9.7 Appendix 7: Legal change

Acts and subordinate legislation affecting Roads and Maritime

Minister for Transport and Infrastructure

Minister for Roads, Maritime and Freight

New and amended subordinate legislation affecting Roads and Maritime in the Minister for Transport and Infrastructure's portfolio

New and amended Acts in the Minister for Roads, Maritime and Freight's portfolio

Repealed Acts and subordinate legislation in the Minister for Roads, Maritime and Freight's portfolio during 2015-161

New and amending subordinate legislation in the Minister for Roads, Maritime and Freight's portfolio

(Subordinate legislation made during 2015-16)

Significant judicial decisions

Roads and Maritime Services v Zraika [2016] NSWCA 51

Decision of Gleeson JA, Leeming JA and Simpson JA 22 March 2016
NSW Court of Appeal

Sharif Zraika commenced proceedings against Roads and Maritime following a motor vehicle accident on 16 November 2002. Mr Zraika was a foetus of approximately 25 weeks gestation in utero of Halima Zraika, the front seat passenger in the motor vehicle that collided with a second vehicle while exiting a shopping complex on Woodville Road, Villawood.

Mr Zraika sued various parties, including Ms Walsh (the driver of the second vehicle involved), Roads and Maritime as having traffic management powers over Woodville Road and Bankstown Council as the consent authority for the shopping complex.

The Supreme Court heard the matter in June 2014. On 30 April 2015, Justice Campbell gave his decision by finding three respondents negligent, apportioning liability at 25 per cent to each of Roads and Maritime and Bankstown City Council and 50 per cent to Ms Walsh. The Court found that Roads and Maritime was negligent in not installing a second 'all traffic left sign' at the intersection.

Roads and Maritime and Bankstown City Council appealed the decision on the basis that the Supreme Court did not properly decide the matter on causation and the statutory defences in the Civil Liability Act 2002 (CL Act). Damages were agreed with Mr Zraika and an interim payment made with agreement between the defendants to repay the interim payment pending the outcome of the appeal.

The Appeal was heard in February 2016. The Court handed down its judgment on 22 March 2016, unanimously allowing Roads and Maritime's appeal and overturning the decision of the Supreme Court. The Court found that the statutory defence in the CL Act applied as a complete defence, as the power to install an 'all traffic left sign' was a 'special statutory power' within the meaning of the CL Act and Roads and Maritime's actions in not installing it until after the accident were not unreasonable.

Nolan v Kreidies Management Group Pty Ltd [2016] NSWSC 177

Decision of Adams J, 8 March 2016
NSW Supreme Court

On 1 November 2012 the load of a B-Double combination carrying scrap steel struck the Marsh Street entrance to the M5 Tunnel causing extensive damage to the tunnel infrastructure. The operator was identified as Kreidies Management Group Pty Ltd. The scrap steel was loaded onto the combination by Delta Pty Ltd. SIMS Metal Management Ltd purchased the scrap steel from Delta Pty Ltd and arranged for the transport.

Roads and Maritime commenced prosecution proceedings in the Supreme Court on 31 October 2014 against Kreidies Management Group Pty Ltd, SIMS Metal Management Ltd and Delta Pty Ltd for breach of a dimension requirement under section 56 of the Road Transport (General) Act 2005 and sought an order for compensation for the damage caused as a consequence of the offence. The repair costs totalled $222,000.

SIMS Metal Management Ltd and Delta Pty Ltd entered pleas of guilty and were sentenced in 2015 and ordered to pay $55,494.85 and $66,593.85 respectively.

Kreidies Management Group Pty Ltd, the transport operator, entered a not guilty plea and a defended hearing was listed on 20 October 2015.

Kreidies was convicted on 8 March 2016 and fined $7200. Kreidies were also ordered to pay to Roads and Maritime compensation in the amount of $99,890.75 and prosecutor's costs of $75,000.

Roads and Maritime Services v Rockdale City Council & Ors [2015] NSWSC 1844

Decision of Black J, 4 December 2015 NSW Supreme Court

In the 1950s, two parcels of land were acquired by the then Cumberland County Council and transferred to Rockdale City Council (Council), subject to two trusts. The trusts obliged Council to hold the parcels until they were needed for a County Road under the County of Cumberland Planning Scheme Ordinance and, when needed, to make such land available without cost to the Commissioner of Main Roads (now Roads and Maritime) or any other constructing authority.

In 2015 Roads and Maritime requested that Council make available at no cost parts of the two parcels temporarily for construction purposes (by lease) and other parts of the parcels for permanent road purposes (by transfer) pursuant to the trusts. The land was needed to widen Marsh Street, Arncliffe (near Sydney Airport) and for the midway tunnelling construction compound site for the WestConnex New M5 project.

The Council refused to make the land available at no cost, based on:

Roads and Maritime commenced NSW Supreme Court proceedings seeking orders enforcing the trusts.

On 4 December 2015, Justice Black handed down judgment in Roads and Maritime's favour. The Court held that the LG Act did not stop Council from complying with the trusts, and that the terms of the trusts required the land be made available as required at no cost. His Honour held that Roads and Maritime could require all or any part of the two parcels of land, either temporarily or permanently, for road and/or ancillary road purposes (such as construction compounds).

Community Action for Windsor Bridge Inc V NSW Roads and Maritime Services & Anor [2015] NSWLEC 167

Decision of Brereton AJ, 27 October 2015
Land and Environment Court of NSW

On 20 December 2013, the Minister for Planning and Infrastructure granted conditional approval under section 115ZB of the Environmental Planning and Assessment Act 1979 to Roads and Maritime for the Windsor Bridge replacement project. An environmental impact statement had assessed the project as State significant infrastructure under Part 5.1 of the Act.

The approval included pre-construction conditions (B1-B8) which required certain matters to be satisfied before starting pre-construction and construction activities. Condition B1 requires Roads and Maritime to submit a strategic Conservation Management Plan (CMP) to the Director-General of Planning for approval. The CMP must identify the heritage value of Thompson Square, develop heritage design principles for the project to retain the heritage significance of Thompson Square, specify mitigation measures for Thompson Square and provide for changes to the detailed design of the project to mitigate heritage impacts.

In March 2014 the applicant brought proceedings challenging the validity of the approval, claiming:

His Honour held that the approval was valid for the following reasons:

  1. Excludes amendment Acts repealed under section 30C of the Interpretation Act 1987.

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