New South Wales Court of Appeal CITATION: Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 205 HEARING DATE(S): 16/08/2010 JUDGMENT DATE: 16 August 2010 JUDGMENT OF: Beazley JA at 20; Macfarlan JA at 21; Handley AJA at 1 EX TEMPORE JUDGMENT DATE: 16 August 2010 DECISION: Notice of Motion of 26/7/10 seeking a review of Young JA's decision of 12/7/10 dismissed with costs. CATCHWORDS: Environmental Planning and Assessment – public roads – advertising structure on bus shelters – council approval - granted under Roads Act – not under Environmental Planning and Assessment Act. - public roads – approval for advertising structures on bus shelters – granted under Roads Act – not under Environmental Planning and Assessment Act – structures not over public road. Environmental Planning and Assessment Amendment Act 1997 LEGISLATION CITED: Local Government Act 1993, s 68 Supreme Court Act, s 46(4) PARTIES: Phoenix Commercial Enterprises Pty Ltd - Appellant City of Canada Bay Council - Respondent FILE NUMBER(S): CA 09/298266 COUNSEL: F Agresta - Appellant in Person J E Armfield - Respondent SOLICITORS: N/A Mills Oakley Lawyers - Respondent) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 09/298266 LOWER COURT JUDICIAL OFFICER: Young JA LOWER COURT DATE OF DECISION: 12/07/2010 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2009/298266 BEAZLEY JA MACFARLAN JA HANDLEY AJA MONDAY 16 AUGUST 2010 PHOENIX COMMERCIAL ENTERPRISES PTY LIMITED v CITY OF CANADA BAY COUNCIL Catchwords Environmental Planning and Assessment – public roads – advertising structure on bus shelters – council approval - granted under Roads Act – not under Environmental Planning and Assessment Act. Public Roads – approval for advertising structures on bus shelters – granted under Roads Act – not under Environmental Planning and Assessment Act – structures not over public road. Headnote The Council granted approval for the erection of advertising structures on bus shelters within its area. The advertising structures were "in or on" the public roads, and not "over" public roads. Consequently the approvals were granted by the Council under its powers conferred by the Roads Act 1993, and not as the consent authority under the Environmental Planning and Assessment Act. Orders The notice of motion seeking a review of the decision of Young JA dismissed with costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2009/298266 BEAZLEY JA MACFARLAN JA HANDLEY AJA MONDAY 16 AUGUST 2010 PHOENIX COMMERCIAL ENTERPRISES PTY LIMITED v CITY OF CANADA BAY COUNCIL Judgment 1 HANDLEY AJA: This is an application under s 46(4) of the Supreme Court Act for a review of a decision given of Young JA on 12 July 2010. 2 The application before Young JA arose out of a final judgment of the Court comprising Spigelman CJ, Campbell JA and myself, pronounced orally on 1 April 2010 in which an appeal by Phoenix Commercial Enterprises Pty Ltd was dismissed and a cross appeal by the Council of the City of Canada Bay was allowed from a judgment of White J in the Equity Division. 3 The Court did not determine the amount of the judgment in favour of the Council consequent on the allowance of its cross appeal. That was left for determination on written submissions. 4 The orders of the Court pronounced orally on 1 April were entered in the computerised court record system on 6 April 2010, pursuant to UCPR part 36 rule 11(2), and were then formally entered for legal purposes. 5 The application before Young JA was to set aside the orders of the Full Court of 1 April under UCPR part 36, rule 15(1), and perhaps rules 16 and 17. 6 There must be some doubt as to whether an application under s 46 to a single judge to set aside the orders of a Full Court was competent but it is not necessary to express a final view on that question. 7 The motion heard by Young JA was filed on 25 May 2010, more than fourteen days after the orders of 1 April were entered. The application was out of time under r 16 and does not fall within any of its exceptions. Nor does the case fall within the slip rule provisions in r 17. 8 The only question then is whether, in terms of r 15(1), the judgment was pronounced or entered illegally, irregularly or against good faith. 9 It is not necessary to finally determine that question because the underlying point that Mr Agresta, appearing on behalf of Phoenix Commercial Enterprises Pty Limited, seeks to agitate, is not soundly based in law. 10 The Local Government Act 1993 s 68 and the Table attached to that section defined the activities which required the approval of a council under that Act. Part E of the Table related to public roads vested in a council and item 2 covered, among other matters, the erection of "an advertising structure over a public road". Public roads within the area of the City of Canada Bay were not zoned under its Local Environmental Plan and development on its public roads was not regulated under the Environmental Planning and Assessment Act. 11 Following the Environmental Planning and Assessment Amendment Act 1997 which amended s 68 of the Local Government Act and the attached Table, the Governor made the Environment Planning and Assessment (Savings and Transitional) Regulation 1998 (the 1998 Regulation). Clause 29 (1) of that Regulation provided that it applied to development consisting of "a prescribed activity proposed to be carried out within the area of a council". 12 Prescribed activity was defined in cl 3 as including an activity specified in the Table to s 68 of the unamended Local Government Act 1993 "(b) in item 2 (but only in relation to the erection of an advertising structure over a public road)...". The unamended Local Government Act 1993 was defined as the Local Government Act 1993 as in force immediately before 1 July 1998, the day proclaimed for the commencement of the Environmental Planning and Assessment Amendment Act 1997. 13 When the Council gave its consent for the erection of advertising structures on bus shelters within its area the 1998 Regulation was in force. 14 The Council was the consent authority under the Environmental Planning and Assessment Act for the purposes of granting consent to the erection of "an advertising structure over a public road" as provided in the unamended Local Government Act 1993. 15 The question which underlies this application is whether the advertising structures erected on bus shelters illustrated by photographs exhibited to Mr Agresta's affidavit of 16 August 2010 are "over a public road". 16 Section 138 of the Roads Act 1993 provides that a person may not erect a structure or carry out a work "in, on or over a public road" otherwise than with the consent of the appropriate roads authority. The same collocation of words "in, on or over a public road" is found in s 139(2) and ss 142(1) and (2) of the Roads Act. In that context an advertising structure "over" a public road is one which extends across a road from one side to the other. An advertising structure that is in or on a public road but does not extend from one side of the road to the other is not such a structure "over" a public road. 17 The bus shelters and the advertising structures on them are not advertising structures "over" a public road within the meaning of the 1998 Regulation and the Roads Act s 138, and the consent given by the Council for their erection was granted under that Act, and not the Environmental Planning and Assessment Act. 18 It is not necessary to express a final view as to whether the Council acted in a way which would bring the case within UCPR part 36 rule 15. The judgment and orders of 1 April were not entered illegally, irregularly or against good faith because they were entered as a matter of administrative routine. The question of whether they were pronounced irregularly, illegally or contrary to good faith could require an investigation into the subjective knowledge of the Council and its legal advisors about the effect of the inter-related legislation when the relevant approvals were given. 19 I therefore propose that the notice of motion seeking a review of the decision of Young JA be dismissed with costs. 20 BEAZLEY JA: I agree with the orders proposed by Justice Handley. In my opinion the matter should be disposed of on the substantive issue in accordance with the reasons that Justice Handley has given. 21 MACFARLAN JA: I agree with both judgments. 22 BEAZLEY JA: The order of the Court is as proposed by Justice Handley, namely that the notice of motion be dismissed with costs. ********** 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.