The Roads Act application
55Section 39 of the LEC Act sets out the Powers of the Court on Appeals. Subsection (2) states:
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.
56Subclause (4) provides:
In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.
57Section 138(1)(a) of the Roads Act requires a person to obtain consent to erect a structure or carry out a work in, on or over a public road. There is no appeal provision against a determination of the council to refuse consent under s 138 of the Roads Act. Therefore, for the Court to determine the application that is before it, it must be satisfied that it is a matter the subject of the appeal and in this instance, it is the development applications that are the subject of the appeals.
58The Northern Eruv is seeking consent under s 138 to connect the poles and wires the subject of the development applications to existing poles and wiring within the adjoining street, erect the replacement pole in Lynbara Avenue, link wire from that pole to existing street poles, attach wires at various locations along a 20 kilometre circuit around the St Ives suburb and attach one, two or three sections of conduit to 574 poles along that route.
59A public road is defined in the Roads Act as:
public road means:
(a) any road that is opened or dedicated as a public road, whether under this or any other Act or law, and
(b) any road that is declared to be a public road for the purposes of this Act.
60It is agreed that all of the roads within the works are proposed are public roads and are all under the control of Ku-ring-gai Council with the exception of Mona Vale Road and that the RMS is the roads authority for that road. The Court was not asked to consider that part of the application that related to works within traversed Mona Vale Road.
61Section 139 of the Roads Act makes it clear that an application for consent to carry out works within a public road may be granted on the roads authority's initiative or on the application of any person, may be granted generally or for a particular case, and may relate to structures or works of a specified class. Any consent granted may be the subject of conditions as thought fit including a condition that permits or prohibits the use of the structure for a specified purpose.
62There are no prescribed matters to be considered in determining applications under s138 for the works proposed. Therefore, it is the Objects of the Roads Act that guide consideration of the application for works within the road reserves. The right of passage along a road as described in s5 must also be considered however these do not exhaust the enquiry. The public interest is another consideration. Preston CJ in Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) [2009] NSWLEC 226, when considering the exercise of power to grant consent to use a footway adjacent to a restaurant, said at [74]:
The public interest may, by implication from the subject matter, scope and purpose of the stature, be a relevant matter to be considered: Minister for Planning v Walker [2008] 161 LGERA 423 at [39], [43]. In this case, the public interest is central to the task of a council fulfilling functions under the Roads Act, including approving under s 125 the use of a footway in a public road for restaurant purposes. The public interest is multi-faceted and includes the public interest in members of the public being able to pass along and use public roads, in persons who own land adjoining the public road having access to the public road and in regulating the carrying out of various activities on public roads.
63The requirement to obtain consent under the Roads Act is independent to the need to obtain consent under the EPA Act and one is not subordinate to the other. Both require proper and separate assessment and consideration. Having found that the development applications should be approved does not mean that the applications under the Roads Act should also be approved. It is also necessary to determine whether the Court's power would extend to determination of the additional works proposed.
64The questions posed by Biscoe J in Goldberg v Waverley Council [2007] NSWLEC 259 provide guidance where, at [51] he states:
51There are two questions under s 39(2). First, what is the " matter the subject of the appeal "? Secondly, do the " functions and discretions " which the council " had in respect of the matter the subject of the appeal " include its functions and discretions as the roads authority in granting consent under s 138 of the Roads Act and (in relation to that consent) its functions and discretions as the determining authority under Pt 5 of the EPA Act ?
52 As to the first question, the matter the subject of this appeal, in my view, is the proposal to demolish the existing dwelling, subdivide the land into two parts and to provide vehicular access from Birrell Street as a result of the proposed roadwork. The "matter " the subject of an appeal is a wider concept than the " decision" the subject of the appeal: see the authorities cited at [33] above. Although the proposed roadwork does not require development consent, it is a vital part of the overall proposal and many of the council's reasons for refusing the development consent were to do with the proposed roadwork and the consent under s 138 of the Roads Act . Thus, in the particular circumstances of this case, the refusal of development approval, the proposed roadwork and the matter of a s 138 consent were inextricably intertwined such as to constitute the "matter" contemplated by s 39(2).
53 As to the second question, if the proposed roadwork on Birrell Street had required a development application, this Court on appeal from a refusal of development consent, would have had power to grant consent under s 138 of the Roads Act : Gibson v Mosman Municipal Council (2001) 114 LGERA 416 and Connery v Manly Council (1999) 105 LGERA 451. The applicant in the present case relied on those decisions. In Gibson the applicant appealed to this Court from the respondent council's refusal of its development application to carry out work on a property and within a public road. The proposed works included the rebuilding of existing stairs and construction of a new driveway on the public road. Development consent was required for the proposed work on the public road as well as consent under s 138 of the Roads Act. Talbot J held that the matter the subject of the appeal was the works proposed within the applicant's property and within the public road. His Honour held that the Court had jurisdiction, by reason of s 39(2) of the Court Act , to grant consent pursuant to s 138 of the Roads Act .
65In my opinion, the matter the subject of the appeals is the erection of poles and wires on individual properties.
66The parties agree that the connection of the poles within private property to the adjacent street poles would be integrally connected to the matter the subject of the development application and accordingly, agree that the Court would have jurisdiction in standing in the shoes of the council to determine the applications to connect the power poles that are the subject of the development applications to the adjacent street poles. I accept this proposition, particularly as the extent of the connections is clearly detailed on the plans which accompany each application.
67The evidence in the proceedings is that the additional wiring would be at least minor in terms of streetscape and would not have an unreasonable cumulative impact. For that reason, I find that it would be appropriate to grant consent under the provisions of the Road Act to allow the connection of the poles to be erected within private property to the adjacent street poles as shown on those plans which now form the plans that relate to each individual development applications. (The amended plans provided in Exhibit C and further revised in Exhibit Q).
68I am satisfied, on the evidence before me, that the works required to connect the poles and wires the subject of the individual development applications to poles in the adjacent road reserve is inextricably intertwined to that work, that those works are the matters the subject of the appeals and therefore, consent under s 139 of the Roads Act can be granted by the Court. The consent should require that all works, including maintenance to the wires, are the responsibility of the applicant and that the requirements of Telstra and EnergyAustralia are met, no additional pruning to street trees is undertaken apart from that undertaken by those agencies and the applicant is responsible for any damage caused as a result of the works. The consents would be granted on the understanding that in the event the street wiring is undergrounded at any time in the future, the consent would be revoked.
69Whether the power of the Court extends to the other matters within the road reserves that are proposed by the applicant requires careful consideration.
70As stated at [65], the matter the subject of the appeals is the erection of one or two poles on nine, non-related properties. None of those properties adjoin any other properties the subject of the applications and there is only one instance where more than one property is in the same street. In the case of Catherine Street, there are three properties the subject of individual development applications. Seven of the sites are located within reasonable proximity of each other but in different streets, those streets being Catherine Street, Paul Avenue, Lawson Parade, Carcoola Road and Yarrabung Road which are located to the east of the suburb of St Ives. The remaining two properties are in Marlborough Street and Toolang Road, at the western extent of the suburb a distance of approximately two kilometres from the others. In accordance with Goldberg there has to be evidence that the development applications and the Roads Act application are "enmeshed". There needs to be a nexus between the works the subject of the development application and the works to be carried out within the road reserves.
71I am not satisfied that the nexus exists. There is no relationship between the individual development applications and that work in roads that are not proximate to the site. Whilst I agree with Biscoe J in Goldberg that the power to determine applications under the Roads Act is broad, it is not so board as to extend to the carrying out of works along a 20 kilometre route around the suburb of St Ives. The works the subject of the appeal have no nexus to the replacement of a pole in Lynbara Avenue or to the attachment of conduit to 574 poles along the 20k route. Nor do those development applications have a nexus to the intermittent placement of additional wiring along that route.
72The application clearly proposes to create an Eruv. There is no Eruv at the present time. The approval of all of the development applications does not create an Eruv, nor does it create any nexus to that work within roads that are not in proximity to the individual sites. Whilst the applicant's intention is that all of these works are related and it is the focus of the applications, there is no nexus between the individual components of the applications. As I have stated above, there are two clear components to the application under the Roads Act and I find that only one has a clear nexus to the works the subject of the matter. That is the direct connection of the poles the subject of the development applications to the existing poles adjoining the individual sites the subject of those applications.
73Without that relevant nexus to the matter the subject of the appeal, the remainder of the works proposed within roads along the 20k route are not works that I consider are "in respect of" the matters the subject of the appeal. Accordingly, without that nexus, I cannot "throw a blanket" over both (as Biscoe J indicated in Goldberg). For this to be the case, there would need to be an Eruv in existence. That is not the case. It is not possible for nine individual development applications to create the Eruv. That requires separate approval and is outside the power of this Court as to do so must be a matter that is the subject of the appeals. For the reasons stated above, that is not the case. Therefore, I determine that the Court cannot grant consent to the works within the road reserve that include the attachment of conduit to the 574 poles, the intermittent wire connections or the replacement of the pole in Lynbara Avenue.
74If I am wrong in this determination, it is appropriate that I conduct the necessary merit assessment of the works. The evidence provided is that the works, in Mr Moody's opinion, would be minor and not immediately discernable from the existing conduit already evident in all of the streets although he does acknowledge that it would increase the accumulation of poles with attachments to 100%. Dr Lamb says that the poles would be compatible with the existing poles and conduit. For that reason, I find that the works would, on a merit assessment, be appropriate in terms of streetscape.
75In view of my findings, it is appropriate that development consent is granted to each of the nine development applications. Final conditions of consent have not been filed with the Court and further amendments would be required to reflect the amended plans and the landscaping works required at 62 Catherine Street. Consent under s139 of the Roads Act for the connection of those poles the subject of the nine development applications is also granted and the terms of that consent should reflect the findings contained within this judgment.
76As I have found that the jurisdiction of the Court does not extend to the replacement of the pole in Lynbara Avenue nor the works along the 20 kilometre route involving the attachment of conduit to 574 poles and additional wiring at various locations along that route, that aspect of the Roads Act application is refused.
77To allow the making of Orders in this matter, the parties are to file agreed conditions in regard to the development applications and only that part of the Roads Act consent which would permit the connection of the individual sites to the adjacent street poles to reflect the findings made by 4pm 23 March 2012. Final Orders will be made in Chambers.
Sue Morris
Commissioner of the Court