Ashfield Municipal Council v Roads & Traffic Authority of NSW & Anor [2004] NSWSC 1036

Ashfield Municipal Council v Roads & Traffic Authority of NSW & Anor [2004] NSWSC 1036

Because the Council remained the appropriate roads authority for giving consent under s.138(1) of the Roads Act 1993 (NSW), and because the RTA had not taken over the Council's s.138 consent function for classified roads and could not rely on Schedule 2 clause 5 or s.72 to avoid consent for unclassified roads, the...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
08 November 2004
Procedural Posture
Equity Division Proceedings by Summons Seeking Declaratory and Injunctive Relief Concerning Consent Under S.138(1) of the Roads Act 1993 (nsw), With a Cross Claim by the RTA / Final Hearing
Outcome
Declaration made for the Plaintiff; leave reserved to apply for injunctions; Cross Claim dismissed; costs reserved for further hearing.
Legal Topics
['consent Under S.138(1) Roads Act 1993 (nsw)' 'classified and Unclassified Public Roads' 'functions of Roads Authorities' 'geotechnical Investigations for Proposed M4 East Extension' 'declaratory Relief' 'injunctions' 'unclean Hands']
['administrative Law' 'local Government' 'roads and Traffic' 'statutory Construction' 'equity'] ['consent Under S.138(1) Roads Act 1993 (nsw)' 'classified and Unclassified Public Roads' 'functions of Roads Authorities' 'geotechnical Investigations for Proposed M4 East Extension' 'declaratory Relief' 'injunctions' 'unclean Hands']

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Procedural Posture

Equity Division Proceedings by Summons Seeking Declaratory and Injunctive Relief Concerning Consent Under S.138(1) of the Roads Act 1993 (nsw), With a Cross Claim by the RTA / Final Hearing

Legal Issues

  1. 1 ["Whether the RTA and/or Connell Wagner Pty Ltd required the Council's consent under s.138 of the Roads Act 1993 (NSW) to carry out proposed geotechnical drilling work on public roads in the Ashfield local government area." 'Whether, if consent was required, injunctions should issue restraining the work unless and until Council consent was obtained.' 'Whether, in determining consent, the Council was entitled to act upon a policy against geotechnical investigations related to the M4 East Extension or to take into account its political opposition to the proposal.' 'Whether the RTA was entitled to relief on its Cross Claim concerning how the Council should determine consent applications.']

Ratio Decidendi

Because the Council remained the appropriate roads authority for giving consent under s.138(1) of the Roads Act 1993 (NSW), and because the RTA had not taken over the Council's s.138 consent function for classified roads and could not rely on Schedule 2 clause 5 or s.72 to avoid consent for unclassified roads, the proposed drilling work would contravene s.138(1) unless the Council's consent was first obtained. Permanent injunctions were refused at this stage as a matter of discretion, with liberty to apply, and the RTA's Cross Claim was refused because the requested relief was speculative, overly broad or lacking utility.

Court Disposition

Declaration made for the Plaintiff; leave reserved to apply for injunctions; Cross Claim dismissed; costs reserved for further hearing.

Orders

  • ["Declaration that, so long as the Plaintiff remains the appropriate roads authority for the giving of the requisite consent under s.138(1) Roads Act 1993 (NSW), the carrying out of work in or on or the digging up or disturbing of the roads specified in the Schedule to the Plaintiff's Amended Summons by the...