Walker v Northern Beaches Council

[2016] NSWCATAD 161

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Walker v Northern Beaches Council [2016] NSWCATAD 161
Hearing dates:	5 July 2016
Date of orders:	05 July 2016
Decision date:	05 July 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hennessy LCM, Deputy President
Decision:	1. Approval is granted to Mr Walker to lodge an application with Northern Beaches Council under the Government Information Public Access Act 2009 in the following terms: “All records and correspondence regarding compliance monitoring by Northern Beaches Council as reported by General Manager Mr Ferguson to Council verbally on 16 June 2016 of Blackmores, 20 Jubilee Avenue, Warriewood, since commencement of operations in 2009.”
Catchwords:	ADMINISTRATIVE LAW – access to government information – restraint order in place – leave required for applicant to apply for access to information under Government Information (Public Access) Act 2009 – relevant considerations when exercising discretion to approve or not approve applications
Legislation Cited:	Government Information Public Access Act 2009 (NSW)
Cases Cited:	Walker v Pittwater Council (2016) NSWCATAD 78
Category:	Principal judgment
Parties:	Philip Walker (Applicant) Northern Beaches Council (Respondent)
Representation:	P Walker (self-represented) No appearance by or on behalf of the Respondent
File Number(s):	1610378
Publication restriction:	nil

REASONS FOR DECISION

EX TEMPORE

1. DEPUTY PRESIDENT HENNESSY: I make the following order:

Approval is granted to Mr Walker to lodge an application with Northern Beaches Council under the Government Information Public Access Act 2009 in the following terms:

“All records and correspondence regarding compliance monitoring by Northern Beaches Council as reported by General Manager Mr Ferguson to Council verbally on 16 June 2016 of Blackmores, 20 Jubilee Avenue, Warriewood, since commencement of operations in 2009.”

2. I give the following reasons.

3. On 20 March 2015 the Tribunal made a restraint order in relation to Mr Walker. That order requires him to obtain the Tribunal’s approval before lodging applications with Pittwater Council, now Northern Beaches Council, for access to information under the Government Information Public Access Act 2009 (NSW) (GIPA Act). These reasons deal with one such application.

4. I adopt the reasoning in Walker v Pittwater Council (2016) NSWCATAD 78 in relation to the relevant considerations when determining whether to approve access applications. In summary the discretion to approve such an application is unconfined but must be exercised in light of the subject matter, scope and purpose of the GIPA Act. The main consideration is the substance or merit of the proposed application. It is not relevant to consider whether the application is frivolous, vexatious or misconceived.

5. The Council has not appeared at the hearing, nor did it address the merits or substance of the application in its submissions except to say that:

“… the Tribunal should not approve the making of any access application by Mr Walker where that application constitutes a continuation of, or covers the same ground as, an access application which led to the restraint Order…”

6. The Council did not say whether, in its view, the present application meets that description.

7. I am satisfied that the present application is not a continuation of previous access applications, nor does it cover the same ground as those applications. I am satisfied of that matter on the basis of what Mr Walker has told me today.

8. The application concerns an issue raised by a neighbour of Mr Walker, Valerie Jensen, in relation to the monitoring of noise from the Blackmores’ premises in Warriewood. Ms Jensen raised that matter on 16 June 2016 at a meeting of the Northern Beaches Council. At the same meeting the Interim General Manager of the Northern Beaches Council, Mr Ferguson, answered a question from Mr Persson, the new administrator of the Northern Beaches Council. When Mr Persson asked Mr Ferguson to bring him up to speed on this issue Mr Ferguson replied:

FERGUSON: “Mr Persson, the Blackmores had a development application approved by the Council that identified the use, which is consistent with the zone, and over the last eight or nine years that the development has proceeded to operate, there have been, from time to time, compliance issues. There have been ongoing discussions with the firm, with the company.

The Council has monitored the site and there are from time to time traffic related issues associated with the site, and noise related issues that Council staff have acted upon, but once again, we don’t necessarily believe that there is need for any further action that actually seeks to stop their operation of the site.

PERSSON: How long ago did you form that view?

FERGUSON: Well, it has been an ongoing matter, probably for the last three to four years, in particular as there has been a level of increased activity. In more recent years it has generated more activity, but not necessarily major inconsistencies with their development consent.”

9. On the basis of this information I am satisfied that the application which Mr Walker proposes to make does not lack substance. In those circumstances I grant leave for Mr Walker to make the application in the terms set out in the order.

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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