Ku-Ring-Gai Municipal Council v. Masterplan Consultants Pty. Ltd. [1999] NSWCA 167

New South Wales Court of Appeal CITATION : Ku-Ring-Gai Municipal Council v. Masterplan Consultants Pty. Ltd. [1999] NSWCA 167 revised - 20/12/99 FILE NUMBER(S) : CA CA40305/97; CA40722/97; CA40373/99 HEARING DATE(S) : 25/05/99 JUDGMENT DATE : 25 May 1999

PARTIES : Ku-Ring-Gai Municipal Council - Appellant Masterplan Consultants Pty. Ltd. - Respondent JUDGMENT OF : Giles JA at 21; Fitzgerald JA at 22; Brownie AJA at 1

LOWER COURT JURISDICTION : Land & Environment Court LOWER COURT FILE NUMBER(S) : 10360/96 LOWER COURT JUDICIAL OFFICER : Bignold, J.

COUNSEL : M. Tobias QC with C. McEwen and A. Pickes - Appellant D. Larkin with L. Byrne - Respondent SOLICITORS : Abbott Tout for Appellant Deacons Graham & James for Respondent CATCHWORDS : Local Government - Appeals - NSW -Land & Environment Court - Appeal from decision of assessor, when preliminary question of law decided by judge, and assessor merely follows judge's ruling. Local Government Act 1993 ACTS CITED : Roads Act 1993 Traffic Act 1909 Land & Environment Court Act 1979 CASES CITED: Nil DECISION : See pars.23, 27, 34 and 35 of judgment

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40305/97 CA 40722/97 CA 40373/99

GILES JA FITZGERALD JA BROWNIE AJA Tuesday 25 May 1999 KU-RING-GAI MUNICIPAL COUNCIL V. MASTERPLAN CONSULTANTS PTY. LIMITED JUDGMENT

1 BROWNIE AJA: The respondent is a consultant acting for the owner of a parcel of land at Wahroonga which has been called "the subject site". The appellant council is the owner of a contiguous parcel of land known as Wahroonga Car Park, used as a public car park. 2 The owner of the subject site sought development consent in respect of a proposed development, which included the provision on the subject site of a basement car park. The only means of access to that proposed basement car park was to be through the council car park. The appellant refused the application upon grounds which included the proposition that the proposed means of access were inadequate and unavailable. The respondent appealed to the Land and Environment Court. 3 Pursuant to the provisions of a practice direction of that court, the case was listed before Bignold J on 15 May 1997, who decided a preliminary question of law, giving his decision on 16 May. 4 Before his Honour the parties tendered a statement of agreed facts and proposed two questions. Question 1 was, whether the owner of the subject site and the owners' lessees, servants and agents or invitees have a legal right of vehicular access over the land known as the Wahroonga Car Park to parking facilities on the subject site. Question 2 is not presently relevant. 5 His Honour answered question 1 as follows. Wahroonga Car Park is a "public place" within the meaning of the Local Government Act 1993 but is not a "public road" within the meaning of that Act or the Roads Act 1993. It is a "public street" within the meaning of the Traffic Act 1909. Accordingly, no rights in the nature of the right of passageway or the right of access such as are respectively provided for in s.5 and 6 of the Roads Act apply in respect of Wahroonga Car Park.