This article is in response to a range of questions I have received about consent under section 138 of the Roads Act 1993.
Section 138 of the Roads Act 1993 says:
138 Works and structures
(1) A person must not:
(a) erect a structure or carry out a work in, on or over a public road, or
(b) dig up or disturb the surface of a public road, or
(c) remove or interfere with a structure, work or tree on a public road, or
(d) pump water into a public road from any land adjoining the road, or
(e) connect a road (whether public or private) to a classified road,
otherwise than with the consent of the appropriate roads authority.
Maximum penalty: 10 penalty units.
(2) A consent may not be given with respect to a classified road except with the concurrence of RMS.
(3) If the applicant is a public authority, the roads authority and, in the case of a classified road, RMS must consult with the applicant before deciding whether or not to grant consent or concurrence.
(4) This section applies to a roads authority and to any employee of a roads authority in the same way as it applies to any other person.
(5) This section applies despite the provisions of any other Act or law to the contrary, but does not apply to anything done under the provisions of the Pipelines Act 1967 or under any other provision of an Act that expressly excludes the operation of this section.
Often, proposed developments will need to do one or more of the items listed in section 138(1) of the Roads Act 1993. If so, that development will require consent under section 138 of the Roads Act 1993 (Roads Act Consent).
What happens if I don’t make a formal application for a Roads Act Consent with my development application?
There are no requirements in legislation about the application process for a Roads Act Consent. This means that it is not strictly necessary to make an application for a Roads Act Consent with a development application. A decision to grant a Roads Act Consent can actually be made by the relevant roads authority without any application being submitted.
Generally, when deciding whether an application for a Roads Act Consent has been made, the Land and Environment Court has considered the conduct of both the applicant and the council.
Some examples from the Land and Environment Court include:
- Goldberg v Waverley Council – the applicant lodged a development application. The Statement of Environmental Effects, accompanying the development application, stated that “accompanying the DA is an application under s 138 of the NSW Roads Act 1993 proposing the construction of an extension of Birrell St and a driveway access to the subject land”. A separate application for the Roads Act Consent was not enclosed. The Land and Environment Court said it was clear that the applicant was intending to make an application for a Roads Act Consent, and the council understood that a Roads Act Consent was being sought. Furthermore, the council had the power to issue a Roads Act Consent on it’s own initiative under the Roads Act 1993, and so it was not strictly necessary for the applicant to apply for a separate Roads Act Consent. The Land and Environment Court granted a Roads Act Consent.
- Davis v North Sydney Council – the applicant lodged a development application that included the construction of a new driveway and garage over a road. The applicant did not make an application for a Roads Act Consent. The Land and Environment Court said that it was always recognised by the applicant and the council that a Roads Act Consent was required, given that it was necessary for the applicant to gain access over the road to the proposed garage. Despite the council arguing that no application was made, the Court noted that there were many instances where the council accepted that a Roads Act Consent was required. The Land and Environment Court also noted that the council had the power to grant the Roads Act Consent despite no application being made, The Court granted a Roads Act Consent.
What if I begin works before obtaining a Roads Act Consent?
If you do any of the things in section 138(1) without a Roads Act Consent, you may be fined up to $1,100.
You may also be subject to orders from the local council or Roads and Maritime Services, or face consequences relating to the conditions of your development consent.
What are some similarities and differences between construction certificates and Roads Act Consents?
Click here for more information about the similarities and differences between construction certificates and Roads Act Consents.