Walker v Pittwater Council - [2015] NSWCATAD 222

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Walker v Pittwater Council [2015] NSWCATAD 222
Hearing dates: 13 October 2015
Date of orders: 13 October 2015
Decision date: 13 October 2015
Jurisdiction: Administrative and Equal Opportunity Division
Before: N Hennessy LCM, Deputy President
Decision:
File No 1510494
The following application by Mr Walker to Pittwater Council under the Government Information (Public Access) Act 2009 is approved:
“Copy of Warriewood Valley Acoustics Study conducted by Warringah Council in 1990 by James Madden Cooper or by an organisation with a similar name.”
File 1510477
The following application by Mr Walker to Pittwater Council under the Government Information (Public Access) Act 2009 is approved:
Any email or other communication from the afterhours notification operator to Council for each of the following notifications of noise related issues in Warriewood Valley Stage One Industrial Area made by Mr Walker during the period May/June and July 2015 and any record generated by Council in response to any of those communications:
“Container pickup assault by driver at 4 Prosperity Avenue Warriewood at approximately 9pm.
Industrial bin pickup 9 Ponderosa Parade Warriewood at approximately 3am.
Industrial bin left on road for pickup 5 Ponderosa Parade Warriewood 4am.
Industrial bin pickup 96 Mona Vale Road Warriewood 3.30am.
Industrial bin pickup 4 Jubilee Avenue 3.30am.
Noise car park exhaust 4 Daydream Avenue Warriewood at approximately 4am.
Container drop off 5 Jubilee Avenue Warriewood at approximately 5am.
Noise from router 48/5 Ponderosa Parade Warriewood at approximately 5.30am.
Noise from forklifts 20 Jubilee Avenue Warriewood at approximately 10pm.”
File No 1510523
The following application by Mr Walker to Pittwater Council under the Government Information (Public Access) Act 2009 is approved:
“Any record typed by council employees of post-it notes or other written suggestions provided by members of the public in public consultations on the development of the Mona Vale Place Plan in the first half of 2015 other than those recorded in the Imagine Mona Vale Engagement Summary for Mona Vale Place Plan August 2015.”
File No 1510524
The following application by Mr Walker to Pittwater Council under the Government Information (Public Access) Act 2009 is not approved:
“All correspondence between Pittwater Council and the New South Wales Government regarding the impact on Mona Vale of the Bus Rapid Transit Proposal-Local Member, Bus Rapid Transit, Sydney Buses Police, RMS.”

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 – four applications lodged for approval – whether similar application lodged previously – whether application would unreasonably divert Council’s resources – clarity of application
Legislation Cited: Government Information (Public Access) Act 2009 NSW
Freedom of Information Act 1982 (Cth)
Cases Cited: Pittwater Council v Walker [2015] NSWCATAD 34
Category: Principal judgment
Parties: Philip Walker (Applicant)
Pittwater Council (Respondent)
Representation: P Walker (Applicant in person)
Pittwater Council (no appearance)

File Number(s): 1510494 1510477 1510523 1510524
Publication restriction: Nil

Ex Tempore - reasons…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Walker v Pittwater Council

Details

AGLC: Walker v Pittwater Council [2015] NSWCATAD 222
Case: [2015] NSWCATAD 222
Decision Date: 13 October 2015

CaseChat Overview and Summary

The matter of Walker v Pittwater Council involved the applicant, Mr. Walker, seeking access to various pieces of information from the respondent, Pittwater Council, under the Government Information (Public Access) Act 2009. The dispute centred around four distinct applications made by Mr. Walker for access to specific information, each of which required the respondent's approval due to a restraint order. The applications were lodged before the Land and Environment Court of New South Wales.

The legal issues before the court were whether Mr. Walker had previously lodged similar applications, whether the applications would unreasonably divert the Council's resources, and the clarity of the applications. The court had to determine if the applications met the criteria set out in section 63 of the Government Information (Public Access) Act 2009, which outlines the circumstances under which leave is required.

The court found that none of the applications were similar to those previously made by Mr. Walker, and none of the applications would unreasonably divert the Council's resources. However, the court did not approve the fourth application as it was not sufficiently clear. The court approved the other three applications, allowing Mr. Walker to access the specified information from the Council. The orders of the court approved the access to the specified documents and communications as requested in the approved applications.

Orders

Orders of the court

File No 1510494

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

“Copy of Warriewood Valley Acoustics Study conducted by Warringah Council in 1990 by James Madden Cooper or by an organisation with a similar name.”

File 1510477

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

Any email or other communication from the afterhours notification operator to Council for each of the following notifications of noise related issues in Warriewood Valley Stage One Industrial Area made by Mr Walker during the period May/June and July 2015 and any record generated by Council in response to any of those communications:

“Container pickup assault by driver at 4 Prosperity Avenue Warriewood at approximately 9pm.

Industrial bin pickup 9 Ponderosa Parade Warriewood at approximately 3am.

Industrial bin left on road for pickup 5 Ponderosa Parade Warriewood 4am.

Industrial bin pickup 96 Mona Vale Road Warriewood 3.30am.

Industrial bin pickup 4 Jubilee Avenue 3.30am.

Noise car park exhaust 4 Daydream Avenue Warriewood at approximately 4am.

Container drop off 5 Jubilee Avenue Warriewood at approximately 5am.

Noise from router 48/5 Ponderosa Parade Warriewood at approximately 5.30am.

Noise from forklifts 20 Jubilee Avenue Warriewood at approximately 10pm.”

File No 1510523

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

“Any record typed by council employees of post-it notes or other written suggestions provided by members of the public in public consultations on the development of the Mona Vale Place Plan in the first half of 2015 other than those recorded in the Imagine Mona Vale Engagement Summary for Mona Vale Place Plan August 2015.”

File No 1510524

The following application by Mr Walker to Pittwater Council under the Government Information (Public Access) Act 2009 is not approved:

“All correspondence between Pittwater Council and the New South Wales Government regarding the impact on Mona Vale of the Bus Rapid Transit Proposal-Local Member, Bus Rapid Transit, Sydney Buses Police, RMS.”

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Walker v Pittwater Council [2015] NSWCATAD 222
Hearing dates:	13 October 2015
Date of orders:	13 October 2015
Decision date:	13 October 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Hennessy LCM, Deputy President
Decision:	File No 1510494 The following application by Mr Walker to Pittwater Council under the Government Information (Public Access) Act 2009 is approved: “Copy of Warriewood Valley Acoustics Study conducted by Warringah Council in 1990 by James Madden Cooper or by an organisation with a similar name.” File 1510477 The following application by Mr Walker to Pittwater Council under the Government Information (Public Access) Act 2009 is approved: Any email or other communication from the afterhours notification operator to Council for each of the following notifications of noise related issues in Warriewood Valley Stage One Industrial Area made by Mr Walker during the period May/June and July 2015 and any record generated by Council in response to any of those communications: “Container pickup assault by driver at 4 Prosperity Avenue Warriewood at approximately 9pm. Industrial bin pickup 9 Ponderosa Parade Warriewood at approximately 3am. Industrial bin left on road for pickup 5 Ponderosa Parade Warriewood 4am. Industrial bin pickup 96 Mona Vale Road Warriewood 3.30am. Industrial bin pickup 4 Jubilee Avenue 3.30am. Noise car park exhaust 4 Daydream Avenue Warriewood at approximately 4am. Container drop off 5 Jubilee Avenue Warriewood at approximately 5am. Noise from router 48/5 Ponderosa Parade Warriewood at approximately 5.30am. Noise from forklifts 20 Jubilee Avenue Warriewood at approximately 10pm.” File No 1510523 The following application by Mr Walker to Pittwater Council under the Government Information (Public Access) Act 2009 is approved: “Any record typed by council employees of post-it notes or other written suggestions provided by members of the public in public consultations on the development of the Mona Vale Place Plan in the first half of 2015 other than those recorded in the Imagine Mona Vale Engagement Summary for Mona Vale Place Plan August 2015.” File No 1510524 The following application by Mr Walker to Pittwater Council under the Government Information (Public Access) Act 2009 is not approved: “All correspondence between Pittwater Council and the New South Wales Government regarding the impact on Mona Vale of the Bus Rapid Transit Proposal-Local Member, Bus Rapid Transit, Sydney Buses Police, RMS.”
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 – four applications lodged for approval – whether similar application lodged previously – whether application would unreasonably divert Council’s resources – clarity of application
Legislation Cited:	Government Information (Public Access) Act 2009 NSW Freedom of Information Act 1982 (Cth)
Cases Cited:	Pittwater Council v Walker [2015] NSWCATAD 34
Category:	Principal judgment
Parties:	Philip Walker (Applicant) Pittwater Council (Respondent)
Representation:	P Walker (Applicant in person) Pittwater Council (no appearance)
File Number(s):	1510494 1510477 1510523 1510524
Publication restriction:	Nil