constitution are to be construed "with all the generality which the words used admit": Grain Pool of Western Australia v Commonwealth [2000] HCA 14, (2000) 202 CLR 479 at [16]. That principle does not apply here.

25 In the constitutional case of Grannall v Marrickville Margarine Pty Ltd (1954-1955) 93 CLR 55 at 77 Dixon CJ, McTiernan, Webb and Kitto JJ said: "…every legislative power carries with it authority to legislate in relation to acts, matters and things the control of which is found necessary to effectuate its main purpose, and thus carries with it power to make laws governing or affecting many matters that are incidental or ancillary to the subject matter." 26 Brennan J said in the constitutional context in Cunliffe v Commonwealth (1993-1994) 182 CLR 272 at 320: "The connexion with power is a matter of degree and, so understood, the terms sufficient' and reasonable' are interchangeable". 27 Two propositions emerge from these statements. First, the notion of an incidental power is purposive. Such things are incidental as are necessary to effectuate the main purpose of the power. Secondly, whilst the word "necessary" does not mean strictly necessary, an issue of degree arises such that the matter claimed to be incidental can reasonably or sufficiently be characterised as tied to achieving the purpose. 28 In the constitutional sphere the High Court has held, for example, that the incorporation of industrial organisations is incidental to the permissible regulation of interstate industrial disputes pursuant to the power in s 41(xxxv) of the Constitution: Jumbunna Coal Mine NL v Victorian Coal Miners' Association (1908) 6 CLR 309; provisions for the forfeiture of imported goods are incidental to the regulation of interstate/overseas trade pursuant to the power in s 51(i) of the Constitution: Burton v Honan (1952) 86 CLR 169; a provision prohibiting taxpayers from paying State taxes until they had satisfied their federal tax obligations is not incidental to the power to make laws with respect to taxation under s 51(ii) of the Constitution: Victoria v Commonwealth (Second Uniform Tax Case) (1957) 99 CLR 575 at 614; and restrictions on usage of certain words relating to the Bicentenary were not incidental to the Executive power to execute and maintain the Constitution in s 61 of the Constitution (even though celebration of the Bicentenary itself fell within that power): Davis v Commonwealth (1988) 166 CLR 79. 29 The notion of incidental powers had earlier developed with respect to the ultra vires doctrine in relation to corporations. In the frequently cited cases of Attorney-General v Great Eastern Railway Co (1880) 5 App Cas 473 (HL) Lord Selborne LC said at 478: "whatever may fairly be regarded as incidental to, or consequential upon, those things which the Legislature has authorised, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires ."

"that those things which are incident to, and may reasonably and properly be done under the main purpose, though they may not be literally within it, would not be prohibited". 30 Thus, the same two principles emerge. The notion is purposive, and it involves a characterisation assessment as to whether what is said to be incidental may reasonably be regarded as being such. 31 The issue also arises in relation to statutory grants of power to administrative decision-makers. As Weinberg J said in Nguyen v Minister for Health & Ageing [2002] FCA 1241 at [64] (citation omitted): "Where a statute confers an express power it is implicit that it confers ancillary powers as well. These are powers to do any incidental thing which is reasonably necessary to make the express grant of power effective." 32 This again illustrates that it is necessary that the incidental thing be reasonably connected to making the relevant grant effective. 33 In the present case, there can be no doubt about the need to establish a sufficient connection to purposes, for such is expressly set out in sub-sections (2) and (4) of s 104P. The issue dealt with in these provisions is "development for the purposes of a light rail system". Thus, in order to characterise the type of advertising in question as ancillary the applicant must establish that it is reasonably necessary to achieve the purposes of development of a light rail system. That involves an issue of degree. Mere common association, with the matter centrally within power is insufficient of itself, to establish a sufficient connection.

34 The applicant submits that "activities that are ordinarily ancillary to development can be permissible as part of a principal, dominant or primary approved use", citing Foodbarn Pty Ltd v Solicitor General (1976) 32 LGRA 157 at 161. The applicant then submits that the statutory reference to incidental development in s 104P(4) "must take the penumbra of permissible incidental activities beyond the tests developed by the Courts under the Foodbarn principles relating to ancillary development".

35 To the extent that Foodbarn is relied upon to suggest that matters, which ordinarily go together with other matters, may be taken to be ancillary, then analysis of the judgment does not make the proposition good. The issue in Foodbarn related to a prohibition on development in a local government ordinance. The case turned on the purposive definition of "shop" in the ordinance. The Court of Appeal did not talk about activities "ordinarily ancillary to development" in the manner suggested by the applicant. It was accepted at 161 that if use of premises for one purpose was merely ancillary to another dominant purpose, then the former purpose might be disregarded. However, Glass JA stated at 160 -161: "An ordinance which sets out to provide a catalogue of activities some of which are permitted and others prohibited could hardly intend that the prohibited activity would be acceptable if it were allied to some other permitted activity…If any one purpose operating in a way which is independent and not merely incidental to other purposes is prohibited, it is immaterial that it may be over-shadowed by the others whether in terms of income generated, space occupied or ratio of staff engaged." 36 The applicant's second proposition, in essence, is that because express provision is made for incidental development, where such would likely be implied in any event, then this must be doubly significant. I cannot accept the proposition. It is commonplace for statutes to provide expressly for incidental matters in order to make the issue clear. For example, s 50(1)(e) of the Interpretation Act 1987 (NSW) provides that statutory corporations "may do and suffer all other things that bodies corporate may, by law, do and suffer and that are necessary for, or incidental to, the exercise of its functions". Such provisions are merely to put the issue beyond doubt. Another example is the express incidental power in s 51(xxxix) of the Constitution, of which Barton J said in GG Crespin & Son v Colac Co-operative Farmers Ltd (1916) 21 CLR 205 at 214: "Though the incidental power would have been exercisable without this express grant, the sub-section makes assurance doubly sure". Part 5 EPA Act: s 104P(3) 37 The applicant submits that the effect and purpose of s 104P is that development is to be dealt with under Part 5 of the EPA Act and not under Part 4. This submission is based on subsection (3) of s 104P which provides that: "Development for the purposes of a light rail system is an activity within the meaning of Part 5 of the EPA Act and the Director-General is the proponent and a determining authority in relation to that activity for the purposes of that Part.

Note. By virtue of this subsection, the approval of the Minister administering the EPA Act is, if an EIS is prepared, required under Division 4 of Part 5 of that Act before the activity is carried out." 38 In my opinion, s 104P(3) is inapplicable because it is excluded by s 76A within Schedule 7 of the TA Act. Section 76A provides: " 76A Darling Harbour monorail transport system

(1) The Darling Harbour monorail transport system is taken to be a light rail system for the purposes of this Act.

(2) Subject to the regulations, the route of the Darling Harbour monorail transport system, as it was immediately before the repeal of the Darling Harbour Authority Act 1984, is taken to have been declared under section 104N (2).

(3) Section 104P (3) does not apply to the operation of the Darling Harbour monorail transport system along the route referred to in subclause (2)." 39 The route of the Monorail where its pylons carry the subject third party advertising is the route referred to in subsection (2). Consequently, s 76A(3) is a complete answer to the applicant's submission.

Section 76A(3) is explicable in terms of the history of the Monorail and Part 9 Division 2A of the TA Act, which includes s 104P and the other sections earlier referred to. That Division was introduced in 1996 in the context of the then proposed extension and development of the Ultimo Pyrmont light rail network. That is a tram that goes through Chinatown, Darling Harbour and on to Lilyfield. The fact that the Monorail was exempted from Part 5 of the EPA Act is unsurprising because the Monorail was built much earlier, in 1988, and any need for an environmental impact assessment would have been dealt with then. Finance: s 104L 40 Section 104L provides: "In this Subdivision:

(a) carry out development (within the meaning of the Environmental Planning and Assessment Act 1979) for the purposes of a light rail system, or

(c) maintain any such development". 41 The applicant submits that this definition governs the meaning of the cognate expression "development for the purposes of a light rail system" in s 104P(2); that the revenue from third party advertising is integral or necessary to finance the Monorail; and that such revenue therefore falls within the definition in s 104L(b). The applicant may alternatively be submitting that such third party advertising is ancillary (independently of s 104L). I do not accept the submissions for four reasons.

42 First, although cognate words in a statute generally have the same meaning, the definition in s 104L does not apply to s 104P because the latter specifically defines "development" to have the same meaning as in Part 4 of the EPA Act. In Part 4 (and throughout) the EPA Act, "development" is defined to include advertising controlled by an environmental planning instrument: ss 4 and 26(1)(g). Advertising is relevantly controlled by two environmental planning instruments: the Sydney Local Environmental Plan 2005 (LEP) and the State Environmental Planning Policy No 64 - Advertising and Signage (SEPP 64). The EPA Act definition of development does not include finance for development. This is an example of a more specific provision excluding the more general. Consequently, although there is a general definition of "development" for the purposes of the subdivision in s 104L, there is a specific and exclusive meaning given to "development" for the purposes of the section in question, s 104P. That is so for the fairly obvious reason that s 104P deals with the interaction between this part of the TA Act and what would otherwise be the operation of the EPA Act. It is unsurprising that in regulating that interaction, s 104P is only concerned with the concept of development as it is dealt with in the EPA Act. The general definition in s 104L therefore does not aid the construction of s 104P.

43 Secondly, even if the general definition in s 104L applies, it does not assist the applicant in this case. At its core, the applicant's argument is that the advertising in question finances the Monorail because it makes money for the applicant, by using part of the infrastructure of the Monorail. In my opinion, "finance" for development in s 104L does not include this kind of trade and commerce, third party advertising. The natural meaning of "finance" for development is to raise capital for the purpose of engaging in development. It is not within the natural meaning of that concept to say that it includes trade or commerce of any kind to raise money to cross subsidise the light rail system. If that were so, it could encompass cross subsidisation from a wide range of unrelated activities (even disreputable activities): for example, money market operations, share trading, car sales, a convenience store, even a circus or a brothel, to raise money to operate the light rail system. The brothel example arose in argument and it was conceded by the applicant that that would fall on the wrong side of the line, although it was put that it is a matter of degree and that third party advertising falls on the right side. In my opinion, even if s 104L is applicable, it does not encompass the type of advertising in question here, which is sought to be justified by the fact that it raises money for the applicant which also operates the Monorail. The s 104L definition therefore does not assist the applicant's cause.

44 Thirdly, in any event, as a matter of fact, it has not been established that it is economically necessary for this kind of advertising to be undertaken. The advertising in question appears to account for less than 0.5 percent of total revenue for the Monorail: see [13] above. This is a minor amount on any view. Moreover, what is at issue is whether or not the applicant is required to obtain development consent from the City for the advertising in question. It has not applied for any such consent, and it has not established that the City would refuse all such applications. The implication that it will lose all of the revenue in question if it cannot obtain the exemption in s l04P is without evidentiary foundation. 45 Fourthly, even if that were established, an economic necessity justification fails the test of being incidental to the purposes of the light rail system. This gains support from the decision of the Court of Appeal in an analogous context in Woollahra Municipal Council v Minister for the Environment (1991) 23 NSWLR 710. The case concerned whether or not licensing powers conferred on a Minister by the National Parks and Wildlife Act 1974 extended to the grant of a lease of a building within a national park to a private university. The question was seen to turn upon whether or not the grant of the lease was for the purpose of promoting, or was ancillary to promoting, the enjoyment of the national park by the public. The justification offered for the grant of the lease was that whilst it would not directly benefit the public, it would indirectly affect such benefit by financing the restoration of particular buildings within the national park for the long-term benefit of the public. 46 The Court of Appeal held that this was insufficient justification for the grant of the lease, which was thus beyond power. Gleeson CJ emphasised that one had to focus upon the use of the land which was at issue. He said at 717D: "It is the use of the land that is to be judged by reference to the objects of the Act, not the motives which lie behind the decision to permit that use". Similarly, Kirby P stated at 728F that: "…there was a separate use of public buildings and land for a private university whose activities would not, as such, promote or be ancillary to the use and enjoyment of the national park as a park". Kirby P at 729B posed these questions: "Is it possible that the 'purpose' of the development might be characterised in a way which would bring it within the 'purpose authorised by' the Act, because it is one permitting the infusion of funds which could then be used for the park's purposes? Does this mean that a solicitor could establish a quiet office in a corner of a national park, upon a promise to contribute substantially funds which would undoubtedly be useful to develop the park or particular facilities in the park? Does it mean that such entitlements to pursue private activities in the park to the derogation of its public purposes can be purchased for a certain sum? At what point would the contribution of a private business enterprise convert its self-interested 'purposes' into a 'purpose authorised by' the Act? Can planning law, which envisages the orderly division of land into zones for different specified uses be so readily undermined by the power of the purse? Can the objective of zones set aside for national parks (being for conservation and recreation purposes) be changed for purposes having nothing to do with conservation and recreation simply because of a promise, incidentally, to provide funds and do certain things of benefit to the park? May such an approach to the designation of the 'purposes' of encroachments upon national parks, if they became a general rule, not undermine such places as environments open to the public generally and set aside from the busy world for recreation, enjoyment and reflection?"

47 The following statement by Samuels JA at 733D is apposite: "It was submitted, however, that the revenue to be gained from this development provided a means, otherwise unavailable, of financing the refurbishment and renovation of the old Officers' Mess, said to be a building of architectural significance, and of providing other structures without which the area could not be used to its maximum potential as a national park. In my opinion such a consideration is irrelevant. The fact that an activity which does not satisfy the criteria which I have adumbrated will produce money capable of constructive use to improve the amenities and facilities in the park, cannot validate a grant which would otherwise be beyond power. If it were otherwise, a host of disreputable examples could readily be conjured up. As it was put, it must be the planning use that is within power, and not the management use which might be represented by the wise application of funds which an improper exercise of power (or a grant made without power at all) would generate". 48 The decision of the High Court in Thompson v Council of the Municipality of Randwick (1950) 81 CLR 87 is also pertinent. The case concerned a series of land acquisitions proposed by the council in order to construct a new road and path in the area. The council had sought to resume more land than was required for that purpose in order to enable subdivision and sale of that land for profit. The High Court considered a series of statutory powers said to authorise the acquisition, holding that none of them sufficed. One of the powers, in s 535 of the relevant Act, authorised a council which proposed to acquire land for any purpose also to acquire other land adjoining to or in the vicinity. The High Court held (at 104) that this power was "not an independent but an incidental power and this indicates that some limits must be placed on its meaning", namely that it only authorised acquisition of adjoining or proximate land where such "is reasonably incidental to the carrying out of the purpose for which the land is authorised to be acquired" under that section. The Court then said, at 104: "In the present case it is clear that the lands proposed to be resumed exceed what is required to construct the new road, and there is no evidence that it is reasonably incidental to any purpose under s.235 of the Act that this excess should be acquired under s.535."

"Upon consideration of the scheme as a whole, the conclusion seems irresistible that, with respect to so much of the land included in the scheme as is not required for the new road, profit-making by sale is a substantial purpose actuating the Council in deciding upon the proposed resumptions." 49 Thus, the fact that the acquisition of the adjoining land was seen as necessary in order to make the overall project profitable was insufficient to establish that that acquisition was reasonably incidental to the carrying out of the authorised purpose. A similar conclusion was reached by the Court in relation to another power, in s 32l(d) of the relevant Act, granting the council a power to undertake improvements and embellishments of an area: see at 104 -105. 50 In Thompson, as in Woollahra, the proposition that doing something to raise revenue in order to assist achieving a legitimate purpose was insufficient for the activity to be characterised as reasonably incidental to achievement of the purpose in question. The same point applies here.

Service: ss 104N and 104M 51 The applicant submits that third party advertising is a form of service to Monorail passengers to inform them of "local, tourism-related businesses sited near Monorail stations". The applicant relies on s 104N which defines a light rail system as a system for the provision of "light rail services" which, in turn, is defined in s 104M as "railway passenger services provided by light rail vehicles": see [17] - [18] above. Section 104N lists items of infrastructure but s 104M is concerned with railway passenger services provided by light rail vehicles. The latter would, for example, encompass employing drivers, conductors, ticket sellers, ticket machines and such like. It does not, however, encompass third party advertising, in my opinion, because that is not "railway passenger services provided by light rail vehicles". It is not a service to railway passengers. It is insufficient that a relatively small proportion of the vast numbers of people who pass by the third party advertisements on the pylons happen to be people who have been Monorail passengers. The third party advertisements are directed to everyone. In no meaningful way are the third party advertisements connected to the fact that some of the people catch the Monorail. Moreover, the contention that the advertising relates to tourism-related businesses is inconsistent with the facts. The advertising in question includes the following businesses: Active Kids Child Care Centre, the Telstra Shop, Hilton Car Parks, and Complete City Health. 52 In my opinion, the advertising in question cannot be characterised as reasonably necessary to achieve the purpose of developing a light rail system, as that notion is defined in s l04N. That Parliament did not intend that this distinct usage should be immune from the necessity for development consent under Part 4 of the EPA Act is supported by consideration of the statutory context. Section 104P provides that "development" has the same meaning in the section as in Part 4 of the EPA Act. The word "development" is defined in s 4(f) of the EPA Act to include "any other act, matter or thing referred to in s 26 that is controlled by an environmental planning instrument". Section 26(1)(g) of the EPA Act provides that an environmental planning instrument may make provision for or with respect to "controlling advertising". Thus, the EPA Act treats advertising as a particular and distinct use of land. Section s l21B, relating to orders that may be given by a consent authority, itself specifically addresses orders relating to altering, obliterating, demolishing or removing an advertisement or associated advertising structure. These points support the conclusion that the use of land involved in such advertising would not be regarded as merely incidental to the carrying out of the building or operation of a light rail system, as encompassed within s l04P. Rather, it is a distinct form of development.

Advertising commonly associated with public transport 53 The applicant submits that third party advertising is incidental because it is commonly associated with public transport. In my opinion, this does not, of itself, satisfy the incidental test. The notion of being incidental is that the activity in question can be characterised as reasonably necessary to achieve the relevant purpose: see [21] - [36] above. Common practice does not establish any such connection. Advertising is commonly associated with numerous activities, including placement on city buildings and street furniture such as bus stop shelters, kiosks, public toilets, seats and rubbish bins. The fact that such advertising is commonplace does not mean that it is reasonably necessary for the purpose of a city building or street furniture. A categorical point 54 The applicant makes a categorical submission that because some forms of advertising, in particular advertising of the Monorail itself, are incidental, then all advertising, including third party advertising, is incidental because it is illogical to distinguish between different types of advertising. I do not accept the submission. Advertising of the Monorail itself and third party advertising are relevantly distinguishable. An analogy may be drawn with development consent for the use of a building as a hotel. That consent would not be construed as including consent for the display of third party advertisements on the walls of the hotel building on the reasoning that it was ancillary to its use as a hotel. Third party advertising is an independent use. 55 The City has not issued s 121B orders relating to directional signs indicating the location of Monorail stations. It may well be that such directional signs are incidental to the operation of a light rail system, although it is not necessary to determine that point in this proceeding. The advertising at issue in this proceeding is for third parties unconnected to the operation of the Monorail or the services provided by the Monorail. Similarly, it is not necessary to consider whether or not s 104P of the TA Act applies to other types of advertising connected with the Monorail. Whether City had to obtain declaratory relief 56 The applicant submits that it was incumbent upon the City to establish that Part 4 of the EPA Act does not apply in Court proceedings in which it sought declarations to that effect. I reject the submission. When the applicant displayed the third party advertisements, there was no public law exercise of power that would support judicial review: see Neat Domestic Trading Pty Ltd v AWB Ltd [2003] HCA 35, (2003) 216 CLR 277 at [52] - [56]. The display of third party advertisements was just part of the applicant's general operation of its business. In any case, I can see no reason why the City was obliged to seek judicial review.

Conclusion 57 For these reasons, in my opinion, s 104P does not exempt the applicant from the need for development consent under s 76 of the EPA Act. The application is dismissed with costs. The exhibits may be returned.

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.