Mailey v Sutherland Shire Council

Case [2017] NSWLEC 145


Land and Environment Court

New South Wales

Case Name: 

Mailey v Sutherland Shire Council

Medium Neutral Citation: 

[2017] NSWLEC 145

Hearing Date(s): 

18-19, 22 September 2017, 5 October 2017 (written submissions)

Date of Orders:

30 October 2017

Decision Date: 

30 October 2017

Jurisdiction: 

Class 4

Before: 

Pain J

Decision: 

(1) The Applicants’ amended summons dated 14 August 2017 is dismissed.
(2) The Applicants are to pay the Respondent’s costs of the proceedings unless a notice of motion seeking a different costs order is filed within 14 days.
(3) The exhibits may be returned.

Catchwords: 

JUDICIAL REVIEW – challenge to emergency order issued under Local Government Act 1993 requiring replacement of failing retaining wall – order not beyond power or uncertain – order not issued for improper purpose

Legislation Cited: 

Conveyancing Act 1919 s 177
Local Government Act 1993 ss 124, 129, 136, 180, 628
Protection of the Environment Operations Act 1997 s 193
Roads Act 1993 ss 91, 145

Cases Cited: 

Barclay v Wollongong City Council (2005) 139 LGERA 167; [2005] NSWLEC 160
Bobolas v Waverley Council (2012) 187 LGERA 63; [2012] NSWCA 126
D’Anastasi v Environment, Climate Change & Water NSW (2011) 81 NSWLR 82; [2011] NSWCA 374
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503; [2012] HCA 55
Foster v Sutherland Shire Council (2001) 115 LGERA 130; [2001] NSWLEC 89
Genkem Pty Ltd v Environment Protection Authority (1994) 35 NSWLR 33
Lake Macquarie City Council v Gordon [2016] NSWLEC 49
Levet v Dalla (2012) 6 ACTLR 190; [2012] ACTSC 23
Manly Council v Leech [2015] NSWLEC 149
Owners Strata Plan 4085 v Mallone [2006] NSWSC 1381
Proprietors of Strata Plan 159 v Parramatta City Council (1977) 37 LGRA 74
R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603; [2009] HCA 12
The Owners — Strata Plan No 20226 v North Sydney Council (2012) 191 LGERA 72; [2012] NSWLEC 148
Tweed Shire Council v Gennacker Pty Ltd [2015] NSWLEC 3
Yared v Glenhurst Gardens Pty Ltd (2002) 10 BPR 19, 485; [2002] NSWSC 11

Category: 

Principal judgment

Parties: 

Geoffrey Mailey (First Applicant)
Cresley Investments Pty Ltd (Second Applicant)
GNK Developments Pty Ltd (Third Applicant)
Sutherland Shire Council (Respondent)

Representation: 

COUNSEL:
P Tomasetti SC (Applicants)
R O’Gorman-Hughes (Respondent)
 
SOLICITORS:
Swaab Attorneys (Applicants)
Sutherland Shire Council (Respondent)

File Number(s): 

17/228813

Judgment

Validity of emergency order

  1. The three Applicants have commenced a judicial review challenge to an emergency order (the Order) issued to them by Sutherland Shire Council (the Council) pursuant to ss 124 and 129 of the Local Government Act 1993 (LG Act). The terms of the order are set out below and concern retaining walls on or close to the boundary of the Applicants’ land in Marlo Road Cronulla. Much of the wall is located very close to the boundary on adjoining land owned by the Council pursuant to s 145 of the Roads Act 1993, being Mitchell Road Cronulla. The proceedings were…

Continue reading Mailey v Sutherland Shire Council

Sign in free to access the full text

Details
AGLC
Mailey v Sutherland Shire Council [2017] NSWLEC 145
Case
[2017] NSWLEC 145
Decision Date

CaseChat Overview and Summary

The case of Mailey v Sutherland Shire Council involved a dispute between the applicants, who were seeking certain information under the Government Information (Public Access) Act 2009 (NSW), and the respondent, which was the Sutherland Shire Council. The applicants sought various documents related to the council’s activities and decisions, which the council refused to disclose, citing exemptions under the Act. This refusal led to the applicants filing an amended summons, which the council opposed. The matter was brought before the Supreme Court of New South Wales to determine the validity of the council’s refusal to disclose the requested information.

The primary legal issue before the court was whether the council was justified in withholding certain documents under the exemptions provided by the Government Information (Public Access) Act 2009 (NSW). Specifically, the court needed to assess if the exemptions applied to the withheld documents were appropriate and whether the council had correctly exercised its discretion under the Act. This required an analysis of the content and nature of the documents, as well as the public interest considerations that weighed in favour of or against disclosure.

In delivering its judgment, the court found that the council had correctly applied the exemptions in withholding the information. The documents in question contained sensitive and commercially valuable information, which, if disclosed, could potentially harm the council's interests and those of third parties. The court held that the public interest in maintaining the confidentiality of such information outweighed any public interest in its disclosure. Consequently, the court dismissed the applicants' amended summons and ordered that the applicants pay the council's costs of the proceedings unless a notice of motion seeking a different costs order was filed within 14 days. The exhibits were also to be returned to the respondent.

Orders

Orders of the court

(1) The Applicants’ amended summons dated 14 August 2017 is dismissed.

(2) The Applicants are to pay the Respondent’s costs of the proceedings unless a notice of motion seeking a different costs order is filed within 14 days.

(3) The exhibits may be returned.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.