In the case of M H Investments Aust Pty Ltd v Hurstville City Council [2015] NSWCATAP 180, the Appeal Panel of the NSW Civil and Administrative Tribunal (Tribunal) confirmed that a councils power to enter into arrangements in respect of the occupation of public roads is only as specifically allowed under the Roads Act 1993 (the Roads Act), in particular, s125 (approval to use footway for restaurant purposes) and 139A (street vending consents and charges in built-up areas).
The Tribunal held that such arrangement under the Roads Act will not be subject to the Retail Leases Act 1994 (the Retail Leases Act).
The Tribunal considered the Court of Appeal decision in Manly Council v Malouf [2004] NSWCA 299 in which the Court held (at 65):
“Except to the limited extent permitted by Division 2 of Part 10 of the Roads Act, in my opinion a council has no power to grant a lease or licence to permit the private use of occupation of any part of a public road of which it is the roads authority. The Roads Act exclusively governs its powers with respect to such roads. Although it is empowered to grant an approval or consent pursuant and subject to s125 and s139A respectively, that is the extent of its power to grant rights of private occupation of any part of a public road.”
The MH Investments decision concerned an agreement between the Council and the operator of a frozen yoghurt shop (Moochi) to occupy part of Memorial Square in Hurstville. After Moochi was placed under external administration and the Council issued a Notice of Revocation of Consent, Moochi sought to assert its rights under the Retail Leases Act. On appeal, the council failed to persuade the Tribunal on the evidence that the relevant land was a public road and hence could not be leased and hence could be subject to tenant protections under the Retail Leases Act.
Note: This information is not to be relied upon as legal advice.