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[2025] NSWLEC 96
General information, not legal advice.
Land and Environment Court (NSW)
2025-09-04
Pepper J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Seek Justice Pty Ltd v Minister for Lands and Water (No 3) [2025] NSWLEC 96
Hearing dates: 26 and 27 November 2024
Date of orders: 4 September 2025
Decision date: 04 September 2025
Jurisdiction: Class 4
Before: Pepper J
Decision: See orders at [102].
Catchwords: JUDICIAL REVIEW: whether the temporary use of an existing public carpark and bus stop by a congregation for the purpose of summer school was lawful – whether the adoption of plan of management by a council was in breach of s 40(3) of the Local Government Act 1993 because it was not adopted at an in-person public hearing – public hearing conducted via teleconference – no statutory requirement for in-person attendance – whether certain clauses of a Code of Meeting Practice and Model Code were valid – whether “pre-meeting briefing sessions” in Codes were council meetings – failure to establish grounds of review – summons dismissed.
PROCEDURE: application to transfer part of proceedings to the Supreme Court of New South Wales from the Land and Environment Court – legal principles – no power to transfer separate issues – matter earlier dealt with by the Court.
PROCEDURE: whether aspects of judicial review proceedings were out of time pursuant to r 59.10(1) of the Uniform Civil Procedure Rules 2005 – applicable legal principles – extension of time not granted having regard to discretionary factors.
COSTS: whether ordinary costs rule should apply – proceedings not brought in the public interest – costs follow the event – applicant liable for costs.
Legislation Cited: Blue Mountains Local Environmental Plan 2015, cl 1.9
Civil Procedure Act 2005, s 149B
Crown Land Management Regulation 2018, cl 70A
Environmental Planning and Assessment Act 1979, ss 1.6(1), 3.28(1), 4.1, 4.4, Pt 4
Land and Environment Court Rules 2007, r 4.2
Local Government Act 1993, ss 8A, 8B, 8C, 9, 10, 10A, 10B, 10C, 10D, 11, 40, 40A, 47G, 223, 226, 232, 360, 361, 362, 363, 734, 748(1), Ch 12, Pt 2, Div 2
Local Government (General) Regulation 2021, cl 236
State Environmental Planning Policy (Transport and Infrastructure) 2021, cll 2.21(1), 2.109(1), 2.113(2), Sch 1
Uniform Civil Procedure Rules 2005, r 59.10
Cases Cited: Briscoe-Hough v Minister for Local Government (No 5) [2025] NSWLEC 94
Gilmore Finance Pty Ltd v Aesthete No 3 Pty Ltd [2020] NSWCA 114
Heatscape Pty Ltd v Mahoney (No 2) [2016] NSWLEC 45; (2016) 217 LGERA 332
Maules Creek Community Council Incorporated v Environment Protection Authority (No 2) [2024] NSWLEC 123
Seek Justice Pty Ltd v Minister for Lands and Water [2024] NSWLEC 96
Seek Justice Pty Ltd v State of New South Wales (No 2) [2024] NSWSC 1410
South East Forest Rescue Incorporated INC9894030 v Forestry Corporation of New South Wales (No 2) [2024] NSWLEC 36
Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design [2018] NSWLEC 146
Texts Cited: Blue Mountains City Council, Code of Meeting Practice, 28 June 2022
Blue Mountains Gazette (Katoomba, 1 June 2022)
Katoomba Falls Reserve (Part) Plan of Management, 25 October 2022
Blue Mountains City Council, Public Hearing Report: Draft Sportsground and Draft General Community Use Plans of Management (27 June 2022)
New South Wales Government Gazette, No 556, 29 October 2021, Model Code of Meeting Practice for Local Councils in NSW – 2021
Category: Principal judgment
Parties: Seek Justice Pty Ltd (Applicant)
Minister for Lands and Water (First Respondent)
Blue Mountains City Council (Second Respondent)
Church Missionary Society NSW & ACT Ltd (Third Respondent)
Minister for Local Government (Fourth Respondent)
Representation: Counsel:
I Jeray, Director of Applicant (Applicant)
N Ikners (First Respondent)
C Ireland (Second Respondent)
Submitting appearance (Third Respondent)
L Nurpuri (Fourth Respondent)
Solicitors:
N/A (Applicant)
NSW Department of Planning and Environment (First Respondent)
Marsdens Law Group (Second Respondent)
Hunt & Hunt Lawyers (Third Respondent)
NSW Department of Planning and Environment (Fourth Respondent)
File Number(s): 2023/26482
Publication restriction: Nil
The summons in these Class 4 judicial review proceedings was initially filed by the applicant, Seek Justice Pty Ltd (“Seek Justice”), on 25 January 2023, against the first respondent, the Minister for Lands and Water, the second respondent, the Blue Mountains City Council (“Council”), and the third respondent, the Church Missionary Society NSW & ACT Ltd (“Church”).
On 14 July 2023 Seek Justice filed an amended summons joining the fourth respondent, the Minister for Local Government (“Minister”).
With leave, on 2 October 2024 Seek Justice filed a further amended summons pursuant to orders made by Duggan J in Seek Justice Pty Ltd v Minister for Lands and Water [2024] NSWLEC 96, in an application to further amend the summons and to have the proceedings transferred to the Supreme Court.
During the course of the two day hearing, the summons was again amended in various ways, largely by way of Seek Justice abandoning claims that it could no longer maintain (“the summons”).
Seek Justice has failed to establish any of its grounds of review against the Minister or the Council (the Minister for Lands and Water and the Church filed a submitting appearance). As a consequence, the summons must be dismissed, with costs.
The relief claimed and grounds of review set out in the summons are divided into six parts, almost the entirety of which is directed to the Council. As against the Minister, Seek Justice pursued a more limited grievance set out in Part F.
It was clarified during oral argument that the notation on the summons stating that certain passages were “permitted” or “denied” on “25 Sept 2024” is a reference to Duggan J’s judgment in Seek Justice. Confusingly, however, in some instances the words “to be deleted” were omitted after the word “permitted” (see grounds for relief 8, 9 and 10 in Part D, and 12, 13 and 14 in Part E). That is, the word “permitted” is in error and ought to be “denied”, consistent with Duggan J’s judgment.
The summons is reproduced in its entirety for the purpose of dealing with the parties’ applications for costs. In Seek Justice, which dealt with Seek Justice’s application to transfer the proceedings to the Supreme Court and an application to amend the summons, Duggan J made no orders as to costs.
The relief sought against the Council was in the following terms in Parts A to F, which are set out in full.
Part A is concerned with the lawfulness of the parking and bus stops at 21-27 Gates Avenue, Katoomba, which was used by the Church for its 2023 and 2024 Summer School (“the lawfulness of the use of the car park and bus stop issue”):
Part A
1 Declare permanent parking and bus stops at 21-27 Gates Ave, Katoomba (as per Depository Plan 109635, Lot 2) as unlawful land uses. (Permitted on 25Sep24)
2 An order that requires Blue Mountains City Council to stop and not allow parking and bus stops at 21-27 Gates Ave, Katoomba unless it has legitimately granted temporary development consent to do so, in accordance with clause 2.8 of the Blue Mountains Local Environmental Plan 2015.
3 Declare the car parks and transport interchanges operated Declare the transport interchange (parking and bus stop) land uses by the Church Missionary Society NSW & ACT Ltd for its 2023 Summer School event on 7-13 January 2023 and 2024 Summer School event on 6-12 January 2024 at 21-27 Gates Ave, Katoomba as unlawful development. (Permitted on 25 Sep 2024)
4 Declare Blue Mountains City Council wrongly and irresponsibly granted its landowner's consent and event approval to the Church Missionary Society NSW & ACT Ltd for unlawful transport interchanges (parking and bus stops) to occur at 21-27 Gates Ave, Katoomba.
5 Declare Blue Mountains City Council has unlawfully constructed roads at 21-27 Gates Ave, Katoomba (as per Depository Plan 109635, Lot 2) in breach of section 8 (1) of the Roads Act 1993. (Denied on 25 Sep 2024)
6 An order that requires the removal of the unlawfully constructed roads at 21 -27 Gates Ave, Katoomba (as per Depository Plan 109635, Lot 2). (Denied on 25Sep24)
Part B
7 Declare Blue Mountains City Council has unreasonably failed to proactively release the agendas, business papers and minutes of "The Gully Cooperative Management Committee" meetings that are "open access information," as required by sections 6 and 18 of the Government Information (Public Access) Act 2009.
8 An order that requires Blue Mountains City Council to promptly release all agendas, business papers and minutes of all "The Gully Cooperative Management Committee" meetings.
Part C
9 Declare clause 70A of the Crown Land Management Regulation 2018 as invalid.
10 Declare all plans of management adopted by Blue Mountains City Council that are affected by the invalidity of clause 70B 70A of the Crown Land Management Regulation 2018 (because section 40A of the Local Government Act 1993 was wrongly not applied in breach of section 3.23(6) of the CLM Act 2016) as invalid. (Permitted on 25 Sep 2024)
Part D
11 Declare Blue Mountains City Council’s decision of 25 October 2022 to adopt the "Katoomba Falls (Part) Reserve (Part) Plan of Management" as invalid. (Permitted on 25 Sep 2024)
Part E
12 Declare Blue Mountains City Council’s decision of 26 October 2021 to adopt "The Gully Plan of Management" as invalid. (Permitted on 25 Sep 2024)
13 Declare the "Upper Kedumba River Valley Plan of Management" to be in force.
Part F
14 Declare the clauses 3.33 to 3.38 of the Office of Local Government's "Model Code of Meeting Practice for Local Councils in NSW – 2021" and the corresponding clauses of Blue Mountains City Council's Code of Meeting Practice that concern the holding of "pre-meeting briefing sessions" as invalid.
15 Declare the clauses 3.33 to 3.38 (A) of Blue Mountains City Council's "Code of Meeting Practice," adopted on 28 June 2022 that concern the holding of "pre-meeting briefing sessions" as invalid.
16 Declare Mr Andy Turner, Manager of Economy, Tourism and Place and Mr Alex Williams, Manager of Development & Building Services, have breached section 439 (1) of the Local Government Act 1993 for recklessly presenting their dishonest and derogatory statement “’Scattergun’ approach from appellant” at the confidential councillor briefing session of 18 October 2022 concerning the Ultra Trail Australia event of 27-30 October 2022. (Withdrawn on 25 Sep 2024)
17 Declare Ms Rosemary Dillon, General Manager of Blue Mountains City Council, has breached section 439 (1) of the Local Government Act 1993 for recklessly allowing Mr Turner’s and Mr Williams’ dishonest and derogatory statement “’Scattergun’ approach from appellant” to be presented at the confidential councillor briefing session of 18 October 2022 concerning the Ultra Trail Australia event of 27-30 October 2022. (Withdrawn on 25 Sep 2024)
Part A (involves the Second and Third Respondents only)
1 Blue Mountains City Council authorisation of permanent parking spaces and bus stops at 21-27 Gates Ave, Katoomba is unlawful because the land zonings of the property prohibit parking and bus stops and the roads on it are unlawfully constructed. (Denied on 25 Sep 2024)
2 Car parks and transport interchanges for The transport interchange (parking and bus stops) land uses by the Church Missionary Society NSW & ACT Ltd for its 2023 and 2024 Summer School events have operated at 21-27 Gates Ave, Katoomba (that is zoned "C2 Environmental Conservation" and "RE1 Public Recreation") on 7-13 January 2023 and 6-12 January 2024 respectively is unlawful development because the land uses occurred without development consent in breach of section 4.2 (1) of the Environmental Planning and Assessment Act 1979 and on unlawfully constructed roads*.* Clause 2.8 (3) of the Blue Mountains Local Environmental Plan 2015 requires development consent for temporary development that is otherwise prohibited on land zoned "C2 Environmental Conservation" and "RE1 Public Recreation." (Permitted & denied on 25 Sep 2024)
3 Blue Mountains City Council could not issue its landowner's consent and event approval to the Church Missionary Society NSW & ACT Ltd for transport interchanges (parking and bus stops) to occur at 21-27 Gates Ave, Katoomba because the roads on the property have been unlawfully constructed, the land zonings of the property prohibit transport interchanges (parking and bus stops) and the Church Missionary Society NSW & ACT Ltd did not have temporary development consent to do so. (Denied on 25 Sep 2024)
4 Blue Mountains City Council has unlawfully constructed roads at 21 -27 Gates Ave, Katoomba (as per Depository Plan 109635, Lot 2) in breach of section 8 (1) of the Roads Act 1993. (Denied on 25 Sep 2024)
Part B (involves the Second Respondent only)
5 Blue Mountains City Council has unreasonably failed to pro-actively release all agendas, business papers and minutes of all "The Gully Cooperative Management Committee" meetings ("open access information"), as required by Schedule1 clause 1 (2) (b) and (c) of the Government Information *(*Public Access) Regulation 2018 (via clause 4 (1) of the Government Information *(*Public Access) Regulation 2018 and sections 18 (g) and 6 of the Government Information *(*Public Access) Act 2009). It is in the public interest to do so to enable transparency, accountability, fairness and public participation.
Part C (involves the First and Second Respondents only)
6 Clause 70A of the Crown Lands Management Regulation 2018 *(*CLM Regulation) is invalid because it is inconsistent with section 3.23 (6) of the Crown Lands Management Act 2016 (CLM Act) and therefore in breach of section 13.5 of the CLM Act. Section 13.5 (1) of the CLM Act requires the provisions of the CLM Regulation not to be inconsistent with the CLM Act. (Permitted on 25 Sep 2024)
7 All plans of management adopted by Blue Mountains City Council that are affected by the invalidity of clause 70A of the Crown Lands Management Regulation 2018 are invalid because section 40A of the Local Government Act 1993 was wrongly not applied in breach of section 3.23 (6) of the CLM Act 2016. (Permitted on 25 Sep ’24)
Part D (involves the First and Second Respondents only)
8 Blue Mountains City Council has breached section 38 (4) of the Local Government Act 1993 *(*LG Act) because it failed to provide the public with a copy of the previously adopted 1996 plan of management and its accompanying maps and land categorisations to better enable the draft "Katoomba Falls (Part) Reserve (Part) Plan of Management" and its implications to be understood.
9 Blue Mountains City Council's public hearing that considered the categorisations proposed in the draft "Katoomba Falls (Part) Reserve Plan of Management" was held over the Internet, which unfairly excluded members of the public wanting to participate who did not have Internet access in breach of section 40A (1) of the LG Act.
10 Blue Mountains City Council breached section 40A (1) of the LG Act because its public hearing only considered the categorisations proposed in the draft "Katoomba Falls (Part) Reserve Plan of Management" instead of considering all the proposals within the plan of management. (8, 9 & 10 permitted on 25 Sep 2024)
11 Blue Mountains City Council’s decision to adopt the Katoomba Falls Reserve (Part) Plan of Management on 25 October 2022 Is invalid because:
a. The public hearing for the plan of management was wrongly held before the public exhibition period for the plan of management had ended denying members of the public the legislated period in which to be properly informed before participating at the hearing.
b. The Council breached section 40 (3) of the LG Act 1993 for failing to hold a public hearing in accordance with section 40A of the LG Act 1993 because:
i. The Council failed to provide a venue at the Council Chambers for members of the public to attend the online public hearing meeting.
ii. The public hearing failed to include and consider the categorisations of Crown reserve land given the invalidity of clause 70A of the Crown Land Management Regulation 2018. (11b ii denied on 25 Sep 2024)
iii. The public hearing breached section 40A (1) of the LG Act 1993 because it only considered the categorisations proposed in the plan of management instead of considering all the proposals within the plan of management. (11b i & iii permitted on 25 Sep 2024)
c. The public hearing report of 27 June 2022 failed to make any recommendations about the categorisations for the community land.
d. The Council failed to consider the public hearing report of 27 June 2022 and its recommendations in breach of section 374 (4) of the LG Act 1993.
e. The Council deceptively included 9 parcels of Council community land in the plan of management after it misled the public that these lands were to be included in The Gully Plan of Management as that plan replaced the Upper Kedumba River Valley Plan of Management but failed to disclose to the public that these lands would instead be removed from the Upper Kedumba River Valley Plan of Management and put into the Katoomba Falls Reserve (Part) Plan of Management. (11a & c, d & e denied on 25 Sep 2024)
Part E (involves the First and Second Respondents only)
12 Blue Mountains City Council breached section 38 (4) of the LG Act because it failed to properly inform the public the lands proposed to be excluded from "The Gully Plan of Management." exhibit/properly inform the public of all the changes made in the draft "The Gully Plan of Management," which it should have reasonably considered was necessary to better enable the draft plan and its implications to be understood, including the lands proposed to be excluded that were previously incorporated within the superseded "Upper Kedumba River Valley Plan of Management."
13 Blue Mountains City Council's public hearing that considered the categorisations proposed in the draft "The Gully Plan of Management" was held over the Internet, which unfairly excluded members of the public wanting to participate who did not have Internet access in breach of section 40A (1) of the LG Act*.*
14 Blue Mountains City Council breached section 40A (1) of the LG Act because its public hearing only considered the categorisations proposed in the draft “The "Gully Plan of Management" instead of considering all the proposals within the plan of management. (12, 13 & 14 permitted on 25 Sep 2024)
15 Blue Mountains City Council’s decision to adopt The Gully Plan of Management on 26 October 2021 Is invalid because:
a. The Council has misled the public that the plan of management replaces the Upper Kedumba River Valley Plan of Management, as The Gully Plan of Management does not include all the lands covered by the Upper Kedumba River Valley Plan of Management.
b. Both the background information for and the final report of the public hearing make misleading statements that “No changes have been made or are proposed to the land categories for Crown land, so a public hearing is not required for the categorisation of Crown land” but three parcels of Crown land were added to the plan of management (which were not in the Upper Kedumba River Valley Plan of Management) and a public hearing was therefore required by section 40A (1) of the LG Act 1993.
c. Both the background information for and the final report of the public hearing make misleading statements that “boundary adjustments” have occurred in the northern section of The Gully but the proposed re-categorisation map shows Park and Natural Area Bushland areas have been re-categorised to General Community Use.
d. Both the background information for and the final report of the public hearing make misleading statements that “boundary adjustments” have occurred in the southern section of The Gully but the proposed re-categorisation map shows Natural Area-Watercourse and Natural Area-Wetland areas have been re-categorised to General Community Use.
e. Public notifications for the public hearing make misleading statements that the plan of management proposes a “boundary adjustment to the General Community Use and Park categories in Frank Walford Park” but the proposed re-categorisation map shows Park and Natural Area-Bushland areas have been re-categorised to General Community Use. (15a, b, c, d & e denied on 25 Sep 2024)
Part F (involves the Second and Fourth Respondents)
16 Clauses 3.33 to 3.38 of the Office of Local Government's "Model Code of Meeting Practice for Local Councils in NSW – 2021" are invalid because they allow council meetings to occur in breach of the meeting requirements of clause 236 of the LG Regulation and sections 9, 10 to 10D and 11 of the LG Act, as "pre-meeting briefing sessions" are council meetings for the purposes of the LG Act. Clauses 3.33 to 3.38 have also been prescribed in breach of section 748 (1) of the LG Act, as they are inconsistent with the requirements of sections 9, 10 to 10D and 11 of the LG Act.
17 Clauses 3.33 to 3.38 (A) of Blue Mountains City Council's Code of Meeting Practice, adopted on 28 June 2022, are invalid because:
a. Clauses 3.33 to 3.38 of the Office of Local Government's "Model Code of Meeting Practice for Local Councils in NSW – 2021" are: (i) not mandatory provisions; and (ii) cannot be adopted by the council, as the clauses are invalid for the reasons given at ground 16; and
b. They allow council meetings to occur in breach of the meeting requirements of sections 9, 10 to 10D and 11 of the LG Act and clause 236 of the LG Regulation, as "pre-meeting briefing sessions" are council meetings for the purposes of the LG Act.
18 The last sentence of clause 3.33 of Blue Mountains City Council's Code of Meeting Practice, adopted on 28 June 2022, is invalid because:
a. It misleadingly and/or deceptively includes in the briefing agenda, under the heading of "pre-meeting briefing sessions," other items of business that are not considered at a council meeting; and
b. The briefing sessions for the other items of business allow council meetings to occur in breach of the meeting requirements of sections 9, 10 to 10D and 11 of the LG Act and clause 236 of the LG Regulation, as the briefing sessions are council meetings for the purposes of the LG Act.
19 Mr Andy Turner, Manager of Economy, Tourism and Place and Mr Alex Williams, Manager of Development & Building Services, have breached section 439 (1) of the Local Government Act 1993 for recklessly presenting their dishonest and derogatory statement “’Scattergun’ approach from appellant” at the confidential councillor briefing session of 18 October 2022 concerning the Ultra Trail Australia event of 27-30 October 2022. (Withdrawn on 25 Sep 2024)
20 Ms Rosemary Dillon, General Manager of Blue Mountains City Council, has breached section 439 (1) of the Local Government Act 1993 for recklessly allowing Mr Turner’s and Mr Williams’ dishonest and derogatory statement “’Scattergun’ approach from appellant” at the confidential councillor briefing session of 18 October 2022 concerning the Ultra Trail Australia event of 27-30 October 2022. (Withdrawn on 25 Sep 2024)
(a) four separately tendered bundles of documents, the third and fourth bundle (Exhibits C and D) being admitted subject to relevance; and (b) two affidavits of Jeray both sworn on 26 November 2024, appending photographs and documents.
Seek Justice is a litigant in person who was represented throughout the proceedings by Ivan Jeray, a director of the company.
Seek Justice, and Jeray, are enthusiastic litigators in this and other courts, including in respect of some of the claims made in these proceedings. For example, prayers 7 and 8 and ground 4 in the October summons were dealt with in Seek Justice (at [33]-[39] per Duggan J) and Seek Justice Pty Ltd v State of New South Wales *(*No 2) [2024] NSWSC 1410 (at [67], [99]-[100] and [115]-[116] per Schmidt AJ), and prayers 9 and 10 and grounds 5 and 6 in Parts B and C were discussed and dismissed in Seek Justice per Duggan J (at [39]).
It should be noted that Seek Justice did not comply with any directions of the Court to file written submissions. Accordingly, the arguments that it relied upon were developed during the course of the two day hearing.
On the first day of the hearing Seek Justice initially made an oral application for the matter to be transferred to the Supreme Court. No notice was provided to the respondents and when the matter was before the Court on 21 October and 20 November 2024, Seek Justice did not foreshadow the making of such an application.
The application was refused principally for the same reasons provided by Duggan J in Seek Justice, where an identical application to transfer the proceedings was made before, and refused by, her Honour. Nothing had changed in Seek Justice’s circumstances since the previous application was dealt with by the Court. In Seek Justice Duggan J relevantly opined as follows (at [32]-[39]):
32 The Applicant sought an order pursuant to s 149B(1) of the CP Act to transfer the proceedings to the Supreme Court. Section 149B relevantly provides:
149B Transfer of proceedings between Supreme Court and Land and Environment Court
(1) If either the Supreme Court or the Land and Environment Court is satisfied, in relation to proceedings before it, that it is more appropriate for the proceedings to be heard in the other court, it may, on application by a party to the proceedings or of its own motion, order that the proceedings be transferred to the other court.
…
(3) No appeal lies against a decision of the transferor court to make, or not to make, an order under this section.
33 I understand that the Applicant contended that the transfer of the proceedings was necessary as the Applicant had pleaded issues in the substantive proceedings that were not within the Court’s jurisdiction pursuant to the provisions of the Land and Environment Court Act 1979 (NSW) (LEC Act), relating to:
(1) A declaration that the Council had acted in breach of ss 6 and 18 of the GIPA Act; and
(2) A declaration of invalidity of cl 70A of the CLM Regulation.
34 This order was also sought on the basis that part of the leave sought in the Draft Further Amended Summons raised that the Council had acted in breach of s 8(1) of the Roads Act which declaration was also beyond the scope of the Court’s jurisdiction. As outlined above, I decline to grant leave to permit the provisions of the Roads Act to be pleaded and therefore this consideration does not arise in the context of Orders 5 to 8 of the 20 September 2024 Amended Motion.
35 The Applicant appeared to concede that the declaration relating to the GIPA Act was beyond power. This part of the pleading has been present in the Summons since its inception in January 2023. The Council has, in its response to the Summons filed 21 March 2024, pleaded the lack of jurisdiction.
36 As to the validity of cl 70A of the CLM Regulation, this matter too has been pleaded since the first iteration of the Summons. The Council also pleaded a lack of jurisdiction as to this ground in its response to the Summons. The Applicant does not concede that this declaration is beyond power and relies upon the Court’s ancillary jurisdiction in s 16(1A) of the LEC Act. The Council conceded that whether the declaration was capable of falling within the Court’s ancillary jurisdiction was arguable.
37 In exercising the discretion conferred by s 149B of the CP Act I am required to be satisfied that it is more appropriate for the proceedings to be heard in the [Supreme Court]. The substantive proceedings (as identified above) raise a multiplicity of separate claims that on their face appear to fall within the jurisdiction conferred by the LEC Act, and it is notable that the jurisdiction of those other claims is not challenged by the Council. If a transfer were to be made, the Supreme Court would be vested with the determination of the whole of the proceedings. I am not satisfied that it is more appropriate that the proceedings be heard in the Supreme Court for the following reasons:
(1) The GIPA Act claim and the cl 70A of the CLM Regulation claim are discrete claims and are separate from and not interrelated with any of the other claims;
(2) The Applicant has elected to plead claims that are arguably beyond the scope of the Court;
(3) The issue of jurisdiction has been known to the Applicant for some time and there is no explanation as to why the application is made so late in the progress of the proceedings to its hearing date that has been fixed for November 2024 (being fixed for that date in July 2024);
(4) The majority of the claims in the Summons are, on their face, within the jurisdiction of the Land and Environment Court and that venue is the more appropriate venue for the determination of matters within its statutory jurisdiction; and
(5) In the event that there is no relevant jurisdiction those parts of the claim can be agitated by the Applicant in the appropriate Court. The retention of the proceedings in the Land and Environment Court does not prejudice the Applicant in any material way.
38 For those reasons, I decline the application to transfer the proceedings, and as a consequence the application to vacate the directions hearing and the hearing date does not arise. I decline to make Orders 7 and 8 of the 20 September 2024 Amended Motion.
39 In the event that the Court declined the transfer the Applicant sought a declaration that all claims were within jurisdiction. The Applicant was unable to articulate a compelling reason as to why this should be undertaken, in effect a determination of a separate question in the context of the hearing of the 20 September 2024 Amended Motion. I decline to make such a declaration as:
(1) There has been no argument in the 20 September 2024 Amended Motion hearing that would permit me to be satisfied that such claims are within jurisdiction. Absent such argument I cannot be satisfied, in the relevant sense, that such a declaration should or could be made in all of the claims pleaded;
(2) At the very least the Applicant conceded that the GIPA Act claim is beyond jurisdiction. It would therefore be inappropriate to make such a declaration in respect of that claim; and
(3) As to the cl 70A of the CLM Regulation claim, whether it is within jurisdiction is an issue upon which the parties are joined in issue. It is appropriate that such issue be fully argued at the final determination of the substantive proceedings once evidence has been adduced and argument heard.
HER HONOUR: I'm reading her Honour's judgment, in particular, where her Honour deals with the issue of the application to transfer to the Supreme Court, at paragraphs - this is in the matter of Seek Justice Pty Ltd v Minister for Lands and Water [2024] NSWLEC 96 by Duggan J. Paragraphs 32 through to 40 deal with this issue. Perhaps either 40 to 39, but in any event, the application was made before her Honour, and she refused. And there's nothing, having read those paragraphs, that indicates that there was anything that was stood over to the trial judge - that's me, today, to deal with, in relation to a transfer.
And Mr Jeray, Seek Justice has had plenty of time, to make another application for transfer, or to appeal it, but I understand that you've appealed her Honour's decision. No, not it hasn’t, no. I do apologise sir, I'm getting the appeals confused. You've certainly had plenty of time to appeal her Honour's decision, and that has not occurred. So, there is no application before me today to transfer this matter to the Supreme Court. I'm here today to deal with the substantive proceedings. So, let's get on with it please. Mr Jeray, unless you can show me something somewhere--
JERAY: Yes, I'm trying to find it, I did see it, but just can't find it now.
HER HONOUR: You'll need to show it to me.
JERAY: Yes.
HER HONOUR: Otherwise, we're just going to deal with the hearing, please.
JERAY: I understand that, thank you.
HER HONOUR: Okay, I'm waiting.
JERAY: I'd have to do a search on the computer for that, because that would be faster. I just can't see here at the moment - I know her Honour was talking about when I read it, to bring up the issue when the issue is dealt with by the Court at the hearing.
HER HONOUR: Which paragraph are you reading from?
JERAY: I haven't got it here in front of me. I'm trying to find it. That's what I recall reading. I think it's paragraph 39.
HER HONOUR: Which sub paragraph in paragraph 39?
JERAY: The one that's numbered 3.
HER HONOUR: All right, I'll read that out. I'll read out the chapeau.
"In the event that the Court declined the transfer, the applicant sought a declaration that all claims were within jurisdiction." The applicant was unable to articulate a compelling reason as to why this should be undertaken, in effect, a determination of a separate question in the context of the hearing of the 20 September 24 amended motion. I decline to make such a declaration as--"
And so, her Honour then gives her reasons for declining to make a separate determination, that is, the declarations that you sought. As to clause 70A of the Crown Land Management Regulation claim, whether it is within jurisdiction is an issue upon which the parties are joined in issue. It is appropriate that such issue be fully argued at the final determination - that's today, for the substantive proceedings once evidence has been adduced, and evidence heard.
So, her Honour was not standing over any issue of transfer. Her Honour was simply saying that whether or not there was an issue as to whether a s 70A of the Crown Land Management Regulation was within the Court's jurisdiction, was a matter that would be dealt with in the substantive proceedings, that is today. Right, so there's no issue of transfer that's being raised there.
JERAY: Yes, but if the Court doesn’t have the jurisdiction to deal with it, then the issue of transfer comes up.
HER HONOUR: No, no it doesn’t. It just means the Court has no jurisdiction to deal with it, and the Court will make a determination of that. What follows from that, will be a matter for you, and potentially separate proceedings in the Supreme Court. That is how I intend to deal with it, Mr Jeray. So, again, please, let's get on with the substantive hearing.
JERAY: I don’t think this is a very fair way of dealing with the matter. The way I see it is that says there's an opportunity there, for it to be transferred into the Court--
HER HONOUR: No, you are wrong, Mr Jeray. That's not what it says at all. And you certainly didn’t foreshadow anything like this, when the matter came before me not that long ago--
JERAY: Well, I think it was obvious--
HER HONOUR: --on the 20th. Really, just six days ago.
JERAY: Well, I think it is obvious that it should - that it was an issue, because it's in the summons--
HER HONOUR: It's an issue.
JERAY: --that we're dealing with 78.
HER HONOUR: It's an issue that will be dealt with, in the substantive proceedings. And it may well be within jurisdiction. I don't know, because I haven't heard argument on it from you, I haven't heard argument on it from the others. So, it needs to be determined. Her Honour refused to determine it then and there, when it was before her, on 20 September, or when judgment was handed down on the 25th, but she otherwise declined to transfer.
JERAY: Well, the point to transfer, is because the Court doesn’t have jurisdiction--
HER HONOUR: Well, you should have appealed her decision, Mr Jeray, and you didn’t.
JERAY: Well, this is prejudicing the applicant now. It clearly, I think, I believe that says that issue is to be dealt with at these hearings.
HER HONOUR: Well, I have read that, and I do not, and I am ruling on it accordingly. So, let's get on with the substantive hearing, please.
On the second day of the hearing, Seek Justice provided the Court with a draft of further amendments that it proposed to make to the summons. Included was Part C of the relief and grounds, notwithstanding that Seek Justice had conceded that “the Court does not have the power to deal with it” (T67:30). The rationale for its inclusion was to facilitate the transfer of that discrete question, namely, the cl 70A of the CLM Regulations issue, to the Supreme Court pursuant to s 149B of the Civil Procedure Act 2005 (“CPA”). This was said by Jeray to distinguish it from previous applications to transfer the proceedings made by Seek Justice.
The respondents submitted that the second transfer application ought to be refused, first, on the basis that it had already been determined by both Duggan J in Seek Justice and by myself on the first day of the hearing, and second, because properly construed, s 149B of the CPA does not permit the transfer of separate issues but only the entire proceedings. Put another way, the Court has no power to transfer only Part C of the summons to the Supreme Court for determination. After an exchange between the Court and Jeray where the Court expressed its view that it was likely to accept the submissions of the respondents, Seek Justice withdrew the second application to transfer (T75:01-02).
During the course of the first day of the hearing, Seek Justice amended the October summons by withdrawing Part B of the relief and grounds (The Gully Cooperative Management Committee meetings issue) (T34:37-48).
Seek Justice foreshadowed further amendments to the summons to reflect the oral submissions in chief made by Jeray during the first day of the hearing. At the commencement of the second day of the hearing, such an application was made. The changes had been reduced to writing as requested by the Court.
In the result, Part C of both the relief and the grounds in the summons was withdrawn by Seek Justice in its entirety (the cl 70A of the CLM Regulations issue) (T75:32-41). This resulted in the dismissal of the summons in respect of the Minister for Lands and Water on the agreed basis that each party would bear their own costs of the proceedings.
Finally, for completeness and by way of clarification, Seek Justice commendably confirmed that the grounds pleaded in Part E (grounds 12 to 15) dealing in part with the validity of the plans of management issue, were no longer extant (T54:19-55:06). Curiously, however, the Part E relief sought in the summons remained. I have presumed that this was an oversight as no party, including Seek Justice, made submissions in respect of the prayers, and nor could they, given that the basis for the relief was no longer being pressed.
(a) the lawfulness of the use of the carpark and bus stop issue in Part A; (b) the validity of the plan of management issue in Part D (ground 11(b)(i) and (iii) only); and (c) the validity of the Codes of Meeting issue in Part F.
Regarding the temporary use of an existing bus zone:
Only the existing bus stop is to be used for the bus to stop and pick up/set down;
The marshals do not undertake traffic control with stop/go bats unless they are accredited traffic controllers (blue card) and operating under a proper Traffic Control Plan (TCP). However, the marshals can assist in advising parking vehicles;
The marshals are identifiable and suitably attired in correct PPE with high visibility vests;
Parking cannot be restricted to CMS users as it is also available for general public users of The Gully;
Through traffic lanes are maintained at all times for access between Gates Avenue and Pine/Warriga Streets for general public usage;
Parking is not permitted in the middle of the road near the fountain as this is contrary to existing parking and would require a full TCP and accredited traffic controllers on site to direct traffic for the period;
Signage should be placed in appropriate locations at entry points on the approach roads indicating Overflow Parking for CMS Park/ride Area to assist in traffic movement; and
Noise levels should be kept to a minimum especially in the morning to reduce impacts on neighbouring residents.
On 21 December 2023 the Council again granted permission to the Church to use the carpark for overflow parking for the Summer School from 7 to 12 January 2024, and to run a shuttle service from the bus stop to the KCCC, subject to conditions. Conditions 7 to 13 were concerned with the temporary use of the existing bus zone. In particular:
(a) only the existing bus stop was to be used for the bus to stop and pick up/set down (condition 7); (b) parking could not be restricted to the Church users because it was also available to the general public who used The Gully (Frank Walford Park) (condition 10); and (c) signage was to be placed in appropriate locations indicating the overflow parking for the Summer School park/ride area to assist in traffic movement (condition 13).
On both occasions, the Council stated that it had consulted with the Traditional Owners of the site who did not object to the use of the carpark in the manner proposed (there was an oblique complaint by Seek Justice that there had been no consultation with, or permission given by, the First Nations owners but this was incorrect: T110:06-11).
From Seek Justice’s oral submissions it appears that the central allegation in respect of this issue is that “parking and bus stops” are either permissible with consent – which was not granted – or are prohibited land uses under the C2 Environmental Conservation and RE1 Public Recreation land zones in the Blue Mountains Local Environmental Plan 2015 (“the LEP”).
There are several reasons why the claim cannot succeed. Seek Justice has the onus of establishing that the impugned land use is not exempt development (Heatscape Pty Ltd v Mahoney *(*No 2) [2016] NSWLEC 45; (2016) 217 LGERA 332 at [208]-[210]). Clause 1.9 of the LEP renders that instrument, including the zoning table, subject to any State environmental planning policy (see s 3.28(1)(a) of the Environmental Planning and Assessment Act 1979 (“EPAA”)). Thus, for the purposes of s 4.1 of the EPAA, if a State environmental planning policy, or some other environmental planning instrument, provides that specific development may be lawfully carried out without the need for development consent, it may be carried out (and see s 4.4 of the EPAA). Exempt development does not require development consent under Pt 4 of the EPAA (s 1.6(1)(a) of the EPAA).
Turning first to parking, the carpark is on public land owned by the Council and is exempt development pursuant to cl 2.21(1) of the State Environmental Planning Policy *(*Transport and Infrastructure) 2021 (“the SEPP”) which provides as follows:
2.21 Exempt development carried out by public authorities for purposes in Schedule 1
(1) Development for a purpose specified in Schedule 1 is exempt development if—
(a) it is carried out by or on behalf of a public authority, and
(b) it meets the development standards for the development specified in Schedule 1, and
(c) it complies with section 2.20.
In the present case there can be no doubt that the use of the land as a carpark was being carried out by, or on behalf of, the Council. It was an at grade carpark, it was open, it was not in a Growth Centre, it did not exceed 200 spaces, and it had access to a road (that is, Gates Road) (Schedule 1 of the SEPP). Seek Justice must demonstrate that the use of the land for a carpark did not fit this criteria and was therefore not exempt development. It has not done so.
To the extent that Seek Justice sought to separately challenge (this was not clear) the use by the Church of the carpark for the purposes of the Summer School, the carpark is a public carpark, the use of which is open to anyone. In other words, consent was not required for the congregation to use it. Indeed that access by the public was to be maintained at all times was a condition of the approvals granted by the Council to use it for the purpose of overflow carparking.
During the course of oral argument, Seek Justice attempted on several occasions to reagitate the issue of the lawfulness of the road to the carpark but, as was explained to Jeray, the inclusion of this issue was in the summons rejected by Duggan J in Seek Justice and the Court would not traverse her Honour’s decision in this regard.
For the sake of completeness, however, the Court notes that development for the purpose of a road is exempt under cl 2.109(1) of the SEPP.
As the Council observed, the allegation concerning the use by the Church of the bus stop is somewhat more opaque, but appears to be directed to the utilisation of the Church of an area to pick up and drop off persons using the shuttle service to transport them to and from the KCCC.
There are several responses to the grievance. First, Seek Justice has not established that use of the pick up and drop off area at the existing bus stop required consent. The designation of a location, by signage or some other means, where buses could stop to allow attendees of the Summer School to board and alight was neither prohibited nor required consent. Clause 2.113(2) of the SEPP specifically designates bus stops as a form of exempt development:
(2) The construction of bus stops or bus shelters (including the construction or installation of any associated kerbs, access paths or ramps, lighting or signage) carried out by or on behalf of a public authority, or an accredited bus service operator providing regular bus services at those stops or shelters, is exempt development if—
(a) the development complies with section 2.20, and
(b) the stops or shelters—
(i) have a height above the footpath of not more than 3.2 metres, and
(ii) have only non-reflective finishes, and
(iii) do not obstruct the line of sight of vehicular traffic or pedestrian traffic, and
(c) the design of any associated kerbs, access paths and ramps, lighting and signage is in accordance with AS 1428 and the Disability Standards.
Second, and in any event, as the approval letters referred to above indicate, approval was granted by the Council for the use of the existing (not newly created) bus stop subject to conditions.
Third, to the extent that the use of the bus stop was for a limited duration during the day, I accept the submission of the Council that it was an incidental activity to the lawful use of the carpark, and therefore, separate consent was not, in any event, required for this activity.
It follows that for the reasons given above, the lawfulness of the use of the carpark and bus stop issue must be dismissed.
The claims in Part D are largely to the effect that the decision on 25 October 2022 to adopt the Katoomba Falls Reserve *(*Part) Plan of Management (“the Plan of Management”) is invalid because it breaches s 40(3) of the LGA by failing to hold a public hearing as required by s 40A of that Act. The alleged breach occurred because the public hearing was online and not in-person (ground 11(b)(i)) and because the hearing only concerned the categorisations of land instead of all of the proposals within the Plan of Management (ground 11(b)(iii)).
Section 40 of the LGA provides as follows (emphasis added):
40 Adoption of plans of management
(1) After considering all submissions received by it concerning the draft plan of management, the council may decide to amend the draft plan or to adopt it without amendment as the plan of management for the community land concerned.
(2) If the council decides to amend the draft plan it must either—
(a) publicly exhibit the amended draft plan in accordance with the provisions of this Division relating to the public exhibition of draft plans, or
(b) if it is of the opinion that the amendments are not substantial, adopt the amended draft plan without public exhibition as the plan of management for the community land concerned.
(2A) If a council adopts an amended plan without public exhibition of the amended draft plan, it must give public notice of that adoption, and of the terms of the amended plan of management, as soon as practicable after the adoption.
(3) The council may not, however, proceed to adopt the plan until any public hearing required under section 40A has been held in accordance with section 40A.
40A Public hearing in relation to proposed plans of management
(1) The council must hold a public hearing in respect of a proposed plan of management (including a plan of management that amends another plan of management) if the proposed plan would have the effect of categorising, or altering the categorisation of, community land under section 36(4).
(2) However, a public hearing is not required if the proposed plan would merely have the effect of altering the categorisation of the land under section 36(5).
Council advertised the public hearing of the Plan of Management in a number of ways. For example, a notice was published in the Blue Mountains Gazette on 1 June 2022 in these terms:
The Council’s Facebook page promoted the public hearing, stating that the “meeting will be conducted on-line on Wednesday 22 June from 6:00pm to 7:30pm”.
The Council’s Public Hearing Report dated 27 June 2022, noted that among other things, during the public meeting the recategorisation of the land the subject of the Plan of Management was discussed. The Report noted that:
There were no members of the public in attendance. Despite Council’s extension notification of the Public Hearing and a request for registrations to attend at the Council Chambers or via teleconference, only one member of the public sought to attend, in the afternoon prior to the hearing, but did not join the hearing nor contact Ms Taylor [the Council’s Project Officer – Assets, Open Space and Recreation] to take part in the hearing.
The public hearing was conducted by teleconference between 6.00 pm and 7.00 pm on 22 June 2022.
It was noted in the Public Hearing Report that the Chair had indicated during the public hearing that “comments, suggestions, and statements about the draft PoMs [plans of management] would be recorded but were matters that should also be direct [sic] in written submissions to the public exhibition of the draft PoMs”.
In his second affidavit, Jeray deposed to the fact that in the afternoon of the scheduled day of the public hearing, he made enquiries with the Council as to whether he could attend the public meeting in person. He was informed later that afternoon that as he was the only putative in-person attendee and because he had not registered for physical attendance by 2.00 pm that day, that the meeting would be conducted online and that he could only attend virtually. An email exchange between Jeray and Nicola Taylor of the Council in the late afternoon of that day confirms that he was told by the Council that because he had not registered for in-person attendance by 2.00 pm that he could only attend the public hearing by Teams (not Zoom as advertised). Jeray does not have internet access.
Perhaps understandably, Jeray feels aggrieved that the requirement that he needed to register by 2.00 pm in order to secure in-person attendance was not notified by the Council, and therefore, he was not aware of it.
However, Jeray was invited to further contact Taylor and was provided with a mobile number to do so. He was also expressly afforded the opportunity of being taken through the relevant presentation on the Plan of Management without the imposition of a time limit. Comments by him were invited. There is no evidence that Jeray availed himself of any of these opportunities to be heard.
The term “public hearing” is not defined for the purposes of ss 40(3) or 40A of the LGA. Section 47G of that Act merely states:
47G Public hearings
(1) In this section, public hearing means any public hearing required to be arranged under this Part.
(2) The person presiding at a public hearing must not be—
(a) a councillor or employee of the council holding the public hearing, or
(b) a person who has been a councillor or employee of that council at any time during the 5 years before the date of his or her appointment.
(3) Not later than 4 days after it has received a report from the person presiding at the public hearing as to the result of the hearing, the council must make a copy of the report available for inspection by the public at a location within the area of the council.
734 Public hearings by a council
(1) This section applies to a public hearing that by this Act (section 29(1) excepted) is required to be arranged by a council with respect to any matter.
(2) The public hearing is to be conducted in such manner as is determined by the council, subject to this Act and the regulations.
(3) A report of the public hearing must be furnished to the council and the council must make the report public.
(4) The council must consider the report before making any decision with respect to the matter to which it relates.
The Public Hearing Report discloses that a public hearing was conducted by “teleconference” between 6.00 pm and 7.00 pm on 22 June 2022. The Report went on to detail who convened and managed the hearing and what was discussed. It is not clear whether the “teleconference” referred to was by telephone only or included online communication platforms (such as Teams), however, in the absence of any evidence to the contrary the Court infers that the hearing took place as advised by Taylor.
While Jeray was no doubt inconvenienced by the Council’s pivot to an online public hearing and the disorganised manner in which the hearing was notified (that is, neither the requirement for in-person attendance to register by 2.00 pm nor the late change from Zoom to Teams appears to have been advertised anywhere), this is not the test. Nor was any breach of procedural fairness pleaded by him (he was, in any event, given the opportunity of participating in the public hearing and to comment upon the presentation). Rather, the question is whether the public hearing held on 22 June 2022 was a “public hearing” for the purpose of ss 40(3) and 40A of the LGA. In my view it was insofar as the public could attend, albeit not in-person. There is nothing in the legislation mandating in-person attendance in order to constitute a “public hearing” for the purpose of the LGA. It follows that there has been no breach of ss 40(3) or 40A of the LGA.
Finally, there is the fact that the Public Hearing Report reveals that the Plan of Management was not adopted at the public meeting of the Council. That is, no actual decision was made by the Council on that occasion to adopt the Plan, rather there was merely a presentation in respect of it. There is, therefore, arguably nothing to impugn under this ground.
No cogent oral or written submissions were put by Jeray in support of ground 11(b)(iii) of the summons and there is nothing in the Public Hearing Report that supports it. First, the claim by Seek Justice that the Council was required to consider “all the proposals within the plan of management” pursuant to either ss 40 or 40A of the LGA, and not merely the “categorisation proposal”, is not readily understood. Second, s 40A of the LGA appears, on its face, to contemplate and expressly confer power upon the Council to do exactly that which Seek Justice takes issue with, namely, consider the categorisation of community land. And third, to reiterate, the Council did not decide to adopt or amend the Plan of Management at the public hearing; it merely presented the proposed Plan of Management for information and discussion (see s 40 of the LGA).
For these reasons, this ground of review must be dismissed.
This ground asserts that all or part of the provisions of the Council’s Code of Meeting Practice are invalid insofar as they are inconsistent with ss 9, 10, 10D, 11 and 748(1) of the LGA and cl 236 of the LG Regulations because the “pre-meeting briefing sessions” are in fact Council meetings which are not, but should be, held in public.
For the sake of completeness, the provisions of the LGA identified by Seek Justice are set out in full:
9 Public notice of meetings
(1) A council must give notice to the public of the times and places of its meetings and meetings of those of its committees of which all the members are councillors.
(2) A council and each such committee must have available for the public at its offices and at each meeting copies (for inspection or taking away by any person) of the agenda and the associated business papers (such as correspondence and reports) for the meeting.
(2A) In the case of a meeting whose agenda includes the receipt of information or discussion of other matters that, in the opinion of the general manager, is likely to take place when the meeting is closed to the public—
(a) the agenda for the meeting must indicate that the relevant item of business is of such a nature (but must not give details of that item), and
(b) the requirements of subsection (2) with respect to the availability of business papers do not apply to the business papers for that item of business.
(3) The copies are to be available to the public as nearly as possible to the time they are available to councillors.
(4) The copies are to be available free of charge.
(5) A notice given under this section or a copy of an agenda or of a business paper made available under this section may in addition be given or made available in electronic form.
10 Who is entitled to attend meetings?
(1) Except as provided by this Part—
(a) everyone is entitled to attend a meeting of the council and those of its committees of which all the members are councillors, and
(b) a council must ensure that all meetings of the council and of such committees are open to the public.
(2) However, a person (whether a councillor or another person) is not entitled to be present at a meeting of the council or of such a committee if expelled from the meeting—
(a) by a resolution of the meeting, or
(b) by the person presiding at the meeting if the council has, by resolution, authorised the person presiding to exercise the power of expulsion.
(3) A person may be expelled from a meeting only on the grounds specified in, or in the circumstances prescribed by, the regulations.
…
10D Grounds for closing part of meeting to be specified
(1) The grounds on which part of a meeting is closed must be stated in the decision to close that part of the meeting and must be recorded in the minutes of the meeting.
(2) The grounds must specify the following—
(a) the relevant provision of section 10A(2),
(b) the matter that is to be discussed during the closed part of the meeting,
(c) the reasons why the part of the meeting is being closed, including (if the matter concerned is a matter other than a personnel matter concerning particular individuals, the personal hardship of a resident or ratepayer or a trade secret) an explanation of the way in which discussion of the matter in an open meeting would be, on balance, contrary to the public interest.
…
11 Public access to correspondence and reports
(1) A council and a committee of which all the members are councillors must, during or at the close of a meeting, or during the business day following the meeting, give reasonable access to any person to inspect correspondence and reports laid on the table at, or submitted to, the meeting.
(2) This section does not apply if the correspondence or reports—
(a) relate to a matter that was received or discussed, or
(b) were laid on the table at, or submitted to, the meeting,
when the meeting was closed to the public.
(3) This section does not apply if the council or committee resolves at the meeting, when open to the public, that the correspondence or reports, because they relate to a matter specified in section 10A(2), are to be treated as confidential.
…
748 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
236 Councils to broadcast meetings online
(1) Each meeting of a council or council committee is to be recorded by means of an audio or audio visual device.
(2) The recording is to be made publicly available on the council’s website—
(a) at the same time as the meeting is taking place, or
(b) as soon as practicable after the meeting.
(3) The recording of a meeting is to be made publicly available on the council’s website for at least 12 months after the meeting.
(4) At the start of each meeting of a council or council committee, the chairperson must inform the persons attending the meeting that—
(a) the meeting is being recorded and made publicly available on the council’s website, and
(b) persons attending the meeting should refrain from making any defamatory statements.
(5) This section does not apply to—
(a) any part of a meeting that has been closed to the public in accordance with section 10A of the Act, or
(b) a joint organisation, unless the joint organisation otherwise resolves.
(6) In this section, council committee means a committee of a council all the members of which are councillors.
360 Conduct of meetings of councils and committees
(1) The regulations may prescribe a model code of meeting practice for the conduct of meetings of councils and committees of councils of which all the members are councillors.
(2) The model code may contain both mandatory and non-mandatory provisions.
(3) A council must, not later than 12 months after an ordinary election of councillors, adopt a code of meeting practice that incorporates the mandatory provisions of the model code prescribed by the regulations. The adopted code may also incorporate the non-mandatory provisions and other provisions.
(4) A code adopted or amended by the council must not contain provisions that are inconsistent with the mandatory provisions.
(5) A council and a committee of the council of which all the members are councillors must conduct its meetings in accordance with the code of meeting practice adopted by it.
361 Preparation, public notice and exhibition of draft code
(1) Before adopting a code of meeting practice, a council must prepare a draft code.
(2) The council must give public notice of the draft code after it is prepared.
(3) The period of public exhibition must not be less than 28 days.
(4) The public notice must also specify a period of not less than 42 days after the date on which the draft code is placed on public exhibition during which submissions may be made to the council.
(5) The council must publicly exhibit the draft code in accordance with its notice.
362 Adoption of draft code
(1) After considering all submissions received by it concerning the draft code, the council may decide—
(a) to amend those provisions of its draft mandatory code that are non-mandatory provisions, or
(b) to adopt the draft code as its code of meeting practice.
(2) If the council decides to amend its draft code, it may publicly exhibit the amended draft in accordance with this Division or, if the council is of the opinion that the amendments are not substantial, it may adopt the amended draft code without public exhibition as its code of meeting practice.
363 Amendment of the code
A council may amend a code adopted under this Part by means only of a code so adopted.
Pre-meeting briefing sessions
3.33 Prior to each ordinary meeting of the council, the general manager may arrange a pre-meeting briefing session to brief councillors on business to be considered at the meeting. Pre-meeting briefing sessions may also be held for extraordinary meetings of the council and meetings of committees of the council.
3.34 Pre-meeting briefing sessions are to be held in the absence of the public.
3.35 Pre-meeting briefing sessions may be held by audio-visual link.
3.36 The general manager or a member of staff nominated by the general manager is to preside at pre-meeting briefing sessions.
3.37 Councillors must not use pre-meeting briefing sessions to debate or make preliminary decisions on items of business they are being briefed on, and any debate and decision-making must be left to the formal council or committee meeting at which the item of business is to be considered.
3.38 Councillors (including the mayor) must declare and manage any conflicts of interest they may have in relation to any item of business that is the subject of a briefing at a pre-meeting briefing session, in the same way that they are required to do so at a council or committee meeting. The council is to maintain a written record of all conflict of interest declarations made at pre-meeting briefing sessions and how the conflict of interest was managed by the councillor who made the declaration.
This Model Code of Meeting Practice for Local Councils in NSW (the Model Meeting Code) is prescribed under section 360 of the Local Government Act 1993 (the Act) and the Local Government *(*General) Regulation 2021 (the Regulation).
The Model Meeting Code applies to all meetings of councils and committees of councils of which all the members are councillors (committees of council). Council committees whose members include persons other than councillors may adopt their own rules for meetings unless the council determines otherwise.
Councils must adopt a code of meeting practice that incorporates the mandatory provisions of the Model Meeting Code.
A council's adopted code of meeting practice may also incorporate the non-mandatory provisions of the Model Meeting Code and other supplementary provisions. However, a code of meeting practice adopted by a council must not contain provisions that are inconsistent with the mandatory provisions of this Model Meeting Code.
The provisions of the Model Meeting Code that are not mandatory are indicated in red font.
A council and a committee of the council of which all the members are councillors must conduct its meetings in accordance with the code of meeting practice adopted by the council.
The Model Meeting Code also applies to meetings of the boards of joint organisations and county councils. The provisions that are specific to meetings of boards of joint organisations are indicated in blue font.
In adopting the Model Meeting Code, joint organisations should adapt it to substitute the terms "board" for "council", "chairperson" for "mayor", "voting representative" for "councillor" and "executive officer" for "general manager".
In adopting the Model Meeting Code, county councils should adapt it to substitute the term "chairperson" for ''mayor" and "member" for "councillor".
| | Pre-meeting briefing sessions | | | 3.33 | Prior to an ordinary meeting of the council, the chief executive officer, together with or independently from the Mayor, may arrange a pre-meeting briefing session to brief councillors on business to be considered at the meeting. Pre-meeting briefing sessions may also be held for extraordinary meetings of the council and meetings of committees of the council. This clause does not limit the chief executive officer and/or the Mayor including in the briefing agenda such other items of business that are necessary to raise with Councillors to assist them in the conduct of their civic duties. | | | 3.34 | Pre-meeting briefing sessions are to be held in the absence of the public. Specialists or consultants may be invited from time to time by the chief executive officer as required to provide services to the briefing. | | | 3.35 | Pre-meeting briefing sessions may be held by audio-visual link. | | | 3.36 | The chief executive officer or a member of staff nominated by the chief executive officer is to attend pre-meeting briefing sessions. | | | 3.36 A) | The mayor, or the deputy mayor is to chair pre-meeting briefing sessions. | | | 3.37 | Councillors must not use pre-meeting briefing sessions to debate or make preliminary decisions on items of business they are being briefed on, and any debate and decision-making must be left to the formal council or committee meeting at which the item of business is to be considered. | | | 3.38 | Councillors (including the mayor) must declare and manage any conflicts of interest they may have in relation to any civic duties, including items of business at briefing sessions. Declarations must be made in writing to the mayor, chief executive officer (or delegate) so that appropriate records may be retained, and otherwise declared in accordance with clause 16.1 of this Code. | | | 3.38 A) | The information provided to Councillors at briefing sessions is aimed at Councillors for the purposes of assisting Councillors in their civic functions and must be maintained confidentially. | Code of Conduct clause 8.11 (g) |
The Council’s Code of Meeting Practice was largely identical to cll 3.33 to 3.38 of the Model Code. Seek Justice was not able to identify any inconsistency between the two Codes to render the Council’s Code of Meeting Practice invalid by dint of operation of s 360(4) of the LGA.
There is no definition of “meeting” in the LGA or the LG Regulations. However, when regard is had to the context in which the term is used in the LGA, for example, in Ch 12, Pt 2, Div 2 of the LGA dealing with “Other provisions concerning council meetings”, it becomes apparent that what is contemplated by a “meeting” under the LGA is a formal council meeting where business is transacted and decisions are being debated and made. These are the very acts that are expressly excluded from occurring during the pre-meeting briefing sessions (see cl 3.37 of either Code).
To construe the provisions of the LGA identified in ground 16 in the manner suggested by Seek Justice would be to traverse the principles of local government set out in ss 8A, 8B and 8C of the LGA. It would also have the effect of practically fettering the roles of the Council (s 223), the mayor (s 226) and the councillors (s 232). The objects of effective management of Council affairs would be undermined if councillors could not be briefed as contemplated by the Code of Meeting Practice and Model Code. While Seek Justice was correct to submit that pre-briefing sessions are not wholly transparent, the ability to hold these sessions represent the legislative balance to be struck between the efficient conduct of the business of the Council and the transparency and accountability to be afforded to the public to scrutinise that business. In this context it is important to recall that council meetings are to be held in public and that councillors are required to provide reasons for their decisions and to make these reasons publicly available (see generally Ch 12, Pt 2, Div 2).
The short answer to Seek Justice’s arguments is that both the Model Code and the Code of Meeting Practice permit pre-meeting briefing sessions prior to the ordinary and extraordinary meetings of the Council in order to brief councillors on the business to be considered at the meetings. Because the Council’s pre-meeting briefing sessions are not council meetings for the purposes of the LGA, ss 9, 10, 10D and 11 of the LGA do not apply and no question of their breach arises. The same analysis and conclusion applies to the contention concerning the asserted breach of cl 236 of the LG Regulations.
Ground 17 of Part F was difficult to discern given that it made a partial reference to ground 13, which was no longer operative.
Moreover, to the extent that this ground asserted that cll 3.33 to 3.38A of the Code of Meeting Practice were invalid because cll 3.33 to 3.38 of the Model Code were not mandatory provisions, it is impossible to conceive how this gives rise to invalidity.
As Seek Justice correctly observed, cll 3.33 to 3.38 of the Model Code are not mandatory and the Council is not required to adopt them. In this instance, however, the Council did adopt them, albeit with some amendments. It had the power to do so pursuant to ss 360 and 362 of the LGA. In adopting the Code of Meeting Practice it was required to apply the mandatory provision of the Model Code but could accept, reject, or modify all or some of the non-mandatory provisions (ss 360(3) and 362(1) of the LGA). The only prohibition on the exercise of its power was that the Council could not adopt or amend a code containing provisions that were inconsistent with the mandatory provisions of the Model Code (s 360(4) of the LGA). But, and to reiterate, the Council was empowered to adopt and amend cll 3.33 to 3.38 of the Model Code concerning pre-meeting briefings because these were non-mandatory provisions (they were written in red font).
Ground 18 appears to challenge the last sentence of cl 3.33 on the grounds that it is contrary to the same provision of the LGA raised above in the context of ground 16. The same analysis and findings result.
Furthermore, by “including in the briefing agenda such other items of business that are necessary to raise with the Councillors to assist them in the conduct of their civic duties” the relevant provisions of the LGA are not being breached. Meetings must still be in public and copies of all materials relied upon by the Council during the meeting must be made available to the public. There is no requirement in the LGA that the raising of other items of business by the chief executive officer or the Mayor to assist the councillors in the performance of their duties must be done at a public meeting.
In summary, having regard to the written and oral arguments of the parties, grounds 16, 17 and 18 must principally be dismissed because, first, the sections of the LGA and LG Regulations referred to in the summons relate to the holding of public meetings, the notice of such meetings, attendance at these meetings, and public access to documents. Although the term “meeting” is not defined in the legislation, when regard is had to the context in which the word is used (in Pt 1 of Ch 4 and Div 2 Pt 2 of Ch 12), it is tolerably clear that the provisions upon which Seek Justice relies to impugn the Code of Meeting Practice and the Model Code relate only to the formal Council meetings at which decisions are debated and made by that body. It is these sections that serve the important public interest of facilitating transparency in local government decision-making.
Second, having said this, the statutory regime permits the adoption by the Council of codes of conduct to govern meetings. These codes clearly delineate public meetings from pre-meeting briefing sessions, the latter of which are envisaged to occur prior to the holding of the former. Pre-meeting briefing sessions are not, as their name suggests, meetings for the purposes of the LGA or the LG Regulations.
Seek Justice was not able to proffer any evidence of any decision having been debated or made during these sessions by the Council. The pre-briefing sessions are not meetings engaging the sections of the LGA and the LG Regulations. Rather, the sessions enable the councillors to be briefed in order to be informed and properly prepared to exercise their decision-making function. This is a productive use of finite public resources.
Third, Seek Justice’s entirely legitimate concern that pre-meeting briefing sessions allow matters to be discussed without public knowledge, and therefore, absent public participation must be weighed against the inefficiency of all meetings being held in public. As stated above, provided that no decision-making power is exercised at the pre-meeting briefing sessions, the balance between transparency and efficiency has been struck by the adoption of the Code of Meeting Practice and the promulgation of the Model Code.
For all of these reasons, the Model Code and the Code of Meeting Practice do not contravene the LGA or the LG Regulations and the grounds of review contained in Part F must be rejected.
59.10 Time for commencing proceedings
(1) Proceedings for judicial review of a decision must be commenced within 3 months of the date of the decision.
(2) The court may, at any time, extend the time for commencing proceedings fixed by subrule (1).
(3) In considering whether to extend time under subrule (2), the court should take account of such factors as are relevant in the circumstances of the particular case, including the following—
(a) any particular interest of the plaintiff in challenging the decision,
(b) possible prejudice to other persons caused by the passage of time, if the relief were to be granted, including but not limited to prejudice to parties to the proceedings,
(c) the time at which the plaintiff became or, by exercising reasonable diligence, should have become aware of the decision,
(d) any relevant public interest.
(4) This rule does not apply to proceedings in which there is a statutory limitation period for commencing the proceedings.
(5) This rule does not apply to any proceedings in which the setting aside of a decision is not required.
The proceedings were commenced on 25 January 2023. It is therefore more than arguable that several of the decisions impugned by Seek Justice in the summons were made prior to the three month period stipulated in r 59.10(1) of the UCPR, and as a consequence, leave is required pursuant to r 59.10(2) of the UCPR to challenge them.
The two decisions that the Council argued required leave to review were:
(a) first, the approval by the Council of the use of the carpark and bus stop at 21-27 Gates Avenue; and (b) second, the decision of the Council to adopt cll 3.33 to 3.38A of the Code of Meeting Practice.
Seek Justice did not formally seek an extension of time to challenge the two decisions identified above, however, for the sake of completeness and because the issue was raised by the Council, the Court shall endeavour to determine it.
The principles relevant to an application for leave under r 59.10(2) of the UCPR were enumerated in Wingecarribee Shire Council v Uri Turgeman trading as Uri T Design [2018] NSWLEC 146 (at [34]):
34 They may be summarised as follows:
(a) the applicant bears the onus of establishing why the Court should exercise its discretion to extend time in his or her favour;
(b) the factors to be considered on any application for leave to extend time are not limited to those in r 59.10 of the UCPR, but include:
(i) the length of the delay;
(ii) the reasons for the delay (noting that the failure to seek legal advice is not a compelling explanation); and
(iii) whether the applicant has a fairly arguable case;
(c) the weight to be given to relevant factors will depend upon the circumstances of the particular case and will require the Court to carry out a balancing exercise;
(d) the question of potential prejudice to a party caused by the delay is a significant consideration;
(e) the rule of law is strengthened by provisions such as r 59.10 of the UCPR requiring the discipline of bringing proceedings within a reasonable time so that the proper business of government and the reasonable interests of third parties are not unjustly prejudiced;
(f) in considering r 59.10 of the UCPR, it should be borne in mind that a claimant cannot fairly be criticised for failing to take action before he or she knew, or by exercising reasonable diligence should have known, that there was anything to take action about (Regional Express Holdings Ltd v Dubbo City Council *(*No 2) [2013] NSWLEC 113 at [7] and Moorebank Recyclers at [14]);
(g) in considering delay in an application for extension of time the Court has frequently made a distinction as to the unreasonableness of the delay on the basis of intention. There is a difference between intentional or contumelious delay (Tomko v Palasty *(*No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [56], that is, delay caused by “deliberate inaction” (IPM at [82]) or “an intentional decision to delay” (Moorebank Recyclers at [52]), and delay which is merely the result of a “bona fide mistake or blunder” (Tomko at [56]), mere “oversight” (IPM at [82]), or caused by seeking to clarify rights and trying to solve the matter without litigation (Yves Deyris at [13]); and
(h) there is danger in placing too much emphasis on the prospects of success. To do so invites the parties to treat the application as a dress rehearsal for the full appeal (Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at [9]). It is not necessary, or appropriate, for the applicant to do more than demonstrate a fairly arguable case. It is not necessary nor appropriate to demonstrate in any detail the prospects of success (Tomko at [58]).
18 The discretion to extend time is given for the purpose of enabling the Court to do justice between the parties, thereby ensuring that the time limitation does not become an instrument of injustice: per McHugh J in Gallow v The Honourable Justice Dawson [1990] HCA 30; (1990) 64 ALJR 458 at 459. Accordingly as his Honour later observed in Re Commonwealth of Australia; Ex Parte Marks [2000] HCA 67; (2000) 75 ALJR 470 at [15]:
An extension of time for seeking relief against a decision or judgment can only be granted if it is necessary to do justice between the parties. That means that it is necessary to have regard to the history of the matter, the conduct of both parties, the nature of the litigation and the consequences for the parties of a grant or refusal of the extension.
Applying these principles to the facts of the present proceedings all but compels a refusal to grant leave. First, for the reasons given above there does not exist a fairly arguable case as to the invalidity of either decision. Second, no reasons, other than the fact that Seek Justice is an unrepresented litigant (which I have taken into account), had been advanced for the delay, which in relation to the challenge to the use of the relevant land for carparking and a bus stop, is likely to be considerable. Third, Seek Justice has no interest in any of the decisions under review. Fourth, there is no real public interest in upholding the challenges. Fifth, there is, by contrast, very real prejudice to the public interest if the challenge to the Code of Meeting Practice is upheld given the implications for past decisions of the Council where pre-meeting briefing sessions were held. Sixth, there are ramifications for third parties if the Code of Meeting Practice is set aside and any downstream decisions of the Council are infected by reliance on information presented to the Council during pre-meeting briefing sessions.
To the extent that I am required to do so, I therefore find that the challenges to the two decisions identified above are statute barred, and moreover, I decline to exercise my discretion to extend time under r 59.10(2) having regard to the factors contained in r 59.10(3) of the UCPR.
Seek Justice sought a costs order in respect of the travelling expenses of Ivan Jeray, the director of Seek Justice, together with printing, photocopying, postage and court filing fees. Because it has been unsuccessful, the issue does not require determination.
The Council and the Minister seek their costs on the basis that costs follow the event and that they were successful insofar as the summons is dismissed.
The statutory provisions and principles in this regard were recently summarised by Beasley J in Briscoe-Hough v Minister for Local Government *(*No 5) [2025] NSWLEC 94 (at [6]-[14]), which I respectfully adopt:
6 The usual order for costs in Class 4 proceedings is that “costs follow the event”: r 42.1 of the UCPR. This would ordinarily require Mr Briscoe-Hough, as the unsuccessful party, to pay costs. However, r 4.2(1) of the Land and Environment Court Rules 2007 (NSW) (LEC Rules) prevails over r 42.1 of the UCPR. It states the following:
4.2 Proceedings brought in the public interest
(1) The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest.
…
7 Rule 4.2 involves a two-step process. First, the Court must determine whether Mr Briscoe-Hough brought his proceeding in the public interest, and secondly, if he has done so, whether or not the Court should exercise its discretion to make orders for the payment of costs against the unsuccessful party, which usually means having regard to countervailing considerations: Friends of Gardiner Park Inc v Bayside Council (No 2) [2022] NSWLEC 61 (Preston CJ) at [7]; Caroona Coal Action Group Inc v Coal Mines Australia Pty Limited and Minister for Mineral Resources (No 3) [2010] NSWLEC 59; (2010) 173 LGERA 280 (‘Caroona’) at [14]-[18].
8 Whether proceedings have been brought in the “public interest” requires “something more” than an assertion by the Applicant that the matter is in the public interest: Caroona at [15]-[17]. As Heerey, Whitlam and North JJ observed in Hollier v Australian Maritime Safety Authority (No 2) [1998] FCA 975 at [13]: “…much litigation has a public interest going beyond the interests of the parties.” On a practical level, the concept is “broad” and “nebulous,” especially in contentious areas of public policy, and thus mere characterisation is insufficient to ground a departure from the ordinary costs order: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [182] and [215] (‘Oshlack’); Ruddock v Vadarlis (No 2) [2001] FCA 1865; (2001) 115 FCR 229 at [14] and [19].
9 The Court has recognized various factors that, when combined with the proceeding’s characterisation as being “brought in the public interest”, justify the departure from the usual costs rule. Preston CJ has identified several considerations for this exercise in Caroona at [60], including relevantly:
“(a) the litigation raises one or more novel issues of general importance: see Arnold ( on behalf of Australians for Animals) v Queensland (1987) 73 ALR 607 at 622, 635; New Zealand Maori Council v Attorney General of New Zealand [1994] 1 AC 466 at 485; Oshlack v Richmond River Shire Council (Stein J) at 246; Oshlack v Richmond River Council (HCA) at [49], [144]; Ruddock v Vadarlis (No 2) at [17], [28], [29]; Plumb v Penrith City Council [2003] NSWLEC 161; (2003) 126 LGERA 109 at [16], [17]; Engadine Area Transport Action Group v Sutherland Shire Council (No 2) at [20], [21]; Save the Ridge Inc v Commonwealth of Australia [2006] FCAFC 51; (2006) 230 ALR 411 at [11]-[12]; Blue Wedges Inc v Minister for Environment, Heritage and the Arts [2008] FCA 8; (2008) 165 FCR 211 at [73]; Lansen v Minister for Environment and Heritage (No 3) [2008] FCA 1367; (2008) 162 LGERA 258 at [34]; Anderson v Minister for Planning *(*No 2) at [9] and [10]; Minister for Planning v Walker *(*No 2) at [9]; Sharples v Minister for Local Government (No 2) at [21], [23] upheld in Sharples v Minister for Local Government [2010] NSWCA 36 at [120], [123], [124]; and Teoh v Hunters Hill Council (No 3) [2009] NSWLEC 121; (2009) 167 LGERA 432 at [130]; [and]
(b) the litigation has contributed, in a material way, the proper understanding, development or administration of the law: Oshlack v Richmond River Council (HCA) at [136]; Friends of Hay Street Inc v Hastings Council (1995) 87 LGERA 44 at 47; Plumb v Penrith City Council at [16], [17]; Lansen v Minister for Environment and Heritage (No 3) at [34]; and Wilderness Society Inc v Minister for Environment and Water Resources [2008] FCAFC 19; (2008) 157 LGERA 413 at [7]-[9]. See also R (on the application of Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192; [2005] 1 WLR 2600; [2005] 4 All ER 1 at [70] (“there is a public interest in the elucidation of public law by the higher courts”) and R (Davey) v Aylesbury Vale District Council [2007] EWCA Civ 1166; [2008] 1 WLR 878; [2008] JPL 1145 at [15] …”
10 In Engadine Area Traffic Action Group Inc v Sutherland Council (No 2) [2004] NSWLEC 434; (2004) 136 LGERA 365 Lloyd J (at [15]) identified these considerations as central to a determination of whether a matter is of sufficient public interest as to be relevant to an evaluation of what costs order should be made:
“(a) The public interest served by the litigation: Darlinghurst Residents’ Association v Elarossa Investments Pty Ltd *(*No. 3) (1992) 72 LGRA 214 at 215; Liverpool City Council v Roads and Traffic Authority *(*No. 2) (1992) 75 LGRA 210.
(b) Whether that interest is confined to a relatively small number of members from the group or association in the immediate vicinity of the development, concerned with their own private amenity; or whether the interest is wider, involving a significant number of members of the public and concern for a wider and significant geographic area: Darlinghurst Residents’ Association at 215; Oshlack at 80-81.
(c) Whether the applicant sought to enforce public law obligations: Oshlack at 80 [20].
(d) Whether the prime motivation of the litigation is to uphold the public interest and the rule of law: Oshlack at 80 [20].
(e) Whether the applicant has no pecuniary interest in the outcome of the proceedings: Oshlack v Richmond River Shire Council (1994) 82 LGERA 236 at 246.”
11 The factors listed in both of these decisions are not a “code” or “fixed criteria”; other considerations may be relevant, and failing to answer all factors in a set way will not be determinative: Caroona at [41]; Muswellbrook Shire Council v Hunter Valley Energy Coal Pty Ltd [2019] NSWCA 216; (2019) 238 LGERA 295 at [83].
12 The Court may further have regard to countervailing considerations that weigh against using the Court’s discretion to depart from the usual order. This analysis looks more closely at the conduct of the Applicant and has also been summarised in Caroona at [61]. The most relevant considerations are extracted below:
“(d) the narrowness of the question of public interest raised, such as only involving a discrete point of interpretation without broad ramifications: Save the Ridge Inc v Commonwealth of Australia at [13]; Drake-Brockman v Minister for Planning *(*No 2) [2007) NSWLEC 777 at [12]; Kennedy v Director-General of Department of Environment and Conservation (No 2) [2007] NSWLEC 271 at [23], [24]; Corowa v Geographe Point Pty Ltd (No 2) [2007] NSWLEC 272 at [11]; Anderson on behalf of Numbahjing Clan within Bundjalung Nation v Director General of the Department of Environment and Climate Change [2008] NSWLEC 299 at [14]; Anderson v Minister for Planning (No 2) at [30]; Hastings Point Progress Association Inc v Tweed Shire Council (No 3) at [11], [54]; Ku-ring-gai Council v Minister for Planning *(*No 2) at [32]; and Sharples v Minister for Local Government [2010] NSWCA 36 at [123].
(e) the applicant “unreasonably pursues or persists with points which have no merit” (Oshlack v Richmond River Council at [134] per Kirby J) or issues that were not “eminently arguable”, to use Stein J’s phrase in Darlinghurst Residents’ Association v Elarosa Investments (No 3) (1992) 75 LGERA 214 at 216 and in Oshlack v Richmond River Shire Council at 245: see Drake-Brockman v Minister for Planning *(*No 2) at [13] and Anderson v Minister for Planning *(*No 2) at [30]; and
(f) there is disentitling conduct of the applicant, such as impropriety or unreasonableness in the conduct of the litigation: see Trustees for time being of the Biowatch Trust v Registrar, Genetic Resources [2009] ZACC 14 at [18], [20], [24].”
13 The rationale behind r 4.2 and like provisions is to ensure access to justice is not cost-barred and public interests are represented in courts, especially relating to environmental protection: Caroona at [30]-[36]. However, this must be counterbalanced against the successful party’s reasonable expectation of indemnification against expenses that it was forced to endure: Latoudis v Casey (1990) 170 CLR 534; [1990] HCA 59 at 543.
14 These matters must be borne in mind when approaching an evaluative exercise of discretion such as this.
JERAY: Well, the applicant exists to undertake matters of public interest to the Court and the applicant considers that the issues raised are ones of public interest. We're dealing with the road. Part A is dealing with a road that is on community land. There appears to be no development consents or exemptions. There's no gazettal of a road and there's no registration of a plan of, of a road with the Land Titles Office.
I think it's of public interest that the - this matter was brought to the Court so that the Court can hear these issues and determine what is the right outcome. I think it was of public interest to ensure that that occurs. It was the applicant that, that had raised this issue and discovered this issue and the applicant thinks that the second respondent really should have done that, should've investigated that issue prior to doing any work in that area. The applicant should not be punished for trying to deal with, with matters of public interest in that, in that regard. Part B's been withdrawn. Part C has been withdrawn.
Part D deals with a plan of management on public land, so that's Crown land and, Crown land and council land. But that issue there is raising interpretations of the law, of the legislation. It appears to be a novel case, so I have not seen a case that tries to interpret the meaning of what a public hearing should be held or should - what a public hearing should be about, whether it's just categorisations or is it more than that?
Yes, there was also the issue about the matters for the members. It's raising - it's also raising issues about members of the public attending hearings. So this Court will definitely look at the obligations of the council to ensure that members of the public are able to access these meetings regardless of their - any, any difficulties that members of the public may experience in being able to, to attend these meetings. It also looks at the council's responsibilities when conducting such public hearings, that it, that it follows proper and reasonable procedures to ensure that it meets its commitments under the Local Government Act.
And part E I think was struck out by Duggan J, from memory. Yes. And Part F deals with important matters. Well, they're all important matters, but this, this matter deals with ensuring the - ensuring that the, the, the meeting, meeting practices of the local government authority comply with the requirements of the Local Government Act and ensure that it meets the aims of the Local Government Act of ensuring public, of ensuring public participation, properly informed decision-making, transparency and accountability and the efficiencies of, of local government practice, ensuring that the, the ratepayers of the local government authority are getting their value for money in a way that does not compromise the proper functionings of a local council or a local government authority.
I'll just say that the applicant undertakes these matters without, without profit and does so at its, at its own expense. It's not there for any financial gain. It exists purely for the public interest and for the public good. Thank you, your Honour.
In my view, having regard to the applicable legal principles quoted above, there was no evidence or submission capable of satisfying me that the proceedings were brought in the public interest within the meaning of r 4.2 of the Land and Environment Court Rules 2007 (in addition to the cases referred to above, see also Maules Creek Community Council Incorporated v Environment Protection Authority *(*No 2) [2024] NSWLEC 123 at [7]-[11] and the comprehensive survey of the case law contained in South East Forest Rescue Incorporated INC9894030 v Forestry Corporation of New South Wales *(*No 2) [2024] NSWLEC 36 at [36]-[47]).
Merely because an applicant believes that a matter is in the public interest does not make it so. There was nothing in the facts or legal arguments that elevated these proceedings beyond that of ordinary litigation. Contrary to the submissions of Seek Justice, there was nothing particularly novel about the claims raised, concerning, as they did, the application of orthodox principles of statutory interpretation and administrative law. Moreover, the decision is highly unlikely to have any significant impact in the development of the law. There was also no evidence of any broad public interest or support for the challenge. Finally, there is nothing in the relevant respondents’ conduct that would disentitle either the Council or the Minister to an order for the payment of their costs. In ordering costs against Seek Justice, the Court is not “punishing” the company, but rather it is compensating the Council and the Minister who have been put to the expense of having to defend a matter that has failed.
There is no proper basis for departure from the general costs rule in this instance. Therefore, save for the first respondent, who agreed to Seek Justice withdrawing the claim against it on the basis that each party pay their own costs, and the third respondent (the Church) who filed a submitting appearance, Seek Justice is to pay the second and fourth respondents’ costs of the proceedings.
The formal orders of the Court are therefore that:
the summons filed on 2 October 2024 and as amended at the hearing on 26 and 27 November 2024, is dismissed; and
the applicant is to pay the second and fourth respondents’ costs of the proceedings.
**********
Seek Justice Pty Ltd
Minister for Lands and Water
(2016) 217 LGERA 332
(2007) 71 NSWLR 61
(1998) 195 CLR 516
(1990) 64 ALJR 458
(2000) 75 ALJR 470
(2010) 173 LGERA 280
(1998) 193 CLR 72
(2001) 115 FCR 229
(1987) 73 ALR 607
(2003) 126 LGERA 109
(2006) 230 ALR 411
(2008) 165 FCR 211
(2008) 162 LGERA 258
(2009) 167 LGERA 432
(1995) 87 LGERA 44
(2008) 157 LGERA 413
(2004) 136 LGERA 365
(1994) 82 LGERA 236
(2019) 238 LGERA 295
(1992) 75 LGERA 214
(1990) 170 CLR 534