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Case Note: Port Macquarie-Hastings Council v Mansfield

In the recent decision of Port Macquarie-Hastings Council v Mansfield [2019] NSWCCA 7 (Mansfield), the NSW Court of Criminal Appeal overturned an earlier decision of the Land and Environment Court in relation to the power of councils to compel production of documents under the former section 119J (now section 9.22) of the Environmental Planning and Assessment Act 1979 (NSW) (the EPA Act).

Background

Mr Mansfield was accused of carrying out a development that was prohibited under the Local Environmental Plan. After some investigations and before the commencement of the criminal proceedings, Council’s investigation officer, Craig Henderson, issued a number of notices under section 119J (now section 9.22) of the EPA Act. From the documents produced under those notices, Council learned two companies may have further documents relating to the alleged offence and issued a subpoena to each of the two companies after criminal prosecution had commenced.

Mr Mansfield challenged the validity of the two subpoenas in the Land and Environment Court, primarily on the basis that Council must not rely on the information gathered from section 119J notices to issue the subpoena because the section 119J notices were not validly issued in the first place.
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Importance of Careful Drafting for Council Contracts

Background

Case Note: Port Macquarie-Hastings Council v Diveva Pty Limited [2017] NSWCA 97

In a recent decision, the Court of Appeal of NSW made a determination which is particularly instructive for Councils when undertaking any tender process. The decision highlights the importance of carefully drafting contracts and the need to ensure that sufficient information is provided to potential tenderers during the tender process.

In 2011, Diveva Pty Limited (Diveva) successfully entered into a contract with Council to supply and lay asphalt around Council’s local government area. The contract had a simple “option” clause which merely stated that the period of the agreement was to be two years “with a future twelve (12) month option available”.

Diveva conducted works under the contract throughout 2011 and 2012 but Council observed significant defects in the works during this period. Due to the defective work, in March 2013 Council advised that it would not exercise the option to extend and a new tender would be advertised.  In April 2013, Diveva gave notice that it would exercise the option to extend for a further 12 months. Council asserted that the option was not a unilateral clause for the benefit of Diveva and could only be exercised by the Council or by mutual agreement. Therefore, Council commenced the tender process and entered into agreement with another company for those services.
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