Was the RTA required to obtain the Council's consent under s 138 with respect to the relevant classified roads?
64 Firstly, the primary judge, whilst accepting that pursuant to s 64(1) of the Act the RTA was empowered to exercise the functions of a roads authority under s 71, held that that fact did not automatically carry with it a dispensation from the requirement to seek the Council's consent under s 138; nor did it constitute an automatic vesting in the RTA of the consent function of the Council under that provision. Secondly, although accepting that s 64(1) empowered the RTA to exercise the Council's consent function under s 138, his Honour held that the RTA had not on the facts purported to exercise that particular function.
65 The RTA submitted that the combined operation of ss 64(1) and 71 was not only to empower the RTA to exercise the function of a roads authority to carry out road works upon a classified road, but also to confer authority to exercise that power and to undertake the relevant work without more. It was submitted that this followed because otherwise a roads authority such as the Council, which was authorised to carry out road work on a public road pursuant to s 71, would be required to apply to itself under s 138 to carry out that very same work. In this respect, it was submitted that the matters referred to in s 138(a) and (b) and, possibly, those referred to in sub-paragraphs (c) and (d), fell within the definition in the Dictionary of "road work". It would be absurd, so it was submitted, to require the "appropriate roads authority" to apply to itself for consent under s 138 where it would be both the applicant for the consent as well as well as the consent authority.
66 Although it was acknowledged that by s 138(4) the section was expressly applied to "a roads authority", it was submitted that that was a reference to such an authority that was not "the appropriate roads authority". In this respect it was stressed that the Act potentially differentiates, where the context requires it, between "a roads authority" and "the roads authority", the latter relating only to the authority which has been declared as such with respect to the particular road pursuant to s 7 of the Act. In other words, s 138(4) related to a person or body who had been declared a "roads authority" by or under the Act, but not with respect to the particular road upon which it was sought to carry out the work or erect the structures referred to in s 138(1).
67 Accordingly, the RTA submitted that the structure of s 138 was such that it was directed to require the consent of the appropriate roads authority to the erection of the structures and the works referred to in s 138(1) where the erection of those structures or the carrying out of those works was not elsewhere authorised under the Act. It followed that, pursuant to s 138(3), the reference to "a public authority" related to an authority which was not the "appropriate roads authority" in respect of the particular road upon which the erection of the structure or the carrying out of the work was proposed. Similarly, as I have noted, it was submitted that s 138(4) applied only to a public authority which, although "a roads authority" which had been declared as such with respect to a road, was not the roads authority for the road the subject of the application for consent.
68 The RTA submitted that such a construction achieved two outcomes. Firstly, it avoided what was submitted as a lack of utility and manifest absurdity of a roads authority applying to itself for consent to the carrying out of the relevant work. Secondly, it avoided the RTA and the Minister, each of which was a "public authority" (as defined) and a "roads authority" (as defined), from being subject to the whim of a council who was the "appropriate roads authority" for the road in respect of which the work was to be performed in circumstances where otherwise under the Act the Minister or the RTA was expressly authorised to carry out that work.
69 In particular the RTA relied upon s 72 of the Act which, although applying to unclassified roads, empowered it to carry out road work on an unclassified public road in the circumstances set forth in sub-paragraphs (a)-(d) thereof. It was submitted that, once the RTA had formed the necessary opinion referred to in sub-paragraph (a) and particularly (b) to carry out work which would be of benefit to classified roads in the vicinity, it would be an odd result that that work, notwithstanding the formation of that opinion, could not be carried out unless and until the local council had granted its consent thereto. The only statutory stricture on the council refusing such consent would be its obligation under s 138(3) to consult with the RTA as applicant for the council's consent.
70 The foregoing argument received further support, so it was contended, from the terms of s 72(1)(c) which empowers the RTA to carry out road work on an unclassified public road where that work is funded by money appropriated by Parliament for that purpose. Again, it would be an odd outcome if, Parliament having appropriated the necessary funds for the particular road work, the carrying out of that work could then be frustrated by the refusal of the local council to grant its consent to the work in respect of which those funds had been expressly appropriated. If this were so with respect to an unclassified road, the argument applied a fortiori to a classified road.
71 If the foregoing arguments were rejected, the RTA submitted that s 64(1) empowered it to exercise the function of the Council under s 138 and that it had, in fact, done so as evidenced by what was referred to as the RTA's act of "self approbation" in actually carrying out the work. It was further submitted that a consideration of the relevant correspondence revealed that it was not reasonably open to the primary judge on the evidence before him to find that the RTA had left that function with the Council rather than taken it upon itself. It was submitted that it was implicit in the RTA's conduct that any necessary exercise of the power to "take over" the Council's consent role under s 138 and any necessary exercise of that role with respect to the proposed work had in fact occurred.
72 It is appropriate at the outset and before turning to the Council's submissions, to reject the alternative submission of the RTA that it had assumed pursuant to s 64(1) the function of the Council under s 138 and in fact exercised that function by an act of self-approbation. In my opinion, a consideration of the relevant correspondence between the parties upon which the RTA relied revealed the precise opposite.
73 Although I agree with the primary judge's finding (at [47]) that the exercise by the RTA of a function of a roads authority under s 64(1) is a matter of choice, I cannot agree that having exercised that choice it was not open to the RTA to exercise the particular function without first having communicated its decision to do so to the appropriate roads authority. Where the RTA proposes to exercise the consent function of the appropriate roads authority under s 138, what is required in my opinion, is that it do so by reference to some overt act or conduct which evidences that it has in fact granted to itself a consent under that provision: Baiada v Waste Recycling and Processing Service of NSW (1999) 130 LGERA 52 at 62 [38]. Of course such an act would generally serve, as a matter of fact, to communicate to the appropriate roads authority the adoption of the consent function.
74 However, in the present case there was, in my view, no such overt act or conduct by the RTA. A consideration of the evidence relied upon by the RTA to support the proposition that it did in fact grant itself consent to the proposed work makes it tolerably clear that at all times the RTA denied that it was required to obtain the consent of the Council under s 138 whereas the Council maintained its assertion to the contrary. Accordingly, at no point in that correspondence did the RTA, either by itself or through its solicitors, purport to exercise the Council's functions under s 138. To the contrary, and after the Council instituted the proceedings on 28 September 2004, the RTA by letter dated 1 October 2004 expressly requested the Council's consent to carry out the relevant work pursuant to s 138 of the Act. Although this application was made "without prejudice" to the RTA's denial that it was required to obtain that consent, the fact is that it applied for it.
75 In my opinion, the primary judge was therefore correct in finding that, as a matter of fact, the RTA had not chosen pursuant to s 64(1) to exercise the function of the Council under s 138(1). Furthermore, it expressly applied for that consent, an act which corroborated its choice not to exercise that function. That it did not do so because it maintained the view that that consent was not required does not militate against the above finding of fact by his Honour made upon the basis that the Council's consent was required in the absence of a choice by the RTA to exercise that function itself.
76 I return now to the RTA's primary argument. The Council submitted that s 64(1) of the Act did not extend to the function of a roads authority under s 138. It was contended that s 64(1) was directed to the construction functions of a roads authority and not to its regulatory functions.
77 It was accepted by the Council that this submission had not been included in its written submissions on the appeal but it should be observed that, although the proposition was advanced, it was neither elaborated upon nor were reasons advanced in support of it.
78 I would in any event reject the submission. There can be no doubt that, as an "appropriate roads authority" within the meaning of s 138(1), the Council's function under that provision was to consider an application for consent and either to refuse or grant it, conditionally or unconditionally: see s 139. Section 138 appears in Part 9 of the Act which, as I have already noted, is headed "Regulation of works, structures and activities". There is nothing either on the face of s 64(1) or in the context in which it appears in Part 5 of the Act which, in my opinion, would justify construing the expression "functions" as excluding a roads authority's regulatory powers as set out in Part 9 of the Act. Nothing in the context applicable to s 64(1) requires the expression "functions" to be read otherwise than in accordance with its definition in the Dictionary as including a power as well as an authority. Accordingly, in my opinion, this aspect of the Council's submissions should be rejected.
79 The Council further submitted, in response to the submission of the RTA recorded in [67] above, that there was nothing that was either absurd or lacking utility in requiring a roads authority, including the RTA, if it chose to exercise the Council's functions under s 138 pursuant to its power to do so under s 64(1), to grant consent to itself. Certainly, it is common knowledge that where a council is acting as a developer in respect of its own land, it is required to seek from itself development consent where that consent is necessary under the relevant planning instrument and the Environmental Planning and Assessment Act 1979: cf Baiada v Waste Recycling at 64 [50]. In conjunction with this submission, the Council submitted that, although the RTA had power to exercise the functions of a roads authority including the carrying out of road work pursuant to s 71, the primary judge was correct in holding that s 64(1) only empowered the RTA, or only vested in it the legal capacity, to carry out road works, and that, unless it also sought to exercise the Council's functions under s 138, the requirement would remain that the Council's consent as the appropriate roads authority was still required.
80 For reasons to which I shall refer and upon which I have touched in [69] and [70] above, once the RTA satisfies one or more of the conditions referred to in s 72(1), it is not only empowered to carry out road work on an unclassified public road but is also authorised to do so without obtaining the consent of the appropriate roads authority under s 138.
81 In my opinion this is similarly so in the case of a classified road where the RTA, pursuant to s 64(1), may exercise the functions of a roads authority with respect to any classified road. Like s 72, s 64(1) not only empowers the RTA to exercise the functions referred to but also, in my view, authorises their actual exercise. This is because s 65(1) does not content itself with merely vesting the functions (powers and authorities) of a roads authority in the RTA but expressly states that it may exercise them, that is, perform them (see the definition of the expression "exercise a function" in the definition of "function").
82 If it be the case that, in carrying out road work on a classified road in respect of which it is not the roads authority, the RTA is not required to obtain the Council's consent under s 138, there would appear to be no reason either in logic or common sense why, if it is also empowered to carry out road works in or upon an unclassified road, having satisfied one or more of the pre-conditions set forth in s 72(1), the exercise of that power should be able to be frustrated by the Council, as the appropriate roads authority, refusing its consent thereto.
83 In my opinion, there is nothing in s 138 which justifies the imposition of a requirement to obtain a local council's consent to the carrying out of work by the RTA which is otherwise a function of a roads authority under the Act given what I consider to be the paramount position of the RTA in the structure of the Act to which I have earlier referred. If one is to construe those provisions of the Act which empower the RTA to exercise the functions of a roads authority in a manner which promotes the purpose or object underlying the Act (as s 33 of the Interpretation Act mandates), then, having determined that the distribution of the functions conferred by the Act between the RTA and other roads authorities is structured so as to vest paramountcy in the RTA, that objective can only be promoted by construing ss 64 and 72, where they otherwise apply, as empowering the RTA with, and authorising the actual exercise of, the functions of the roads authority with respect to classified roads and the carrying out of road works with respect to unclassified roads.
84 In each case where the RTA is not the roads authority for those roads, promotion of the paramount position of the RTA in the hierarchy of responsibilities imposed on roads authorities by the Act requires that ss 64(1) and 72(1) be construed in a manner which would not subject the RTA to the unappealable refusal of a council's consent under s 138 or to unacceptable conditions imposed pursuant to s 139(1)(d): cf Palgo Holdings Pty Ltd v Gowans (2005) 215 ALR 253 at 262-264 [35]-[40] per Kirby J (dissenting).
85 I have no difficulty in accepting the submission of the Council that s 138 empowers it, as the appropriate roads authority, either to refuse consent or impose conditions in order to protect the travelling public or the community generally from any adverse impacts resulting from the erection of the structures or the carrying out of the work identified in s 138(1). No doubt, those powers are of particular importance where the applicant for consent is a person or body, including a public authority, who otherwise does not have the responsibilities of a roads authority. However, the RTA does have those responsibilities in relation to freeways and for those public roads in respect of which it has been declared the roads authority pursuant to s 7(3). It would not be unreasonable to expect that it would be very conscious, as a major government instrumentality, of the possible adverse impacts of any road works it may carry out and of the necessity to minimise those impacts, a consciousness which other persons and bodies may not be so concerned to acknowledge and appreciate.
86 It is true that s 138(4) extends the provisions of the section to other roads authorities which, on a literal reading, includes the RTA and also, for that matter, the Minister. But I see no inconsistency in construing s 138 as, on the one hand, inapplicable to the RTA or the Minister and, on the other hand, applicable to any other roads authority.
87 In this regard, it also seems to me that s 138(3) proceeds upon the assumption that the applicant public authority is a public authority other than the RTA. Although, as the Council submits, there is a proper basis for an appropriate roads authority granting consent to the works and structures referred to in s 138(1) which it desires to erect or carry out itself, the same cannot be said for the proposition that s 138(3) requires the RTA to consult with itself where it is the relevant public authority. That would indeed lead to an absurd result and should be avoided if otherwise the words of the provision permit it. In my opinion they do. As I have said, s 138(3) makes complete sense by excluding the RTA therefrom, an exclusion which, in my view, is authorised by ss 64(1) and 72(1).
88 Again, where an agreement has been entered into between the RTA and a roads authority pursuant to s 62 or a Ministerial direction given pursuant to s 63 so that it becomes the exclusive function of the RTA to make decisions as to what road works are to be carried out on the roads referred to in these provisions (other than a freeway), it would again be manifestly absurd to suggest that in any of those circumstances any decision of the RTA under s 64(1) to carry out road work for which it is responsible on the classified roads, the subject of that agreement or Ministerial direction, was nevertheless subject to the RTA first obtaining the consent of the appropriate roads authority. If that is so with respect to s 61(1), there seems no rational or logical reason for superimposing upon the exercise by the RTA of the functions referred to in s 64(1) the further requirement that the consent of the appropriate roads authority be obtained before the function is exercised.
89 As I have already noted, it would appear that the difference between ss 61 to 63 on the one hand and s 64 on the other is that, under the former provisions, the responsibility for carrying out the road work becomes the exclusive function of the RTA whereas, under the latter, the appropriate roads authority maintains its functions although it is embargoed against exercising them in a manner inconsistent with that in which the function is being exercised by the RTA. However, the retention by the roads authority of that function does not, in my view, require s 64(1) to be construed differently from ss 61 to 63 so as to impose upon the exercise of functions under the former the requirement to obtain the appropriate roads authority's consent under s 138.
90 Accordingly, in my opinion the primary judge erred insofar as he found (at [44]) that, notwithstanding that the purpose of s 64(1) was to vest in the RTA "an overriding control of classified roads", the exercise by the RTA of the power to carry out road works upon the relevant classified roads pursuant to the combined operation of ss 64(1) and 71 did not authorise the carrying out of that work without the RTA first obtaining the consent of the Council under s 138.