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Administrative Law - Pedal power association v Sydney city council

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Introduction

ADMINISTRATIVE LAW TOPIC: ULTRA VIRES GROUP: AMANDA AND BEATA QUESTION: PEDAL POWER ASSOCIATION v SYDNEY CITY COUNCIL ADVICE TO PEDAL POWER ASSOCIATION Question (a) The nature of the Council's discretionary power and the doctrine of broad ultra vires The nature of the Council's discretionary power. In determining the nature of the Council's discretionary power, the threshold issue is whether the exercise of discretionary power achieved the purpose or object authorised by the legislation granting that power. The exercise of power for a purpose other than that conferred will be 'ultra vires'. Furthermore, extended ultra vires looks to the legality and appropriateness of the decision making process undertaken by the subject decision maker. Doctrine of broad ultra vires. Administrators have only such legal powers as are conferred upon them. These powers depend on whether the final decision is one, which was permitted by an enactment or (exceptionally) some other sources of power and also depend on whether the decision maker has complied with prescribed procedures. The rules, which comprise the 'legality principle', are the rules of broad/extended ultra vires. These rules are as follow: - * Decisions must be made in good faith and for proper purposes; * Only relevant considerations must be taken into account and irrelevant considerations must be ignored; * Decision makers must have some evidence on which to base ...read more.

Middle

It can be argued that the Council applied its policy inflexibly since the policy states that bicycles be banned from city streets except in special circumstances. A bicycle rally to advocate cycling as a form of transport could have been considered as a special circumstance. Furthermore, will regard to the preamble of the Sydney Roads Act 1979 (NSW), the Council may have adopted a strict interpretation for which its discretionary powers encompass, thereby inflexibly applying their discretion. Note that the preamble states that it is an Act "to adjust the competing rights to use public roads and to provide for the orderly flow of vehicular traffic...". It can be argued that the Council may have 'adjusted' the competing rights with a bias towards motor vehicles due to a strict interpretation of the meaning of 'vehicular traffic', thereby not exercising all of their discretion. Unreasonableness/Uncertainty Grounds: - In addition to refusing to exercise all of their discretion, there are also significant arguments which can be sustained to purport that the Council made a decision beyond their power. 1. Reasonableness The test for reasonableness was expounded in the leading case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (known as the Wednesbury Test). ...read more.

Conclusion

Furthermore, the Council was not making a decision on the merits of the Pedal Power Association's application, rather it simply ruled them out of consideration altogether and made it illegal for that party to access their rights to public roads. No evidence. The ADJR Act lists the no evidence rule as a separate ground for challenge. A person may apply for an order for review where there was no evidence or other material to justify the making of decision (ss 5(1)(h), 6(1)(h)). This is qualified in ss 5(3) and 6(3) which specifies that the no evidence ground will not be made out unless: (a) the person who made the decision was required by law to reach the decision only if a particular matter was established, and there was no evidence or other material (including facts of which he/she was entitled to take notice) from which he/she could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist. In the instance of the Council, there is little to comment on the no evidence rule, with the exception that the Council may need to substantiate their decision and further explain what is meant by "commercial interests". 1 Amanda and Beata - Ultra Vires Chapter 7 Q2 ...read more.

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