Walker v Northern Beaches Council

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Walker v Northern Beaches Council [2021] NSWCATAD 277

Hearing dates:

On the papers

Date of orders:

22 September 2021

Decision date:

22 September 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

(1) The following application by Mr Walker to Northern Beaches Council under the Government Information (Public Access) Act 2009 is approved:

All documents and plans relating to stormwater management and disposal arising from the original subdivision and any subsequent approvals for numbers 11 and 12 Buena Vista Avenue, Mona Vale.

(2) Parties have liberty to apply with 5 days’ notice.

Catchwords:

ADMINISTRATIVE LAW - access to government information - restraint order in place - leave required for applicant to apply for information under Government Information (Public Access) Act 2009 (NSW) - Transitional Provisions Northern Beaches Council

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Cases Cited:

Walker v Pittwater Council (2015) NSWCATAD 198

Walker v Pittwater Council(2015) NSWCATAD 222

Walker v Pittwater Council (2016) NSWCATAD 78

Category:

Principal judgment

Parties:

P Walker - Applicant
Northern Beaches Council - Respondent

Representation:

Solicitors:
Ken Webber - Respondent

File Number(s):

2021/00164982

REASONS FOR DECISION

Introduction

1. The applicant (Mr Phil Walker) seeks approval of this Tribunal to issue an access application on the respondent (Northern Beaches Council) in circumstances where he is restrained from bringing that application pursuant to s110(1) of the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). The respondent consents to the application.

Disposal of a Hearing

2. On 20 July 2021, the Tribunal made an order pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) that the matter is to be determined without the need for a hearing. In these circumstances the matter is to be determined on the papers.

The Statutory Scheme

3. The application arises under the implied power of the Tribunal pursuant to s110(1) of the GIPA Act to grant approval to Mr Walker, who is the subject of a restraint order under that section, to make a further access application despite the order.

4. S110(1) provides:

“(1)   NCAT may order that a person is not permitted to make an access application without first obtaining the approval of NCAT (a ‘restraint order’) if NCAT is satisfied that:

(a)   at least three access applications (to one or more agencies) in the previous two years have been made that lack merits, and

(b)   the applications were made by the same person or by any other person acting in concert with the person.

(2)   An access application is to be regarded as lacking merit if:

(a)   the agency decided the application by refusing to deal with the application in its entirety, or

(b)   the agency decided the application by deciding that none of the information applied for is held by the agency, or

(c)   the access applicant’s entitlement to access lapsed without that access being provided (including as a result of failure to pay…