> Land and Environment Court of New South Wales CITATION : M & R Civil Pty Limited v Hornsby Council [2003] NSWLEC 13 APPLICANT: M & R Civil Pty Limited PARTIES : RESPONDENT: Hornsby Council FILE NUMBER(S) : (4)0466 of 2002 CORAM: Bignold J KEY ISSUES: Injunctions and Declarations :- Duty of Council to make available to public copies of its business papers-correlative right of Applicant as member of public to inspect free of charge agenda and business papers to be considered at Council Meetings LEGISLATION CITED: Local Government Act 1993, ss 9, 10, 10A, 10B, 12, 672-674 CASES CITED: DATES OF HEARING: 07/08/02 EX TEMPORE JUDGMENT DATE : 08/07/2002 APPLICANT: Mr D Miller, Barrister SOLICITORS: Maddocks LEGAL REPRESENTATIVES: RESPONDENT: Mr T Pickup, Solicitor SOLICITORS: Solicitor for Hornsby Council JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Matter No . : (4)0466 of 2002 Coram : Bignold J 5 February 2003 M AND R CIVIL PTY LIMITED Applicant v HORNSBY COUNCIL Respondent PUBLICATION OF REASONS FOR JUDGMENT 1. On 7 August 2002 I made orders at the conclusion of argument in these class 4 proceedings in accordance with the abbreviated and extemporised reasons for judgment annexed hereto and marked "A". 2. I then indicated because of the importance of the case that I would subsequently provide more detailed reasons for my decision. I now publish those more detailed reasons. 3. It was common ground at the hearing that s 9 of the Local Government Act 1993 imposes a duty on a Council "to 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 associated business papers….for the meeting". 4. It was also common ground that s 12 of the Act conferred a correlative right for "everyone" to inspect the current version of the following documents free of charge: · Agenda and business papers for council and committee meetings (but not including business papers for matters considered when part of the meeting is closed to the public)'. 5. The only issue in dispute in the proceedings concerns the question whether that public duty and that correlative public right, in the circumstances of this case, are relaxed or abrogated by virtue of other provisions of the Act and in particular by s 9(2A) which provides as follows: (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. 6. Section 10 of the Act likewise imposes a duty on a council to ensure that all of its meetings are open to the public and confers a right on "everyone" to attend council meetings. 7. This right and this duty apply "except as otherwise provided" in Part 1 of the Act. Relevantly ss 10A and 10B empower a council to close to the public specified parts of a meeting of council. These parts include the receipt and discussion of specified information including (g) advice concerning litigation, or advice that would otherwise be privileged from production in legal proceedings on the ground of legal professional privilege. 8. There is no dispute between the parties as to the meaning and operation of the provisions of the Act relevant to the present case. Nor is there any dispute as to the primary facts. 9. The relevant Item on the Council's Agenda for its Meeting on 7 August 2002 was a Town Planning Report in respect of a development application made to the Council by the Applicant for a development of a retirement village at Glenhaven (the Planning Report). That Report was produced to the Court for inspection. My inspection of the document disclosed it to be a conventional planning appraisal of a development application. The Report comprises some 60 pages. Included in the Report is some legal advice provided by the Council's "in-house" Solicitor. This advice involves a few pages of the overall document, and principally considers the question of the permissibility of the proposed development. The Report notes that the Applicant had filed an appeal in this Court against the Council's failure to consider the application within the prescribed period. 10. The Council relied upon an affidavit sworn by Mr Peter Mark Hinton on 7 August 2002. He is the Executive Manager of the Planning Division of the Council. 11. In that affidavit, Mr Hinton states that he had endorsed the Planning Report and that in so doing, he had "formed the view that the content…satisfied the criteria for being made a Confidential Item as it combined legal advice and advice in consequence of conferences with Council's legal representatives, the substance of which I believe should not be made public as the matter was the subject of a class 1 appeal" (par 7). 12. Mr Hinton also states that he had "delegated responsibility for finalising the Agenda for the Planning Committee and deciding that Item 16 of that Agenda should be a Confidential Item" (par 10). 13. In my judgment, the Council has not established the applicability of s 9 (2A) of the Act to the present case. This conclusion is supportable on alternative bases—(i) on the narrow basis that it has not been proved that the general manager formed the requisite opinion; and (ii) on the broader basis that the requisite opinion if formed, was not reasonably open having regard to the nature and content of Item 16 on the Council's Agenda. 14. As to the narrow basis for so concluding that s 9(2A) of the Act has not been shown to be applicable (and in my opinion the Council bears the onus of establishing the application of s 9(2A) as an exception to its public duty imposed by s 9(1)) it is to be noted that Mr Hinton's affidavit does not assert in terms a relevant delegation from the general manager pursuant to s 378 of the Local Government Act to exercise the power that is conferred upon the General Manager by s 9(2A). 15. What Mr Hinton asserts is (i) a responsibility for preparing the Agenda for the Council's Planning Meetings (par 3) and (ii) a delegated responsibility for finalising the Agenda and "deciding that Item 16 of the Agenda for the Council's Meeting of 7 August 2002 should be a Confidential Item" (par 10). 16. The relevant power conferred by s 9(2A) upon the General Manager is to form the opinion whether an item on the agenda is "likely to take place when the meeting is closed to the public". The formation of the requisite opinion is accordingly predicated upon the relevance and application of ss 10A and 10B of the Act. 17. The nature of the responsibilities asserted by Mr Hinton, do not, in my judgment, fall within the ambit of the power conferred upon the General Manager by s 9(2A). 18. However, if I be wrong in so concluding, and it be the case that Mr Hinton was in possession of a relevant delegation from the General Manager pursuant to s 378 of the Act, I am of the opinion that to the extent that Mr Hinton exercised the relevant power conferred by s 9(2A) in relation to Item 16 on the Agenda for the Council's Meeting on 7 August 2002 it was not reasonably open for him to conclude that the Planning Report (being Item 16 on the Agenda) was relevantly "advice concerning litigation or advice that would otherwise be privileged…" within the meaning of s 10(A)(2)(g) especially in view of the strictures imposed by s 10B(2) which provides as follows: (2) A meeting is not to be closed during the receipt and consideration of information or advice referred to in section 10A (2) (g) unless the advice concerns legal matters that: (a) are substantial issues relating to a matter in which the council or committee is involved, and (b) are clearly identified in the advice, and (c) are fully discussed in that advice. 19. In so concluding, I have had particular regard to my earlier finding that on the true nature and content of the Planning Report and in particular to the very limited component of legal advice contained therein, the Planning Report was first and foremost a conventional planning report containing a planning appraisal of a proposed development, the subject matter of a development application for the purpose of the Council determining the application as consent authority charged with that statutory responsibility. The fact that the Applicant for development consent had already filed an appeal to this Court against the Council's deemed refusal of the application did not preclude the Council from determining the development application—vide the Environmental Planning and Assessment Act 1979, s 82(2)—and did not translate the legal advice component of the Planning Report into "advice concerning litigation". 20. The legal advice component of the Planning Report, like the planning appraisal, of which it formed a small part, addressed the question of how the Council should determine the Applicant's development application. 21. Likewise, the fact that the Planning Report contained some "in house lawyer" input into the planning appraisal of the proposed development did not translate the Planning Report into something other than a conventional planning report. The legal advice component in the Planning Report is typical of legal components contained in conventional planning appraisals of development applications, the consideration of which invariably raises the question whether the proposal is a permissible form of development. 22. Moreover, and more significantly, my consideration of the Planning Report including the small legal advice component leads me to conclude that the legal advice did not relevantly concern legal matters that were "a substantial issue relating to the matter" within the meaning of s 10B(2) and that the contrary view, was not reasonably open on the basis of the contents of the Planning Report in the context of the Council's consideration of a pending development application. 23. Accordingly, whether the limitation imposed by s 10B(2) on the closure to the public of part of the Council's meeting be regarded as operating as a jurisdictional fact (upon which matter it is for the Court to adjudicate upon the relevant evidence) or as a limitation of the relevant power vested in the Council to close to the public parts of its Meeting (upon which the Court's function is limited to judicial review) I am of the opinion that the legal advice component of the Planning Report did not concern matters that were "substantial issues relating to a matter" within the meaning of s 10B(2) and that it was not reasonably open to the Council's delegate, Mr Hinton, to come to a contrary conclusion. For these reasons, the opinion that he formed for the purpose of s 9(2A) was not an opinion that was reasonably open because it was contrary to the true effect of s 10B(2) in the circumstances of this case. 24. Thus upon both the narrow and broader bases that I have articulated (which operate as true alternatives) I am of the opinion that s 9(2A) did not apply to Item 16 on the Agenda for the Council's Meeting to be held on 7 August 2002. 25. In view of this conclusion, I am satisfied that the Applicant has substantiated its claim to relief which is available pursuant to the Local Government Act, s 672 to s 674 and which in the exercise of discretion, should be granted. 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.