THE CORPORATION OF THE CITY OF NORWOOD PAYNEHAM …€¦ · Web view2021. 8. 19. · The Corporation of the City of Norwood Payneham and St Peters (the Council) challenges by way

SUPREME COURT OF SOUTH AUSTRALIA(Civil: Judicial Review)

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated.

THE CORPORATION OF THE CITY OF NORWOOD PAYNEHAM AND ST PETERS v MINISTER FOR

INFRASTRUCTURE AND TRANSPORT AND ORS

[2021] SASC 97

Judgment of the Honourable Justice Parker

12 August 2021

ADMINISTRATIVE LAW - JUDICIAL REVIEW

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - ERROR OF LAW

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNREASONABLENESS

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNCERTAIN EXERCISE OF POWER

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - BIAS - APPREHENSION OF BIAS

This is an application for judicial review of a decision made by a delegate of the Commissioner of Highways (the Delegate) on 31 May 2021 to authorise the third and fourth interested parties to undertake certain work at the intersection of The Parade and George Street, Norwood. The works consist of constructing a scramble crossing with the inclusion of right-turn lanes at the intersection.

Applicant: THE CORPORATION OF THE CITY OF NORWOOD PAYNEHAM AND ST PETERS Counsel: MR S HENRY QC WITH MR T BESANKO - Solicitor: KELLEDY JONES

First Interested Party: MINISTER FOR INFRASTRUCTURE AND TRANSPORT Counsel: MR M WAIT SC, SOLICITOR GENERAL OF SOUTH AUSTRALIA, WITH MS B GEPPA - Solicitor: CROWN SOLICITOR FOR THE STATE OF SOUTH AUSTRALIASecond Interested Party: COMMISSIONER OF HIGHWAYS Counsel: MR M WAIT SC, SOLICITOR GENERAL OF SOUTH AUSTRALIA, WITH MS B GEPPA - Solicitor: CROWN SOLICITOR FOR THE STATE OF SOUTH AUSTRALIAThird Interested Party: 166 THE PARADE PTY LTD Counsel: MR M RODER QC WITH MR D BILLINGTON - Solicitor: BOTTEN LEVINSONFourth Interested Party: PARKADE PTY LTD Counsel: MR M RODER QC WITH MR D BILLINGTON - Solicitor: BOTTEN LEVINSONHearing Date/s: 23/06/2021 to 25/06/2021File No/s: CIV-20-006546B

The third and fourth interested parties are both traders which hold an interest in land located on The Parade close to the intersection of The Parade and George Street.

The applicant advances seven contentions in support of its claim for relief.

The first contention alleges that the power conferred upon the Commissioner by s 26(6) of the Highways Act 1926 (SA) does not extend to granting an authorisation to the third and fourth interested parties to undertake works that involve a trespass to the median strip, a tree and flagpoles.

The second contention involves an argument that the effect of s 26A of the Highways Act indicates a legislative intention that the Commissioner does not have the care, control and management of any trees on The Parade. Further, s 26A only permits the Commissioner to interfere, or authorise an interference, with trees where that is considered necessary for the purposes of road safety. Therefore, as the cutting back or removal of the eastern tree is not for the purpose of road safety the third and fourth interested parties will be acting in breach of s 221(1) of the Local Government Act 1999 (SA) and trespassing on the Council’s land, when they undertake the authorised works.

The third contention advanced by the applicant is that the authorisation purportedly granted by the Delegate by clause 4(c) of the Draft Developer Deed does not authorise the third and fourth interested parties to damage or interfere with the eastern tree.

The fourth contention involves an allegation that the purported authorisation is not a valid authorisation under s 221(1) and s 224 of the Local Government Act because the Draft Developer Deed did not identify with particularity and certainty the works that were being authorised. Further, the decision made by the Delegate was legally unreasonable as the precise conduct that was approved was not known by him.

The fifth contention was not pressed by the applicant at trial.

The applicant submits in its sixth contention that the Commissioner lacked power to authorise the works by reason of the notice given under s 26(7) of the Highways Act.

Finally, the seventh contention advanced by the applicant is that there was a reasonable apprehension of bias on the part of the Delegate.

Held, per Parker J, dismissing the application:

1. There is nothing in either s 26 of the Highways Act or Part 2 of Chapter 11 of the Local Government Act which suggests that the powers conferred upon the Commissioner under s 26(6) do not extend to the grant of authorisation to a third party under ss 221(1) and 224 of the Local Government Act to take action that will interfere with the property rights of a council in a road.

2. Section 26A of the Highways Act does not confine the power of the Commissioner to interfere with or remove vegetation when carrying out roadwork under s 212 of the Local Government Act as applied by s 26(6) of the Highways Act. Further, s 26A does not



preclude the Commissioner from authorising a third party to take such action under 221(1) and s 221(2)(e) of the Local Government Act.

3. While clause 4(c) of the Draft Development Deed does not expressly refer to the eastern tree, the plans referred to in clause 8 of the Schedule to the Draft Development Deed which were incorporated into the Delegate’s authorisation leave no doubt that the works will interfere with the roots of the eastern tree.

4. The decision of the Delegate to authorise the proposed works is not void for uncertainty as contended by the applicant because, (1) the deferral of a final approval in relation to the matters raised by clauses 8.9 and 8.11 to 8.15 of the Schedule to the Draft Developer Deed does not give rise to any uncertainty, and (2) the condition requiring compliance with Dr Nicolle’s recommendations provided a practical solution to the problem that the effect of the works on the tree roots could not be fully determined until they were uncovered. The imposition of the condition requiring compliance with Dr Nicolle’s recommendations was not legally unreasonable.

5. The issue of a notice under s 26(7) of the Highways Act by the Commissioner did not have the effect of removing from the Commissioner the powers otherwise conferred upon him in relation to the care, management and control of The Parade by the notice published under s 26(3) in 2001.

6. The decision made by the Delegate was not vitiated by a reasonable apprehension of bias.

Electricity Industry Act 1996 (SA) s 36A; Highway Act 1926 (SA) s 26, s 26A; Local Government Act 1999 (SA) s 208, s 209, s 221, s 224; Passenger Transport Act 1994 (SA) s 24; Planning, Development and Infrastructure Act 2016 (SA) s 131(2)(c); Public Sector Act 2009 (SA) s 5(6), s 6; Real Property Act 1886 (SA); Real Property Act 1900 (NSW) (NSW); Road Traffic Act 1961 (SA) s 17(3); Roads (Opening and Closing) Act 1991 (SA); Water Industry Act 2012 (SA) s 47, referred to.Aiken v Kingborough Corporation (1939) 62 CLR 179; Coffs Harbour City Council v Polglase [2020] NSWCA 265; Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Isbester v Knox City Council (2015) 255 CLR 135; Lester Land Holdings Pty Ltd v Development Assessment Commission (2020) 243 LGERA 221; Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566; Municipal District of Concord v Coles (1905) 3 CLR 96; Re Wilcox; Ex Parte Venture Industries Pty Ltd (1996) 66 FCR 511, applied.Anthony Horden and Sons Ltd v Amalgamated Clothing and Allied Trade Union of Australia (1932) 47 CLR 1; Barker v The Corporation of the City of Adelaide [1900] SALR 29; Brodie v Singleton Shire Council (2001) 206 CLR 512; Buckle v Bayswater Road Board (1936) 57 CLR 259; Corporation of the City of Unley v Claude Neon Limited and Dalgety Australia Ltd (1983) 32 SASR 329; Council of Sydney v Young [1898] AC 457; Farah Constructions v Say-Dee Ltd (2007) 230 CLR 89; Mison v Randwick Municipal Council (1991) 23 NSWLR 734; R v Falzon (2018) 264 CLR 361; R v Wallis; Ex Parte Employer’s Association of Wool Selling Brokers (1949) 78 CLR 529; Starkey v State of South Australia (2011) 111 SASR 537; The Corporation of the City of Port Adelaide v The South Australian Railways Commissioner [1927] SASR 197, discussed.Bayly v Sydney Municipal Council (1927) 28 SR (NSW) 149; Clissold v Perry (1904) 1 CLR 363; Comcare v Banerji (2019) 267 CLR 373; Gordon, Dass & Co v Morris and Ors [1945] 2 All ER



616; Hot Holdings v Creasey (2002) 210 CLR 438; Huth v Clarke (1890) 25 QBD 391; Independent Holdings Limited v City of Adelaide Planning Commission [1994] SASC 5061; Jia v Minister for Immigration and Multicultural Affairs (2001) 205 CLR 507; Manton v Brighton Corporation [1951] 2 KB 39; McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504; Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; News Limited v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563; Penny v Penny [1965] NSWR 495; R & R Fazzolari Pty Ltd v Paramatta City Council (2009) 237 CLR 603; R v Commonwealth Conciliation and Arbitration Commission; Ex parte the Angliss Group (1969) 122 CLR 546; Scott v Wollongong City Council (1992) 75 LGERA 112; Wildness Society Inc v Turnbull (2007) 154 LGERA 134, considered.



THE CORPORATION OF THE CITY OF NORWOOD PAYNEHAM AND ST PETERS v MINISTER FOR INFRASTRUCTURE AND TRANSPORT

AND ORS[2021] SASC 97

Judicial review

1 PARKER J: The Corporation of the City of Norwood Payneham and St Peters (the Council) challenges by way of judicial review a decision made by Mr Wayne Buckerfield, a delegate of the Commissioner of Highways (the Commissioner) to authorise 166 The Parade Pty Ltd and Parkade Pty Ltd (collectively the Developers) to undertake certain work at the intersection of The Parade and George Street, Norwood. The Council sought relief by way of certiorari and prohibition. It also sought six declarations against the Minister for Transport and Infrastructure (the Minister) and injunctive relief against both the Developers and the Commissioner from respectively commencing or facilitating the construction of the works.

2 In accordance with a commitment previously given to the parties, I announced my decision on 2 July 2021 but indicated that I would publish my reasons later. I dismissed the Council’s application on all grounds. These are my reasons.

3 As a matter of convenience, I have departed to some extent from the order in which the Council presented its contentions.

Background4 This matter has had a long and complex history. It is unnecessary for

present purposes to traverse all aspects of that history.

5 The Council is a body corporate constituted under the Local Government Act 1999 (SA) (the LGA). The proposed work is to be conducted on a public road that is vested in the Council in fee simple under the Real Property Act 1886 (SA) pursuant to s 208(1) of the LGA.

6 The Commissioner is a body corporate pursuant to s 8 of the Highway Act 1926 (SA). His functions and powers appear in Division 3 of the Highways Act. Sections 26 and 26A of that Act are of central importance to the present proceedings.

7 Each of the two Developers holds an interest in land located on The Parade, Norwood that comprises a significant shopping mall or centre. Both of their premises are located close to the intersection of The Parade with George Street (the Intersection). Both Developers have an interest in the configuration of the Intersection so as to facilitate ready access by motorists to their business premises.

[2021] SASC 97 Parker J

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8 By notice published in the Gazette on 11 September 2001 pursuant to s 26(3) of the Highways Act the Commissioner gave notice that:1

I will undertake the care, control and management of the part of Road Number 06027, known as The Parade, from the intersection with Fullarton Road, Road Number [RNO6146] to the intersection with Portrush Road [RN06033], contained within the boundaries of the City of Norwood Payneham and St Peters until further notice.

(Emphasis in original)

9 The Commissioner also gave notice to the Council under s 26(7) of the Highways Act as follows:

I, Trevor Noel Argent, Commissioner of Highways, pursuant to my powers under:

Section 26(7) of the Highways Act 1926

In relation to the Section 26(3) Notice, dated 11 September 2001, gazette number 115, covering Road Number 06027, known as The Parade, from the intersection with Fullarton Road [RN06146] to the intersection with Portrush Road [RN06033] within the boundaries of the City of Norwood Payneham St Peters, do hereby give notice approving the Council to:

exercise all powers or parts thereof, pursuant to Part 2 of Chapter 11 of the Local Government Act 1999, other than those powers or parts thereof, retained by me to undertake activities as specified in Transport SA Operational Instruction 20.1 (as amended from time to time) except as varied by the additions and exclusions below:

Additions to OI 20.1

NIL

Exclusions from OI 20.1

NIL

10 That portion of The Parade covered by the notice under s 26(3) of the Highways Act consists of a westbound carriageway comprising two lanes and an eastbound carriageway comprising two lanes. The east and westbound carriageways are divided by a landscaped median strip except at certain points where there is a break in the median to allow turning and at intersections with cross streets. The Intersection is controlled by traffic signals.

11 Proposed upgrades to the Intersection have been discussed between the Council and representatives of the Commissioner since at least 2005. At that time the Council preferred installation of a green right-turn arrow provided that the signal phasing allowed increased through traffic movement in peak periods. The Council opposed the removal of any trees.

1 Commissioner of Highways, ‘Highways Act 1926’ in South Australia, The South Australian Government Gazette. No 115, 11 September 2001 at 4031, 4069.


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12 Subsequently, a predecessor to the Department for Infrastructure and Transport (the Department) undertook an assessment of its preferred option, being the introduction of short dedicated turning lanes. This option was said not to require the removal of any trees. The assessment was also said to establish that the Council’s proposal to introduce signal phasing would result in excessive delays at the Intersection.

13 The Council considered the proposals at a meeting on 4 September 2006. It concluded that the inclusion of dedicated right-turn lanes would improve traffic flow and safety at the Intersection, it would significantly alter the “main street” appearance of The Parade.

14 In 2017 the Department conducted traffic modelling and analysis to determine the effect of a scramble crossing. The Council was advised in December 2017 that a scramble crossing would increase delays for all road users and that right-turn lanes were considered necessary to partially reduce the predicted delays. The modelling was provided to the Council.

15 Over the period from 2016 to 2019 the Council prepared a document known as The Parade Masterplan. The Council considers that the purpose of the Masterplan was to state a set of principles outlining the framework for the future development of The Parade, including the design structure of the streetscape and intersections. In preparing the Masterplan the Council undertook public consultation. That consultation extended to proposed changes to intersections.

16 In the lead up to the 2018 State election, Mr Steven Marshall MP, the Liberal candidate for Dunstan, made a commitment that a scramble crossing would be installed at the Intersection to improve pedestrian safety if his Party formed the Government.

17 By letter dated 10 January 2019 the predecessor to the Department acknowledged that the preference of the Council was that dedicated right-turn lanes not be introduced at the Intersection. The Department therefore suggested a compromise approach that would involve introduction of a “no right-turn” period at peak times combined with a “scramble” crossing so as to manage queueing and traffic during peak periods.2

18 At a special meeting on 15 May 2019 the Council resolved to support consideration of prohibiting right-turns at peak periods together with the introduction of a scramble crossing at the Intersection in order to manage queueing and traffic during peak periods. The Council also authorised its Chief Executive to write to the Department advising that the Council had endorsed

2 A scramble crossing involves all traffic at an intersection being brought to a stop so as to allow pedestrians to cross in any direction, including diagonally. Examples of scramble crossings are the junctions of Hindley Street and Rundle Mall with King William Street and Pirie Street and Waymouth Street with King William Street.


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The Parade Masterplan and supported consideration of the preceding approaches to traffic management.

19 Subsequently, the Council sought the view of the Department about the proposal and also sought expert advice about the performance of the Intersection.

20 On 1 November 2019, the Department advised the Council that it had considered the merits of the various options canvassed by the consultants engaged by the Council and considered the preferable option to be the installation of a scramble crossing with pedestrian ramp upgrades and the banning of right-turns during peak periods. The Departmental letter also advised that funding for this project would be made available during the current financial year and its officers would work with the Council to finalise the cost and to “recommend the optimum delivery method and funding mechanism”. The Department’s position was further confirmed by an email dated 27 November 2019.

21 After considering the position confirmed by the Department, on 18 December 2019 the Council resolved to support the no right-turn restriction for westbound traffic during the morning peak and for eastbound traffic during the evening peak together with the introduction of a scramble crossing. These arrangements should be monitored for 12 months and a report outlining the results prepared for consideration by the Council.

22 On 12 May 2020, a consultant engaged by one of the Developers sent an email to a senior officer of the Department advising that his employer had been engaged to provide traffic and parking advice concerning the redevelopment of the shopping complex owned by the particular Developer. The email asserted that “the banning of right turns will have economic impacts on businesses on both sides of The Parade as a result of decreased accessibility during the respective peak hours”. A meeting was sought to clarify the preferred solution of the Department.

23 On 11 June 2020 traders located on The Parade, including the Developers, wrote to the Minister to discuss potential solutions, including the option of contributing to the cost of the project.

24 Also on 11 June 2020, the solicitors for the Developers advised that they had been instructed to commence judicial review proceedings against the Council and the Commissioner in relation to the decision of the Council made on 18 December 2019 and requested that the Council refrain from undertaking any works on the Intersection until the proceedings were resolved.

25 On 18 June 2020, the Developers commenced judicial review proceedings against the Council and the Commissioner in respect of the Council decision of 18 December 2019.


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26 The Minister met with representatives of the Developers on 18 June 2020 to discuss their concerns about the decision of the Council. Following that meeting, the Council alleges that Mr Graeme Jackson of the Department was instructed to work with the Developers to reach an agreement concerning construction of right-turn lanes in the median strip in The Parade. Soon thereafter, Mr Jackson commenced dealing with the solicitors for the Developers to commence arranging a Funding Deed and a Developer Deed.

27 At a meeting on 23 June 2020 the Departmental officers met with representatives of the Developers and provided them with information that they needed to commence designing right-turn lanes within the median strip in The Parade.

28 On or about 16 September 2020 the Commissioner, in his capacity as Chief Executive of the Department, signed a minute to the Minister recommending that the Minister execute an attached Funding Deed relating to the Norwood Scramble Crossing.

29 The front sheet of the minute sent by the Commissioner to the Minister was endorsed “Critical Date 17 September – 12 pm” “Reason: Media Release and Meeting with Council”.

30 The minute signed by the Commissioner included the following passages:

A funding deed is required to be executed to facilitate the agreed option for the Norwood Scramble Crossing which includes constructing right-turn lanes.

The Department has further investigated options including independent modelling commissioned by Council, consulted with major precinct retailers and has committed to maintaining right-turns and increased overall benefits to address:

o congestion and traffic flow

o access to businesses

o safety.

The scramble crossing will be developed to maintain and better facilitate right-turns to improve traffic flows, address current congestion issues and maintain access to local business in the busy metropolitan precinct.

The attached Funding Deed has been executed by the Developers and now requires execution by the Minister prior to 12 pm on 17 September 2020. This timeline is crucial as it aligns to the agreed Communications planned for this matter which involves the Chief Executive of the Department meeting with the Chief Executive of the Council at that time.


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31 The minute also noted under the heading “Legal Implications” that “the Deed will be legally binding on the parties and commits the government to the scramble crossing including the right-turn lanes”.

32 A draft media release was attached to the minute. The minute noted that the matter was highly confidential until the media release was issued. I understand that to mean that the Council was not to be given prior notice of the agreement with the Developers. A “Frequently Asked Questions” document that accompanied the draft media release suggested that the Department was not going to undertake the works as most road and intersection upgrades are delivered by contractors. This document also noted that the Developers were undertaking related works.

33 The Funding Deed was signed by the Minister on 16 September 2020. The Premier announced that fact by media release the next day. I have referred to the terms of the Funding Deed at [47] to [49]. The Premier’s media release also included the following passages, amongst others:

Initial proposals considered a ban on right-turns into George Street from The Parade, however, through additional feedback from retailers, right-turns will now be maintained while maintaining two through lanes.

This will provide greater community benefit, improved traffic flows and ongoing access to businesses in the precinct.

Local member for Dunstan and Premier Steven Marshall said it is great to be delivering this election commitment.

“At the election we committed to a scramble crossing which will improve safety and convenience for both pedestrians and drivers.”

“By installing dedicated right-turn lanes we ensure continuing accessibility for shoppers and residents. It’s a win win solution.”

The Department for Infrastructure and Transport will continue its work with local traders and the City of Norwood Payneham and St Peters to deliver the project.

34 On 17 September 2020, the solicitors for the Developers advised the Council by letter that, as the Minister had agreed to provide funding towards the construction of dedicated right-turn lanes at the Intersection and to permit the Developers to undertake those works, together with the installation of a pedestrian scramble crossing, the judicial review proceedings commenced by the Developers had been rendered otiose.

35 On 28 September 2020, the CEO of the Council complained in a letter to the Commissioner about the process adopted by the Minister and the Commissioner and sought copies of certain documents. In his response on 7 October 2020 the Commissioner indicated that the Department was committed to consulting with all interested parties, including the Council, in relation to the


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delivery of the scramble crossing with right-turn lanes to ensure that it is completed with minimal disruption to local businesses and residents.

36 On 14 October 2020, the Council filed an action for pre-action discovery in this Court against the Minister, the Commissioner and the Developers seeking documents relating to the decision to construct dedicated right-turn lanes at the Intersection. The application was discontinued on 11 November 2020.

37 On 8 December 2020, the Commissioner signed and sealed a Developer Deed which granted authorisation under ss 221 and 224 of the LGA for the installation at the Intersection of right-turn lanes in the median strip.

38 On 23 December 2020, the Council filed and served the present application for judicial review. On 18 March 2021, the Council filed an interlocutory application seeking injunctive relief to prevent commencement of the works at the Intersection. The affidavit of a council officer, Lisa Mara, dated 18 March 2021 referred to the risk of damage to particular trees located in the median strip of The Parade should the works proceed. Exhibited to her affidavit were two reports prepared by a consultant arborist, Mr Colin Thornton, dated 25 January 2021 and 16 March 2021.

39 On 6 April 2021, the Department was provided with amended concept drawings (the Amended Concept) prepared for the Developers which were intended to reduce the risk of damage to two trees referred to in the reports prepared by Mr Thornton.

The Decision under Review 40 On 20 April 2021, the Mayor of the Council was provided with the

Amended Concept and informed that this proposal had been accepted by the Department from a technical perspective. The Department now intended to seek authorisation to enter into a Developer Deed based upon the Amended Concept. The decision whether or not to proceed on this basis would be made by a delegate of the Commissioner, Mr Wayne Buckerfield.

41 The Council was invited to provide submissions relevant to Mr Buckerfield’s decision by 14 May 2021. Through its solicitors, the Council sought an extension of time. After an exchange of correspondence, on 14 May 2021 the solicitors for the Council sent detailed submissions of 27 pages opposing the making of the new decision, supported by annexures marked A to Z extending over some 590 pages.

42 On 17 May 2021 Mr Jackson provided to Mr Buckerfield’s executive assistant a minute and a bundle of materials. The materials comprised:

1. Funding Deed dated 16 September 2020.


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2. Affidavit of Lisa Mara dated 13 October 2020.3

3. Letter from the Council to the Department dated 25 March 2021.

4. Arborist reports dated 25 January 2021 and 16 March 2021.4

5. Letter from the Department to the Council dated 20 April 2021.

6. Letter from the Council to the Department dated 3 May 2021.

7. Letter from the Council to the Department dated 14 May 2021 (including attachments A-Z).

8. Finalised drawings and WGA design report.5

9. Draft Developer Deed of Agreement (the Draft Deed).

43 Mr Jackson’s minute also noted that the Department was still waiting upon comments from the Developers which were to be provided to Mr Buckerfield prior to the making of his decision.

44 Mr Jackson included two recommendations in his minute should Mr Buckerfield decide to authorise the works in his capacity as delegate of the Commissioner. These two recommendations were:

It is recommended that you consider all of the information in this matter and decide whether to authorise the proposed works under sections 221 and 224 of the Local Government Act 1999 (SA) as described in the attached Draft Deed for the Norwood Scramble Crossing.

If you decide to authorise the proposed works, as above, it is then recommended that you:

1. Approve the installation, maintenance or alteration of any traffic control devices as necessary for the purposes of the proposed works under section 17(3) of the Road Traffic Act 1961 (SA); and

2. Upon agreement of the terms of the Draft Deed sign and affix the Common Seal of the Commissioner to the finalised Deed.

45 On 18 May 2021, the solicitors for the Developers provided submissions in response to those made by the Council. That day, the solicitors for the Council were provided with a copy of the submissions made by the Developers. It was ultimately agreed that the Council could respond to those submissions by 28 May 2021 and that Mr Buckerfield would decide the matter on 31 May 2021. On 28 May 2021, the Council provided further submissions with further annexures marked AA to AE. 3 Ms Mara is the general manager of Governance and Community Affairs with the Council.4 These reports were respectively prepared by Mr Colin Thornton on instructions from the Council and

Dr Dean Nicolle on instructions from the Department.5 The WGA design report is a report provided to the Department by the consultants Wallbridge Gilbert

Aztec dated 11 May 2021 entitled “The Parade and George Street Intersection Upgrade, Norwood”.


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46 On 31 May 2021Mr Buckerfield approved the two recommendations made by Mr Jackson. In a handwritten addendum, Mr Buckerfield cancelled, revoked or otherwise withdrew the authorisation previously granted under ss 221 and 224 of the LGA. Mr Buckerfield also compiled a file note dated 1 June 2021 in which he recorded the reasons for his decision. That file note became a matter of contention at trial and the subject of a ruling. I have referred to that issue at [90] to [93] below.

The Funding Deed47 As previously noted, the Funding Deed between the Minister and the two

Developers was executed on 16 September 2020. Clause 1 of the Deed stated that the Developers had proposed to undertake alterations to the Intersection. The Deed set out the terms and conditions upon which the Minister intends to provide funding to the Developers solely for the purpose of the project described in item 2 of the Schedule. The description of the project stated that the Intersection was to be altered to create a pedestrian “scramble crossing” and to allow right-turn movements into George Street from The Parade via short channelized right-turn treatments. Those works were to include, for example, undertaking any required alteration or relocation of third party services or infrastructure, upgrading traffic signals as required, demolition of the existing concrete median, pavement works, installation of a new median kerb, line marking and signage relocation and installation. The works were to be as further described in the project documents as approved in accordance with the Developer Deed.

48 Clause 2 of the Deed provided that the provision of funding was conditional upon the Commissioner and the Developers having executed a Developer Deed substantially on the terms and conditions as set out in the Deed at attachment A. Funding was also conditional upon the Developers complying with the terms of the Developer Deed and having commenced the works by 31 January 2021 or within such additional time as may be agreed in writing between the parties.

49 Clause 3 of the Deed in combination with item 3 of the Schedule provided that funding of up to $330,000 (inclusive of GST) was to be provided by the Minister to the Developers for the project.

50 The balance of the Deed dealt with obligations of the type to be expected in a document of this type. It is unnecessary to refer to those provisions.

Statutory provisions 51 The following statutory provisions are relevant to these proceedings.

The Highways Act 1926 (SA)

52 Section 8 of the Highways Act creates the Commissioner of Highways as a body corporate with perpetual succession and a common seal. The Commissioner is, “subject to the Minister”, charged with the duty of carrying out


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the Act into effect. Section 13 provides that the Commissioner is subject to the control and direction of the Minister. Any direction given by the Minister must be in writing. Section 12A empowers the Commissioner to delegate any of his functions, powers or duties under the Act, except the power of delegation, to a public sector employee, to a member or employee of a council or to any other person. The delegation must be by instrument in writing and may be absolute or conditional. The general powers of the Commissioner are set out at considerable length in s 20 of the Highways Act. In essence, those powers are directed towards roadwork and ferry services.

53 The key provisions of the Highways Act relevant to this matter are ss 26 and 26A. They provide as follows:

26—Powers of Commissioner to carry out roadwork etc

(1) The Commissioner may carry out roadwork outside districts.

(2) The Commissioner may, with the approval of the Minister, carry out roadwork in a district provided that the Commissioner first gives the council notice in writing of the proposed roadwork and of the date on which it is proposed to commence the roadwork.

(3) The Commissioner may, with the approval of the Minister, by notice published in the Gazette, assume the care, control and management of any road in a district for a specified period (which may be until further notice published in the Gazette).

(4) The Commissioner may, with the approval of the Minister, by notice published in the Gazette, vary or revoke a notice under subsection (3).

(5) The Commissioner may carry out roadwork in relation to a road vested in or under the care, control and management of the Commissioner (and in the case of a road in a district may do so without complying with subsection (2)).

(6) The provisions of Part 2 of Chapter 11 of the Local Government Act 1999 apply to roads vested in or under the care, control and management of the Commissioner—

(aa) as if all such roads were public roads; and

(a) as if references to a council were references to the Commissioner; and

(b) subject to such modifications and exclusions as are prescribed by the regulations.

(7) A council must not exercise its powers under Part 2 of Chapter 11 of the Local Government Act 1999 in relation to a road vested in or under the care, control and management of the Commissioner except to such extent (if any) as the Commissioner may approve by written notice to the council.

(8) Any action that a council takes or has taken to exclude vehicles generally or vehicles of a particular class from a road vested in or under the care, control and management of the Commissioner is of no effect unless approved by the Commissioner by written notice to the council.


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(9) The provisions of this section applying to roads vested in or under the care, control and management of the Commissioner apply to such roads whether the roads are under the care, control and management of the Commissioner by virtue of this section or otherwise.

(10) The Commissioner may, when carrying out roadwork in a district, carry out such further roadwork as the council may request and any expenses incurred by the Commissioner in carrying out that further roadwork may be recovered from the council as a debt due to the Commissioner.

(11) If the Commissioner installs or causes the installation of street lighting in a district in the exercise of the Commissioner's powers under this section, the Commissioner may require the council to pay to the Commissioner for payment into the Highways Fund (by payments made at times specified from time to time by the Commissioner) half of the reasonable costs paid by the Commissioner to an electricity entity for the operation and maintenance of the lighting.

(12) The powers of the Commissioner under this section are in addition to the Commissioner's general powers under this Act.

26A—Powers of Commissioner in relation to trees etc on roads

The Commissioner may, for the purposes of road safety, remove or cut back any tree or other vegetation on or overhanging—

(a) a road vested in or under the care, control and management of the Commissioner; or

(b) an adjoining portion of road.

The Local Government Act 1999 (SA)

54 Sections 208, 221 and 224 of the LGA are of major significance in these proceedings. The relevant provisions of those sections are as follows:

208—Ownership of public roads

(1) All public roads in the area of a council are vested in the council in fee simple under the Real Property Act 1886 (and any land so vested that has not been previously brought under that Act is automatically brought under that Act without further application).

…

…

221—Alteration of road

(1) A person (other than the council or a person acting under some other statutory authority) must not make an alteration to a public road unless authorised to do so by the council.

Maximum penalty: $5 000.

(2) A person makes an alteration to a public road if the person—


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(a) alters the construction or arrangement of the road to permit or facilitate access from an adjacent property; or

(b) erects or installs a structure (including pipes, wires, cables, fixtures, fittings and other objects) in, on, across, under or over the road; or

(c) changes or interferes with the construction, arrangement or materials of the road; or

(d) changes, interferes with or removes a structure (including pipes, wires, cables, fixtures, fittings or other objects) associated with the road; or

(e) plants a tree or other vegetation on the road, interferes with vegetation on the road, or removes vegetation from the road.

(3) An authorisation is not required under this section for an alteration to a road if—

(a) the person who proposes to make the alteration has some other statutory authorisation to make the alteration; or

(b) the purpose of the alteration is to permit vehicular access to and from land adjoining the road and the alteration is approved as part of a development authorisation under the Development Act 1993; or

(c) the alteration is of a kind classified under the regulations as a minor alteration.

(4) Before the council authorises the erection or installation of a structure under subsection (2)(b), the council must give consideration to whether the structure will—

(a) unduly obstruct the use of the road; or

(b) unduly interfere with the construction of the road; or

(c) have an adverse effect on road safety.

(5) A council is not liable for injury, damage or loss resulting from anything done under the authority of an authorisation under subsection (2)(b).

(6) An authorisation under this section—

(a) may be granted for a particular act or occasion; or

(b) may be granted for a term and if so granted is, subject to revocation for breach of a condition, to remain in force for a term (not exceeding 42 years) stated in the authorisation and, at the expiration of a term, may be renewed by the council for a further term (not exceeding 42 years) fixed by the council at the time of the renewal.

…

224—Conditions of authorisation or permit


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(1) A council may grant an authorisation or permit under this Division on conditions the council considers appropriate

.…

Examples—

The conditions could for example—

require compliance with specified safety requirements;

require the person to whom the authorisation or permit is given to carry out specified work (or additional work) such as earthwork, drainage work and fencing;

require specified insurance or indemnities;

require the maintenance of structures erected or installed, or vegetation planted, under the authorisation or permit in good condition and to specified standards;

in the case of an authorisation or permit given for business purposes—require the payment to the council of rent or other consideration;

require the removal of a structure erected or installed under the authorisation or permit at the end of a stated period.

The traffic consultants’ reports 55 Mr Buckerfield was supplied with a report provided to the Council by the

infrastructure consultancy firm, Tonkin, dated 28 May 2020 and also a report from a similar firm, Cirqa, that had been provided to the Developers dated 17 May 2021. While this is a judicial review, and not a merits review, the contents of the reports are relevant because of the contention by the Council that the effect of s 26A of the Highways Act is that the Commissioner may only remove or cut back a tree or other vegetation for the dominant purpose of road safety.

56 The Tonkin and Cirqa reports were included amongst the material provided to Mr Buckerfield for the purposes of his decision. The two reports considered the operation of the Intersection in terms of such matters as safety and traffic flow by reference to two possible scenarios described as option 1C and option 2A. Those options were derived from traffic modelling undertaken by Tonkin on behalf of the Council following its endorsement of The Parade Masterplan that was the subject of report dated 12 December 2019. The two scenarios have been described as follows:

Option 1C – retention of the existing geometric configuration, installation of a pedestrian scramble crossing, banning of right-turns from the east during the am peak period and banning of right-turns from the west during the pm peak period. Filtered right-turn movements would be permitted at all other times.


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Option 2A –introduction of short separated right-turn lanes to accommodate right-turn movements from The Parade into George Street accompanied by the installation of a pedestrian Scramble Crossing. Filtered right-turn movements would be permitted at all times.

57 Cirqa considered that option 2A was preferable for several reasons. These reasons included:

A driver waiting to turn right from the dedicated right-turn lane would have better sight lines of vehicles approaching on The Parade and therefore would be able to more appropriately determine an acceptable gap in the traffic flow to safely undertake a right turn.

The potential for rear end crashes (being the most common crash type reported at the Intersection over the previous 10 years) would be reduced because vehicles waiting to turn right will not be “stored” on The Parade.

The facilitation of right-turn movements at all times will maximise accessibility to key parking and loading areas servicing the core of The Parade.

In turn, this will reduce reliance on drivers having to use local streets to access sites which could otherwise be directly accessed from the Intersection.

The potential that surrounding intersections would require alteration or upgrade, as a result of otherwise redistributed traffic volumes, will be removed.

58 Cirqa undertook modelling to compare the effect of option 1C, option 2A and also the proposed configuration, i.e. option 2A with the turning lanes and accompanying taper reduced in length (that being the version ultimately authorised by Mr Buckerfield).

59 The author of the Cirqa report noted that the proposed configuration would minimise the effect upon the trees within the median in comparison to option 2A. The proposed configuration would provide an overall safety benefit in comparison to option 1C while operating at a comparable and/or improved level of service to option 1C and option 2A.

60 The author of the Cirqa report also noted that the modelling undertaken by Tonkin had identified identical levels of service for options 1C and 2A during the morning and evening peak hours but the Tonkin modelling did not extend to the business peak hour between 11:45 am and 12:45 pm. The author concluded that option 1C would operate unsatisfactorily during that period, whereas “the proposed configuration remain[ed] comparable with a higher Level of Service”.


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61 The Tonkin report dated 28 May 2021 noted that the firm had originally been engaged by the Council to examine the effect on traffic of the installation of a scramble crossing at the Intersection. The report provided to the Council dated 12 December 2019 had been predicated on the installation of a scramble crossing and did not include a broader comparison of lane arrangements and signal phasing to maximise traffic efficiency at the Intersection. Under all scenarios, it had been found that the inclusion of a scramble crossing would reduce the traffic operational efficiency of the Intersection resulting in increased delays and queue lengths for all movements. Option 1C had been identified in the report of 12 December 2019 as the preferred option but with option 2A having similar results. Option 1C had been preferred as it could be adopted with minimum impact on the geometry of the Intersection and, with changes to the traffic signals, could be installed on a trial basis.

62 The Tonkin report of 28 May 2021 advised the Council that both the Tonkin and the Cirqa traffic modelling of option 1C and the modified version of option 2A produced similar results. However, Tonkin maintained a preference for option 1C for the morning and afternoon peak periods and suggested that the Cirqa report only provided a comparison of the level of service and did not provide additional detail of queue lengths and delays for more detailed comparison.

63 The Tonkin report of 28 May 2021 referred to the assessment by Cirqa of the business hours operation of the Intersection under options 1C and 2A (as modified) and noted Cirqa’s view that the modified version of option 2A would provide better operational efficiency. The author commented that this fact had been acknowledged in his letter to the Council dated 13 May 2021.

64 The Tonkin report summarised its conclusions in the following terms.

Option 1C has a slightly better operational performance during peak times than option 2A.

Option 2A has slightly better operational performance during off peak times.

Further consideration should be given to the operational performance of the Intersection taking account of additional traffic growth and turning movements as well as bringing analysis up-to-date with traffic volumes.

The safety implications of options 1C and 2A were comparable. Option 1C provides benefits in removing the filter right-turn movements in peak times whereas option 2A provides some benefits for reducing rear end collisions.

The proposed right-turn lanes in option 2A are significantly shorter than typical standards. Thus, any benefit that might be derived from the lanes only applies while the capacity of the right-turn lanes is not exceeded.


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The introduction of right-turn prohibition in peak hours under option 1C will require existing movements to use an alternative route however, that should be manageable within the existing road network. Modelling should be undertaken to assess the implications of the redirected traffic. The proposed trial operation of option 1C as originally intended would enable this to be reviewed and quantified.

Option 1C is considered to be more complementary to the intent of The Parade Masterplan and can be implemented with minimal impact on the existing Intersection configuration.

Option 2A will require alteration of the median and existing traffic signal infrastructure which will have a greater long-term impact on the feasibility of any subsequent changes developed for the Masterplan.

The arborists’ reports65 The Council obtained reports from an arborist, Mr Colin Thornton, dated

25 January 2021, 16 March 2021 and 8 May 2021. The Developers obtained a report from Dr Dean Nicolle dated 16 May 2021. Mr Thornton provided some comments to the Council upon Dr Nicolle’s report in an email message dated 26 May 2021.

66 While neither Mr Thornton nor Dr Nicolle was called to give evidence, their reports were before Mr Buckerfield when he made the decision. The contention by the Council that Mr Buckerfield’s authorisation was uncertain turns, in part, on the imposition of a condition that the Developers comply with recommendations made by Dr Nicolle.

67 In his original report dated 25 January 2021 Mr Thornton recommended to the Council that the proposed right-turn lanes should be reduced in length in order to reduce the potential effect on trees. He also recommended that a supervising arborist should present onsite at the commencement and throughout the duration of excavation activities and no excavation should occur within the structural root zone of each tree. Only non-destructive excavation should occur within the tree protection zone. Should tree roots be encountered during the excavation, the advice of the supervising arborist must be sought prior to removal of the roots and continuation of the works. All actions and inspections should be documented. In order to protect regulated and significant trees, the Department must be willing to instruct the contractor to undertake tree protection measures as advised by the supervising arborist.

68 The report provided by Mr Thornton dated 16 March 2021 supplemented his earlier report and responded to certain questions asked by the Council. In essence, Mr Thornton advised that the removal of the median adjacent to the tree and the excavation of the road surface has a high potential to remove support provided by the roots and compromise the structural integrity of the trees thereby


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causing them to fail. Removal of a large percentage of roots and potential root growth area will also affect tree health and stability. The reduction in tree health will be ongoing and could ultimately result in the decline or loss of the trees.

69 Mr Thornton provided a further report dated 8 May 2021. This report was prepared following non-destructive excavation (using Hydrovac6) within the median area to determine the size and extent of tree roots within the area of the proposed development. The report refers to what has been described as both the eastern tree and the western tree. As the subsequent reduction in the length of the proposed turning lanes has removed the risk of damage to the western tree, it is only necessary to refer to Mr Thornton’s views relating to the eastern tree.

70 Mr Thornton reported that the non-destructive excavation had revealed numerous large structural roots within the soil profile at a range of distances from the stem of the eastern tree. The presence of large structural roots indicated that development could have a significant effect on the tree and could ultimately result in total tree failure. The loss of soil profile due to excavation would undoubtedly affect tree health due to the loss of soil, water and nutrients. Any reduction in tree health will affect the high visual amenity of the tree. The loss of rooting mass will result in crown dieback and increase the progression of the tree through the decline cycle.

71 Dr Nicolle commented on the report of Mr Thornton dated 8 May 2021 and also expressed his own views. He concluded that if all detected roots in the exploratory trench referred to by Mr Thornton were to be severed, there was a moderate risk that the construction work would affect the stability of the tree. After making certain assumptions about the location of particular tree roots and that other tree roots would be retained and the surrounding area filled with what he described as “structural soil”, the likelihood that the proposed works would affect the stability of the tree could be reduced to a low level. However, should a number of major roots need to be severed, canopy reduction pruning of the tree could reduce to a low level the likelihood of the works affecting the stability of the tree. Should all the roots detected in the exploratory trench be severed, there was a low to moderate likelihood of the works significantly affecting the health and longevity of the tree. However, once again canopy reduction pruning could reduce to a low level the likelihood of the works affecting the health and longevity of the tree.

72 Dr Nicolle recommended that appropriate steps be taken to ensure that no construction activity occur in the median area outside of the excavation area. Machinery and so forth must not be located within that part of the median area that is not proposed to be excavated. Barriers should be installed and appropriate training and supervision provided. Dr Nicolle also recommended that a consulting arborist be present onsite when the median is excavated. The arborist should inspect any roots that are encountered, whether they are severed or not,

6 Apparently, this device operates like a vacuum cleaner.


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and provide advice regarding any effect on the stability of the tree. If the stability of the tree is deemed to be compromised, the arborist should provide immediate advice regarding remedial measures, which may include canopy reduction pruning. The question of compromise to the stability of the tree is to be determined by reference to the location, size, number and density of any roots encountered.

73 Dr Nicolle also described how canopy reduction pruning should be undertaken if necessary. While length reduction of up to six metres of all branches may be necessary, the extent of pruning will depend on the extent of root damage as determined by the arborist. He also explained the beneficial effects of canopy reduction pruning.

74 Dr Nicolle also made specific recommendations concerning the use of structural soil to fill the area around roots of a specified size. He explained the composition of structural soil and stated that it is a medium that can be compacted to meet pavement design and installation requirements while also permitting root growth. He indicated that typical bitumen treatments can be applied above structural soil. Excavation of existing soil from around the roots should be undertaken using a soil vacuum or other tree sensitive method. Retention of the roots referred to by Dr Nicolle would reduce the likelihood of the work affecting the stability, health and longevity of the tree and thereby reduce the likelihood of the need for canopy reduction pruning.

75 In an email message dated 26 May 2021 Mr Thornton responded to criticisms made by Dr Nicolle of the tree root measurements that he had undertaken. He also disputed the appropriateness of canopy reduction pruning in the particular circumstances and took a different view to Dr Nicolle on the application of a particular Australian standard.

The evidence of Mr Buckerfield76 Mr Buckerfield provided evidence by way of affidavit and further oral

evidence in chief. He was also cross-examined at some length.

77 Mr Buckerfield stated that he is employed in the Department as the Executive Director, Transport Planning and Program Development. He holds the qualifications of Bachelor of Engineering (Mining) and a Master of Business Administration. After a period working in the mining industry, he has worked in the Department, and in predecessor agencies, since 1987. He has held his current position since February 2019.

78 Since January 2005 Mr Buckerfield has held a number of senior positions within the Department. He has very significant experience in the area of traffic management and in directing significant infrastructure projects. He was responsible for overseeing those projects and ensuring their successful delivery. The projects included the South Road Superway project, the Torrens Road to


19

River Torrens project and also, in his capacity as project director, projects in respect of the North-South Corridor Program. In the latter role, he was solely accountable to the Deputy Chief Executive of the Department for all matters regarding design, procurement of works, geotechnical investigations and management of the scope of work, timing and risk.

79 From January 2005 to March 2008 Mr Buckerfield was the Manager of Traffic and Access Standards. In that capacity, he was responsible for a team which, under delegation from the Minister, processed approvals under the Road Traffic Act for the installation of traffic control devices throughout the State.

80 Mr Buckerfield also stated that in his current role he is responsible for a team who set the design engineering standards throughout the State. He explained that design engineering standards are the standards that apply to both the design and construction of all transport infrastructure for which the Department is responsible.

81 Mr Buckerfield was cross-examined concerning his lack of formal qualifications in traffic management. The substance of his response was that he had learnt traffic management skills through many years of practical experience in the Department. He also pointed out that many persons who described themselves as traffic management engineers had not studied that particular discipline as part of their engineering degree but, like him, had learnt through practical experience.

82 Mr Buckerfield further stated that he currently holds a delegation from the Commissioner of his powers under the Highways Act dated 26 March 2020, a delegation to affix the common seal of the Commissioner also dated 26 March 2020 and a sub delegation of the powers under ss 12 and 17 of the Road Traffic Act that had been delegated to the Commissioner by the Minister on 2 March 2017.

83 On 16 April 2021 Mr Buckerfield was advised by Mr Jackson that he had been identified as the appropriate delegated decision maker of the Commissioner to decide whether or not to provide authorisation to conduct roadworks comprising a scramble crossing and the establishment of right-turn lanes at the Intersection. He understood that he had been identified as the appropriate decision maker due to his lack of prior involvement and his significant experience in traffic management and infrastructure projects. He had not had any background or previous involvement with the matter or the proposed roadworks at the Intersection prior to being provided on 17 May 2021 with materials relevant to the making of a fresh decision.

84 Mr Buckerfield stated that as an executive within the Department he knew that there was an ongoing issue in respect of the installation of a scramble crossing which involved a level of complexity and competing interests.


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However, he did not have any detailed knowledge of the issues nor had he had any discussions with the Minister, representatives of the Developers or the Council. While he could not specifically recall, he believed that the fact that legal proceedings had been commenced may have been mentioned in a Departmental executive meeting. The first he knew of the proceedings in any formal sense was when he was provided with the minute and relevant materials by Mr Jackson.

85 Mr Buckerfield also stated that he had not been aware of the existence of the Funding Deed or the previous Developer Deed until he received the package of materials from Mr Jackson. While he had not asked persons within his Division of the Department, it is possible that they may have been aware of the Funding Deed and the previous Developer Deed. However, as a matter of course he was not usually involved in the drafting of documents of this type relating to lower level roadworks.

86 On 18 May 2021 Mr Jackson had provided to Mr Buckerfield’s executive assistant the submissions and annexures received from the Developers. He received a further set of submissions from the Council with annexures on 28 May 2021. He considered these additional materials over the weekend and made a decision on Monday, 31 May 2021. Mr Buckerfield considered by that time he had had sufficient time to consider all the materials placed before him.

87 Mr Buckerfield also added that at the time of making his decision he was aware that the scramble crossing at the Intersection was an election commitment made by the Premier but he did not recall the Premier having issued a media release publicly announcing the decision of the Minister to enter into the Funding Deed. He did not become aware that the Premier preferred installation of right turn lanes until after he granted the authorisation.

88 Mr Buckerfield also stated that he had not had any discussions with persons in the Department about the merits, or otherwise, of the proposed roadworks at the Intersection. The issue had been by handled by staff of a Division of the Department different from that which he heads.

89 Mr Buckerfield prepared a file note dated 1 June 2021 in which he recorded the reasons for his decision. He stated that he had done so as a matter of good administrative practice so that others could understand the reasons for his decision. He started to prepare a file note on the day that he made the decision. The revised version that was put into evidence was finalised the next day after he consulted with the Solicitor-General and another lawyer from the Crown Solicitor’s Office.

90 The Council called for production of the original version of Mr Buckerfield’s file note. The Council submitted that the file note was not subject to legal professional privilege as it was not prepared for the dominant purpose of obtaining legal advice. The Council contended that the revised file note had been


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put into evidence as proof of Mr Buckerfield’s state of mind when he granted the authorisation and thus any privilege that might have applied (contrary to its submission) had been waived. The matters that Mr Buckerfield considered when making his decision were relevant to the Council’s submission that road safety was required by s 26A of the Highways Act to be a paramount consideration when he granted authorisation to the Developers that would result in cutting back of the eastern tree.

91 The Minister and Commissioner resisted production. Their resistance had a dual basis. First, while they acknowledged that the initial draft of Mr Buckerfield’s file note had not been prepared for the dominant purpose of obtaining legal advice, its disclosure may indirectly disclose legal advice given to Mr Buckerfield in respect of the later version. Secondly, the Solicitor-General submitted that in circumstances where a decision-maker signs a finalised version of a document and attests that this is an accurate reflection of his or her state of mind when the decision was made, it is “fishing” to attempt to go behind that document to look further into the matters considered by the decision-maker. It is commonplace for decision-makers, whether they be judges or administrative decision makers, to work through several versions before arriving at a settled statement of reasons. The earlier versions of the statement of reasons are not relevant. What matters is the final settled reasons.

92 I declined to order production of the original version of Mr Buckerfield’s file note and made a ruling to that affect. I observed that the effect of the Council’s submission was that production of the first draft of the file note may show that the reference to road safety issues that appears in the later version may not have been present in the original version and therefore it might be inferred that this reference was the product of legal advice. In essence, I accepted the submission of the Solicitor-General on the fishing and relevance questions. For essentially the same reasons, I also did not consider that privilege had been waived by putting Mr Buckerfield’s state of mind in issue in the manner discussed in the authorities referred to in the submissions made by junior counsel for the Council.

93 Of course, even if my ruling was incorrect, whether road safety was a paramount consideration in Mr Buckerfield’s mind when he made the decision is only a relevant issue if the Council’s construction of s 26A of the Highways Act is correct. I have decided that point against the Council.

94 Mr Buckerfield noted in his file note dated 1 June 2021 that he had considered the several submissions from the Council dated 14 May 2021 and 28 May 2021 and also the submissions from the Developers dated 18 May 2021. He noted that the main reasons for his decision to authorise the proposed works related to traffic accessibility and safety. He stated that there was a “clear alignment within the submission that the installation of a scramble crossing at the intersection has a benefit for pedestrian movement and safety”. He also noted


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that the introduction of a scramble crossing will have an adverse impact on traffic efficiency. These adverse effects had led to the development of various options to manage the Intersection. He agreed that options 1C and 2A represented the most sensible options. He considered that the ongoing provision for right turning traffic onto George Street contained in option 2A was consistent with the function of George Street in the local road network which services both commercial development adjacent to The Parade and also provides access for the community more generally.

95 Mr Buckerfield also recorded his view that the current arrangement whereby traffic turning right does so from a shared through and right-turn lane on The Parade is not desirable from a traffic efficiency and safety perspective. For that reason, the provision of separate sheltered turn lanes in option 2A is superior. The limitations placed on the storage lengths for the right-turn lanes that have been designed to mitigate the adverse effect on trees and the retention of “filter turning” will limit the achievement of maximum safety benefits. However, option 2A would still deliver a net safety benefit over both the current arrangement and option 1C. He considered that option 1C was marginally more efficient but option 2A provides material benefits with respect to safety outside of peak times and accessibility during peak times.

96 Mr Buckerfield also recorded that he had considered the matters raised by the Council in relation to amenity and the potential effect on the trees in the median strip of The Parade. He noted that the proposed development does present some risk to the trees, particularly the eastern tree. The Developers have committed to follow the recommendations of Dr Nicolle in respect of the retention of tree roots where possible and to have the excavation works inspected by a qualified arborist in order to mitigate the risk of damage to the eastern tree. As there was some uncertainty about the effect the works may have on the trees, Mr Buckerfield considered that the commitment given by the Developers should be a condition of the authorisation.

97 Mr Buckerfield also observed that while he accepted that the proposed development may have an impact on the character of the intersection, he did not consider that there would be a significant adverse impact on the amenity of The Parade. On balance, he considered the combined benefits of option 2A in terms of safety and accessibility outweighed the marginal efficiency benefit of option 1C and the residual risk of adverse impact on the trees and other amenity concerns associated with option 2A.

98 For these reasons, he had decided to authorise the proposed work subject to the conditions set out in the Draft Deed and the further condition that the Developers follow the recommendations of Dr Nicolle in respect of the retention of the tree roots where possible and that the excavation works be inspected by a qualified arborist.


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99 On 18 June 2021 in his capacity as Acting Chief Executive of the Department Mr Buckerfield granted an endorsement to the Developers and the development at the Intersection for the purposes of s 131(2)(c) of the Planning, Development and Infrastructure Act 2016 (SA). The effect of this endorsement is to confer Crown development status. As the Council only received notice of the endorsement shortly before trial, it has reserved its right to challenge the decision in separate proceedings after it has had the opportunity to consider the matter properly. However, the Council acknowledges that if the endorsement was validly granted then development approval is not required.

The Council’s contentions100 The Council advances several interrelated contentions in support of its

claim for relief against the Minister and the Commissioner and also the Developers.

101 The Council’s first contention is that the power conferred upon the Commissioner by s 26(6) of the Highways Act does not extend to granting an authorisation to the Developers to undertake works that involve a trespass to the median strip, a tree and flagpoles.

102 A second group of contentions is based upon the effect of s 26A of the Highways Act. The Council contends that s 26A indicates a legislative intention that the Commissioner does not have the care, control and management of any trees, including those in the median strip on The Parade.

103 The Council also contends that s 26A only permits the Commissioner to interfere, or authorise an interference, with trees where that is considered necessary for the purposes of road safety. Neither the Commissioner nor Mr Buckerfield formed the view that it was necessary for the purposes of road safety to remove or cut back the eastern tree, including its roots, and thus the power conferred by s 26A was not engaged.

104 Accordingly, the Developers will be acting in breach of s 221(1) of the LGA, and therefore committing an offence, and trespassing on the Council’s land, when they undertake the works.

105 The third contention is that the authorisation purportedly granted by Mr Buckerfield does not by clause 4(c) of the Draft Deed authorise the Developers to damage or interfere with the eastern tree.

106 The Council’s fourth contention is that the Draft Deed that Mr Buckerfield decided should be entered by the Commissioner did not identify with particularity and certainty the works that were being authorised. Thus, the purported authorisation is not a valid authorisation under s 221(1) and s 224 of the LGA.


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107 The Council also contends that because the precise conduct that was approved had not been identified by Mr Buckerfield, and was not known by him, the decision was irrational or legally unreasonable.

108 A fifth contention included by the Council in its application for review is that the Developers have not obtained development approval and should be restrained from undertaking unauthorised development. As noted at [99], this fifth contention was not pressed at the trial as the Council asserted that it had received insufficient notice of the decision by Mr Buckerfield on 18 June 2021 to grant an endorsement to the Developers under s 131(2)(c) of the Planning, Development and Infrastructure Act. The Council has reserved its rights to pursue this issue in separate proceedings.

109 The sixth contention pressed by the Council is that by reason of the notice given to the Council by the Commissioner under s 26(7) of the Highways Act the Commissioner lacked power to authorise the works. Alternatively, the Council revokes the authorisation given by Mr Buckerfield by exercising the power delegated to it by the Commissioner on 11 September 2001.

110 The seventh and final contention of the Council is that there is reasonable apprehension of bias on the part of Mr Buckerfield by reason of, amongst other matters, that he knew that the Premier and Minister had previously stated that they preferred right-turn lanes, the Minister had agreed to provide $330,000 to the Developers towards the cost of the works with that payment being conditional upon the execution of a Developer Deed which the Commissioner had decided to execute on 8 December 2020 and Mr Buckerfield was asked to make a decision on the same subject matter.

The alleged trespass and lack of valid authorisation111 The Council’s first contention is that it was not within the scope of the

Commissioner’s power under s 26(6) of the Highways Act to authorise the Developers to undertake works that would constitute a trespass to the median strip, the eastern tree and flagpoles.

112 In support of that contention, the Council observes that by virtue of s 208 of the LGA all public roads in the area of a council are vested in the council in fee simple under the Real Property Act 1886 (SA). For completeness, I note that under s 209 of the LGA a provider of public infrastructure retains ownership of the fixtures and equipment such as pipes, cables and so forth installed in, on, across, under or over a public road. However, while that provision is not directly relevant in the present circumstances it is an indication, amongst others, of the particular nature of the interest held by a council in a public road.7

113 The effect of s 208 is that the Council is the owner of the trees planted in the median strip of The Parade on the basis that the trees are a fixture and

7 See [127] below.


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unauthorised damage will be a trespass. The ownership of the trees includes tree roots. Unauthorised interference with the flagpoles installed by the Council in the median strip will also constitute a trespass.8 The excavations necessary to construct the turning lanes, if not authorised by statute, will also be a trespass. The Commissioner and the Developers do not deny that the proposed works would be a trespass if they were not authorised by statute, but say that they have been validly authorised.

114 The Council submits that it is entitled to institute proceedings to restrain a trespass as the owner of the land.9 In contrast to its full proprietary rights, the Council submits that the Commissioner does not hold a proprietary interest in a road that is under his care, control and management. The assumption by the Commissioner of the rights of care, control and management under s 26(3) of the Highways Act confers certain powers and duties upon the Commissioner and a limited and non-exclusive right of possession. The latter right only operates to the extent necessary for the Commissioner to exercise his powers and discharge his responsibilities.10 The Council submits that the statutory rights held by the Commissioner do not displace the possessory rights that it holds under its fee simple title.

115 As the owner of the trees, the Council undertakes their care and maintenance, provides water and arranges annual inspections. The Council also cares for the median strip more generally. However, I note in passing that the Commissioner provides regular annual funding to the Council for these purposes. To what extent that funding meets the costs incurred by the Council has not been disclosed.

Nature of the interest held by the Council

116 Before further considering the question of trespass, it is appropriate to consider several authorities where the nature of the interest held by a council over a road or jetty has been considered.

117 The Full Court of this Court held in Barker v Corporation of the City of Adelaide that as the council held the fee simple interest in a road it was entitled to damages in trespass against a person who had strung an electricity cable some 45 feet above a road without the permission of the council.11 Way CJ noted that under early South Australian legislation councils had only held care, control and management of roads. However, the position had been revised by legislation in 1890 so as to confer an estate in fee simple upon councils in respect of every

8 Whether that would be as a trespass to land on the basis that the flagpoles are a fixture, or a trespass to goods because they are not a fixture, has not been ventilated in these proceedings.

9 Barker v The Corporation of the City of Adelaide [1900] SALR 29 at 33-34 (Way CJ), at 34-35 (Boucaut J), 37 (Bundy J); The Corporation of the City of Port Adelaide v The South Australian Railways Commissioner [1927] SASR 197.

10 Municipal District of Concord v Coles (1905) 3 CLR 96 at 104, 107-108 (Griffith CJ), 111-112 (Barton J); Buckle v Bayswater Road Board (1936) 57 CLR 259 at 280-282 (Dixon J).

11 [1900] SALR 29.


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public street.12 Bundey J noted that the unqualified statutory grant of a fee simple interest confers the greatest rights over a street known to the law.13

118 The facts in Corporation of the City of Port Adelaide v South Australian Railways Commissioner were that the council held a fee simple interest in a road.14 The Railways Commissioner had laid track without the permission of the council. The relevant legislation authorised the laying of track along a road with the approval of the “proper authority”. The Commissioner had laid the track with the approval of the Governor in Executive Council on the basis that his Excellency must be the “proper authority”. After tracing a complex legislative history, Murray CJ concluded that the proper authority was actually the Port Adelaide Council. The relevant road was held by the council in fee simple and was also entirely under its care, control and management. On that basis, the track had been installed unlawfully and the council was entitled to damages in lieu of an injunction.

119 The issue in Municipal District of Concord v Coles was whether a municipal council held an estate or interest in land that entitled it to lodge a caveat under the Real Property Act 1900 (NSW).15 The relevant legislation provided that a council had the care, control and management of public roads other than the main roads of the Colony. A council was also empowered to lay gas pipes under the road. Griffith CJ followed the decision of the Privy Council in Municipal Council of Sydney v Young where it had been held that the conferral of powers of care, control and management upon a council did not vest any proprietary rights.16 Barton J held that the conferral of care, control and management of roads upon the council did not grant it exclusive possession. However, it had a statutory right to take temporary or occasional possession of part of the road for the purpose of carrying out repairs or other duties. That right was described as a statutory licence to the extent necessary to perform its public duties. Such a right was not sufficient to support a caveat. All members of the Court agreed with that position.

120 The issue before the High Court in Buckle v Bayswater Road Board was whether the Board was liable, as a road authority, for injury caused by failure to repair the road.17 The decision in Buckle has been overruled by the later decision of the High Court in Brodie v Singleton Shire Council18 but counsel for the Developers submits that the case is still authority that the position of a council in its capacity as a highway authority is not analogous to that of other occupiers of land.

12 Ibid at 34.13 Ibid at 36. 14 [1927] SASR 197 at 196.15 (1906) 3 CLR 96.16 [1898] AC 457.17 (1936) 57 CLR 259.18 (2001) 206 CLR 512.


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121 In support of that contention counsel has referred to the following passage in the judgment of Dixon J:19

The purpose of giving the road authority property in and control over the road is to enable it to exercise its powers in relation to the highway, not to impose upon it new duties analogous to those of an occupier of property. The body remains a public authority charged with an administrative responsibility.

122 Dixon J then when on to discuss the basis for the principle (as it then stood) that highway authorities were not liable in tort for a failure to repair. Counsel for the Council has submitted that the distinction drawn by Dixon J between a council in its capacity as a road authority and an ordinary land holder should be confined to the public liability issue and not applied more broadly.

123 The question before the High Court in Aiken v Kingborough Corporation was the liability of a council for a failure to warn against the danger caused by damage to a jetty.20 The jetty had been built by, and was still owned and maintained by, the Crown. However, a statute conferred the duties and powers of control and management upon the council. Dixon J held that because the council controlled and managed the jetty it was an occupier in its own right and therefore liable for its failure to warn of the danger.21 Although Latham CJ (with McTiernan J agreeing) and Starke J also held the council to be liable they did not specifically refer to the question of occupation. However, such a finding seems to be implicit in their reasoning. The Crown was held not to be liable.

124 The New South Wales Court of Appeal similarly held in Coffs Harbour City Council v Polglase that the council and a trust were liable as occupiers by virtue of their care, control and management of a jetty that was owned by the Crown.22 The Crown was not liable.

125 The Railways Commissioner was held liable in the Port Adelaide case because the lack of any statutory power or authority to interfere with the rights held by the council as the owner of the fee simple interest in the road. It was apparent that if the Governor, or for that matter the Commissioner, had been the “proper authority” the latter would have had a statutory right to lay the track without the council’s permission. Thus, the case provides an early example of the common factual situation that the rights held by a council as the owner of a road will often be subject to contrary rights exercisable by another public or private authority for such purposes as the installation of pipes, cables and other infrastructure.

126 Thus, the effect of the observation by Bundey J in Barker as to the breadth of the rights conferred by the grant of a fee simple interest has, in the case of

19 (1936) 57 CLR 259 at 281-282.20 (1939) 62 CLR 179.21 Ibid at 203-204.22 [2020] NSWCA 265 at [87]-[89] (Leeming JA with Basten and Macfarlan JJA agreeing).


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rights relating to a public road, been subject to extensive statutory modification. That is the case for several reasons.

127 Ownership of a public road is, by its nature, materially different in important respects to most other fee simple interests. First, the public must be permitted to pass freely along the road. Thus, the rights held by the council as possessor are necessarily modified to that extent. Secondly, the interest held by councils has been granted by statute rather than by conveyance. Thus, the presumption against statutory interference with property rights has less force.23 Thirdly, a council cannot sell a public road other than by complying with s 221 of the LGA or, if the road is to be closed, in accordance with the procedures under the Roads (Opening and Closing) Act 1991 (SA). Fourthly, a road will generally provide the most convenient, or often the only possible, location for public and private authorities to install infrastructure (water, sewerage and gas pipes, poles, electricity and telecommunications cables, bus and tram stops and so forth) pursuant to powers conferred upon them by statute. By its nature, such work will often involve excavation of roads and the installation of permanent structures and items. Where those structures and items have been installed in the exercise of a statutory power, they will remain the property of the entity responsible for their installation unless agreed otherwise.24 Thus, the statutes that authorise such activity have extensively derogated from the rights that may otherwise be held by a council as the holder of the fee simple interest.

128 For these several reasons, while the position will always depend upon the terms of the particular legislation, I consider that the presumption against interference with private property rights will have less force where a statute potentially affects the rights of a council as the statutory owner of a fee simple interest in a road as compared to other fee simple interests in property whether that be council chambers, a town hall, a house, a farm, business premises or otherwise. Having said that, I agree with the submission by counsel for the Council that the observation by Dixon J in Buckle should be confined to the public liability issues that were before the High Court in that case.

129 The other principle that emerges from the cases referred to by counsel is that the conferral of the responsibilities of care, control and management over a road will authorise the relevant authority to enter into possession of the road to the extent necessary to perform its public duties.25 Thus, at the very least, the Commissioner would be in possession of a road that is subject to a notice under s 26(3) of the Highways Act placing that road in his care, control and management to the extent that it is necessary to perform works on that road. The precise scope of such possession by the Commissioner does not need to be decided in this case.

23 See Penny v Penny [1965] NSWR 495 at 498. See also the discussion in Dennis C Pearce, Statutory Interpretation in Australia (LexisNexis Butterworths, 9th ed, 2019) at 232 [5.28].

24 See, for example, s 209(1) of the LGA, s 36A of the Electricity Act 1996 (SA), s 47 of the Water Industry Act 2012 (SA) and s 24 of the Passenger Transport Act 1994 (SA).

25 Concord, Aiken and Coffs Harbour.


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Whether the works were validly authorised

130 The Council contends that the undertaking of the proposed works by the Developers has not been validly authorised and would constitute a trespass at common law. The Council also submits that the works would give rise to an alteration to a public road that has not been authorised by the Council and is not being performed by a person acting under some other statutory authority. Thus, the Council submits that if the Developers proceed with the works they will commit a criminal offence under s 221(1) of the LGA which attracts a maximum penalty of a fine of $5,000.

131 Section 221(2) of the LGA defines the meaning of “an alteration to a public road”. This concept is stated to mean, amongst other things, any change, interference with or removal of a structure associated with the road or interference with vegetation on the road. Thus, the proposed alteration of the median strip, which will also entail some interference with the roots of the eastern tree, will constitute an alteration to a public road.

132 The Council acknowledges that if the Commissioner was to carry out the works, rather than the Developers, he could do so under s 26(5) of the Highways Act and the question of trespass would not arise. That is because s 26(5) specifically authorises the Commissioner to carry out roadwork in relation to a road vested in or under his care, control and management. Section 26(5) further provides that he may carry out such roadwork without complying with the obligations under s 26(2) to obtain Ministerial approval and to give written notice to the Council of the proposed roadwork and the date upon which it is to commence.

133 The Council acknowledges that the powers under s 26(5) are available to the Commissioner to carry out the proposed works because of the publication in the Gazette on 11 September 2001 by the Commissioner of the notice under s 26(3) of the Highways Act giving notice that the Commissioner was to undertake the care, control and management of The Parade from the intersection with Fullarton Road to the intersection with Portrush Road.

134 Section 26(6) of the Highways Act provides that the provisions of Part 2 of Chapter 11 of the LGA apply to roads vested in or under the care, control and management of the Commissioner as if all such roads were public roads and as if references to a council were references to the Commissioner. Paragraph (b) of s 26(6) provides that the application of Part 2 of Chapter 11 is subject to such modifications and exclusions as are prescribed by the Regulations. However, no relevant regulations have been promulgated.

135 The Council contends that the powers conferred upon the Commissioner by s 26(6) of the Highways Act to exercise the powers of a council with respect to roads under the LGA are not available in a case where the Commissioner has


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given notice under s 26(7) that a council may continue to exercise those powers.26 I have considered this contention at [153] to [176] below.

136 I have previously noted that s 221(1) of the LGA provides that a person, other than the relevant council or a person acting under statutory authority, must not make an alteration to a public road unless authorised to do so by the council. Section 224 of the LGA empowers a council to attach conditions that it considers appropriate to an authorisation or permit granted under Division 6 of the LGA, i.e. the provisions relating to control of work on roads.

137 The Council submits that there is nothing in either s 221(1) or s 224 (or for that matter elsewhere in Part 2 of Chapter 11) of the LGA which expressly states or impliedly suggests that the consent of the Council is not required in circumstances where the Commissioner has exercised the power of the Council pursuant to the authority conferred upon him by s 26(6) of the Highways Act. When a council grants an authorisation under s 221(1) and s 224 to interfere with a road, that necessarily entails the council also giving consent to interfere with its property in the form of the public road vested in it under s 208(1).

138 The Council submits that s 26(6) of the Highways Act should not be construed as empowering the Commissioner to authorise a third party, in this instance the Developers, to interfere with the property of the Council without its consent. While s 26(6) provides that the provisions of Part 2 of Chapter 11 apply to roads vested in the Commissioner as if references to a council were references to the Commissioner, he does not hold any proprietary interest in the roads that he has placed under his care, control and management pursuant to the notice published under s 26(3). A s 26(3) notice merely confers care, control and management and not a proprietary interest in public roads. The Commissioner has merely a limited and non-exclusive right of occasional occupation to the extent necessary to carry out his statutory functions in respect of those roads that are under his care, control and management. Such roads remain in the ownership and possession of the Council in accordance with s 208(1) of the LGA.

139 For these reasons, the Council submits that in the absence of any express provision in s 26 or elsewhere in the Highways Act that a council is taken to have consented to a third-party interfering with its property rights under an authorisation issued by the Commissioner, it should not be inferred that the Parliament intended the power conferred by s 26(6) to extend to work that has not been approved by the Council.

140 In support of that contention the Council has submitted that there are sound public policy reasons why the Parliament would have permitted the Commissioner to undertake roadworks on a highway without the consent of a council but not have permitted the Commissioner to authorise third parties to do so without council consent. That is because the Commissioner is a statutory

26 The terms of the notice issued by the Commissioner to the Council are set out at [9] above.


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authority under the supervision and control of the Minister who is in turn responsible to the Parliament. Thus, the Commissioner is ultimately accountable through the political system for the roadworks that he undertakes. That is not the situation with private parties who have obtained an authorisation from the Commissioner under s 221. They may only be held accountable through a prosecution if they contravene or exceed the terms of the authorisation. Thus, it does not logically follow that because the Commissioner is able to do something the Act must be construed as also empowering him to authorise a third party to do the same thing.

141 The Council submits that any statutory provision that purports to displace the right to possession held by the Council must be clearly worded in order to be effective. That is said to reflect the well-recognised statutory presumption that legislation is not intended to interfere with vested property rights in the absence of clear language and that where two constructions of a provision are reasonably open, a construction that least interferes with the property rights of a party must be preferred.27

142 In the submission of the Council there is nothing in the Highways Act to indicate that the notice issued by the Commissioner under s 26(3) clearly and unequivocally displaces the rights of possession that it holds. There is also nothing in s 26 or elsewhere in the Highways Act that deems the Council to be taken to have consented to a third-party interfering with its property rights when authorised by the Commissioner. In the absence of clear language, it should not be construed that the power conferred by s 26 would extend to the carrying out of work that had not been consented to by the Council.

143 For these several reasons, the Council submits that the authorisation granted by the Commissioner is invalid. Section 26(6) does not confer upon the Commissioner the power to authorise the works that are intended to be performed by the Developers without the consent of the Council. The Council further submits that even if the authorisation under s 221 was valid to the extent that it removed the prohibition on undertaking roadworks, the authorisation could not permit a trespass against the property of the Council.

144 The effect of the contentions advanced by the Council is that the Commissioner could never exercise the powers conferred by ss 221(1) and 224 of the LGA to authorise a third-party to carry out works unless he had received the consent of the relevant council. I firmly consider that such an interpretation would not give proper effect to the legislative scheme established by s 26. Section 26(3) empowers the Commissioner, with the approval of the Minister, to assume the care, control and management of any public road in a council area. The power of the Commissioner to assume control of a road is subject to the constraint that Ministerial approval must first be obtained. The requirement that

27 R & R Fazzolari Pty Ltd v Paramatta City Council (2009) 237 CLR 603 at [43]-[44] (French CJ); Clissold v Perry (1904) 1 CLR 363 at 373 (Griffith CJ).


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notice be published in the Gazette also exposes the matter to public scrutiny. Thus, the action of the Commissioner in assuming control of a road is subject to public, political and ultimately Parliamentary scrutiny.

145 Having satisfied the requirement of Ministerial approval and given public notice of the assumption of control, the Commissioner may then carry out roadwork without satisfying the requirements under s 26(2) that Ministerial approval be obtained for the particular roadwork and that notice in writing be provided to the Council about the proposed roadwork and the date of commencement. Thus, the effect of the displacement by s 26(5) of the obligation to give notice under s 26(2) is to give the Commissioner a greater degree of paramountcy over a council than otherwise would be the case. However, I note that there is no requirement in s 26 or elsewhere that the Commissioner must first obtain council approval before conducting roadworks (as distinct from giving notice when s 26(2) applies).

146 The paramountcy of the Commissioner over a council is made complete by s 26(7) which precludes a council from exercising its powers in relation to roads under Part 2 of Chapter 11 of the LGA in relation to a road vested in or under the care, control and management of the Commissioner except to the extent that the Commissioner approves by notice in writing. Thus, in such a case the only powers that a council has under Part 2 of Chapter 11 are those allowed by the Commissioner in his discretion.

147 There is nothing in either s 26 of the Highways Act or Part 2 of Chapter 11 of the LGA which in any way suggests that the powers conferred upon the Commissioner under s 26(6) do not extend to the grant of authorisation to a third-party under ss 221(1) and 224 of the LGA to take action that will interfere with the property rights of a council in a road. If such an outcome was considered to be desirable as a matter of public policy, it would always be open to the Government to recommend to the Governor the making of a regulation under s 26(6)(b) of the Highways Act to modify the operation of Part 2 of Chapter 11 in its application to the Commissioner.

148 While it may possibly be the case that the Commissioner would be subject to a greater degree of Parliamentary scrutiny over works that he undertakes using his own staff28 or contractors, I do not consider that the Commissioner, or for that matter the Minister, would be entirely free from scrutiny in relation to the activities of a third-party that he has authorised. Questions might well arise in the Parliamentary or public arena as to the appropriateness of the grant of such an authorisation, the terms attached to it and so forth. That may be of little difference to the scrutiny applied to the actions of a contractor engaged by the Commissioner to undertake works on his behalf. Accordingly, I am not

28 The Questions and Answers document prepared for the Minister noted the Commissioner now largely engages contractors to perform works.


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persuaded that the Council’s public policy argument is, of itself, a sufficient basis to adopt the construction of the legislation contended for by the Council.

149 Quite apart from the lack of force in the public scrutiny and accountability submission, I do not consider that the Council’s argument has merit as a matter of statutory interpretation. In my view, it is clearly inherent in the scheme of s 26(6) that because this provision confers the powers of a council under Part 2 of Chapter 11 of the LGA upon the Commissioner that he can take, or authorise, actions that would otherwise constitute a trespass against the property of the Council. If Parliament was concerned that the Commissioner should not be authorised to enable third-parties to carry out works that would constitute a trespass upon road vested in a council, such a limitation could readily have been included in s 26. Rather than directly impose such a limitation or restriction, the Parliament merely provided a mechanism for that to occur by the enactment of an appropriate regulation under s 26(6)(b).

150 In failing to impose an express restriction to the effect contended for by the Council, it may be that the Parliament recognised the unique nature of the property vested in councils under s 208 of the LGA. As I have found at [116] to [129], the nature of a public road is materially different to other forms of freehold property that may be held by a council, whether buildings, parks, sports grounds or the like.

151 The conferral of a power to conduct, or more relevantly in this case, to authorise, roadworks, necessarily carries with it the prospect of trespass against the property rights of the owner of that road. In my view, the submissions advanced by the Council do not sufficiently recognise the particular nature of public roads as property.29 Those submissions also do not adequately acknowledge that the Commissioner occupies a higher place in the hierarchy of road building authorities in this State than that held by councils. I have referred to the collaborative but ultimately hierarchical nature of the scheme under the Highways Act at [155] to [159] below.

152 For these reasons, I reject the Council’s contention that the powers conferred upon the Commissioner under s 26(6) do not extend to the grant of authorisation to a third party under s 222(1) and s 226 of the LGA to take action that will interfere with the property rights of a council in a road or that would constitute a trespass but for the authorisation.

Does the Commissioner retain power when a council is authorised under s 26(7)?

153 The sixth contention made by the Council is that the Commissioner had surrendered his powers to the Council by granting it approval to exercise power under s 26(7) of the Highways Act. Section 26(7) operates as a prohibition on a council exercising its powers under the LGA in relation to a road that is the

29 See [116]-[129].


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subject of a s 26(3) notice except to the extent that the Commissioner has granted approval in writing. There is nothing on the face of s 26(7) to suggest that the grant of approval by the Commissioner to a council has the further effect of simultaneously removing powers from the Commissioner that he would otherwise possess by virtue of the s 26(3) notice.

154 In my view, the grant of approval by the Commissioner to a council under s 26(7) is not dissimilar to the delegation of power under a statute.30 The authorities indicate that, in the absence of a contrary statutory provision, a person or body that has delegated power retains that power concurrently with the delegate.31 The principle that a delegator retains power to act concurrently with the delegate has been described by Aronson and Groves as consistent with the view that delegation involves a replication rather than a transfer of power.32 I consider that description to be apposite to the grant of an authorisation under s 26(7), albeit that a delegation and authorisation are not identical.

155 Consistently with the preceding observations, I agree with the submission by the Solicitor-General that s 26(7) does not address the powers held by the Commissioner. It simply provides a mechanism to permit a council to continue to exercise its powers over roads under the LGA concurrently with the Commissioner following the publication of a s 26(3) notice. Recognition under s 26(7) allows for the concurrent holding of powers by the Commissioner and by councils and enables them to cooperate in road management consistently with other provisions of the Highways Act. The fact that the legislative scheme contemplates a cooperative approach is apparent from several provisions in the Highways Act.

156 I refer to s 23 which empowers the Minister, subject to Ministerial approval, to engage in or cause to be undertaken research in relation to suitability of materials for road construction and maintenance, the extent of such resources in the State and the methods of road construction and maintenance. Similarly, s 23(2) authorises the Commissioner, with Ministerial approval, to conduct planning and research and research into road safety, vehicle design and the behaviour of road users. Under s 23(3) the results of such research and experiments may be made available for general information to the extent that the Minister directs. Section 24 requires that the Minister shall, at the request of any council, provide advice on any question concerning roadworks, including the suitability of materials. Section 25 obligates councils to furnish information to the Commissioner, upon request, in respect of any public road or work.

30 The Council also referred to a s 26(7) approval as a delegation in its written closing submissions but expressed a reservation as to the correctness of that terminology in its oral closing submissions.

31 See Huth v Clarke (1890) 25 QBD 391 at 395 (Wills J); Bayly v Sydney Municipal Council (1927) 28 SR (NSW) 149 at 154 (Street CJ, with Gordon and Ferguson agreeing); Gordon, Dadds & Co v Morris [1945] 2 All ER 616 at 617 (Lynskey J); Manton v Brighton Corporation [1951] 2 KB 393 at 402-403 (Slade J).

32 Mark Aronson and Matthew Groves, Judicial Review of Administrative Action (Law Book Co, 5th ed, 2013) at 335.


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157 The collaborative nature of the scheme created by the Highways Act, but with paramountcy retained by the Commissioner, is reinforced by sub-ss (10) and (11) of s 26. The former provides that, when carrying out roadwork in a council area, the Commissioner may carry out such further roadwork as the council requests and may recover the cost of that work from the council. The latter provision authorises the Commissioner to require a council to meet the reasonable costs incurred by the Commissioner in the operation and maintenance of street lighting where that lighting has been installed by the Commissioner. Any such payment is to be made into the Highways Fund.

158 The effect of the interpretation advanced by the Council is that by granting an authorisation under s 26(7) the Commissioner surrenders the powers that he would otherwise hold by virtue of the notice under s 26(3). That construction fails to recognise that the Commissioner and Council may hold interests and opinions in relation to the management of a particular road that both overlap and diverge. Such differences may arise from time to time because of the State-wide responsibilities of the Commissioner as compared to the entirely local focus of a council.

159 I agree with the submission made by the Solicitor-General that recognition that the powers granted to a council under s 26(7) operate concurrently with those of the Commissioner derived under s 26(3) enables the Commissioner and a council to pursue their respective priorities while allowing cooperation where their interests converge or are compatible. Ultimately, if a council seeks to exercise the powers that have been approved under s 26(7) in a manner that is unacceptable to the Commissioner, the situation may be resolved by the Commissioner revoking or appropriately modifying the approval, or at least indicating an intention to do so if the council does not desist.

160 For the preceding reasons, I find that the notice under s 26(7) of the Highways Act did not result in the Commissioner surrendering his powers and duties of care, management and control of The Parade.

161 While that conclusion makes it unnecessary to do so, for completeness I will also consider the contention by the Council that the effect of the s 26(7) notice, when read in conjunction with the Transport SA Operational Instruction 20.1, had the effect of conferring exclusive power upon the Council to grant authorisations under the LGA with respect to median strips.

162 While the terms of the s 26(7) notice have been set out in full at [9] above, it is convenient to repeat the key passage which is as follows:

… do hereby give notice approving the Council to exercise all powers or parts thereof, pursuant to Part 2 of Chapter 11 of the Local Government Act 1999, other than those powers or parts thereof, retained by me to undertake activities as specified in Transport SA Operational Instruction 20.1 (as amended from time-to-time) except as varied by the additions and exclusions below.


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163 No additions or exclusions were specified.

164 The relevant part of Operational Instruction 20.1 has been divided into segments that generally correspond to the several divisions within Part 2 of Chapter 11 of the LGA. Thus, Part 3 of the Operational Instruction relates to the powers conferred by Division 3 of Part 2 of Chapter 11 upon councils to undertake roadwork. Part 5 of the Operational Instruction refers to the power conferred by Division 6 (including the powers contained in ss 221 and 224) to control work on roads. Part 5 of the Operational Instruction includes clause 5.1, the opening paragraph of which provides:

The Commissioner has and will exercise the powers and responsibilities of Council to grant authority to a person or body to make alterations to a highway in relation to those areas and features of a highway for which the Commissioner has assumed maintenance responsibility as described in this document.

165 Of present relevance, clause 3.9.1 of the Operational Instruction deals with responsibility for traffic control devices. This clause states that “[s]ubject to the provisions of the Road Traffic Act 1961 the Commissioner will install and maintain traffic control devices on highways … including … medians.” The clear effect of the first paragraph in clause 5.1, when read in conjunction with clause 3.9.1, is that the Commissioner has assumed maintenance responsibility for median strips on roads under his care, control and management.

166 Contrary to that position, the Council submits that the effect of the second paragraph in clause 5.1 of the Operational Instruction is to reverse the position to which I have referred. The second paragraph is in the following terms:

Authorisations to make alterations to traffic control devices installed on or alongside a roadway cannot be granted using this power. The power and authority to install, alter or remove traffic control devices is contained in the Road Traffic Act.

167 The Council submits that the effect of the second paragraph in clause 5.1 is to create an exception to the first paragraph so that “alterations to traffic control devices” is a matter reserved exclusively to councils. It is clear from the definition of “traffic control device” in Part 2 of the Operational Instruction, and also from clause 3.9.1, that the reference to “alterations to traffic control devices” includes “a median”.

168 Division 2 of the Road Traffic Act 1961 (SA) contains detailed provisions relating to the installation of traffic control devices. The term “traffic control device” is defined in s 5(1) of that Act to mean, amongst other things, a “structure … to direct … traffic.” It is clear from this definition that a median strip is a traffic control device for the purposes of the Road Traffic Act.

169 In my firm view, the effect of the second paragraph of clause 5.1 of the Operational Instruction is that it is merely a commentary upon, and an explanation of, the preceding paragraph. The first sentence of the second


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paragraph is intended to make clear that when the Commissioner exercises the power of a council to grant authority to a person to make alterations to a highway, such an authorisation does not extend to the making of alterations to traffic control devices. The second sentence confirms that the power and authority to install, alter or remove traffic control devices is contained only in the Road Traffic Act. I consider that the interpretation advanced by the Council is clearly contrary to the text, context and purpose of the second paragraph of clause 5.1.

170 That conclusion as to the operation of paragraphs 1 and 2 of clause 5.1 of the Operational Instruction is reinforced by reference to the context of the legislative scheme under the Highways Act. Section 26(12) of that Act stipulates that the powers of the Commissioner in s 26 are in addition to his general powers under the Act. Thus, the publishing of a notice under s 26(3) does not derogate from his general powers. Instead, by virtue of s 26(6), the s 26(3) notice has the effect of conferring upon him the powers conferred upon a council under Part 2 of Chapter 11 of the LGA. Concurrently with that conferral of additional power upon the Commissioner, a council is prohibited by s 26(7) from exercising the powers it otherwise holds under Part 2 of Chapter 11 of the LGA except to the extent that the Commissioner may grant approval by written notice.

171 There is nothing in s 26 or elsewhere in the legislative scheme that supports an implication or inference that when the Commissioner grants approval to a council by written notice under s 26(7) for the exercise of powers under Part 2 of Chapter 11 of the LGA, that the Commissioner relinquishes his powers to that extent. If that had been the legislative intention, it could readily have been achieved by specific wording.

172 I also note that, as its title suggests, the Operational Instruction has to a very large extent been drafted to provide information and guidance to both the staff of the Commissioner and to councils. That is borne out by the contents of the “scope and application” material contained in Part 1 of the Operational Instruction. Part 1 states that the document is intended to serve two purposes. First, it is intended to inform both Transport SA personnel and councils of the standard management and maintenance activities that Transport SA is required to undertake for roads under the care, control and management of the Commissioner.33 Secondly, in conjunction with the s 26(7) notices issued to councils, it is intended to advise councils of the powers that they may continue to exercise under Part 2 of Chapter 11 of the LGA.

173 For completeness, I also note that s 3.9.1 of the Operational Instruction provides that:

The Commissioner will maintain central medians and roundabouts in a safe and clean situation. Councils may choose to upgrade and maintain medians and roundabouts to a

33 I infer that the reference to “Transport SA personnel” means those staff of the Department carrying out work on behalf of the Commissioner.


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higher standard subject to entering into a formal agreement with the Commissioner. Such agreements will be noted on the s 26(7) notice.

174 No such agreement has been noted on the s 26(7) notice provided by the Commissioner to the Council. Thus, the power to upgrade and maintain the median strip on The Parade has apparently not been conferred upon the Council. Nevertheless, the Council has taken care of the median strip, including the trees, but has been reimbursed by the Commissioner for its expenses.34 As these issues were not developed in submissions, I do not have regard to them.

175 For the reasons referred to at [153] to [160], I reject the contention by the Council that the grant of an authorisation by the Commissioner under s 26(7) resulted in the Commissioner losing the powers that had been conferred upon the Council under that authorisation.

176 The Council contended in its third originating application for review that it had exercised its powers under s 26(7) to revoke the authorisation given by Mr Buckerfield. The act of revocation was apparently said to be the pleading of that allegation. The matter was not referred to in submissions and nor was any evidence put before the Court about the act of revocation, such as a resolution of the Council or a decision by a duly authorised delegate. Under the circumstances, I did not consider the supposed revocation any further.

Section 26A of the Highways Act – Commissioner’s power over trees177 The Council contends, in its second and alternative contention, that even if

the Commissioner has a superior possessory right over the median strip by virtue of ss 26(6) and 26(7) of the Highways Act, his powers to deal with the eastern tree are restricted by s 26A of that Act. That provision empowers the Commissioner, for the purposes of road safety, to remove or cut back any tree or other vegetation on or overhanging a road vested in or under his care, control and management or an adjoining portion of road.

178 The Council makes four observations concerning the terms of s 26A. First, that provision only applies to roads vested in or under the care, control and management of the Commissioner. Secondly, the power conferred upon the Commissioner is discretionary. That is apparent from the use of the word “may” rather than “must” and there is no indication that the use of “may” is intended to impose an obligation. Thirdly, the power to remove or cut back a tree may only be exercised for the purpose of “road safety”. Fourthly, the power applies only to trees “on or overhanging” roads vested in or under the care, control and management of the Commissioner.

179 The Council referred to the well-known observations by Gavan Duffy CJ and Dixon J in Anthony Horden and Sons Ltd v Amalgamated Clothing and Allied Trade Union of Australia35 and by Dixon J in R v Wallis; Ex Parte 34 That matter was referred to in an annexure to the affidavit of Lisa Mara dated 18 March 2021. 35 (1932) 47 CLR 1 at 7.


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Employer’s Association of Wool Selling Brokers36 that where a statute designates a particular procedure to be followed in the exercise of a power, the use of some other procedure to achieve the same end is excluded.

180 The Council notes that s 26A confers a specific and confined power upon the Commissioner whereas s 26 grants a general power. That general power authorises the Commissioner to carry out “roadwork” in relation to a road vested in him or under his “care, control and management” in accordance with s 26(5). Additionally, s 26(6) states that the provisions of Part 2 of Chapter 11 of the LGA applies to roads vested in the care, control and management of the Commissioner.

181 The term “roadwork” has been defined exhaustively, rather than inclusively, in s 7 of the Highways Act. While there is no specific reference to trees in that definition, the Council observes that paragraphs (g) and (j) may possibly extend to interference with trees. The Council contends that if the Commissioner is correct in his contention that the powers conferred by ss 26(5) and 26(6) extend to tree damaging activities, so that s 26A merely supplements those general powers, then s 26A serves no purpose. The general powers would entitle the Commissioner to remove or cut back trees on or overhanging roads vested in him or under his care, control and management and also authorise others to do so under ss 221(1) and 224 of the LGA whether for the purpose of road safety or not.

182 Given that s 26 can be construed as covering the same subject as s 26A (i.e. trees on or overhanging a road under the care, control and management of the Commissioner), and there is nothing in the text of s 26 or s 26A or in the definition of “roadwork” in s 7 to suggest that s 26A somehow supplements s 26, the Council submits that the Court should follow the principles stated by the High Court in the Anthony Horden and Wallis cases. Thus, the Commissioner may only remove or cut back trees for the purposes of road safety.

183 The Council supplements that textually based submission by reference to the statutory presumption that legislation should be interpreted as not interfering with private property rights in the absence of clear words. In the submission of the Council, that presumption supports a restrictive interpretation of s 26A and also a construction that results in either the excision from s 26(6) of the power to grant an authorisation to interfere with trees or otherwise limits the general powers conferred by s 26, including the power to grant an authorisation in circumstances that fall within s 26A.

184 The Council also observes that s 26A(a) empowers the Commissioner to interfere with the property rights of councils while s 26A(b) authorises the Commissioner to interfere with other private property rights. That is because the Commissioner is authorised to cut back or remove trees that belong to private

36 (1949) 78 CLR 529 at 550.


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citizens who own land adjoining a road vested in or under the care, control and management of the Commissioner. This authorises a significant interference with the rights of private citizens.

185 The Council submits that the Commissioner is not granted a general power under s 26 to interfere with trees on or overhanging a road under his care, control and management. The Council submits that the power conferred by s 26(5) does not extend to the removal or cutting back of vegetation as this is not “roadwork” as defined in s 5 of the Highways Act. However, the Council submits that interference with trees or other vegetation is specifically dealt with in s 221(2)(e) of the LGA. An application by a member of the public for approval under s 221(2)(e) for authorisation to interfere with vegetation on a road must be dealt with by the Commissioner under s 26A and not otherwise. Thus, the Commissioner can only grant approval for the purpose of road safety. His powers under ss 221(1) and 224 of the LGA will not extend to interference with trees for purposes other than road safety. The Commissioner cannot authorise a third party to do something that he himself lacks power to do.

186 The Council also submits that the text of s 26A makes clear that “road safety” must be the predominant purpose of the “removal or cutting back” of trees or vegetation. That is said to be clear from the use of the words “for the purpose of road safety”. Furthermore, as the provision authorises interference with private property rights, there are sound reasons for it to be construed narrowly. However, the Council acknowledges that Parliament would not have intended that the power could only be exercised for the sole purpose of road safety. Provided that the predominant purpose was road safety, the Council accepts that the existence of other benefits does not preclude the Commissioner from exercising the power. However, if s 26A was to be construed so that road safety is only required to be a minor purpose then the power could potentially be misused leading to an unintended infringement of private property rights of land owners, whether councils or private citizens. Adoption of a “predominant purpose” test is consistent with the principle that where a statute permits more than one construction, that which interferes least with vested property rights should be adopted.

187 The Council further submits that the “purpose” of conduct means the end that is sought to be accomplished.37 The Council submits that the real purpose of the application by the Developers and the approval granted by Mr Buckerfield as delegate of the Commissioner was to enhance access to the premises of the Developers by their customers. Thus, the Council submits that road safety issues were either an incidental aspect of the proposal or merely a means to tip the balance in favour of the result preferred by the Developers.

188 While the Commissioner acknowledges that to some extent the effect of s 26(6) of the Highways Act and Part 2 of Chapter 11 of the LGA is to establish a

37 News Limited v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563 at [18].


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scheme whereby councils manage roads, that does not support an implied reading down of the powers conferred under the Highways Act by reference to the LGA. Section 26(6) authorises the Commissioner to exercise the powers conferred upon councils with respect to roads “as if references to a council were references to the Commissioner”. While s 26(6)(b) provides for the modification or exclusion of particular powers under Part 2 of Chapter 11, no such regulation has been promulgated.

189 The Commissioner also seeks to draw support from an observation made in the Second Reading speech that resulted in the enactment of s 26A. The Minister for Transport and Urban Planning stated: 38

The Bill gives the Commissioner power to remove or trim trees or vegetation affecting road safety on a road under the care, control and management of the Commissioner. This measure removes a major point of ambiguity as between the respective powers of the Commissioner and local councils.

190 I do not consider that this passage assists in resolving the area of contention between the parties.

191 The Commissioner also sought to rely on a statement by the Hon Sandra Kanck MLC during the Second Reading debate that “the Bill gives the Commissioner extra powers over local roads”.39 Ms Kanck was a member of the Australian Democrats and, as such, held a position on the cross-bench. Statements made during the course of a Parliamentary debate by a Member other than by the Minister responsible for the passage of a Bill cannot be relied upon as evidence of meaning unless the Member was explaining the intended effect of an amendment that was then incorporated into the Bill.40 In any event, even if Ms Kanck’s observation was admissible, it would provide little assistance in resolving the current question.

192 The Developers have made extensive submissions concerning the interaction between ss 26 and 26A. They point to the fact that s 26(12) of the Highways Act provides that the powers conferred upon the Commissioner under that section are in addition to his general powers under the Act. Thus, they submit that the powers conferred by s 26 are not limited by s 26A or any other provision of the Act. The Developers also submit that specific powers conferred under one Act will not ordinarily constrain the exercise of powers conferred under another Act, even when the powers are conferred in identical terms.

193 I note that in Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom, Gummow and Hayne JJ stated that “to read one statute as

38 South Australia, Parliamentary Debates, Legislative Council, 29 March 2000 at 705 (the Hon Diana Laidlaw MLC).

39 South Australia, Parliamentary Debates, Legislative Council, 30 May 2000 at 1173.40 The State of South Australia (In Right of Department for Education) v Van Hattem (No 2) [2020]

SASCFC 45 at [63] (Parker J with Kourakis CJ and Tilmouth AJ agreeing); Loliet v The Queen (2020) 136 SASR 198 at [81] (Parker J with Kourakis CJ and Bleby J agreeing).


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abrogated by other than express words in a later statute is a large step, different in character from the construction of parts of a subsisting whole.”41 To like effect in Re Wilcox; Ex Parte Venture Industries Pty Ltd, the Full Court of the Federal Court held that the generalia principle “has little, if any, applicability to powers expressly conferred in separate enactments.”42 Nevertheless, Professor Dennis Pearce has suggested in Statutory Interpretation in Australia that there seems to be no particular reason for adopting this limitation and the issue should depend upon whether the specific enforcement mechanism provided in what is said to be the paramount Act is intended to be exclusive.43

194 While I treat the views of Professor Pearce on questions of statutory interpretation with great respect, in accordance with the principles stated by the High Court in Farah Constructions v Say-Dee Ltd44 and R v Falzon,45 I must adopt the approach taken by the Full Federal Court in Venture Industries and suggested by the High Court in Nystrom.

195 After conducting a detailed review of Anthony Horden and subsequent authorities, including Wallis, Gummow and Hayne JJ held in Nystrom that:46

[W]hat the cases reveal is that it must be possible to say that the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power. In all the cases considered above, the ambit of the restrictive powers was ostensibly wholly within the ambit of a power which itself was not expressly subject to restrictions.

196 The important point which emerges from that observation by Gummow and Hayne JJ is that a specific power will only restrict the operation of a general power when the specific power deals with a matter that is a subset of the matter dealt with under the general power.

197 As the argument by the Council relates to both the operation of s 26(5) of the Highways Act, and also s 26(6) of that Act in combination with ss 221 and 224 of the LGA, it is necessary to consider the matters dealt with in those provisions and then compare the extent of those provisions with the scope of s 26A.

198 Section 26(5) of the Highways Act empowers the Commissioner to carry out roadwork in relation to a road vested in or under his care, control and management. Where such a road is in the district of a council, the Commissioner may proceed without giving notice in accordance with s 26(2). I have referred to the definition of “roadwork” contained in s 7 at [181] above. The nature of many of the activities referred to in that definition is such that they may require the 41 (2006) 228 CLR 566 at [51].42 (1996) 66 FCR 511 at 530-531.43 (LexisNexis Butterworths 2019) at 4.48 and cases cited therein.44 (2007) 230 CLR 89 at [134]. 45 (2018) 264 CLR 361 at [49].46 (2006) 228 CLR 566 at [59].


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removal of, or interference with, trees or other vegetation. I refer to such activities as the construction of a road, the alteration of a road, the construction of drains and other structures for the drainage of water from a road, the installation of fences and so forth, the installation of traffic control devices, the improvement of a road, the installation of amenities or equipment on or adjacent to a road, the construction of facilities relating to public transport or parking for users of public transport, the installation of signs on or adjacent to a road and “any work” in connection with a road.

199 Section 26(5) authorises the activities referred to in the previous paragraph in relation to a road either vested in the Commissioner or under his care, control and management. If the Council has correctly contended that s 26A precludes the Commissioner from exercising his powers under s 26(5) to damage or interfere with a tree or other vegetation except for the dominant purpose of road safety, the result would be to place an enormous impediment upon the power of the Commissioner to carry out roadwork as defined. Thus, for example, the building of a new highway or the widening or duplication of an existing highway that required the removal of or interference with a tree (including its roots) or any form of vegetation, including weeds, could not occur unless the dominant purpose of that project was road safety. If the dominant purpose was to provide easier access to a locality, to reduce travelling times or to enhance economic activity, amongst other possibilities, that would not suffice according to the submission of the Council.

200 The practical significance of the preceding submission made by the Council is made stark by the fact that it did not seek to draw any distinction in its submission between a road that may be vested in the Commissioner in fee simple by proclamation under s 21A of the Highways Act47 and those cases where a council holds the fee simple of the road under s 208 of the LGA but which is under the care, control and management of the Commissioner pursuant to s 26(3).

201 I turn to consider the suggested effect of s 26A upon the operation of Part 2 of Chapter 11 of the LGA as applied by s 26(6) of the Highways Act to a road vested in or under the care, control and management of the Commissioner in so far as the Commissioner proposes to grant approval to a third party to carry out roadworks.

202 In view of the observation of Gummow and Hayne JJ in Nystrom that the Anthony Horden principle has only been applied where the restricted power was within the ambit of the general power, it is necessary to closely examine the scope of both ss 26 and 26A and also s 221 of the LGA.

203 It is immediately apparent that s 26A is not limited to the removal or cutting back of trees or other vegetation on a road that is vested in the Commissioner or 47 i.e. the South-Eastern Freeway, the Gawler Bypass, the Southern, Northern and Port River

Expressways, part of Salisbury Highway and the Sturt Highway between Waterloo Corner and Nuriootpa.


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under his care, control and management. The power extends to any tree or vegetation overhanging such a road and also to any tree or vegetation either on or overhanging an adjoining portion of road. Thus, the Commissioner has power to remove or cut back trees or vegetation on private land provided that they overhang either a road vested in him or under his care, control and management or an adjoining portion of road. It is therefore clear that the scope of the power conferred upon the Commissioner by s 26A extends well beyond the actions that the Commissioner may take in relation to trees and vegetation that is necessary for the carrying out of roadwork under s 26(5).

204 It is apparent from the preceding discussion that the restricted power, being s 26A, is not within the ambit of the general power, being s 26(5). I therefore find, in accordance with the observation of Gummow and Hayne JJ in Nystrom, that the clear effect of the enactment of s 26A was to confer additional powers upon the Commissioner rather than to diminish the powers that he had long held under s 26(5).

205 Section 26(6) applies all provisions of Part 2 of Chapter 11 of the LGA to roads vested in or under the care, control and management of the Commissioner as if such roads were public roads and if references to a council were references to the Commissioner. Thus, for example, s 26(6) confers upon the Commissioner all the powers held by a council under s 212 to carry out roadwork. Of more immediate relevance in the present case, is the power conferred by ss 221 and 224 whereby a council may grant authority or permission for a third party to alter a public road. Section 221(2)(e) provides that interference with or removal of vegetation from a road constitutes an alteration to a public road.

206 In view of my conclusion that s 26A extends the powers of the Commissioner to remove trees and other vegetation rather than derogating from the power previously held under s 26(5), I do not consider that a different interpretation should be adopted in respect of s 26(6). I therefore find that s 26A does not confine the power of the Commissioner to interfere with or remove vegetation when carrying out roadwork under s 212 of the LGA as applied by s 26(6) of the Highways Act. I also do not consider that s 26A precludes the Commissioner from authorising a third party to take such action under ss 221(1) and 221(2)(e) of the LGA.

Uncertainty207 The fourth contention advanced by the Council is that the authorisation

granted by Mr Buckerfield to the Developers is uncertain and therefore not an authorisation that falls within the statutory description of an authorisation for the purposes of ss 221(1) and 224 of the LGA. Thus, the Council submits that the authorisation is of no legal effect. The alleged uncertainty is advanced on two separate grounds.


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208 First, the Council alleges that Mr Buckerfield did not have plans before him that were sufficiently clear or complete when he granted authorisation to the Developers. Thus, it is uncertain what is the precise scope of the works that he authorised. Secondly, the Council contends that any condition that may be imposed by Mr Buckerfield under s 224 of the LGA relating to supervision of the excavation works by an arborist is uncertain because he has not identified the arborist who is to undertake the supervision, has not identified what the arborist is to do and nor has he specified what is to be done in response to any recommendation made by the arborist.

209 It is necessary to refer in some detail to the terms of the Draft Deed. Clause 4(c) provides as follows:

Subject to clause 5, the Commissioner authorises for the Term, pursuant to section 221 and 224 of the Local Government Act 1999 (SA) (“Act”), the Developer (and its contractors, employees and agents) to enter upon, occupy, use or alter the Road solely to conduct the Work subject to the conditions specified in this Agreement.

210 The word “work” is defined in clause 1 of the Deed to mean:

The roadwork and associated infrastructure (including the installation of lighting infrastructure) to be designed, constructed and/or installed by the Developer described in the scope of works set out in the Schedule as further detailed in the Project Documents.

211 The phrase “scope of the work” is defined in clause 9.1 of the Schedule as follows:

The alteration of the intersection of The Parade and George Street, Norwood to create a pedestrian “scramble crossing” and to allow right turn movements of vehicles into George Street from The Parade (to head north and south along George Street) via short channelised right turn treatments which will include for amongst other things:

…

demolition of the existing median, including fixtures and vegetation;

pavement works;

installation of a new median curb;

…

as further described in the Project Documents as approved in accordance with this Deed.

212 Clause 5(a) of the Draft Deed provides that the Developer is not authorised to conduct any work unless and until each of the required project documents has been approved in writing by the Commissioner. The term “project documents” is defined in clause 1 to mean the documents listed in the Schedule.


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213 Clause 5(b) of the Draft Deed states that if a required project document is attached to the agreement, as indicated in the Schedule, then it is taken to have been approved in writing. Clause 5(c) stipulates that if a required project document is not attached to the agreement (as indicated in the Schedule) then the Developer must prepare the project document in accordance with requirements set out in the Schedule, the DIT: Road Design Standards and Guidelines, the DIT Master Specification and any applicable Road Safety Audit. Clause 5(d) requires the Developer at its own cost to submit the required project documents for the Commissioner’s written approval within the submission period stated in the Schedule and must make any amendments to the project documents requested by the Commissioner at its cost.

214 The project documents are listed in clause 8 of the Schedule to the Draft Deed. The documents listed at clauses 8.1 to 8.10 appear under the sub-heading “design documents” while the documents listed at clauses 8.11. to 8.15 appear under the sub-heading “construction documents”.

215 In support of its contention that the approval granted by Mr Buckerfield is void for uncertainty, the Council complains that the documents listed at clauses 8.2, 8.6, 8.7, 8.8, 8.9 and 8.11 to 8.15 of the Schedule were not attached to the minute that he considered. However, the Schedule to the Draft Deed specifically stated that the documents listed at clauses 8.2, 8.6, 8.7 and 8.8 were not required. If they had been required, these documents would respectively have dealt with the designers’ response to a road safety audit, the land acquisition plan, the vegetation removal plan and drainage services. It is not apparent to me how these documents could be relevant (with the possible exception of the vegetation removal plan in clause 8.7) to the present proceedings, and as the Council has not established their relevance, I find that the absence of the documents listed at clauses 8.2, 8.6, and 8.8 of the Schedule does not provide a basis to invalidate the decision of Mr Buckerfield.

216 The document listed at clause 8.7 of the Schedule is a vegetation removal plan. This is described in the Schedule as “plan prepared in accordance with DP001 showing the details and extent of any vegetation removal required for the work.” The proposed works do not encompass the removal of any vegetation. However, damage may be caused to the eastern tree. The evidence of Mr Buckerfield was that this issue is to be dealt with through conditions attached to the final version of the Developer Deed. In these circumstances, I accept that it was not necessary to complete the vegetation removal plan.

217 In all but one instance, the documents listed at clauses 8.9 and 8.11 to 8.15 comprised construction documents that were to be provided 10 working days prior to the commencement of work. The only exception was that the community stakeholder management plan listed at 8.13 was to be provided 14 days prior to the commencement of work.


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218 As previously noted, the effect of clause 5(c) and (d) of the Draft Deed is to require the Developers at their own cost to submit the additional project documents for the Commissioner’s written approval within the time specified. Clause 5(a) prevents any work being performed until each of the required project documents has been approved in writing by the Commissioner. Thus, the proposed works cannot commence until the project documents listed at clauses 8.9 and 8.11 to 8.15 of the Schedule have received the written approval of the Commissioner (or his delegate). To that extent, the approval granted by Mr Buckerfield on 31 May 2021 is not a final approval and is dependent upon further decisions in respect of the six identified project documents. I have discussed whether the deferral of a final decision on these particular questions has given rise to uncertainty at [247] to [248] and have concluded that this has not caused Mr Buckerfield’s decision to be void for uncertainty or a lack of finality.

219 I have already indicated that the document listed at clause 8.13 comprised a community stakeholder management plan. The documents listed at clauses 8.11, 8.12, 8.14 and 8.15 were respectively an inspection and tests plan, a work breakdown structure, an application to SA Power Networks for installation of a new lighting supply point and installation of lights on power poles and a work zone traffic management plan. For the reasons expressed at [247] to [248], I do not consider that the deferral of final approval in relation to the matters dealt with in these documents has caused Mr Buckerfield’s decision to be void for uncertainty.

220 A central element of the Council’s contention that the approval granted by Mr Buckerfield is uncertain rests upon the requirement that the construction (or project) specification identified at clause 8.9 of the Schedule need not be provided until 10 working days prior to the commencement of work. Thus, Mr Buckerfield purported to grant authorisation by reference to the contents of a key document that did not yet exist.

221 Mr Buckerfield stated in evidence that the contents of the construction specification referred to in clause 8.9 would be determined by the inclusion in the specification of those provisions of the DIT Master Specification that were relevant to this project. The Master Specification is an extremely large document that is publicly available on the internet. It sets out the standard specifications for various types of work to be performed under contracts with the Commissioner and includes much material that would not be relevant to this project, e.g. details about bridge building. It is also apparent from Mr Buckerfield’s oral evidence that matters peculiar to this project, particularly the conditions intended to minimise harm to the eastern tree as recommended by the arborist, Dr Nicolle, would be included in the construction specifications required under clause 8.9.

222 The Council complains that the matter of interference with the eastern tree has not been dealt with by Mr Buckerfield. He stated that when he granted


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approval on 31 May 2021 for the project he intended that the recommendations of Dr Nicolle would be included in the construction specifications.

223 A basis upon which the Council contends that the approval granted by Mr Buckerfield was uncertain is that the document listed in 8.1 in the Schedule to the Draft Deed was identified as revision B of the Concept Plan. However, Mr Buckerfield stated that he had not seen revision B but he was aware of the earlier version A of the Concept Plan. He stated that he was not concerned by this situation as the Concept Plan was not a fundamental part of the description of the proposed work. Consistently with Mr Buckerfield’s observation, I note that the Concept Plan is not included among the drawing sheets listed in the Title and Index Sheet document at clause 8.10 of the Schedule which lists all drawing sheets included in the scope of works for the project. For this reason, Mr Buckerfield was not concerned that version A of the Concept Plan displayed the earlier, and now abandoned, longer version of the right-turn lanes.

224 Mr Buckerfield stated that the various plans are prepared for different purposes. For that reason, Mr Buckerfield stated by way of example that he would not refer to the documents listed at clause 8.3 in the Schedule, which depict the turn paths for the intersection, to determine the effect of the work upon trees. While the version of these documents provided to Mr Buckerfield show the longer, rather than the short, version of the turn lanes, the focus of the documents is upon depicting the path to be followed by turning vehicles. This document is not concerned with construction activities or, for that matter, the length of the lanes. For that reason, I do not consider that either the fact that the documents at clause 8.3 were only 70% complete, or the fact that they depicted the long rather than the short version of the right-turn lanes, has resulted in the decision of Mr Buckerfield to approve the works being void for uncertainty.

225 The project document listed at clause 8.5 of the Schedule to the Draft Deed is described as “general construction”. It refers in considerable detail to the proposed works. The document warns that there are shallow communication services in the vicinity of the works and also a high voltage cable and a high-pressure gas main. It indicates that illuminated parking direction signs are to be carefully removed and returned to the Council with power supply conduits being made safe and abandoned. The existing flagpoles and associated lighting are also to be removed and returned to the Council and the power supply treated as already indicated. The location of a great many public utilities is depicted on this document. Most importantly, this document shows that the existing median strip will be removed so as to provide for the construction of the short right-turn lanes and indicates the intended placement of those lanes. This project document also shows the position of the eastern tree relative to the proposed works. Mr Buckerfield stated in evidence that the distance between the centre of the tree and the proposed works could be determined from the document listed at clause 8.5 using a scaled ruler.


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226 The Title and Index Sheet document listed at 8.10 of the Schedule to the Draft Deed lists the drawing sheets included in the scope of works for the project. Seven documents are listed. The effect of the seven documents being listed at clause 8.10 is that they are thereby incorporated by reference as project documents. Each of the first four documents referred to, being the documents entitled general construction, final surface contours, pavement treatment and lighting, depict the short turning lanes and taper rather than the long version. The general construction, pavement treatment and lighting documents also show the position of the eastern tree. Mr Buckerfield indicated in evidence that the final surface contours document is primarily concerned with drainage. It does not show the position of the eastern tree.

227 The fifth document, being that depicting cross-sections, does not address the length of the turning lanes and it is not obviously related to that issue (at least to the lay reader). The sixth and the seventh documents are concerned with traffic signals and traffic signal conduit. It appears that the latter two documents were not provided to Mr Buckerfield. It is not apparent how such an omission may have caused uncertainty in the present context.

228 Importantly, the pavement treatment document also indicates that the pavement in the area presently occupied by the median strip, which is to be replaced by the right-turn lanes and the taper leading into those lanes, will be excavated to a depth of 365 millimetres. The document includes detailed instructions as to the manner in which the paving work is to be performed and the materials to be used. This is the only document that specifically refers to excavation of the right-turn lanes and tapers. It leaves no doubt that Mr Buckerfield had only approved the excavation of the short, and not the long, versions of the turning lanes and taper.

229 Mr Buckerfield also acknowledged that none of the plans or documents listed in the Schedule to the Draft Deed referred to interference with the tree roots and protection of the eastern tree. He said that this issue could not be dealt with in the plans until the location of the roots was established. The matter was to be dealt with in the construction specifications identified at clause 8.9. He also stated that that it is not the practice to include the location of tree roots in plans of this type. He said that in the course of his professional practice he had seen tens of thousands of such plans and had never seen tree roots depicted.

230 The Council contends that it was necessary that the project documents through which Mr Buckerfield expressed his approval identified the nature and the extent of the damage to the eastern tree. Section 221(1) of the LGA prohibits “alterations”. That term is defined in s 221(2) to include tree damaging activity. Thus, for there to be a valid authorisation to undertake an “alteration” in the nature of “tree damaging activity” it was necessary for Mr Buckerfield to identify precisely the activity, and thus the alteration, that he was authorising. However, he failed to do so because the “tree damaging activity” was not identified in the


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drawings that he approved. Thus, he approved an alteration that had not been identified. For that reason, the purported authorisation that he granted is uncertain.

231 The Council also submits that the purported authorisation granted by Mr Buckerfield failed to approve any alteration by way of tree damaging activity. That is because the Draft Deed purported to authorise “works” which have been defined by reference to the project documents. However, the project documents do not identify any damage to the eastern tree as being within the scope of the project. Thus, the approval of the Draft Deed does not confer authority on the Developers to damage or interfere with the eastern tree.

232 The Council further submits that in his file note dated 1 June 2021 Mr Buckerfield purported to impose a condition on the approval pursuant to s 224 of the LGA. That condition was that “the Developers follow the recommendation of Dr Nicolle in respect of the retention of the tree roots where possible and that the excavation works be inspected by a qualified arborist”.

233 The Council submits that this condition is wholly opaque for several reasons. Mr Buckerfield has not indicated what he understands the recommendations of Dr Nicolle to be. Thus, it is unclear what recommendations he is referring to. Secondly, it is uncertain what is meant by the words “where possible”. Thus, it is not known to what extent the Developers may depart from the recommendations of Dr Nicolle, whatever they may be, and what will be the consequences of a failure to comply with those recommendations. A third complaint is that it is also not known whom the arborist is to be.

234 In this context, the Council notes that application of the purported condition referred to by Mr Buckerfield could produce a wide range of outcomes to the eastern tree. This may range from no damage at one end of the spectrum to a need for severe crown pruning with the loss of six metres of canopy from all sides of the tree. On this basis, the Council contends that the condition fails the test expressed by the New South Wales Court of Appeal in Mison v Randwick Municipal Council.48 Mr Buckerfield purported to authorise damage to the eastern tree that may range from no harm though serious loss of canopy to the death of the tree. The outcome will depend upon what is encountered when the excavation works are undertaken, the identity of the arborist involved in the process, which of the recommendations of Dr Nicolle that arborist regards as possible and what response the Developers choose to adopt. The Council submits that an authorisation that operates in this fashion is not valid for the purposes of ss 221 and 224 of the LGA due to its ambiguous nature.

235 The Council also advances an alternative contention that the decision of Mr Buckerfield to grant the authorisation was so unreasonable that no reasonable decision maker would have made such a decision. The basis for this contention

48 (1991) 23 NSWLR 734 at 738-739 (Priestly JA with Clarke and Meagher JJA agreeing).


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has been explained on the basis that the decision is legally unreasonable because Mr Buckerfield could not have known what he was approving given that he did not have a complete set of the project documents before him and nor had tree damaging activity been identified.

236 The Commissioner submits that the contentions advanced by the Council exaggerate the extent of the implied requirement that an authorisation must display a reasonable degree of specificity. There is nothing in either ss 221 or 224 of the LGA that imposes a requirement of complete or perfect particularity when granting an authorisation. The concept of reasonableness establishes a minimum threshold standard which will be met if the authorisation provides sufficient guidance to those who have been authorised. While the construction specification (the document listed at clause 8.9) may provide greater particularity than that shown in the finalised Concept Plan, that does not establish that the latter documents do not provide reasonable particularity concerning the works authorised by Mr Buckerfield. The situation is not uncommon because, in practice, an authorisation of this kind is rarely capable of resolving the ultimate details of all aspects of construction with absolute precision. The Commissioner submits that the complaints made by the Council concerning the conditions relating to the recommendations of the arborist fail to have regard to the authorities that have recognised that in circumstances that are similar in nature to the present matter a condition will not be uncertain provided that it does not allow for a development that will be significantly different from that which has been approved.49 Whether or not the conditions permit a development that is significantly different from that which has been approved is a question of fact.

237 The Commissioner submits that the conditions imposed in relation to the arborist do not infringe the certainty requirement as stated in the authorities to which he has referred. The conditions imposed by Mr Buckerfield are simply pragmatic safeguards designed to minimise the risk of any significant damage being caused to the eastern tree within the broader scope of the roadworks. These requirements will not require any significant departure from the works detailed in the Draft Deed. There is no requirement for any additional authorisation to be sought from the Commissioner should the arborist make any recommendations to the Developers. Thus, these conditions do not introduce any uncertainty into the authorisation. When viewed in this way the authorisation was final. On this basis, the Commissioner submits that the Council’s submission should be rejected.

238 The submissions by the Developers are on all fours with those of the Commissioner. The Developers stress that the submissions made by the Council to Mr Buckerfield prior to the decision on 31 May 2021 demonstrate that it well knew and understood what was being proposed by way of the revised works. 49 Lester Land Holdings Pty Ltd v Development Assessment Commission (2020) 243 LGERA 221 at

[242]-[246], [277]; Corporation of the City of Unley v Claude Neon Limited (1983) 32 SASR 329 at 332 (White J); Mison v Randwich Municipal Council (1991) 23 NSWLR 734 at 734 (Priestley JA), 739-740 (Clarke JA), 740-741 (Meagher JA).


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The Developers are also well aware as to what they have been authorised to do and that they can only proceed within the scope of the authorisation granted by Mr Buckerfield.

239 The Developers also observe that the Council has completely failed to identify anything within either the Highways Act or the LGA which imposes a requirement of specificity of the level contended for by the Council. While noting that the context was different, the Developers have referred to the decision of the Full Court in Starkey v State of South Australia where an authorisation to damage any and all Aboriginal heritage, whether known or unknown, within a defined geographic area was found to be valid in circumstances where the causing of unauthorised damage would constitute a criminal offence.50

240 I held in Lester Land Holdings that conditions imposed upon the grant of development plan consent were not invalid as having contravened the finality principle that is applied in development matters. It is appropriate to consider the circumstances of that case and the reasoning that I applied, and also the authorities upon which I relied. However, I note that while there are analogies with a development approval, the present circumstances are not identical.

241 The issue in Lester Land Holdings was the partial demolition of a State Heritage Place and the erection of a large apartment building. The approval was subject to a large number of conditions. The plaintiff submitted that development plan consent is a final legal act. Thus, a condition cannot reserve a matter for later determination where that matter concerns an issue which is central to the grant of consent. However, a condition may properly deal with peripheral or incidental matters. In support of that submission the plaintiffs relied upon the observations made by Wells J in City of Unley v Claude Neon Limited.51 The principle stated by Wells J was applied by the New South Wales Court of Appeal in Mison v Randwick Municipal Council to invalidate the grant of a development approval that was subject to a condition that the chief town planner of the council might require a reduction in the overall height of the house.

242 In finding that the conditions imposed on the planning consent in Lester Land Holdings were not invalid, I adopted the reasoning of Olsson J in Independent Holdings Limited v City of Adelaide Planning Commission.52 The plaintiff in that case had complained that the approval granted to the planning consent had left so many matters unresolved that there was not, in practical terms, a final approval but at best a conditional approval. Olsson J observed that in the case of a major development it was the normal course for many aspects to be dealt with in detail after the issue of planning approval. That required various agencies or authorities to exercise a wide discretion concerning the matters that needed to be addressed after the planning authority had granted approval. His 50 (2011) 111 SASR 537 at [169]-[174], [180]-[186] (Stanley J) (David J agreeing).51 (1983) 32 SASR 329 at 332.52 [1994] SASC 5061 at [139]-[141].


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Honour found that the 30 conditions that had been imposed were all matters of detail and typical of the types of matters that would be attached as conditions when approval was granted for a significant project. Whether they were considered singly or collectively, the conditions did not create an open-ended situation. The conditions were specific in nature and no more than one would expect.

243 In deciding Lester Land Holdings, I also relied upon the decision of the New South Wales Court of Appeal in Scott v Wollongong City Council.53 In that case Samuels AP (with Meagher and Handley JJA agreeing) commented that the “finality” principle protected both a developer and neighbours who may be affected by a development from the possibility of the planning authority altering the character of the development in a significant respect. While a consent may be granted subject to conditions, the conditions are also subject to the finality principle. Samuels AP further commented that it is common to find that development consent may be granted subject to conditions that allow for some matters to be decided later by either the planning authority or by some other person who must be satisfied as to the work that is performed. Such an approach is necessary because a development application cannot contain ultimate detail and nor may a consent finally resolve all aspects of a proposal with absolute precision.

244 In Lester Land Holdings, I applied the principles stated in the authorities to which I have referred so as to find that the conditions attached to the development plan consent were not invalid as they dealt with matters of detail and did not affect the fundamental character of the development that had been approved. I also observed that where proposed work affected a heritage building it may be necessary to modify the scope of the work as it progressed. Thus, I held that a condition that related to the manner in which demolition of part of the heritage building was to be undertaken was not invalid. The substance of the approval allowed demolition while the condition dealt with the detail of how that work was to be undertaken. The condition did not affect the substance of the approval.54

245 While I recognise that a planning approval and the present matter do not involve identical issues, I consider that the same approach may be adopted when assessing the validity of the condition that requires compliance with the recommendations of Dr Nicolle. That condition relates to the detail of the work that is to be performed rather than the substance, being the installation of short right-turn lanes. The complaint that the extent of the permitted damage to the eastern tree has not been specified by Mr Buckerfield fails to recognise that the extent to which the excavation works may affect the tree cannot be properly known until the work commences. The approach adopted by Mr Buckerfield was, in my view, directed at mitigating risk to the tree in those particular

53 (1992) 75 LGERA 112.54 Ibid at [290].


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circumstances. His decision to leave the final details of what action should be taken to minimise risk to the tree to be resolved by ongoing expert arborist advice was not unreasonable in the legal sense55 nor did it permit work to proceed that was fundamentally different in nature from that which had been approved, i.e. installation of short right-turn lanes with a taper at the Intersection. The Developers were not left in a state of uncertainty as to what work they were authorised to undertake.

246 I do not consider there to be any substance in the Council’s complaint that the failure by Mr Buckerfield to identify the arborist who is to oversee the work is productive of uncertainty. All that required is that the person be qualified as an arborist. There is no uncertainty about that requirement nor do I regard it as a condition that no reasonable decision maker could have imposed. The condition requiring compliance with Dr Nicolle’s recommendations was also not uncertain nor was it legally unreasonable. The conditions provided a practical solution to the problem that the effect of the work on the tree roots could not be fully determined until they were uncovered.

247 I also apply the principles stated in the authorities to which I referred in Lester Land Holdings, in relation to the complaint that the matters dealt with at clause 8.9 of the Schedule to the Draft Deed, (the construction specification), and at clauses 8.11 to 8.15 (the construction documents), are not required to be submitted by the Developers until 10 or 14 days before works commence. Importantly, clause 5(a) of the Draft Deed prohibited any work being conducted until each of the required Project Documents had been approved in writing by the Commissioner.

248 I accept that the topics dealt with at clauses 8.9 and 8.11 to 8.15 of the Schedule are matters of detail that do not affect the fundamental character of the works approved by Mr Buckerfield. As I have previously indicated, Mr Buckerfield clearly approved construction of short right turn lanes and the accompanying taper with an excavation to a depth of 365 millimetres. The position of those works relative to the eastern tree was sufficiently depicted in the project document listed at 8.5 (general construction) and those listed under 8.10 (the title and index sheet) and thereby incorporated by reference as project documents. In these circumstances, the decision of Mr Buckerfield was not void for a lack of certainty or finality.

The Draft Deed does not authorise damage to the tree249 The third contention advance by the Council is closely related to the fourth

contention, which alleges that Mr Buckerfield’s authorisation is void for uncertainty. In its third contention the Council submits that clause 4(c) of the Draft Deed did not authorise the Developers to interfere with the eastern tree.

55 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332.


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250 While it is correct that authorisation given by Mr Buckerfield by way of clause 4(c) of the Draft Deed did not expressly refer to the eastern tree, the plans that were incorporated into his authorisation by way of reference in clause 8 of the Schedule to the Draft Deed to the Project Documents left no doubt that the authorised works would interfere with the roots of that tree. I have referred at [225] to [226] to the depiction in the plans incorporated at clause 8.5 and by reference at clause 8.10 into Mr Buckerfield’s decision of the position of the eastern tree relative to the construction of the right-turn lane and taper. Accordingly, I dismiss the third contention advanced by the Council.

Bias251 The Council notes that the Commissioner has not suggested that he was not

required to accord the Council procedural fairness in connection with the decision by Mr Buckerfield to approve the proposed works. The Council submits that the circumstances surrounding the decision made by Mr Buckerfield were such that a fair minded lay observer might reasonably apprehend that he might not bring an impartial mind to the decision.56 Accordingly, the Council submits that it has been denied procedural fairness and the decision made by Mr Buckerfield is invalid on that basis.

252 The Council refers to the following matters in support of its contention that the decision of Mr Buckerfield is vitiated by a reasonable apprehension of bias. At the time Mr Buckerfield made the decision he knew that the Premier had publicly stated that he was in favour of the installation of right-turn lanes at the intersection. The Minister held the same view and had also stated that fact publicly. The Minister had agreed with the Developers that they would be granted funding of $330,000 towards the cost of the works required to alter the intersection to enable installation of right-turn lanes in the median strip. The decision by the Minister to grant funding was conditional upon the execution by the Developers of the Draft Deed. The Commissioner had previously decided on about 8 December 2020 to execute a Deed under which he granted authorisation to the Developers under s 221 of the LGA to perform works at the intersection. The decision made by the Commissioner in December 2020 had been the subject of a recommendation from an Executive Director of the Department.

253 Mr Buckerfield is also an Executive Director of the Department. As such, he reports directly to the Commissioner and only to the Commissioner. In other words, the Commissioner is the direct superior of Mr Buckerfield. When he made the decision that is under review, Mr Buckerfield was aware of the earlier authorisation granted by the Commissioner in December 2020. He was also aware that the Commissioner had entered into an earlier version of the Draft Deed and had granted an authorisation under s 221(1) of the LGA. Thus, Mr Buckerfield was being asked to make a decision on precisely the same subject

56 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).


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matter that the Commissioner had previously decided, i.e. the installation of right-turn lanes in the median strip at the Intersection.

254 The Council also submits that the Commissioner had power under s 12A of the Highways Act to delegate consideration of the matter to a person who was clearly independent, whether that be a suitably qualified expert or a chief executive or senior officer of a council other than the Council. The Council submits that it may be inferred that the failure of the Commissioner to respond to its request that he delegate his power to an independent person indicates that he intended the decision to be the same as that which he had previously made.

255 In response, the Commissioner contends that Mr Buckerfield was selected as a fresh decision maker precisely because he had no prior involvement with the project. Although he was aware of the election commitment made by the Premier (as Mr Marshall became after the 2018 election) about the installation of a scramble crossing, that proposal was supported by all relevant entities, including the Council. There was no election commitment to install right-turn lanes, which is the subject of the present dispute. Mr Buckerfield had no knowledge of the media release by the Premier. He also did not have any knowledge of the decision to enter into the Funding Deed or that the Minister and the Premier preferred right-turn lanes prior to being provided with submissions relevant to his decision which referred to those matters. For these reasons, the Commissioner submits that there is no factual basis upon which a case of apprehended bias can be established.

256 The Commissioner further submits that even if Mr Buckerfield had been aware of the preference expressed by the Premier or the Commissioner or the Department for right-turn lanes that awareness could not give rise to an apprehension of bias. Administrative decision-makers are not prevented from taking into account the policy positions of government when they exercise a statutory discretion.57 The Commissioner further submits that a reasonable bystander must be taken to be aware that public sector employees are obliged to provide what is colloquially described as “free and frank advice”.58 Accordingly, the Commissioner submits that any suggestion that Mr Buckerfield was merely doing, or what might be perceived by a reasonable lay observer to be doing, the bidding of his political masters lacks a factual foundation. There was no basis to infer that the decision of Mr Buckerfield was a mere rubber stamp. The evidence

57 Jia v Minister for Immigration and Multicultural Affairs (2001) 205 CLR 507 at [63] (Gleeson CJ and Gummow J); Hot Holdings v Creasey (2002) 210 CLR 438 at [16] (Gleeson CJ), [50] (Gaudron, Gummow and Hayne JJ); Wildness Society Inc v Turnbull (2007) 154 LGERA 134 at [147]-[148] (Marshall J).

58 Sections 5(6) and 6 of the Public Sector Act 2009 (SA) and see also page 7 of the Code of Ethics for the South Australian Public Sector (2015) which provides that “[p]ublic sector employees must be detached from political influence and the influence of partisan interests within the community. Instead, public sector employees must rely on evidence to provide objective advice to government and implement decisions promptly and thoroughly”. See also Comcare v Banerji (2019) 267 CLR 373 at [30]-[31], [34] (Kiefel CJ, Bell, Keane and Nettle JJ), [70], [101] (Gageler J), [153]-[155] (Gordon J), [179] (Edelman J).


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establishes that he gave close consideration to the detailed submissions placed before him and reached a decision which has not been impeached on the merits. The possibility of apprehended bias must be “firmly established”.59 A reasonable lay observer would not come to such a conclusion based on a mere factual supposition.

257 The submissions of the Developers are similar to those of the Commissioner in relation to the bias question. The Developers observe that the degree of impartiality expected of a decision-maker will depend upon their position, the nature of the powers that they are to exercise and the statutory context.60 In the present case, the statutory context was the intended exercise by a roads authority of its powers under highways legislation. That is very different to a case where a body is required to adjudicate between competing positions involving a public hearing and to apply detailed statutory procedures. It can ordinarily be expected that a roads authority would hold a view in favour of works that it is proposing to undertake or authorise. It does not follow from the fact that the Commissioner may favour roadworks, or for that matter particular roadworks, that he cannot decide whether to undertake or authorise those works. An apprehension of bias is a serious matter that must be firmly established.61

258 The Developers submit that it was not necessary for the Commissioner to appoint a delegate to make the fresh decision. However, he elected to appoint an impeccably qualified and experienced delegate who had had no prior involvement with the matter. In these circumstances, it cannot be contended that there was a reasonable apprehension that Mr Buckerfield had already decided the matter before receiving submissions and nor can it be contended that his mind was incapable of being altered by whatever evidence or arguments may be presented to him.62 Moreover, it has not been established that Mr Buckerfield had any prior views about the desirability of the works being authorised.

259 The starting point in considering the contention by the Council that the decision made by Mr Buckerfield was affected by a reasonable apprehension of bias must be the relevant principles stated by Gleeson CJ, McHugh, Gummow and Hayne JJ in Ebner v Official Trustee in Bankruptcy where their Honours explained the test for apprehended bias as follows:63

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that … a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which

59 R v Commonwealth Conciliation and Arbitration Commission; Ex parte the Angliss Group (1969) 122 CLR 546 at 553-554; McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504 at [105]-[115] (Basten JA), [1] (Spiegelman CJ agreeing), [234] (Campbell JA agreeing).

60 Isbester v Knox City Council (2015) 255 CLR 135 at [23].61 McGovern v Ku-ring-gai Council (2008) 72 NSWLR 504 at [105]-[115].62 Jia v Minister for Immigration and Multicultural Affairs (2001) 205 CLR 507 at [72], [185].63 (2000) 205 CLR 337 at [6]-[8].


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reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle.

The apprehension of bias principle may be thought to find its justification in the importance of the basic principle, that the tribunal be independent and impartial. So important is the principle that even the appearance of departure from it is prohibited lest the integrity of the judicial system be undermined. There are, however, some other aspects of the apprehension of bias principle which should be recognised. Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability. Similarly, if the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge or juror.

The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an “interest” in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.

(Citations omitted)

260 The passages in Ebner to which I have referred were directed at judicial proceedings. In Isbester v Knox City Council the High Court recognised that when deciding a contention that a decision maker was subject to a reasonable apprehension of bias, the matter must be considered in its particular context. Thus, Kiefel (as she then was), Bell, Keane and Nettle JJ observed in Isbester that:64

How the principle respecting apprehension of bias is applied may be said generally to depend upon the nature of the decision and its statutory context, what is involved in making the decision and the identity of the decision-maker.

261 In Isbester the High Court also noted that:65

The hypothetical fair-minded observer assessing possible bias is to be taken to be aware of the nature of the decision and the context in which it was made as well as to have knowledge of the circumstances leading to the decision.

262 The essence of the submission put by the Council in support of its contention that Mr Buckerfield was vitiated by a reasonable apprehension of bias is that both the Premier and the Minister had publicly expressed support for the installation of right-turn lanes at the Intersection and that the Commissioner, to whom Mr Buckerfield directly reports, had previously made a decision 64 (2015) 255 CLR 135 at [23].65 Ibid.


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authorising the installation of right-turns lanes and authorising the provision of funding for that purpose.

263 As the two passages from Isbester referred to at [260] and [261] demonstrate, the context of the reconsideration that Mr Buckerfield was asked to undertake is of fundamental importance. Following the original decision to approve installation of right-turn lanes at the Intersection, the Council had provided the Department with the arborist report of Mr Thornton which indicated that the proposal, as then formulated, would result in damage to both the western tree and the eastern tree. Following receipt of that report, the length of the proposed turning lanes was reduced to eliminate the risk of damage to the western tree and lessen the risk to the eastern tree. Thus, the proposal which Mr Buckerfield was asked to consider was materially different to that previously approved by the Commissioner.

264 In effect, the Commissioner had acknowledged that there might be problems with the decision that he had made and had therefore arranged for a highly experienced engineer and senior public servant with no prior involvement to reconsider the matter in light of the considerable body of fresh information.

265 Mr Buckerfield was assisted in his decision-making by the content of the reports provided by Mr Thornton and Dr Nicolle and also the comprehensive submissions provided by the Council and the response by the Developers to those submissions. He also had the benefit of the traffic management reports prepared by Tonkin and Cirqa. Thus, Mr Buckerfield was being asked to decide a materially different proposal with the assistance of a very much greater body of relevant material than had previously been available to the Commissioner.

266 It is also necessary to recognise that Mr Buckerfield was being called upon as a senior public servant to decide what was essentially a question of public policy. Reduced to its bare essentials, that question was whether the risk of damage to the eastern tree and the preference of the Council, the holder of the fee simple interest in the median strip and the owner of the tree, that there not be dedicated right-turn lanes, should prevail over competing considerations. Those competing considerations included the commercial interests of the Developers in facilitating easier access to their premises and their contention that the installation of right-turn lanes would improve traffic flow during peak hours and reduce the incidence of vehicle collisions.

267 The task of Mr Buckerfield was to weigh up those competing interests and differing expert advice and arrive at a fresh policy decision. In so doing, Mr Buckerfield can properly be expected to apply his knowledge as an engineer and long experience in management of road infrastructure projects. His task in deciding a disputed public policy question was quite different to that of a judge who is called upon to determine a litigious claim.


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268 In Isbester the High Court discussed two possible grounds upon which a reasonable apprehension of bias may be suggested. One such ground is whether the decision-maker could be expected to give genuine consideration to the matter because of a possibility of prejudgment. The other basis considered by the High-Court was that a decision-maker may have an interest in the decision which could affect their proper decision-making.

269 As Mr Buckerfield had no prior involvement with the proposed work, there was no direct evidence of possible prejudgment. The effect of the Council submission seems to be that because of the earlier public support expressed by the Premier and by the Minister for the installation of right-turn lanes and the prior approval of that work given by the Commissioner, it must be inferred that Mr Buckerfield could not approach the matter with an independent mind. However, I do not consider such a supposition to be correct. I do not consider that a properly informed independent observer might reasonably conclude that Mr Buckerfield might not approach the matter with an independent mind and without prejudgment. There is no reason to consider that the informed independent observer might conclude that Mr Buckerfield might have prejudged the issue or have an interest in the outcome. He had been chosen to make a fresh decision concerning a materially revised proposal in light of new evidence and detailed submissions directed to those matters.

270 For these reasons, I do not consider that the decision made by Mr Buckerfield was vitiated by a reasonable apprehension of bias.

Conclusion271 For the preceding reasons, I dismissed all grounds of review advanced by

the Council, save for contention five relating to the lack of development approval which was not pressed. The Council reserves its rights in relation to that matter only.

272 I will hear the parties as to costs.