Court Case No.2 – “Operational” classification challenge.
Here is the Judgement delivered on the 9th of October following the Court Hearing of the 24th and 25th of September. A judgment handed down in just over 2 weeks !
Save Little Manly Beach Foreshore Incorporated v Manly Council (No 2) [2013] NSWLEC 156′
Court Orders
All “Points of Claim” put forward by Save Little Manly Beach Foreshore Incorporated were recognized by the Court.
(1) Declaration that the respondent’s land at 34 Stuart Street and 36 Stuart Street, Manly is classified as community land under the Local Government Act 1993.
(2) Order that the respondent be restrained from selling, exchanging or otherwise disposing of the said land so long as it is classified as community land under the Local Government Act 1993.
(3) Declaration that the respondent’s land at 36 Stuart Street, Manly is subject to a trust for a public purpose.
(4) The respondent is to pay the applicant’s costs.
Other implications of the Case:
1. At [4] Justice Biscoe states “the 2012 sale resolution is invalid”.
2. Manly Council changes the classification independently and against the Councillors Motion of 2008 ! At [37]
In March 2013 the Council changed the register to again show No 36 as operational land, notwithstanding that the comment quoted above remained on the register ( that is community land ). There is evidence that this change occurred on the instruction of the Council’s Deputy General Manager because he understood that the community classification of No 36 was a mistake (for reasons not pressed in these proceedings).
3. Manly Council then used this fiction of classification to gain their “planning proposal” to spot rezone No.34, No.36 and No.38 Stuart St. At [97]
Moreover, there is a fundamental misapprehension underpinning the Council’s 2013 planning proposal to the Department where it states: “In relation to the intended disposal of 34 and 36 Stuart Street, the land is classified as Operational land under the provisions of the Local Government Act and reclassification of this land is not considered to be required in this Planning Proposal to enable disposal of the land”.
Save Little Manly Beach 