Posted on February 4, 2013 by Lindsay Taylor
Court’s power in planning appeals to give consent under Roads Act 1993
In The Northern Eruv Incorporated v Ku-ring-gai Council  NSWLEC 249, the Land and Environment Court considered the scope of its power under s39(2) of the Land and Environment Court Act 1979 (Court Act) in planning appeals under s97 of the Environmental Planning and Assessment Act 1979 (EPA Act).
By way of background, several development applications were lodged with Ku-ring-gai Council regarding the construction of an Eruv: the symbolic definition of an area by poles and wire that permits certain activities otherwise prohibited under Jewish religious custom.
Development consent was sought from the Council as the consent authority under the EPA Act for the erection of poles on residential properties (Residential Applications), and consent was also sought from the Council as the responsible roads authority under the Roads Act 1993 for the construction of principal elements along a number of public roads.
Under s138 of the Roads Act, it is necessary to obtain consent from the Council for the carrying out of work or erection of a structure on a public road.
Appeal to the Court
The applicant successfully appealed the Council’s refusal of the Residential Applications to the Land and Environment Court.
In those proceedings, the applicant also sought consent under s138 of the Roads Act, despite the fact that the Roads Act provides no right of appeal from the Council’s decision.
The applicant argued that 39(2) of the Court Act enabled the Court to give consent under s138 of the Roads Act.
Section 39(2) provides that when hearing or disposing an appeal, the Court has 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.
The Commissioner of the Court who heard the planning appeal found that s39(2) did not give the Court jurisdiction to grant consent to the parts of the Eruv outside of the residential properties, given that no right of appeal is provided under the Roads Act from the Council’s determination to refuse an application made under that Act.
Question of jurisdiction under s39(2) of the Court Act
On appeal to Craig J in the Court, the applicant sought review of the Commissioner’s decision regarding jurisdiction under s39(2).
The Court considered whether the function of the Council to determine the application under the Roads Act was a function ‘in respect of the matter’ the subject of each appeal (the subject being the Residential Applications). If not, the Court had no power to determine the Roads Act application.
Although agreeing that both ‘matter‘ and ‘in respect of’ should be afforded a wide meaning, Craig J found that the Court did not have the power to review the application under the Roads Act, and therefore there was no error of law.
The Court held that to engage the power under s39(2), ‘it must involve an exercise of power that is legally indispensable to the exercise of power to determine the subject matter of an appeal.’ The Court did not find the necessary nexus between the Residential Applications and the Roads Act application as required by s39(2). The assessment of the application under the Roads Act appeared to required a primary power to be exercised, rather than being incidental to the Residential Applications.
In this decision, the Court has further defined its power under s39(2), clearly indicating that its powers to determine matters on appeal requires a connection or nexus between the subject matter of the appeal and the Council’s power to exercise a function.