Edmondson v Warringah Council

[1999] NSWLEC 219

Land and Environment Court

of New South Wales

CITATION:

Edmondson and Anor v Warringah Council and Anor [1999] NSWLEC 219

PARTIES

APPLICANTS:
Edmondson and Anor

RESPONDENT:
Warringah Council and Anor

NUMBER:

40059 of 1998

CORAM:

Talbot J

KEY ISSUES:

Administrative Law; Construction & Interpretation; Jurisdiction :- Administrative Law:- duty to act fairly - estoppel
Construction and Interpretation:- Local Government Act provisions in respect of
1. tenders (s 55)
2. grant of lease (s 46 and s 47)
3. closure of meetings (s 10)
4. privative clause (s 729)
Jurisdiction:- Breach of Local Government Act

LEGISLATION CITED:

Local Government Act 1993 s 10, s 46, s 47, s 55, s 729
Local Government (Tendering) Regulation reg 16
Local Government Regulation reg 20

DATES OF HEARING:

08/04/1999; 08/05/1999; 08/06/1999

DATE OF JUDGMENT DELIVERY:

09/15/1999

LEGAL REPRESENTATIVES:

APPLICANTS:
Mr W R Davison SC
with:
Mr I J Hemmings (Barrister)
SOLICITORS:
Hones and Ledingham

FIRST RESPONDENT:
Mr J B Simpkins (Barrister)
SOLICITORS:
Wilshire Webb

SECOND RESPONDENT:
Mr D P Wilson (Barrister)
SOLICITORS:
Terence W Riley

JUDGMENT:
IN THE LAND AND Matter No. 40059 of 1998
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 15 September 1999

Mark Ronald Edmondson & Owen Mark Southwood
Applicants

v
Warringah Council
First Respondent
Robert Giltinan
Second Respondent

REASONS FOR JUDGMENT


1. The dispute in these proceedings centres on the acceptance of a tender for the operation of the tennis and squash court facilities at District Park North Manly made by the second respondent to the first respondent. The applicants lodged a competing tender.

2. It is alleged by the applicants that on or about 8 July 1997 the first respondent issued a Request for Tender (the RFT) pursuant to s 55 of the Local Government Act 1993 (the LG Act) and the Local Government (Tendering) Regulations 1993 (the Regulations).

3. On 12 August 1997 an invitation to tender was published in daily newspapers and the local newspaper. Both applicants became aware of the invitation to tender at or about that date.

4. On 11 September 1997 the second respondent tendered for the operation of the tennis and squash court facilities. Other tenders, including a joint tender by the applicants, were received by the first respondent.

5. On 18 November 1997 the first respondent purported to accept the Giltinan tender.

6. The applicants allege that the acceptance of the Giltinan tender is void and of no effect for the following reasons:-


a) The council did not apply the assessment criteria set out in the RFT;

b) After the time for lodgment of tenders closed, the first respondent received additional information in support of the Giltinan tender and took that additional information into account without giving the applicants the opportunity to address the matters raised by the additional information;

c) In assessing the Giltinan tender, the first respondent took into account irrelevant matters as follows:-

i) Mr Giltinan’s contribution to and promotion of junior tennis within the area;
ii) the recognition that Bob Giltinan Tennis and Squash has achieved the No. 1 ranking in the district on a junior level;
iii) the community support for the work Mr Giltinan has carried on since taking over the courts and squash centre as an interim measure;
iv) the maintenance of junior tennis players’ access to an economically priced court complex; and
v) the additional information.
d) Alternatively, if the above matters were relevantly to be taken into account, the first respondent failed to take into account other relevant matters as follows:-
i) the first applicant’s reputation as a professional tennis player;
ii) the second applicant’s reputation as a professional tennis player;
iii) the first applicant’s reputation as a professional tennis coach;
iv) the second applicant’s reputation as a professional tennis coach;
v) the maintenance of junior tennis players’ access to an economically priced court complex;
vi) the first applicant’s and second applicant’s contribution to and promotion of tennis, including junior tennis, within the area (and within New South Wales generally).

e) The assessment of the Giltinan tender by the council was not in accordance with the LG Act or the Regulations;

f) In assessing the tenders, the council breached implied terms of the RFT that it would assess the tenders fairly and in a manner that would ensure equal opportunity to all tenderers and that it would deal fairly with tenderers in its assessment and acceptance of tenders;

g) The resolution to accept the Giltinan tender was made at a closed meeting of the first respondent on 18 November 1997 in circumstances where the closure of the meeting was unlawful.


7. Furthermore, it is alleged that the council did not comply with the requirements of s 46 and s 47 of the LG Act prior to granting a lease of the land the subject of the tender to the second respondent. The land is “community land” as defined in the LG Act.

8. The applicants seek declarations and orders as a consequence of the abovementioned alleged breaches of the law, including a declaration that the council, as first respondent, is estopped from assessing the tenders other than in accordance with the assessment criteria prescribed in the RFT.

9. Each of the respondents deny that the applicants are entitled to the relief they seek.

10. During final submissions, Mr Simpkins, appearing for the council, raised the issue of whether the applicants, and indeed the Court, were precluded from questioning the validity or effectiveness of the relevant decision of the council on the ground that the council failed to comply with a procedural requirement of the Act or the Regulations by virtue of s 729 of the LG Act, as the proceedings were not commenced within three months after the date of the decision.

11. Mr Davison SC, appearing for the applicants, protested that the provisions of s 729 had not been pleaded and further that the first respondent was estopped from raising the issue as a consequence of its actions following the acceptance of the Giltinan tender. Both respondents were given leave to file an Amended Points of Defence to formally plead the provisions of s 729 subject to the Court’s decision in respect of the alleged estoppel.

12. So far as I am aware, the effect of s 729 of the LG Act has not been previously considered by this Court. It is a novel provision in the sense that it contrasts with the provisions formerly found in s 104A and s 35 of the EP&A Act prior to its recent amendment, both of which have been subject to judicial scrutiny.

The tendering process

13. Section 55 of the LG Act requires that a council must invite tenders before entering into a contract to perform a service or to provide facilities directed or authorised by or under any Act to be performed or provided by the council. Pursuant to s 55(2), tenders are to be invited, and invitations to tender are to be made, by public notice and in accordance with any provisions prescribed by the Regulations.

14. The applicants rely on a failure by the council to comply with reg 16 of the Regulations by not providing all other tenderers with the opportunity of varying their tenders in a way similar to that which Giltinan had done.

15. Regulation 16 provides:-

Tenders may be varied in certain circumstances
16 (1) At any time before a council accepts any of the tenders that it has received for a proposed contract, a person who has submitted a tender may, subject to subclause (2), vary the tender:
(a) by providing the council with further information by way of explanation or clarification; or
(b) by correcting a mistake or anomaly in a tender.
(2) Such a variation may be made either:
(a) at the request of the council; or
(b) with the consent of the council at the request of the tenderer, but only if, in the circumstances, it appears to the council reasonable to allow the tenderer to provide the information or correct the mistake or anomaly.

(3) If a tender is varied in accordance with this clause, the council must provide all other tenderers whose tenders have the same or similar characteristics as that tender with the opportunity of varying their tenders in a similar way.

(4) A council must not consider a variation of a tender made under this clause if the variation would substantially alter the original tender.


16. The council relies on the grant of a lease following the acceptance of the tender to support an argument that s 55 of the LG Act had no application in the circumstances of this case.

17. Section 55(3) creates an exception to certain contracts including a contract for the leasing of land by the council.

18. The RFT outlined the scope of the business requirement for the operation of the council owned tennis and squash court facility at District Park North Manly on a commercial basis.

19. Clause 13.1 and 13.2 reflected this requirement as follows:-

13.1 Council will convene a Tender Evaluation Panel (TEP) to evaluate the Tenders and recommend the preferred Tenderer. The TEP will evaluate Tenders in three stages:
(1) Evaluate the technical risk of each Tender in terms of a weighted score out of 100;
(2) Calculate the total net benefit to Council of accepting each Tender; and
(3) Calculate each Tender’s value-for-money ratio in terms of total Tender net benefit per point of technical risk.
13.2 The preferred Tender will be the one that ranks highest in terms of value for money.


20. A form of lease was annexed to the RFT. The draft lease referred to uses ancillary to the tennis and squash courts in accordance with the adopted District Park Plan of Management. It was a requirement of the lease conditions that the tenant prominently mark or label its personnel, facilities and equipment with the name of its organisation and with information that the facility is provided on behalf of the council. The applicants rely on these provisions to demonstrate that the proposal for which tenders were invited involved more than a mere contract for the leasing of land by the council. It is contended that the agreement to provide the facility on behalf of the council brings the contract into one of the categories specified by s 55(1) of the LG Act.

21. The RFT provided a formula for the technical risk evaluation of each tender on the following technical criteria:-

(a) Personnel Numbers, Skills & Experience (21%)
(b) Experience and referees (20%)
(c) Customer Service (17%)
(d) Critical Success Factors (13%)
(e) Operation of the Tennis and Squash Court Facilities (13%)
(f) Relationships with Consortium Members and Key Sub-contractors (6%)
(g) Utilisation of Existing Facilities (5%)
(h) Takeover from current operator (5%)


22. The evidence is that the calculation undertaken by the TEP resulted in the applicants achieving a higher score than the second respondent.

23. The TEP recommended the selection of the applicants as the preferred tenderer. The recommendation is said to be based on the following:-

_ It is a superior proposal
_ It meets all the requirements of the Lease conditions
_ It is completely and comprehensively documented
_ It represents very low risk to Council
_ It is well supported by the referees
_ It is the best value for money of the compliant tenders received.

24. The following observation was also made by the TEP:-

The Tender of Bob Giltinan is slightly lower in value than the Edmondson/Southwood and the Blackburn/Dragan/Riley Tenders but offers a much lower lease payment. Consequently it is considerably less value for money.

25. At a closed session of the council meeting on 18 November 1997, the council made the following decision:-

1. That Council accept the tender submitted by Bob Giltinan Tennis & Squash Centre for the operation of the District Park Tennis Courts (formerly known as Walkers Tennis Courts), in accordance with the terms and conditions of tendering and the specification, and that having regard to all the circumstances the Council considers the tender to be the most advantageous to the Council for the following reasons:-
- Mr Giltinan’s contribution to and promotion of junior tennis within the area,
- the recognition that Bob Giltinan Tennis & Squash has achieved No. 1 ranking in the district on a junior level,
- the community support for the work Mr Giltinan has carried on since taking over the courts and squash centre as an interim measure,
- the maintenance of junior tennis players access to an economically priced court complex


2. That the Council enter into a lease agreement in accordance with the tender to commence on 19 November 1997.

3. That the Council advise all tenderers of the outcome of their tender and provide detailed information as to why their tenders were unsuccessful.

4. That the Council affix its seal to the lease documents for the Operation of the District Park Tennis and Squash Court Facilities.


26. The evidence is that the tender of the second respondent was accepted contrary to the express provision of cl 13.2 that the preferred tenderer will be the one that ranks highest in terms of value for money.

27. For some reason, unexplained, the criteria in cl 13.3(3)(b) of the RFT was not applied to the second respondent.

28. The applicants contend that the recognition of No. 1 ranking on a district level and the other matters referred to as reasons in the decision made by council were not supported by the material lodged with the original tender. By relying on material lodged after submission of the original tender to support the reasons given, the council failed in its duty to allow the other tenderers, including the applicants, to meet that new material before making its decision. Although not necessarily an amendment within the meaning of reg 16(1)(a), it is argued that reg 16 foreshadows that the council will act fairly ( Hughes Aircraft Systems International v Airservices Australia (1997) 146 ALR 1).

The alleged failure to apply the assessment criteria in the RFT

29. The RFT opening statement is that the council has a business requirement for the operation of the council-owned tennis and squash court facility at District Park North Manly on a commercial basis. There is reference to a lease with an operator for the purpose of the required operation of the tennis and squash court facility. Clause 1.4 refers to the tender process “in accordance with the Local Government Act (NSW) 1993 and Regulations” .

30. The conditions of tendering also state that the tendering for the proposed lease will be conducted in accordance with the “Local Government Act (NSW) 1993” and “Local Government (Tendering) Regulations 1993” .

31. The advertisement inviting tenders refers to the upgrade and operation of District Park Tennis Courts but makes no reference to a lease.

32. The Court agrees with Mr Davison SC that the draft lease submitted with the RFT in terms went beyond merely creating a tenure for the lessee. One of the critical success factors identified in the RFT is that the tenant is required to prominently demonstrate that the facility is provided on behalf of Warringah Council.

33. The applicants therefore argue that the form of the contract falls within s 55(1) as a contract to perform a service or to provide facilities directed or authorised by or under any Act to be performed or provided by the council.

34. The land is community land and a plan of management has been adopted. The plan of management recognises the aim to provide opportunity for the community to have access to and enjoy the recreational and environmental resources of District Park. It identifies the maintenance of grounds and buildings; development and maintenance of recreation facilities and promotion and management of sporting and recreation activities as one of the roles and responsibilities of lessees in the administration and management of the park.

35. The RFT document itself is described as Request for Tender for the Operation of the Tennis and Squash Court Facilities owned by the council at District Park.

36. The nature of the contract is described as:-

The proposed Lease to which the Tender is made is for the operation of the tennis and squash court facilities owned by Warringah Council at District Park, North Manly.


37. The attached copy lease is in accordance with the Law Society copyright form with special conditions to cover the exigencies of the proposed contract.

38. Notwithstanding the wide ranging duties and commercial objectives identified in the RFT, nevertheless it can be regarded properly as relating to a contract for the leasing of land within the meaning of s 55(3). The subject tender therefore is excepted from the requirements of s 55(2), namely that tenders are to be invited and invitations to tender are to be made, by public notice and in accordance with any provisions prescribed by the Regulations.

The grant of the lease

39. Nevertheless, a lease in respect of community land can only be granted in accordance with s 46 and s 47 of the LG Act.

40. Section 47 provides that if a council proposes to grant a lease in respect of community land for a period exceeding five years (including the period of an option) it must give public notice of the proposal; exhibit notice of the proposal on the land and give notice to such persons as appear to it to own or occupy the land adjoining the community land. The contents of the notice are prescribed by s 47(2). The applicant relies on a failure to give notice to all persons who own or occupy the adjoining land.

41. The definition of adjoining in the Dictionary to the LG Act is as follows:-

adjoining , in relation to an area, means abutting or separated only by a public reserve, road, river, watercourse, or tidal or non-tidal water, or other like division.


42. Mr Simpkins submits on behalf of the council that the definition of adjoining in the dictionary leads to the conclusion that the intention is to give notice to persons who own or occupy land in an adjoining local government area.

43. Notice of the proposed lease was not given to the owners of land situated beyond the public reserve, roads and even watercourses surrounding or in the immediate vicinity of the subject land.

44. The clear purpose of s 47 is to ensure that owners of property situated outside but adjoining land under council or other public authority control are relevantly informed about the prospect of granting a lease of land within or abutting that public land. The council did not comply with the requirement to give notice and to that extent was in breach of the provisions of the LG Act, in particular s 47(1)(c).

45. Although the Court has not been satisfied that the council should be regarded as being in breach of the statutory regime for inviting, considering and accepting tenders which flows from s 55(1) and (2) of the LG Act, there is still the question of whether, as a corporation constituted by statute and discharging public functions, it contravened the principles of equity and good conscience by failing to deal with all parties fairly and in good faith.

46. The Court adopts the view expressed by Finn J in Hughes Aircraft Systems International (at 42) that a proper presupposition of a competitive tender process contract with a public body is that the corporation will deal fairly with the tenderers in the performance of its tender process of contracts with them.

47. Where additional material furnished on behalf of or in support of one party is furnished and taken into account in the decision making process, the council has a duty to act fairly by affording the other party an opportunity to deal with the additional information. It is clear that the council breached its obligation in that regard.

48. Furthermore, irrespective of the provisions of the LG Act and Regulations, the council was estopped from acting otherwise than in accordance with the terms of the RFT by representing to all prospective tenderers that it would act in accordance with its terms. They were entitled to assume that the consideration of tenders would be conducted in accordance with the stipulated criteria. The other tenderers adopted the assumption by lodging tenders in accordance with the RFT. In considering the additional material in support of the tender by Giltinan and by acting contrary to cl 13.2 of the RFT, the council operated to the detriment of other tenderers ( The Commonwealth of Australia v Verwayen (1990) 170 CLR 394).

49. The council, when giving consideration to the tenders, was acting pursuant to its statutory power to grant a lease of the land. It is an incident of that power that it be exercised in accordance with its duty as a statutory corporation. A failure to act reasonably and fairly is relevantly a contravention of or failure to comply with the Act. The applicants are therefore entitled to bring proceedings in this Court for an order to remedy or restrain such a breach pursuant to s 674 of the LG Act.

50. However, ultimately having regard to the failure of the council to give the required notice pursuant to s 47(1) it is not necessary for the Court to solely rely on the breach of the duty to act fairly and conscientiously in order to act within jurisdiction.

The effect of the closed meeting

51. Mr Davison submits that closing the meeting was a fundamental breach of the Act and accordingly the Court may make such order as it thinks fit to remedy that breach, pursuant to s 676. He says that, because the circumstances do not fall within any of the matters referred to in s 374, the Parliament intended that a breach of s 10 would have the effect of invalidating the proceedings.

52. The General Manager recommended that the council resolve into closed session to consider the tenders pursuant to s 10 on the basis that the items to be considered were of a confidential nature. The confidential matters were identified by reiterating the items and information referred to in s 10(2)(a) to (i) as it then was.

53. The applicants contend that none of the matters to be discussed fell within the categories listed in the section.

54. The council relies on reg 20 which provides that the council must take all practicable steps to ensure that information in a tender or a document relating to a tender is not disclosed without the permission of the tenderer.

55. The Court’s earlier finding that the tender process was not required to take place in accordance with s 55 limits the force of the council’s argument that it was appropriate to close the meeting in response to the provisions of reg 20. However, it points to the standard that may be applied in the present case.

56. Nevertheless, it was open for the council to regard the information provided with the tenders as being likely to prejudice the commercial position of the person who supplied it if it was disclosed to the press and the public. Although there is no direct evidence to suggest that this was or was not the case, the nature of the information itself had an inherent capacity to be commercially sensitive. I am satisfied that it was reasonably open for the council to move into closed session to consider the tenders as confidential matters.

Jurisdiction

57. In the Second Amended Points of Defence, the second respondent, in answer to the whole of the Amended Points of Claim, says that each of the claims allege a mis-exercise of functions conferred or imposed by Ch 4 Pt 1 and Ch 6 Pt 3 Div 1 of the LG Act and associated Regulations none of which are planning or environmental laws as that term is defined in s 20(3) of the Land and Environment Court Act 1979 (the Court Act).

58. The first respondent pleads that the claims and orders sought in the Amended Class 4 Application constitute an abuse of process and are not within the jurisdiction of the Land and Environment Court.

59. The Court has found a breach of the provisions of Ch 6 Pt 2 Div 2 in which s 46 and s 47 are found. Chapter 6 Pt 2 is specifically referred to in s 20 of the Court Act.

60. Furthermore, s 674 allows any person to bring proceedings in the Land and Environment Court for an order to remedy or restrain a breach of the LG Act and the Court has the power to make such order as it thinks fit to remedy or restrain the breach pursuant to s 676. It cannot therefore be doubted that the Court has jurisdiction to entertain the applicants’ claims.

Non-compliance with a procedural requirement

61. Section 729 of the LG Act provides that the validity or effectiveness of a decision of a council may not be questioned in any legal proceedings on the ground that, in making, or purporting to make the decision, the council failed to comply with the procedural requirements of the Act or the Regulations (including a requirement as to the giving of notice) unless the proceedings are commenced within three months after the date of the decision.

62. The respondents raised s 729 for the first time during final submissions.

63. The following issues arise:-


a) Whether the council is estopped from raising s 729 as a privative clause in the circumstances which occurred following the acceptance of the second respondent’s tender when the council is alleged to have requested the applicants to defer taking proceedings.

b) Whether the failure to comply with the provisions of s 10 or s 47 was purely a procedural matter.


64. Two things need to be noted at the outset.

65. In the first place, there has been a finding that it was reasonably open for the council to close the meeting in accordance with the provisions of s 10.

66. Secondly, the notice contemplated by s 47 is not, self evidently, a procedural requirement.

67. Section 47(2) refers to the matters which must be included in a notice of a proposal to grant a lease. They include a statement that submissions in writing may be made to the council concerning the proposal within a period, not less than 28 days, specified in the notice. Pursuant to subs (3), any person may make a submission in writing to the council during the period specified for the purpose in the notice. The council, under subs (4), is required to consider all submissions duly made to it before granting the lease. The giving of the notice therefore gives rise to a substantive right whereby a person to whom the proposal is likely to form the primary focus of their enjoyment of the community land, either as an adjoining owner or otherwise can make a submission.

68. A relevant consequence of a person making a submission by way of objection to the proposal in the present context is that Minister’s consent is thereby required pursuant to s 47(5). There is no evidence that any relevant objection was received.

69. Section 47(1)(c) creates an obligation to give notice of the right to make submissions in response to the notice. A failure to give the notice deprives the target group of persons of the opportunity to consider a response. The position may have been different if, in giving notice, the council did not comply with the 28 day requirement but allowed some lesser time. The evidence is that no notice was given to at least some persons entitled to it. The opportunity for the council to have the benefit of submissions from the persons most likely to be affected is an inherent part of the process which potentially could culminate in an application for the Minister’s consent. Thus there was something more to the purpose of the notice than merely the giving of notice itself.

70. The Court is not satisfied that s 729 embraces the giving of a notice pursuant to s 47 as a procedural requirement.

Estoppel - Amendment of pleadings to include s 729 defence

71. Although not now strictly arising, it is appropriate to deal with the issue whether the first respondent is estopped from relying on s 729 as it was dealt with comprehensively by all parties.

72. The decision by council to grant the lease by accepting the Giltinan tender was made on 18 November 1997. The proceedings were not commenced until 25 March 1998.

73. During the course of discussions and negotiations which continued between the solicitors from about 27 November 1997, neither party raised the issue of the effect of s 729. It does not appear to be disputed that the provisions of the section did not enter the consciousness of any party until some time during the hearing. The Court accepts that it was not drawn to the applicants’ attention by either of the respondents before then.

74. Mr Davison relies on evidence of a file note made by the applicants’ solicitor in respect of a telephone conversation with the second respondent when the solicitor was advised that “nothing happening until Council gets back to us” . The file note was made on 15 December 1997. This, Mr Davison says, shows that the second respondent was content to stand by while discussions took place between the applicants and the first respondent.

75. On 12 December 1997 the council’s solicitor was instructed by the Property Officer to put a hold on preparation of the lease until a complaint about the tendering process had been investigated.

76. On 7 January 1998 the council’s solicitor advised the applicants’ solicitor that he had been instructed to obtain advice and undertook that nothing would be done to prejudice the situation until adequate notice had been given and not to sign the lease.

77. The applicants’ solicitors were advised by the council’s solicitors that the council intended to execute the lease by letter dated 19 February 1998, said to be received on 24 February 1998.

78. Mr Simpkins argues that it is not necessary for the section to be pleaded. The Court is bound to have regard to it irrespective of the issues raised by the parties. That proposition is not accepted. The relevant authorities are referred to in Verwayen and include Australian Iron and Steel Ltd v Hoogland (1962) 108 CLR 471 at 488-489 cited by Brennan J at 425.

79. Mr Davison says the request by council not to commence proceedings and the acquiescence by Mr Giltinan has the characterisation of a representation in the sense referred to by Mason CJ in Verwayen at 412.

80. The applicants must establish that either the council represented that it would not rely on s 729 and that it did not regard itself as free to change the decision ( Waltons Stores (Interstate) Ltd v Maher and Anor (1988) 164 CLR 387 at 422-423). No express representation in those terms can be extracted from the agreement not to sign the lease until legal advice was obtained followed by notice. The applicants did not act on an assumption in relation to the effect of s 729. The representation made was that the council would not execute the lease without first giving notice to afford the applicants an opportunity to commence proceedings before the council actually signed the lease. An examination of the relevant belief therefore shows only that the applicants assumed the lease would not be signed before notice was given.

81. No estoppel beyond that assumption arises.

Discretion

82. Mr Giltinan has given evidence that, since he took occupation of the premises in 1995 under an earlier lease, he has expended in the order of $250,000 by way of improvements to the centre. He says that pursuant to the new lease he was required to carry out certain items of work within 24 months which, according to his records, cost $59,220.87. In cross examination he agreed most of the latter work was done between November 1997 and Christmas of that year. The lease was not executed by the council until 5 March 1998.

83. The discretion to grant relief is a wide one.

84. The breaches complained of are not purely technical.

85. There has been no relevant delay in bringing the proceedings, although the Court has not been given any explanation for the delay in having the matter heard.

86. The applicants are seeking the enforcement of a public right, namely that a lease of community land be dealt with and granted in the prescribed manner in the public interest. This is so notwithstanding the applicants having a private interest in the tendering process.

87. It is expected that a council, as a statutory authority, will act in accordance with its public duty and carry out its functions in compliance with the relevant legislation.

88. The breach can be remedied without great inconvenience to the second respondent who will merely be placed in the same position as if the lease had not been granted to him at least until the proper procedures are re-initiated and completed.

89. The second respondent has been aware that the applicants intended to challenge the validity of the council’s action from the time that the council purported to accept his tender.

90. Having regard to all the circumstances, this is not an appropriate case for the Court to exercise its discretion and not grant relief.

Orders

91. The applicants are granted leave to bring in an appropriate form of declarations and orders to reflect the above findings that the tender process was conducted contrary to law and that the lease was entered into by the council in breach of the provisions of s 47 of the LG Act. The acceptance of the second respondent’s tender by the council, together with the subsequent grant of a lease, was therefore void and of no effect.