Renaming of the Old Pacific Highway

Greater Taree City Council responded to this new information regarding the renaming of the Old Pacific Hwy by stating the issues that were raised in our letter do not raise an inconsistency with the legislation, or if any inconsistency exists it relates to form not substance, and all due procedural fairness has been given.

In the substance versus form debate it is well acknowledged that substance and form are both relevant. To not take account of form is only relevant in exceptional cases.

We believe Greater Taree City Council misinterpreted and misapplied the legislation regarding the naming the Old Pacific Highway for the following reasons:

As Road (General) Regulation 2000/2008 Division 2 Chapter 7 states:

A roads authority that proposes to name or rename a road:
(a) must publish notice of its proposal in a local newspaper, and
(b) must serve notice of its proposal on the following persons or bodies:

The legislation requests the Road Naming Authority to publish a name to serve notice on persons or bodies to consider. It is a misinterpretation of the legislation to notify other persons or bodies without a name to consider, as the persons or bodies cannot determine if there is any objection to the proposed name.

It is quite clear council misinterpreted the Road (General) Regulation 2000 as they did not publish the proposed name in 2006 for other persons or bodies to consider. In the Manning River Times dated December 15-16 2006 council asked for expressions of interest, when in fact if GTCC had interpreted and applied the legislation correctly they should have asked, for submissions on an actual name published in the paper for persons or bodies to consider.

According to Reg 8 anyone can make submissions. If you look at Interpretation Acts (1987) NSW Part 5 Section 35 Headings etc it states:

(1) Headings to provisions of an Act or instrument, being headings to:
(a) Chapters, Parts, Divisions or Subdivisions into which the Act or instrument is divided, or
(b) Schedules to the Act or instrument, shall be taken to be part of the Act or instrument.

Since the heading in Reg 7 states Notice to be given of Proposed Name than Reg 8 should be read as Making of Submissions of Proposed Name and since Interpretation Acts (1987) NSW Part 5 Section 35 1 states Headings to provisions of an Act or instrument, being headings to Chapters, Parts, Divisions or Subdivisions into which the Act or instrument is divided, shall be taken to be part of the Act or instrument. So in other words Reg 8 correctly interpreted and applied should have been read as anyone can make a submission on the actual name published in the paper for persons or bodies to consider.

The next step is to abide by Reg 9 which council did in the Manning River Times paper dated September, 10-11 2010 to a certain degree. GTCC stated there was a Section 162 in the Road (General) Regulations 2008 which indeed there is not, however there is a Section 162 in the Roads Act (1993). The relevant section in the Road (General) Regulations (2008) is Division 2 Sections 7-10.

Taking a back step now, since the Road (General) Regulaton 2008 is obscure as to when to notify the affected residents (who live and own property on the road) regarding the change that will affect them, we need to go to the Interpretation Act (1987) NSW. Under Section 34 Interpretation Act 1987 - Use of extrinsic material in the interpretation of Acts and statutory rules Section 34 (1) (b) (i) would be applicable in this circumstance and states;

(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:

(b) to determine the meaning of the provision:

(i) if the provision is ambiguous or obscure, or

Therefore the Sir Ninian Stephen Lecture: Statutory Interpretation - Identifying the Linguistic delivered at the University of Newcastle - 23 March 1999 by The Honourable JJ Spigelman former Chief Justice of New South Wales may help in relation to when to contact the persons directly affected by the legislation .

‘Fundamental Rights
The most important application of the process of statutory construction, by which words of general application are read down so as not to apply to particular factual situations, occurs when a statute impinges on fundamental rights recognised by the common law. As I have said, the protection which the common law affords to the preservation of fundamental rights and liberties is secreted within the law of statutory interpretation.

This protection operates by way of rebuttable presumptions that Parliament did not intend:
* Parliament did not intend to deny procedural fairness to persons affected by the exercise of public power
*Invade Common Law Rights’

In the Sir Ninian Stephen Lecture: Statutory Interpretation - Identifying the Linguistic delivered at the
University of Newcastle - 23 March 1999 by The Honourable JJ Spigelman former Chief Justice of New South Wales states:

Persons affected by the exercise of public power are the people who live and own property on the affected road that will encounter a change in their address. Therefore the correct way to name a road is to take submissions from the persons affected by the exercise of public power (those people with an address change who own property and live on the affected road), the Road Naming Authority chooses the name that most people have submitted and in their view is most applicable for the area. It is only then the procedure in the Roads (General) Regulation 2000 come into force going from Regulations 7,8, 9 and 10 in that order and definitely not from Reg 8 back to Reg 7.

In other words, people who are not affected by the exercise of public power (either those persons who live close by the affected road or far away from it), should not have been at anytime involved in choosing a name for the persons affected by the public power (those who live and reside on the affected road). They are only permitted under the legislation to make submissions on an actual name published in the paper.

By making this mistake GTCC has:

1. Invaded our common law rights by denying procedural fairness to those affected by the exercise, of public power

The only way this can be rectified is to redo the process again, without the following influencing variables which were used in the previous process:

I. by following the correct procedure that I have outlined above and
II. by removing the name submitted by a person not affected by the exercise of public power permanently (so it cannot be used again as the name was objected to by so many people affected by the exercise of public power), which GTCC illegally adopted and
III. by not allowing a name to go before council that many of the persons directly affected by the exercise of the power, formerly objected to and by
IV. not allowing persons not directly affected by the exercise of the public power to address council and
V. by removing any reference to the past process and
VI. by removing any reference to cost of signage and
VII. by not stating budget implications in the agenda for both the Council Meetings on the 4th and 18th August, 2010. The budget implications were a factor of GTCC misinterpretation and misapplication of the Roads Regulations 2000, and by not taking into account rebuttable presumptions in statutory or legislative requirements which protect those that are directly affected by the legislation.

One businesses owner stated at the recent meeting with Leslie Williams on Monday 31st October, 2011 that he had lost $50,000 in profit since the bi-pass. Another business owner has stated since the bi-pass he has last $1200 per week in sales. Additionally there are many residents on the affected road, including our property, who have a number of fruit trees on their property (remember our property used to be a nursery) where fruit could be sold. Many tourists enjoy taking the tourists roads looking for small roadside stalls. We therefore ask GTCC in their role as the Road Naming Authority, to acknowledge the misinterpretation and misapplication of the legislation to allow our road to prosper once again and move forward post bi-pass, with a road name that will assist us in bringing prosperity back onto our road.

We leave it up to the readers to make their own decisions. Prosperity with a road name that will assist the businesses on our road, or a road name that has upset many of the residents of the road, and was named by a person who does not even live on the road.

Comments

Received a letter from the Honourable Andrew Stoner. He suggests we 'continue to liaise with Council and perhaps request a review of the naming of the road with proper community consultation.'

Australia Post stated 'the Mail Contractor is currently experiencing difficulties with delivery of your mail as you are not using your correct postal address. Rang our local post office - they said they were not experiencing difficulties. They stated it was Australia Post that was responsible for sending out the letters.

Roads and Maritime Services (formerly RTA) state 'there are no guidelines covering the interpretation of,' the Road Regulations 2000/2008.

A resident of the road in question has just informed me the recent letters sent out by Australia Post forcing us to change our address that GTCC illegally adopted were instigated by Greater City Council. Apparently Australia Post are just doing their job. Greater Taree City Council are doing all the stirring the resident informed me. When will this council admit they have misinterpreted and misapplied the legislation. Apparently they are well know as a reactive council not a proactive council.

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