Pittwater Council (no appearance)
File Number(s): 1510494 1510477 1510523 1510524
Publication restriction: Nil
[2]
File No 1510494
Mr Walker is subject to a restraint order made by the Tribunal on 20 March 2015 under s 110(1) of the Government Information (Public Access) Act 2009 NSW (GIPA Act): Pittwater Council v Walker [2015] NSWCATAD 34. Section 110(1) provides that:
"NCAT may order that a person is not permitted to make an access application without first obtaining the approval of NCAT if NCAT is satisfied that the person has made at least 3 access applications (to one or more agencies) in the previous 2 years that lack merit. Such an order is a "restraint order"."
After the Tribunal made the restraint order Mr Walker applied to Pittwater Council for access to the following information under the GIPA Act:
"Copy of Warriewood Valley Acoustic Study as directed by Mr Steve Evans Director Environment Planning and Community at council meeting 17 August 2015."
That application can only be processed if Mr Walker first obtains approval from the Tribunal: GIPA Act, s 110(1). Mr Walker sought approval and this matter, and three others, were listed for hearing on 13 October 2015. The respondent, Pittwater Council, has chosen not to attend the hearing but reiterates its support for the restraint order.
There are no principles or factors listed in the legislation for determining the circumstances in which approval should be given. There is similar legislation at the Commonwealth level and that is the Freedom of Information Act 1982 (Cth). In Part 12 of the Commonwealth FOI Guidelines and Procedures relating to vexatious applicant declarations produced by the Office of the Australian Information Commissioner some guidance is given on this issue. At para 12.4.1 the guidelines state that:
"If a person to whom a declaration applies approaches the Information Commissioner for permission to make an access request, the OAIC will discuss the nature of any proposed request with the applicant and possibly with the agency, with a view to examining whether the request raises a new issue or can be seen to be a continuation of the access actions that led to the declaration being made."
The present application is for a Warriewood Valley Acoustic Study. At the hearing today Mr Walker clarified that this was a study carried out by Warringah Council prior to that council being split into two councils - Warringah Council and Pittwater Council. The study was carried out in 1990, possibly by a firm with the name James Madden Cooper or a similar name.
This is not an application which is a continuation of the access actions that led to the restraint order being made. Mr Walker has not made an application for the Warriewood Valley Acoustics Study in the past. Exercising my discretion under 110(1) I am satisfied that this is an application that can proceed. However, following Mr Walker's explanation today and his evidence that he had a conversation with Mr Steve Evans, Director, Environment Planning and Community, about this report, it needs to be amended.
[3]
Order
The following application by Mr Walker to Pittwater Council under the Government Information (Public Access) Act 2009 is approved:
"Copy of Warriewood Valley Acoustics Study conducted by Warringah Council in 1990 by James Madden Cooper or by an organisation with a similar name."
[4]
File No 1510477
The application Mr Walker makes to the Council is for:
"Council record of and response to after-hours notifications and counter notifications of noise related issues in Warriewood Valley Stage One Industrial Area by P Walker in May/June/July of 2015."
Mr Walker has withdrawn this request in respect of the counter notifications but presses it in relation to the after-hours notifications. With the inclusion of the details of the after-hours notifications, as far as Mr Walker recollects them, this application should be approved. Mr Walker has not applied for this information in the past. Exercising my discretion under 110(1) I am satisfied that this is an application that can proceed in an amended form.
[5]
Order
The following application by Mr Walker to Pittwater Council under the Government Information (Public Access) Act 2009 is approved:
Any email or other communication from the after-hours notification operator to Council for each of the following notifications of noise related issues in Warriewood Valley Stage One Industrial Area made by Mr Walker during the period May/June and July 2015 and any record generated by Council in response to any of those communications:
"Container pickup assault by driver at 4 Prosperity Avenue Warriewood at approximately 9pm.
Industrial bin pickup 9 Ponderosa Parade Warriewood at approximately 3am.
Industrial bin left on road for pickup 5 Ponderosa Parade Warriewood 4am.
Industrial bin pickup 96 Mona Vale Road Warriewood 3.30am.
Industrial bin pickup 4 Jubilee Avenue 3.30am.
Noise car park exhaust 4 Daydream Avenue Warriewood at approximately 4am.
Container drop off 5 Jubilee Avenue Warriewood at approximately 5am.
Noise from router 48/5 Ponderosa Parade Warriewood at approximately 5.30am.
Noise from forklifts 20 Jubilee Avenue Warriewood at approximately 10pm."
[6]
File No 1510523
In this matter Mr Walker has applied for:
"All public comments provided to Pittwater Council for the Mona Vale Place Plan Consultation 'post-it notes' and others."
Mr Walker has not applied for this information under legislation in the past. Exercising my discretion under 110(1) I am satisfied that this is an application that can proceed in an amended form.
[7]
Order
The following application by Mr Walker to Pittwater Council under the Government Information (Public Access) Act 2009 is approved:
"Any record typed by council employees of post-it notes or other written suggestions provided by members of the public in public consultations on the development of the Mona Vale Place Plan in the first half of 2015 other than those recorded in the Imagine Mona Vale Engagement Summary for Mona Vale Place Plan August 2015."
[8]
File No 1510524
The application in this case is for:
"All correspondence between Pittwater Council and the New South Wales Government regarding the impact on Mona Vale of the Bus Rapid Transit Proposal- Local Member, Bus Rapid Transit, Sydney Buses Police, RMS."
I do not approve that application because it is too broad and too vague. Even if the application was restricted in time and to correspondence between Pittwater Council and Transport New South Wales, the effect on Pittwater Council's resources of providing that information would be substantial. In addition, Council employees would have to read each letter, email and other correspondence to discern whether or not it was relevant to the application. Mr Walker has advised that he is meeting with representatives from Transport New South Wales next week on this issue and will consider revising or abandoning the application following that meeting.
[9]
Order
The following application by Mr Walker to Pittwater Council under the Government Information (Public Access) Act 2009 is not approved:
"All correspondence between Pittwater Council and the New South Wales Government regarding the impact on Mona Vale of the Bus Rapid Transit Proposal-Local Member, Bus Rapid Transit, Sydney Buses Police, RMS."
[10]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 22 October 2015