Captive Vision Pty Ltd v Ku-ring-gai Council (No 3) [2019] NSWLEC 1472

Captive Vision Pty Ltd v Ku-ring-gai Council (No 3) [2019] NSWLEC 1472

The Court dismissed the appeal because the subject matter of the Class 1 appeal was the Council's refusal to issue a construction certificate, not an appeal concerning the s 138 Roads Act consent. The requirement for s 138 consent arose independently under the Roads Act 1993, and because the Pacific Highway was a classified road the Council could not grant that consent without RMS concurrence. The Court had only the Council's functions and was subject to the same s 138(2) constraint; RMS's concurrence function was not a Council function. Section 39(6) of the Land and Environment Court Act 1979 did not empower the Court to dispense with RMS concurrence in this construction certificate...

Jurisdiction
Australia
Judgment Date
04 October 2019
Procedural Posture
Class 1 Appeal Under S 8.16 of the Environmental Planning and Assessment Act 1979 Against Refusal to Issue a Construction Certificate / Principal Judgment After Hearing
Outcome
Appeal dismissed.
Legal Topics
['construction Certificate' 'section 138 Roads Act Consent' 'concurrence of Roads and Maritime Services' 'land and Environment Court Jurisdiction' 'statutory Interpretation of S 39 of the Land and Environment Court Act 1979' 'class 1 Appeal']
['planning and Environment' 'roads and Traffic' 'administrative Law'] ['construction Certificate' 'section 138 Roads Act Consent' 'concurrence of Roads and Maritime Services' 'land and Environment Court Jurisdiction' 'statutory Interpretation of S 39 of the Land and Environment Court Act 1979' 'class 1 Appeal']

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Procedural Posture

Class 1 Appeal Under S 8.16 of the Environmental Planning and Assessment Act 1979 Against Refusal to Issue a Construction Certificate / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Court had power to grant consent under s 138(1) of the Roads Act 1993 despite the absence of concurrence from Roads and Maritime Services under s 138(2) in determining an appeal under s 8.16 of the Environmental Planning and Assessment Act 1979.' 'Whether s 39(6) of the Land and Environment Court Act 1979 permitted the Court to determine the construction certificate appeal and dispense with the RMS concurrence requirement.' 'Whether the precondition in Condition 8(a) of the development consent was satisfied so that the construction certificate could issue.']

Ratio Decidendi

The Court dismissed the appeal because the subject matter of the Class 1 appeal was the Council's refusal to issue a construction certificate, not an appeal concerning the s 138 Roads Act consent. The requirement for s 138 consent arose independently under the Roads Act 1993, and because the Pacific Highway was a classified road the Council could not grant that consent without RMS concurrence. The Court had only the Council's functions and was subject to the same s 138(2) constraint; RMS's concurrence function was not a Council function. Section 39(6) of the Land and Environment Court Act 1979 did not empower the Court to dispense with RMS concurrence in this construction certificate...

Court Disposition

Appeal dismissed.

Orders

  • ['The appeal is dismissed.' 'The Exhibits are returned except for Exhibits A and 1.']