South Sydney City Council v The Council of the City of Sydney

[2002] NSWLEC 114

Land and Environment Court

of New South Wales

CITATION:	South Sydney City Council v The Council of the City of Sydney [2002] NSWLEC 114
PARTIES:	APPLICANT South Sydney City Council RESPONDENT The Council of the City of Sydney
FILE NUMBER(S):	0304 of 2002
CORAM:	Talbot J
KEY ISSUES:	Interlocutory Relief :- order restraining adoption of draft corporate plan as management plan
LEGISLATION CITED:	Local Government Act 1993 Pt 2 Ch 13
CASES CITED:
DATES OF HEARING:	28/06/2002
EX TEMPORE JUDGMENT DATE :	06/28/2002
LEGAL REPRESENTATIVES:	APPLICANT Mr N A Hemmings (Solicitor) SOLICITORS Allens Arthur Robinson RESPONDENT N/A SOLICITORS N/A

JUDGMENT:

IN THE LAND AND Matter No. 0304 of 2002
ENVIRONMENT COURT Coram: Talbot J
OF NEW SOUTH WALES Decision Date: 28 June 2002

South Sydney City Council
Applicant

v
The Council of the City of Sydney

Respondent

REASONS FOR JUDGMENT


1. HIS HONOUR: The applicant council is seeking a declaration to the effect that the respondent council has not complied with Pt 2 of Ch 13 of the Local Government Act 1993 (“the Act”) in preparing a draft corporate plan, and a consequential order restraining the respondent from adopting that plan as a plan of management, or management plan in accordance with the Act. The evidence before the Court is that representations made by the applicant council identifying concerns and referring to matters that have either not been included as required by the legislation, or have been referred to but not dealt with by the draft management plan, has not been responded to. The only indication before the Court as to how the matter is to be dealt with by the respondent council is that there is an expectation that the draft management plan will be adopted some time today so that it is adopted prior to 30 June 2002 and made available to the public on 1 July 2002.

2. The respondent council was notified that in certain circumstances, which have occurred, ex parte relief would be sought. The respondent council has not appeared but nevertheless a letter written on 27 June to Mr Hemmings has been exhibited and those matters have been taken into account. I am satisfied that the Court has jurisdiction to deal with the matter. I am satisfied that there is a serious question to be tried on the basis that if the evidence remains as it is this morning then there is a real prospect of the applicant succeeding in obtaining relief.

3. Furthermore, I have given consideration as to whether there will be irreparable damage to the respondent council. The question of prejudice has been dealt with in the letter that is before me as exhibit A. I am not satisfied that those matters weigh so heavily that on the balance of convenience the Court should not grant relief in circumstances where it is apparent, prima facie, that the respondent council has a duty to comply with the terms of the statute. There are consequences for the applicant council in the sense that outstanding matters relating to a determination by the Boundaries Commission will fall for consideration in the light of, or prospectively fall for, consideration in the light of the contents of the management plan if it is adopted.

4. I note that the applicant does not offer the usual undertaking as to damages. I take that into account on the balance of convenience particularly in circumstances where a matter of public importance compliance with a statutory duty by public authority is involved. It is appropriate that the law be upheld in those circumstances notwithstanding the absence of an undertaking as to damages.

5. In the circumstances I am prepared to make the interlocutory orders. I make order five in the application class four, the question of costs will be reserved. I understand the matter has a return date before the Registrar. No further orders.