Bryant v Shoalhaven City Council

[2019] NSWCATAD 209

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Bryant v Shoalhaven City Council [2019] NSWCATAD 209
Hearing dates:	11 September 2019
Date of orders:	14 October 2019
Decision date:	14 October 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Ludlow, Senior Member
Decision:	The decision under review is affirmed.
Catchwords:	FREEDOM OF INFORMATION – government information – whether information held by agency – no reasonable grounds that information is held
Legislation Cited:	Administrative Decisions Review Act 1998 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Information (Public Access) Act 2009 (NSW)
Cases Cited:	Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5 Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201
Category:	Principal judgment
Parties:	Michael Bryant (Applicant) Shoalhaven City Council (Respondent)
Representation:	Applicant (Self-represented) Respondent (Self-represented)
File Number(s):	2019/00111688

REASONS FOR DECISION

Background

1. On 16 October 2019 the applicant lodged an application under the Government Information (Public Access) Act 2009 (the GIPA Act) for the following information:

“I would like Shoalhaven City Council to provide the ‘Subdivision Certificate and approved plans including easements’ for Subdivision Development Consent SF9364 as per documents attached.’

2. The documents attached to the application included:

1. Subdivision development consents for SF9364 dated 29 December 2003; and

2. Plan 101658-03/105 dated 30 June 2003.

3. The respondent resolved not to deal with the application under s 60(1)(b) of the GIPA Act.

4. On application from the applicant, the Information Commissioner reviewed the decision and recommended a new decision be made. The respondent made a new decision under which some information was released and it determined that the subdivision certificate for SF9364 was not held by it.

5. The internal review decision by the respondent explained the reasons for this decision as follows:

“The Subdivision consent issued in relation to SF9364 indicates that the consent was to lapse on 29 December 2008. As the development did not commence the subdivision approval lapsed on this date.

A subdivision certificate was not issued for SF9364 as the development did not commence and the consent lapsed as explained above.

You requested copies of the approved plans relating to the subdivision consent for SF9364 and I have provided both a copy of the stamped approved plan and a copy of the plan as initially lodged without the approved stamp for your reference.”

6. The Information Commissioner determined that this decision was justified.

7. The applicant then applied for review of the internal review decision by the Tribunal.

Legislation

8. Section 3 of the GIPA Act sets out its objects:

“(1)   In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by:

(a)   authorising and encouraging the proactive public release of government information by agencies, and

(b)   giving members of the public an enforceable right to access government information, and

(c)   providing that access to government information is restricted only when there is an overriding public interest against disclosure.

(2)   It is the intention of Parliament:

(a)   that this Act be interpreted and applied so as to further the object of this Act, and

(b)   that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.”

9. Section 5 of the GIPA Act provides:

“There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure.”

10. Section 80 provides:

“80 Which decisions are reviewable decisions

The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part:

(a) a decision that an application is not a valid access application,

(b) a decision to transfer an access application to another agency, as an agency-initiated transfer,

(c) a decision to refuse to deal with an access application (including such a decision that is deemed to have been made),

(d) a decision to provide access or to refuse to provide access to information in response to an access application,

(e) a decision that government information is not held by the agency,

(f) a decision that information applied for is already available to the applicant,

(g) a decision to refuse to confirm or deny that information is held by the agency,

(h) a decision to defer the provision of access to information in response to an access application,

(i) a decision to provide access to information in a particular way in response to an access application (or a decision not to provide access in the way requested by the applicant),

(j) a decision to impose a processing charge or to require an advance deposit,

(k) a decision to refuse a reduction in a processing charge,

(l) a decision to refuse to deal further with an access application because an applicant has failed to pay an advance deposit within the time required for payment,

(m) a decision to include information in a disclosure log despite an objection by an authorised objector (or a decision that an authorised objector was not entitled to object).”

11. Section 100 provides:

“100 Administrative review of decision by NCAT

(1) A person who is aggrieved by a reviewable decision of an agency may apply to NCAT for an administrative review under the ADR Act of the decision (referred to in this Division as an NCAT administrative review).

(2) An aggrieved person who is not the access applicant is not entitled to apply to NCAT for an NCAT administrative review of a decision if the person is still entitled to apply for an internal review of the decision under Division 2.”

12. Section 63 of the Administrative Decisions Review Act 1998 provides

“63 Determination of administrative review by Tribunal

(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:

(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or

(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.”

13. Section 55 of the Civil and Administrative Decisions Tribunal Act 2013 provides:

“55 Dismissal of proceedings

(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances:

(a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,

(b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

(c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings,

(d) if the Tribunal considers that there has been a want of prosecution of the proceedings.

(2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1) (c) if the Tribunal considers that there is a reasonable explanation for that failure.”

Issues

14. Where the Tribunal is reviewing a decision that an agency does not hold information, it should consider:

1. whether there are reasonable grounds to believe that the requested information exists and is held by the agency and, if so,

2. whether the search efforts made by the agency to locate such information have been reasonable in all the circumstances of a particular case.

(Hemeon v Commissioner of Police, New South Wales Police Service [2002] NSWADT 201 at [18] (concerning the former Freedom of Information Act 1988) and as applied to the GIPA Act in Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5).

15. The subdivision development consent SF9364 was in evidence and it showed that the consent was issued under the Environmental Planning and Assessment Act 1979 by the respondent on 29 December 2003 and the date on which it would lapse was 28 December 2008.

16. The consent states on its face that it relates to the subdivision as illustrated on the plans stamped with reference to the consent. The general conditions of the consent are stated to require creation of the proposed lots as per the approved plan and submitting 10 copies of the plan of survey to the council prior to the issue of a subdivision certificate.

17. It was the respondent’s submission that no subdivision certificate existed because such certificates were generally issued at completion of the subdivision works. As the consent lapsed without the works proceeding, no certificate was issued.

18. At the hearing, Mr Bryant stated that he accepts that the subdivision did not proceed. He also accepts that the council does not hold the subdivision certificate and approved plans. He said that his concern was about an easement numbered A83946 which was incorrectly described in council records. He stated his belief that there was another deposited plan which showed the easement. He stated that incorrect information on this plan was preventing him from selling his property.

19. On hearing this, I expressed a view that the proceedings might be misconceived, as clearly Mr Bryant was not seeking review of a decision not to provide the “subdivision certificate and approved plans including easements” that were named in his application. He wanted the Council to correct other records relating to an easement which he believed it held. I explained that if I formed the view that the proceedings were misconceived, they could be dismissed under s 55 of the Civil and Administrative Tribunal Act. I adjourned for a short period to allow the parties some time to consider this.

20. On resuming, the applicant did not resile from his position that he wanted something other than what was sought in his application – namely, he wanted the respondent to check the title details on the plans he said that it held and correct them as he thought they should be corrected.

21. The respondent submitted that the Tribunal should either affirm the Council’s decision or dismiss the application on the basis that it was misconceived.

22. I made directions for the filing and serving of submissions on these issues and reserved my decision.

23. In his written submissions the applicant submitted that the plans provided to him were not the “correct plans”; that another plan was the correct plan; and the Tribunal should make an order that the respondent confirm that the other plan was the “correct plan” for the development SF9364. He also sought orders:

1. That the respondent confirm that another deposited plan (referred to by number) should be known by a different number; and

2. That the respondent confirm that the easement involved in SF9364 is identified by a different number.

24. Section 100 provides that a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for an administrative review of the decision. The reviewable decisions are set out in s 80 and include a decision that information is not held by the agency. Section 63 of the Administrative Decisions Review Act provides that the Tribunal is to determine what the correct and preferable decision is, and in determining the matter, may either affirm or vary the decision, set aside the decision and make another decision, or set aside the decision and remit the matter for reconsideration to the respondent.

25. I do not have jurisdiction to make the orders that the applicant seeks. Moreover, the plans sought in his application were described as the “approved plans” for the subdivision consent, which are the stamped plans referred to on the consent. Those plans were provided to him.

26. The subdivision certificate requested was not provided, but there are no reasonable grounds to believe that this certificate is held by the respondent or in fact exists; the applicant accepts that the respondent does not have it.

27. Accordingly, in my view the correct and preferable decision in this case is to affirm the decision of the respondent.

Order

1. The decision under review is affirmed.

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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

Decision last updated: 14 October 2019