Posted on October 17, 2019 by Frances Tse and Stuart Simington

LEC not empowered on appeal to grant s138 Roads Act consent without RMS concurrence

A Commissioner of the Land and Environment Court has confirmed that if a local council, as roads authority, is prevented from granting a consent under s138(1) of the Roads Act 1993 (Roads Act) because of a refusal by the RMS to provide concurrence as required under s138(2), then the LEC has no power to grant that s138 consent in a Class 1 appeal.


The matter before the LEC involved a Class 1 appeal against Ku-ring-gai Council’s failure or refusal to issue a construction certificate for the construction of two (2) electronic advertising signs over the Pacific Highway.

Relevantly, the development consent for the development contained a condition which prohibited the issuing of a construction certificate prior to the granting of a consent under s138 of the Roads Act for the erection of the advertising signs.

As Pacific Highway is a ‘classified road‘, the Council, as roads authority, is prohibited under s138(2) of the Roads Act from granting a s138 consent unless the RMS has provided concurrence. The RMS refused to provide concurrence which meant that the Council could not grant the s138 consent and which, in turn, meant that no construction certificate could be issued.

The developer appealed to the LEC in its Class 1 jurisdiction against the failure or refusal of the Council to issue a construction certificate and argued that the LEC had power pursuant to s39(2) and s39(6) of the Land and Environment Court Act 1979 (LEC Act) to grant both the s138 consent and construction certificate.

Competing arguments

The parties agreed that the LEC has power to exercise functions and discretion of the Council, such as the function to grant consent under s138 of the Roads Act, for the purposes of hearing and disposing of a Class 1 appeal.

However, the parties disagreed on the whether the LEC’s power extended to enable it to grant consent under s138 of the Roads Act in circumstances where RMS concurrence was required under s138(2) and no such concurrence has been provided.

As one would imagine, the developer argued that s39(2) and s39(6) of the LEC Act should be interpreted to mean that if a Class 1 appeal relates to an application to the Council for a construction certificate and the Council cannot issue the construction certificate because a s138 Roads Act consent has not and cannot be issued except with concurrence of the RMS, then the LEC may issue the construction certificate (and grant the s138 consent)  whether or not the RMS concurrence has been provided.

The Commissioner did not agree.


The Commissioner agreed with the RMS’ argument that in a Class 1 appeal relating to the Council’s decision  not to issue a construction certificate, while the LEC is vested with the functions and discretion of the Council to grant the s138 consent, the LEC is also constrained in the same way that the Council is in exercising those functions and discretion.  That is, if the Council is prohibited from granting the s138 consent because the RMS has not provided its concurrence then the LEC is similarly prohibited. Importantly, the RMS’ concurrence function is not a function of the Council for which the LEC can stand in the  shoes of the Council in an appeal.

Further, the Commissioner held that s39(6) of the LEC Act does not apply to allow the LEC to dispense with the requirement to obtain concurrence from the RMS. This is because  s39(6) relates only to any concurrence that may be required to the ‘application‘ the subject of the appeal proceedings. In this case, the ‘application‘ the subject of the appeal proceedings was the application for a construction certificate and not the application for a s138 consent under the Roads Act. Accordingly, the LEC has no veto power in respect of the requirement to obtain RMS concurrence.


This case is an important reminder that the Roads Act regime is separate and distinct from the regime under the Environmental Planning and Assessment Act 1979. While the LEC has certain powers in Class 1 appeals to exercise functions and discretions of a local council and consent authorities, this does not extend to exercising the functions and discretion of the RMS.

If you have any questions regarding this article please contact Frances Tse on 8235 9711 or Stuart Simington on 8235 9704.