Guthrie v Lane Cove Council

[2019] NSWCATAD 74

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Guthrie v Lane Cove Council [2019] NSWCATAD 74
Hearing dates:	15 April 2019
Date of orders:	30 April 2019
Decision date:	30 April 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R L Hamilton SC, Senior Member
Decision:	Application dismissed
Catchwords:	ADMINISTRATIVE LAW- freedom of information, government information public access- information supplied in response to application-scope of application-jurisdiction
Legislation Cited:	Administrative Decisions Review Act 1997 NSW Civil and Administrative Tribunal Act 2013 NSW Government Information (Public Access) Act 2009 NSW
Cases Cited:	Nil
Category:	Principal judgment
Parties:	M Guthrie (Applicant) Lane Cove Council (Respondent)
Representation:	Solicitors: M Guthrie (Self Represented)(Applicant) Sparke Helmore (Respondent)
File Number(s):	2018/00357915
Publication restriction:	Nil

REASONS FOR DECISION

1. This is an application for review of a decision taken under the Government Information (Public Access) Act 2009 (GIPA Act). The applicant is a ratepayer in the Lane Cove Council Local Government Area. The Council has entered a conditional agreement to grant a lease of land to Australian Unity (AU) for development as an aged care facility. The applicant is seeking certain details of the contractual arrangements between the Council and AU.

Jurisdiction

2. The Tribunal obtains its jurisdiction to review the agency’s decision under s100 GIPA Act (which provides that a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997(ADR Act)); ss9 and 63 of the ADR Act; read together with s30 of the Civil & Administrative Tribunal Act 2013 (CAT Act). The Tribunal is required to determine what is the correct and preferable decision having regard to the material then before it including any relevant factual material and any applicable written or unwritten law (s63(1) ADR Act). The Tribunal makes its own decision in place of the respondent without any presumption that the agency’s decision is correct.

3. The application when commenced sought a review of certain aspects of the decision of the Council (the agency).The access application dated 19 July 2018 requested the following information:

“Details concerning 266 Longueville Road DA117/17 payments made/to be made by Australian Unity to Council:

(1)   Before July 2018 total $ .

(2)   July, Aug, Sept, Oct, Nov, Dec 2018 $ by month.

(3)   Jan 2019 on – total $ ”

4. There was disputation between the parties for some time over the application. Access was ultimately provided to information concerning payments before July 2018. It was determined that information about payments between July and December 2018 were not held by the agency. Access was refused to information about payments from January 2019 onwards on the grounds of overriding public interest against disclosure of the information.

5. The applicant narrowed his access request by letter dated 8 February 2019. The applicant stated “What I require is primary data, specifically the clauses in the contract which relate to your point 4 ‘the lease agreement becomes active…’ and point 5 ‘AU are contractually obligated---’. Having received that, I will immediately advise NCAT that the matter is settled, and to cancel the scheduled 15 April Hearing.”

6. References to point 4 and point 5 refer to bullet points in a letter from Lane Cove Council to Mr Guthrie dated 6 February 2019 in which the Council said at bullet point 4 “The lease agreement becomes active after a Development Consent is obtained and the lease is registered.” Bullet point 5 says “Australian Unity are contractually obligated to obtain a Development Consent.”

7. On 6 March 2019 the Council’s solicitors Sparke Helmore wrote to Mr Guthrie in response to his letter of 8 February quoting the terms of the clause dealing with the commencing date of the lease and the clause relating to the development consent. Other related provisions in the contract which were needed to understand the particular clauses quoted were also set out.

8. Council submits that it has fully responded to the request as narrowed by Mr Guthrie in his letter of 8 February. It has provided the Tribunal with an unredacted version of the Agreement for Lease and unexecuted Lease document. Having examined the document I am satisfied there has been a full response to the application as narrowed.

9. Mr Guthrie referred in his letter of 8 February 2019 and in his oral submissions to the heart of his complaint against Council which is the claim by Council that it has no DA risk of the transaction, and has represented to the State Government that it is ”disinterested, impartial, has no stake in the outcome”.

10. Mr Guthrie tendered (without objection) an email to him from Council dated 16 October 2017 which states “I can confirm Council does not have a DA risk of the transaction” (Exhibit A1); and Exhibit A2 which states “AU is taking all the DA risk. So Council has no stake in this one way or the other.” (Email from Councillor Palmer, Mayor of Lane Cove to Mr Guthrie of 6 June 2018).

11. It seems that Mr Guthrie and Council may be at cross purposes as to what was intended by these representations to him by Council.

12. Council takes the view that it has no DA risk of the transaction because AU has taken contractual responsibility for obtaining Development Consent or DA approval for the development on the land.

13. Mr Guthrie submits that Council has represented to the DA approval authority that it has no interest in the DA approval one way or the other. Mr Guthrie’s point is that if the Development Consent is not granted, that the Council will not receive the full sale price of the land since the sale is subject to a development consent condition. Council have disclosed that AU is contractually obliged to apply for Development Consent by a certain date, and use its best endeavours to obtain it as soon as reasonably possible. (Clause 3.9 of Agreement for Lease).

14. In my view Mr Guthrie narrowed his request by his letter of 8 February 2019 and undertook to withdraw these proceedings upon receipt of the required information. Council in reliance on this has provided the information requested by Mr Guthrie in his narrowed request and therefore has satisfied that request. There is then nothing left for the Tribunal to review. The matter should be treated as settled and the application as constructively withdrawn.

15. I am also of the view that the representations which I have described as the heart of Mr Guthrie’s complaint is beyond the scope of the narrowed access application before me, and that the Tribunal has no present jurisdiction in respect of it.

Order

1. Application dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 30 April 2019