Reported Decision : (2000) 110 LGERA 458 Land and Environment Court of New South Wales CITATION : Westfield Limited v Hornsby Shire Council [2000] NSWLEC 219 APPLICANT Westfield Limited PARTIES : RESPONDENT Hornsby Shire Council FILE NUMBER(S) : 20015 of 2000 CORAM: Cowdroy J KEY ISSUES: Question of Law :- charge levied by council for construction hoardings - developer seeking to challenge quantum of charge as excessive - source of power pursuant to which charges were levied - whether charges fixed pursuant to s 611 of Local Government Act or as a condition pursuant to s 139 of the Roads Act 1993 - no appeal provided from imposition of condition under Roads Act - right of appeal if hoarding charges fixed of Local Government Act. LEGISLATION CITED: Local Government Act 1993 s 404, s 611 Roads Act 1993 s 7, s 139, s 139A, s 145 CASES CITED: Lockwood v The Commonwealth (1953-1954) 90 CLR 177 ; Ryde Municipal Council v West Ryde (Investments) Pty Limited (1978-1981) 40 LGRA 349 DATES OF HEARING: 29/9/00 DATE OF JUDGMENT: 10/23/2000 APPLICANT Mr P Tomasetti (Barrister) SOLICITORS Mallesons Stephen Jaques LEGAL REPRESENTATIVES: RESPONDENT Mr A Galasso (Barrister) SOLICITORS Ian Woodward Principal Solicitor of Hornsby Shire Council JUDGMENT: IN THE LAND AND MATTER No. 20015 of 2000 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 23/10/00 Westfield Limited Applicant v Hornsby Shire Council Respondent JUDGMENT Background 1. Hornsby Shire Council ("the council") by notice of motion has raised a question of law. Such motion seeks orders to strike out an application class two as incompetent made to this Court by Westfield Ltd ("Westfield"). 2. Westfield is currently redeveloping a substantial shopping complex at Hornsby ("the development"). The development requires the erection of hoardings over roads surrounding the development site namely Albert Street, Edgeworth David Avenue, Pacific Highway, George Street, Florence Mall, Hunter Street and Burdett Street. 3. The development is being carried out pursuant to development application no 580/96 as modified by the council on 28 June 2000. By letter dated 1 February 2000, Westfield advised the council that it had begun to erect hoardings in Edgeworth David Avenue pursuant to a council approved Construction Plan of Management. Such letter provided information to the council concerning the need for hoardings and stated inter alia:- Each section of hoarding will be in place for differing periods of time and for differing purposes. For the purposes of fees we can either deal with them piecemeal as they arise or on an overall basis based on the Construction Plan of Management. The quantities involved are considerable and we note that the rates quoted to us are provisional for 1997/98. 4. The rates charged for the hoardings differed according to the classification of the hoardings. The classification of the hoardings was made pursuant to the council's 1997/1998 Management Plan as; Class A, Class B and Class B with overhead structures. 5. By letter dated 2 March 2000 the council forwarded to Westfield a copy of the current hoarding charges for 1999/2000 as fixed by its Management Plan ("the 1999/2000 budget"). On 9 March 2000 Westfield forwarded a cheque to council for the sum of $40,000 towards hoarding charges ("the charges"). Subsequently by letter dated 17 March 2000 Westfield wrote to the council claiming that the charges were excessive. The letter stated that pursuant to the 1998/1999 budget the charge was $10 per lineal metre per month for a Class A hoarding and $20 per lineal metre per month for a Class B hoarding and that the 1999/2000 budget increased fees to $15 and $50 respectively. By Westfield's application class two dated 8 June 2000 Westfield appealed to this Court against the quantum of the charges. 6. On 30 August 2000 the council wrote two letters to Westfield. One letter sought to provide retrospective permission to Westfield for its erection of hoardings along George Street, the Pacific Highway and Edgeworth David Avenue. Such letter provided that a charge of $186,000 was payable by Westfield for the erection of these hoardings. The letter states, inter alia:- You are advised that in accordance with Section 139 of the Roads Act 1993, Council, as roads authority for the above mentioned roads, grants consent to the erection of hoardings at the above mentioned locations subject to the following conditions:- Thereafter several conditions relating to public safety and incidental matters are incorporated. Condition 12 states:- Payment of the outstanding amount of $146,000 representing the balance of the hoarding fees calculated in accordance with Council's 1999/2000 Schedule of Fees and Charges for the abovementioned hoardings. Such payment must be received by the Council no later than 5pm Friday 15 September 2000. 7. The second letter of 30 August 2000 related to the erection of hoardings by Westfield in additional locations surrounding the development. Such letter contained similar provisions of the first letter concerning the conditions sought to be imposed pursuant to s 139(1) of the Roads Act 1993. Condition 12 attached to the second letter of the 30 August relevantly provided:- Payment of an amount of $256,371.00 representing the hoarding fees calculated in accordance with Council's Fees and Charges for the 1999/2000 and 2000/2001 years respectively. Such payment must be received by Council no later than 5 pm Friday 15 September 2000. (Please note that the calculations for each of the seven (7) hoardings have been made on the basis of the information provided in Westfield's Construction Plan of Management, dated October 1999. These calculations are shown in the Schedule attached. In the event that the hoardings remain for a shorter or longer period than shown in the Preliminary Staging Programme, Westfield will either receive a refund or be required to remit additional fees). The question of law (a) Council's submissions 8. The council seeks to strike out Westfield's class two appeal upon the ground that the charges have been imposed as a condition pursuant to s 139(1) of the Roads Act 1993 ("the Roads Act"). Council's challenge is formulated as follows:- 1. The Applicant has been granted building consent for the demolition, excavation, hoarding and shoring works associated with the redevelopment of the Westfield Shopping Centre at Hornsby. 2. It was a condition of Consent that application be made to Council for a hoarding permit prior to commencement. 3. Council as roads authority, in granting consent to the erection of hoardings over parts of its public roads, has imposed a condition that the Applicant pay hoarding fees as set out in Council's Fees and Charges. 4. The hoarding fees imposed are a condition of consent pursuant to Section 139 of the Roads Act. 5. The Roads Act is not a planning and environmental law and no right of appeal is conferred by statute on the applicant. 9. In summary the Council submits the charges made against Westfield comprise a condition imposed pursuant to s 139(1) of the Roads Act namely, to undertake work over a road which is vested in council. The council also submits that no appeal lies to this court in respect of a condition imposed pursuant to s 139(1) of the Roads Act. The council relies upon the decision of the New South Wales Court of Appeal in Ryde Municipal Council v West Ryde (Investments) Pty Limited (1978-1981) 40 LGRA 349 to support its submission that the charges can comprise a condition. (b) Westfield's submission 10. Westfield submits that the power to impose the charges is derived from s 611 of the Local Government Act 1993 ("the LG Act") which provides:- 611 (1) A council may make an annual charge on the person for the time being in possession, occupation or enjoyment of a rail, pipe, wire, pole, cable, tunnel or structure laid, erected, suspended, constructed or placed on, under or over a public place. (2) The annual charge may be made, levied and recovered in accordance with this Act as if it were a rate but is not to be regarded as a rate for the purposes of calculating a council's general income under Part 2. (3) The annual charge is to be based on the nature and extent of the benefit enjoyed by the person concerned. 11. A right of appeal against the imposition of such charge may be made to this Court pursuant to s 611(4) of the LG Act which provides:- (4) If a person is aggrieved by the amount of the annual charge, the person may appeal to the Land and Environment Court and that Court may determine the amount. Accordingly, Westfield submits that its class two appeal is competent. The findings 12. Section 145(3) of the Roads Act vests all public roads in the appropriate ' roads authority ' as defined in s 7 of the Roads Act. The council of a local government area is the roads authority for all public roads in such area (s 7(4) of the Roads Act). Section 138(1) of the Roads Act requires the consent of the relevant roads authority before work is undertaken involving a public road. Pursuant to s 139(1) of such Act, the relevant roads authority may grant consent with such conditions as it thinks fit. In these proceedings the council is the roads authority. 13. Section 402 of the LG Act requires a council to prepare annually a draft management plan. It provides:- 402 During each year, a council must prepare a draft management plan with respect to: (a) the council's activities for at least the next 3 years; and (b) the council's revenue policy for the next year. Section 404(1) of the LG Act requires a draft Management Plan to be prepared by council with respect to council's revenue policy for the ensuing year and requires, inter alia, a statement to be incorporated in such plan identifying each charge proposed to be levied in respect of all services to be provided by council. 14. The council's 1999/2000 budget fixes the charges to be levied by council in respect of a wide range of activities. Most of the items, including charges for hoardings, are not stated as having been levied in respect of any service to be provided by council pursuant to a specified statute. However certain charges have been identified as arising from the provision of services by council pursuant to a particular statute. For example, charges levied for applications made to council pursuant to s 37 of the Strata Titles Act and the charges applicable to applications for a swimming pool certificate of compliance pursuant to s 24 of the Swimming Pools Act 1992 have been identified. 15. The 1999/2000 budget does not state that the charges are to be applied in respect of matters arising pursuant to the Roads Act. The inference therefore arises that such charges have been set as the annual charges required by 404(1) of the LG Act and levied pursuant to s611(1) of such Act. 16. Such inference is consistent with the terms of the condition imposed by council upon Westfield in respect of the charges. Such condition refers to councils fees ' calculated in accordance with council's 1999/2000 schedule of fees and charges '. The inference is also consistent with council's correspondence which refers to the charges for the 1999/2000 and 2000/2001 years which makes no reference to the Roads Act until 30 August 2000. There is no reference to the Roads Act in the 1999/2000 Management Plan or any previous Management Plan nor in council's Management Plan 2001/2002 which would support the submission that the charges were made pursuant to such Act. 17. The council sought to support its submission that the charges are a condition with reliance upon the provisions of s 139A of the Roads Act which entitle a roads authority to impose conditions upon the use of a public road for the purposes of street vendors and to require payments in the nature of rent. Whilst s 139A of the Roads Act entitles council to impose conditions upon the use of a roadway and such conditions may include payment of a charge ( Ryde Municipal Council v West Ryde (Investments) Pty Limited at 351), s 139A of such Act does not assist council. Such section is directed to the ad hoc regulation of street vending and no annual fees or charges are shown in the Management Plan for such activity as is required pursuant to s 404(1) of the LG Act. 18. Although council maintains that the charges have been imposed as a condition pursuant to s 139(1) of the Roads Act, it does not follow that the quantum of the charge has been levied pursuant to such Act. In Lockwood v The Commonwealth (1953-1954) 90 CLR 177 at 184 Fullager J said: It is I think settled principle that an act purporting to be done under one statutory power may be supported under another statutory power ... Council, in issuing condition 12 of the hoardings consent, is exercising two separate and distinct powers when it seeks payment of the charges. In levying the charges council is exercising the power provided by s 611(1) of the 1993 LG Act. By imposing the charge so levied, as a condition of consent council is exercising the power granted to it pursuant to s 139(1) of the Roads Act. In respect of the quantum of the charge, an appeal lies to this Court pursuant to s 611(4) of the LG Act. In respect of the condition requiring payment of the charge which was imposed pursuant to s 139(1) of the Roads Act, no appeal lies to this court. 19. In this instance, the charges have been fixed pursuant to s 611(1) of the LG Act and recorded in the draft Management Plan as required by s 402 and s 404(1) of the LG Act. It follows that Westfield's class two appeal is competent. Orders 20. The Court orders that:- 1. The notice of motion be dismissed. 2. Costs reserved. 3. Exhibits be returned. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.