GZY v Tweed Shire Council

[2025] NSWCATAD 214

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

GZY v Tweed Shire Council [2025] NSWCATAD 214

Hearing dates:

17 July 2025

Date of orders:

25 August 2025

Decision date:

25 August 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

S Montgomery, Senior Member

Decision:

The application for an extension of time in which to make the application is refused.

Catchwords:

Administrative Law – practice and procedure – extension of time in which to bring an application for review

Legislation Cited:

Civil and Administrative Tribunal Act 2013

Administrative Decisions Review Act 1997

Privacy And Personal Information Protection Act 1998

Environmental Planning and Assessment Act 1979

Cases Cited:

FDL v South Western Sydney Local Health District [2022] NSWCATAD 40

GTK v NSW Treasury [2025] NSWCATAP 174

Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22

Khan v Medical Council of NSW [2016] NSWCATOD 88

PN v Department of Education and Training (GD) [2010] NSWADTAP 59

Category:

Principal judgment

Parties:

GZY (Applicant)
Tweed Shire Council (Respondent)

Representation:

Solicitors:
Self-represented (Applicant)
HWL Ebsworth (Respondent)

File Number(s):

2025/00185899

Publication restriction:

The publication or broadcast of the name or address of the Applicant is prohibited pursuant to section 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

Reasons for Decision

Introduction

1. In these reasons the name and address of the Applicant have been anonymised so as to preserve the privacy of her personal affairs. In these reasons the Applicant is referred to as GZY.

2. This is an application by GZY (“the Applicant”) for administrative review of a decision by a review officer of the Tweed Shire Council (“the Respondent”) pursuant to section 53 the Privacy And Personal Information Protection Act 1998 (“the PPIP Act”).

3. The Applicant filed the application for administrative review on 15 May 2025. It appears to relate to a Stop Work Order (“the Order”) dated 20 December 2022. The Order was issued pursuant to section 9.35 of the Environmental Planning and Assessment Act 1979 (“the EPA Act”). It also appears that the Applicant is seeking to be granted an extension of time to file the application under section 41 of the Civil and Administrative Tribunal Act 2013 (“the NCAT Act”).

4. The matter came before me for hearing on 17 July 2025. I reserved my decision following the hearing. These are my reasons for my decision.

Background

5. The Applicant is the owner of a vacant, undeveloped property located within Respondent’s local government area. On Friday, 16 December 2022 the Respondent carried out an inspection of the Applicant’s property. On 20 December 2022, the Respondent issued the Order which required all building works and development at the property to stop immediately, including any tree clearing, earthworks, building works or any other associated works.

6. The Order stated:

A search of Council records has revealed that no Tree Clearing Permits or Development Consent have been issued for works on the property.

Therefore, the works that are currently being undertaken may be considered as illegal and it is now appropriate that a Stop Work Notice be issued to you as described below, to cease work immediately.

7. The Order explained:

Reason: So that you can provide Council with the necessary information for Council to assess works completed to date and to determine if approval is required for tree clearing, earthworks, building works or any other associated works.

…

In relation to works that have already been undertaken without approval, Council requires a written response as to why a penalty infringement notice ($3000.00) should not be issued to you as the property owner for undertaking prohibited development. You have the opportunity to respond within 28 days.

8. On 13 January 2023, the Applicant emailed a Privacy Complaint to the Information Privacy Commissioner (“the lPC”) requesting an Internal Review. the IPC forwarded the Privacy Complaint to the Respondent on 20 January 2023.

9. The Applicant’s Privacy Complaint alleged a breach of her personal information to members of the public. She ticked boxes on the complaint form which indicated that she was complaining of a breach of “security or storage of my personal or health information” and “disclosure of my personal or health information”. She also indicated that the conduct had occurred on 20 December 2022.

10. In relation to the time at which the Applicant first became aware of the conduct she wrote:

2.1.23 I arrived at my block of land to do my usual maintenance, and check of the property. [Two named Council officers] discussed my private information with neighbours, and they placed letters addressed to me on my bin and my front fence for the whole of Tweed Heads to see. This was deliberately done.

11. In relation to the effect of the conduct, she wrote:

I am mortified. I am going to be living there in the future, and all the neighbours are calling the council, and watching my every movement. Every time I attend my property, they call the council and tell them that I am breaking the stop work notice, when I just regular property maintenance, that I was doing every 2 weeks until this council displayed my personal business …

12. In relation to the outcome sought, she wrote:

I want them to stop leaving my private information for the world to see. They need to apologize to me, and they need to compensate me for damages to my reputation.

13. On 30 January 2023 the Respondent emailed the Applicant requesting a complete copy of her complaint. On 31 January 2023 the Applicant provided clarification of the conduct that was the subject of her complaint:

“Breach of my personal information to members of the public and left personal information on my front fence and bin for 2 weeks for the whole of the world to see and record.”

14. On 2 February 2023, the Respondent’s Governance Officer wrote to the Applicant setting out the internal review procedure. She explained the timeframe in which the Applicant could expect in relation to the Respondent’s investigation of her complaint and the steps that she could take if she did not receive a response within the time that was outlined. This included the right to seek external review with the Tribunal. The Governance Officer explained:

If you do not receive a response by 14 March 2023, you may lodge an external review with the NSW Civil and Administrative Tribunal (NCAT). You have 28 days (from 14 March, 2023) to apply to NCAT for an external review of the conduct or decision complained about (refer to Rule 24 of the Civil and Administrative Tribunal Rules 2014). In other words, your application to NCAT must be made within 88 days after you lodged your internal application with the agency.

15. The Governance Officer explained that they understood that the Information Privacy Principles (“lPPs”) which related to the complaint were IPPs 11 and 12 as set out in sections 18 and 19 of the PPIP Act.

16. The Respondent undertook an Internal Review into the Applicant’s complaint under the PPIP Act and Mr Mathew Greenwood, the Respondent’s Coordinator Governance and Information advised the Applicant of the outcome on 13 March 2023. Mr Greenwood confirmed that a Council Officer had left a stop work notice letter with the Applicant’s name and address attached to the Applicant’s front fence as the Applicant had alleged.

17. However, in the 13 March 2023 letter, Mr Greenwood advised the Applicant:

We note that an exception under the PPIP Act applies in relation to compliance action, namely:

s23(5) A public sector agency (whether or not a law enforcement agency) is not required to comply with section 18 if the disclosure of the information concerned—

(a)   is made in connection with proceedings for an offence or for law enforcement purposes (including the exercising of functions under or in connection with the Confiscation of Proceeds of Crime Act 1989 or the Criminal Assets Recovery Act 1990), or

(b)   is to a law enforcement agency (or such other person or organisation as may be prescribed by the regulations) for the purposes of ascertaining the whereabouts of an individual who has been reported to a police officer as a missing person, or

(c)   is authorised or required by subpoena or by search warrant or other statutory instrument, or

(d)   is reasonably necessary—

(i)   for the protection of the public revenue, or

(ii)   in order to investigate an offence where there are reasonable grounds to believe that an offence may have been committed.

18. Mr Greenwood’s letter continued:

We note that the stop work notice was issued following an onsite investigation of illegal tree cleaning (council reference …). Council had received notice of land clearing on your property and was required to investigate this.

The investigation ultimately resulted in an infringement notice being issued under the Environmental Planning & Assessment Act 1979 No. 203 Clause 4.3(a). The legislative considerations were:

● Chapter 2 of State Environmental Planning Policy (Biodiversity and Conservation) 2021 contains planning rules and controls for the clearing of vegetation in non-rural areas. This chapter applies to the R3 Medium Density Residential zone, in which the clearing of trees at your property has occurred.

● At the site inspection undertaken by Council’s Environmental Planning Officer and Compliance Officer, the officers observed and made record of several trees that had been cleared that qualify as prescribed vegetation under Council’s DCP A16 — Preservation of tree or Vegetation, and a permit from Council was required prior to removal.

● Under section 4.3 of the Environmental Planning and Assessment Act 1979 No 203, if an environmental planning instrument provides that — a) specified development is prohibited on land to which the provision applies, or b) development cannot be carried out on land with or without development consent, a person must not carry out the development on the land.

The stop work notice was issued under Schedule 5, Part 1 (General Order) Order No. 2 of the Environment Planning and Assessment Act 1979. Under this order, the notice is to be given to the owner of the property. Therefore, Council addressed the stop work notice to the property owner to ensure the notice was valid.

Under the Government Information Public Access Regulation 2018, Schedule 1(4)(e), information contained in records of orders given under the authority of any other Act, is prescribed as open access information. In Part 2, Division 1(6) of the Government Information (Public Access) Act 2019, open access information can be made publicly available in any other way that the agency considers appropriate.

We note that there is a public interest in upholding our compliance policy and the legislation referred to above. We believe that the risk of public access to the information was low in that a person would need to be passing by the property and make an effort to get closer to the letter to enable them to read the addressee details. As the Christmas closure period was approaching, and we were unable to contact you by telephone or email, despite numerous attempts, it was necessary for the stop work notice to be clearly displayed on the property as notice to yourself, workers and/or contractors so that further breaches of the relevant legislation did not occur.

Despite our protections under the exception noted above, Council has taken this opportunity to improve our practices. In the future, the owners postal address (if different to the property address) and email address will be not viewable on stop work notices that are attached to the subject site.

19. Mr Greenwood’s letter explained the steps that the Applicant could take to seek review if she was unhappy with the decision. He explained:

If you are unhappy with this decision, you may lodge a review with the NSW Civil and Administrative Tribunal (NCAT) in accordance with section 53(8)(c) of the PPIP Act. You have 28 days to apply to NCAT for a review of the conduct or decision complained about (refer to Rule 24 of the Civil and Administrative Tribunal Rules 2014).

20. The Applicant did not lodge an application for review of the Respondent’s decision within 28 days of the decision.

21. It is not clear when the Applicant actually received the 13 March 2023 letter. However, she referred to it in a 2 September 2023 email to Mr Greenwood. She wrote:

I refer to your letter on 13.3.23 where you justify the appalling deliberate and malicious privacy breach, and the bullying and harassment performed by [a named office], who’s motto is, “WE DO WHAT WE WANT”. …

22. Nevertheless, in a 23 April 2025 email to Mr Greenwood the Applicant wrote:

I am writing to formally advise that I never received the letter referenced in your correspondence. …

23. The Applicant did not comment on the information contained in the Respondent’s 2 February 2023 letter which advised the Applicant of the Respondent’s internal review procedure and explained that any application to the Tribunal must be made within 88 days after she had lodged her internal application with the Respondent.

Applicable Legislation

24. Section 55 of the PPIP Act provides:

55 Administrative review of conduct by Tribunal

1. If a person who has made an application for internal review under section 53 is not satisfied with—

(a)   the findings of the review, or

(b)   the action taken by the public sector agency in relation to the application,

the person may apply to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the conduct that was the subject of the application under section 53.

25. Rule 24 of the Civil and Administrative Tribunal Rules 2014 (“the NCAT Rules”) provides:

1. Administrative review applications

2. An administrative review application must be—

   (a)   in or to the effect of the approved form, and

   (b)   duly completed, and

   (c)   lodged at the Registry, and

   (d)   accompanied by the applicable fee (if any) for the application.

3. An administrative review application need not specify the Division of the Tribunal to which the function of determining the application is allocated by the Act. However, if the appropriate Division is not specified or an incorrect Division is specified, a registrar may complete or alter the application form accordingly.

4. Unless the Tribunal grants an extension under section 41 of the Act, an application must be made—

   (a)   in the case where enabling legislation specifies the period within which the application is to be made—within the period specified, or

   (b)   in any other case—by the end of the default application period.

5. The default application period for the purposes of subrule (3)(b) is—

   (a) in the case where the applicant has duly applied for an internal review of the administratively reviewable decision under the Administrative Decisions Review Act 1997—the period of 28 days after the day on which the internal review is taken to have been finalised under section 53(9) of that Act, or

   (a1) in the case of an administrative review application under section 55 of the Privacy and Personal Information Protection Act 1998—the period of 28 days after—

   (i) if an internal review under section 53 of that Act is completed within 60 days from the day on which the application for the internal review was received by the public sector agency concerned—the day on which the applicant was notified of the result of the internal review, or

   (ii) if an internal review under section 53 of that Act is not completed within that 60-day period—the day on which the 60-day period expires or the day on which the applicant was notified of the result of the internal review (whichever is the later), or

   (b)   in any other case—the period of 28 days after—

   (i) if the applicant has requested reasons under section 49 of the Administrative Decisions Review Act 1997 for the administratively reviewable decision—the day on which the applicant was either provided with a statement of reasons under section 49 of that Act or notified under section 50 of that Act of a refusal to provide reasons, or

   (ii) if the applicant has not requested reasons under section 49 of that Act—the day on which the applicant was notified of the making of the administratively reviewable decision.

   26. Rule 24(3) of the NCAT Rules refers to “an extension under section 41 of the Act”. This is a reference to section 41 of the NCAT Act which provides:

6. The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

7. Such an application may be made even though the relevant period of time has expired.

The Application for review

27. The Applicant lodged her application for review with the Tribunal on 15 May 2025. She provided the following information as the grounds for the application:

My right to privacy was breached by Council through the misapplication of legislative authority. Council staff justified this breach by incorrectly alleging that I had acted unlawfully, without conducting proper due diligence into the planning history of my property. The entirety of my block is designated as an Asset Protection Zone (APZ) in 2007, and under the Rural Fire Service Act 1997 (NSW) and applicable Bush Fire Environmental Planning and Assessment Codes, I am legally permitted to undertake necessary vegetation management and tree clearing to maintain fire safety for my property and the adjacent townhouses.

28. The Applicant ticked the box on the application form indicating that “The application is lodged within the time allowed under the relevant legislation”.

29. As noted, the Applicant stated that she did not receive the Respondent’s Internal Review decision at the time it was issued. She has referred to the decision in an email in September 2023 but in April 2025 she denied having ever received it.

30. The Internal Review decision was purportedly sent to the Applicant’s current email address on 13 March 2023. If the Applicant had received it on that day, she was required to make the Application to the Tribunal on or before 11 April 2023. Therefore, the Application would be 765 calendar days out of time

31. On the most favourable view, the Applicant had clearly received a copy of the Respondent’s Internal Review decision by 2 September 2023. 2 September 2023 is 538 days, or over 20 months, before the Applicant lodged her application with the Tribunal.

32. The Applicant annexed a number of documents to the application. These included a copy of the Respondent’s 13 March 2023 internal review decision, her 2 September 2023 email to Mr Greenwood and her 23 April 2025 email to Mr Greenwood and other correspondence between the parties.

33. The Applicant also attached a letter from the Respondent dated 22 July 2024. The letter is headed “Outcome of investigation of vegetation clearing at [the Applicant’s property]” and explained:

On 24 February 2005, planning consultant BP Surveys asked Council to confirm that no further permits were required to clear the necessary 30m APZ. Council confirmed on 1 March 2005 that the clearing required by the consent did not need any further consent.

On 27 November 2007, BushfireSafe Services confirmed that they had carried out a site inspection and the developer had implemented a 20m Inner Protection Zone with a 10m Outer Protection Zone which complied with the Rural Fire Services General Terms of Approval ...

Outcome of investigation

An APZ is a fuel reduced area established to protect a building or an asset. The APZ is to be managed and maintained in accordance with the relevant standards for the life of the development. As such, the clearing at the site is determined to be lawful clearing for the purpose of maintaining the APZ which was required and established ...

Considering the information available … and Council’s outcome in relation to vegetation clearing at the site Council is revoking penalty notice … issued to you on 20 January 2023, and any monies paid will be refunded to you. Further, Council is revoking any compensatory planting required under condition 2 of the Preservation of Trees or Vegetation Partial Permit issued to you 13 April 2023. Please note however, that clearing outside of the APZ or on a neighbouring property requires consent prior to doing so.

Thank you for your patience and understanding while Council reviewed the site history and the previous investigations undertaken in relation to vegetation clearing the site. …

34. The Applicant subsequently acknowledged that the application for administrative review was made out of time. She seeks an order of the Tribunal pursuant to section 41 of the NCAT Act, extending the time for lodging the application. The Respondent has opposed that application.

35. The matter came before Senior Member Ziegler on 16 June 2025. The Senior Member set a timetable for the parties to provide evidence and submissions in relation to the extension of time application.

The issue for determination

36. The issue for determination is whether the time for lodging the application with the Tribunal should be extended to 15 May 2025.

Material before the Tribunal

37. Each of the parties has lodged material which they consider relevant to the issue for determination. This material includes copies of relevant correspondence between the parties and written submissions. Each of the parties also made oral submissions.

38. Much of the documentation is duplicated and the relevance to the issue for determination of much of the Applicant’s material is not apparent.

The discretion to extend time

39. As noted above, section 41 of the NCAT Act which provides the Tribunal with discretion to extend time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction. This provision has been considered in numerous decisions of the Tribunal.

40. In Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 the Appeal Panel set out the extension of time principles at paragraph [22] as follows:

The considerations that will generally be relevant to the Appeal Panel’s consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include:

1. The discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the appellant - Gallo v Dawson [1990] HCA 30, 93 ALR 479 at [2], Nanschild v Pratt [2011] NSWCA 85 at [38];

2. The discretion is to be exercised in the light of the fact that the respondent (to the appeal) has already obtained a decision in its favour and, once the period for appeal has expired, can be thought of as having a “vested right” to retain the benefit of that decision - Jackamarra v Krakouer (1998) 195 CLR 516 at [4], Nanschild v Pratt [2011] NSWCA 85 at [39] and, in particular, where the right of appeal has gone (because of the expiration of the appeal period) the time for appealing should not be extended unless the proposed appeal has some prospects of success - Jackamarra at [7];

3. Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider:

   (a)    The length of the delay;

   (b)    The reason for the delay;

   (c)    The appellant’s prospects of success, that is usually whether the applicant has a fairly arguable case; and

   (d)    The extent of any prejudice suffered by the respondent (to the appeal),

   - Tomko v Palasty (No 2) (2007) 71 NSWLR 61at [55] (per Basten JA) but note also [14], Nanschild v Pratt [2011] NSWCA 85 at [39] to [42]; and

4. It may be appropriate to go further into the merits of an appeal if the explanation for the delay is less than satisfactory or if the opponent has a substantial case of prejudice and, in such a case, it may be relevant whether the appellant seeking an extension of time can show that his or her case has more substantial merit than merely being fairly arguable - Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [14] (per Hodgson JA, Ipp JA agreeing at [17]) and Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58] - [59].The considerations that will generally be relevant to the Appeal Panel’s consideration of whether to grant an extension of time in which to lodge a Notice of Appeal include

   41. In GTK v NSW Treasury [2025] NSWCATAP 174 the Appeal Panel stated at paragraphs [94] – [96]:

5. Whilst the discretion to extend time is seemingly unconstrained, its purpose is to ensure that the time limits do not themselves become an instrument of injustice: Gallo v Dawson (1990) 64 ALJR 458 at 459; [1990] HCA 30. Self-evidently, in a case concerning an extension of time to file proceedings, the higher the merits of the underlying proceedings, the higher the risk of injustice, if an extension is not granted. Where the merits of a case are particularly strong, this may override some inadequacy in the explanation for the delay or may, in some cases, trump any prejudice to a respondent, which may, in any event be accommodated or ameliorated with procedural rulings or an award of costs. Accordingly, even if not a relevant consideration (in the requisite sense discussed in Peko-Wallsend) we accept that the merits of the underlying application is material to the ultimate exercise of the discretion to extend time. Accordingly, an error in relation to determination of the merits is capable of providing the warrant for the granting of leave to appeal.

6. Ultimately, the exercise of the discretion requires a balancing exercise; once all of the material factors are known. Accordingly, if an analysis of merits has gone awry, that may be something that could undermine the decision-making; even where other factors do not favour the grant of an extension of time. This is particularly the case where the prejudice to the Appellant is to be shut out of administrative review entirely.

7. The Tribunal was required to exercise the jurisdiction which required determining whether or not an extension of time should be granted. An aspect of that was to form a view about the merits of the underlying application. This, in turn, required the Tribunal to grapple with the competing evidence and submissions, at least at a high level for the purposes of the application for an extension of time. We note that the material was said be voluminous. We are not here suggesting that a full merits review was necessary; that would be the subject of the substantive application. Nonetheless, some assessment of merits must be undertaken.

   42. As Marks ADCJ noted in Khan v Medical Council of NSW [2016] NSWCATOD 88 at paragraphs [34] – [35]:

8. In Jackamarra v Krakouer [1998] HCA 27, Brennan CJ and McHugh J at [7] referred to the necessity for an appellant seeking an extension of time in which to appeal to demonstrate that the “proposed appeal has some prospects of success.” …

9. It is also necessary to refer to a decision of the Supreme Court of Victoria Appeal Division in Dix and Another v Crimes Compensation Tribunal [1993] VicRp 21. Brooking J, with whom Fullagar and Tadgell JJ agreed said:

… the principles laid down by Wilcox J in Hunter Valley Developments Pty Ltd v Minister for Home Affairs and Environment (1984) 58 ALR 305 concerning the exercise of the power to grant an extension of time under s11 of the Commonwealth Administrative Decisions (Judicial Review) Act 1977. …

“(a) Although the section does not, in terms, place any onus of proof upon an applicant for extension, an application has to be made. Special circumstances need not be shown, but the court will not grant the application unless positively satisfied that it is proper so to do. The ‘prescribed period’ of 28 days is not to be ignored ... Indeed it is the prima facie rule that proceedings commenced outside that period will not be entertained ... It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an ‘acceptable explanation of the delay’ and that it is ‘fair and equitable in the circumstances’ to extend time ...

The Applicant’s position

43. As noted, the Applicant’s complaint concerns a Stop Work Order issued in December 2022. She lodged a privacy complaint in January 2023 in which she alleged disclosure of her personal information to members of the public in breach of the PPIP Act (“The Applicant’s Privacy Complaint”). The Respondent undertook an Internal Review into the Applicant’s Privacy Complaint and advised her of the outcome of the review.

44. The Applicant does not agree with the Respondent’s Internal Review decision. She said that her neighbour has used the information to harass and intimidate her. She also alleges that she has incurred numerous expenses as a result of the alleged breach, and has the financial, emotional and reputational harm. She claimed that she was the victim of a cyber-crime attack, causing identity theft and bank fraud which she attributes to the alleged breach. She says that the whole process has had a detrimental effect on her mental health.

45. Her evidence is that she purchased the property in 2007. At the time she obtained a Bushfire Assessment that she says was valid for the life of the block, and that the tree removal that she undertook was lawful. She contends that the Respondent failed to undertake adequate steps to ascertain the true situation before issuing the Notice. As a consequence, she needed to incur additional costs to obtain new assessments.

46. In support of this contention, she points to the 22 July 2024 Notice of Investigation Outcome which affirms that her actions were lawful.

47. With respect to her application for an extension of time to lodge the application with the Tribunal, she submitted (references omitted):

My claim has some prospect of success for the following reasons:

• New evidence received on 22 July 2024 confirms that the Council used incorrect legislation and wrongly penalised me;

• Council’s 23 April 2025 internal review ignored that new evidence, breaching s. 53(6)(b) PPIP Act.

• Council staff - including [named officer] - acted without properly reviewing the lot history and unlawfully disclosed personal information;

• Multiple witness statements, medical evidence, and official records support my claim of harm, intimidation, and procedural misconduct.

• Section 18 / IPP 11 breach is clear: my personal data was publicly displayed for two weeks and admitted by council in their letter dated 13.3.23.

The length of the delay:

• is due to the discovery that council used wrong legislation to charge me with an offence, which was lawful and failure of council and all oversight bodies to rectify the council’s behaviour from the emergence of the new evidence in July 2024 to the NCAT filing following Council’s inadequate internal review response in April 2025.

The reason for the delay is a combination of:

• Psychological trauma from ongoing Council harassment and privacy breaches;

• The need to self-manage a complex and obstructed DA process;

• Multiple failed time consuming referrals to oversight bodies (ICAC, NSW Ombudsman, MPs, Privacy Commissioner);

• Council’s non-responsiveness and procedural failures which prolonged and confused the correct complaint pathway.

• Council’s lack of response from both the Mayor and ignorance of Privacy Breach lodged with new evidence on 19.12.24, and instead issuing a recycled decision and failing to address the July 2024 evidence;

Council will not be prejudiced by the delay because:

• The underlying facts were already known to them and form part of their own record;

• They were notified repeatedly of the breaches and failed to act;

• They themselves lodged their NCAT materials late, demonstrating no consistent concern with time compliance;

• The matter concerns serious statutory breaches and is squarely in the public interest to resolve fairly.

The Respondent’s position

48. The Respondent noted that the present matter is confined to the question of whether the Applicant should be granted an extension of time under section 41 of the NCAT Act.

49. The Respondent’s position is essentially that there are insufficient grounds for the exercise of discretion to extend time.

50. As noted, the Applicant’s privacy complaint alleged a breach of her personal information. This complaint related to the issue of the Order on 20 December 2022.

51. The Respondent submitted that the Order is a type of development control order issued pursuant to section 9.35 of the EPA Act. As a “relevant enforcement authority” the Respondent has the power to issue a development control order. It can give a Stop Work Order where it considers work is being carried out in contravention of the EPA Act.

52. The Respondent submits that it issued the Order following an inspection of the Applicant’s Property, in circumstances where:

(a)   the Respondent inspection confirmed that tree clearing had been undertaken on the Property;

(b)   Respondent was of the view that the tree clearing required approval; and

(c)   a search of Respondent’s records indicated that no approvals had been issued for the clearing works.

53. The Order was sent to the Applicant by email and by express post, and required all works on the property to stop immediately, including any tree clearing, earthworks, building works or any other associated works.

54. The Respondent explained that it attached the Order to a fence and bin on the Applicant’s Property, due to:

(a)   the urgency of the Order,

(b)   the proximity to Christmas, and

(c)   failed attempts to contact the Applicant by telephone and email.

55. With respect to the Applicant’s privacy complaint the Respondent submits that pursuant to the exemption in section 23(5) of the PPIP Act, an agency is not required to comply with section 18 of the PPIP Act if the disclosure of the information concerned is made in connection with proceedings for an offence or for law enforcement purposes, or is reasonably necessary in order to investigate an offence where there are reasonable grounds to believe that an offence may have been committed.

56. The Respondent advised the Applicant that the Notice was issued following an onsite investigation of illegal tree cleaning and that the Respondent was required to investigate this. The Respondent contends that the Notice was necessary to ensure that tree clearing would not continue while the matter was investigated.

57. In the circumstances, the Respondent submits that the internal review decision addressed the Applicant’s privacy complaint, explained the exemption in section 23(5) of the PPIP Act, and provided advice to the Applicant about the steps that she could take to seek review if she was unhappy with the decision.

58. As noted, the Applicant did not lodge an application for review of the Respondent’s decision within 28 days of the decision. The Respondent referred to the relevant considerations where an extension of time to lodge an application is requested. Relevant considerations include:

(a)   the length of the delay;

(b)   the Applicant’s explanation for the delay;

(c)   any relevant prejudice that would be suffered by the Respondent as a result of time being extended; and

(d)   the merits of the Applicant’s claim.

The length of the delay;

59. The Application to the Tribunal was lodged on 15 May 2025. The Respondent submits that in order to comply with the 28-day time period, the Applicant was required to make the Application on or before 11 April 2023. However, the Applicant denied receiving Internal Review Decision. On the most favourable view to the Applicant, she was aware of the Internal Review Decision at least as at 2 September 2023 when she referred to it in an email to Respondent. The Application was still not lodged for another 538 days.

60. The Respondent submits that this is a very significant delay and it weighs very heavily against time being extended.

The Applicant’s explanation for the delay;

61. In relation to the Applicant’s explanation for the delay, the Respondent submitted:

New and Material Evidence (Reason 1)

(a)   The Applicant asserts that there is “new evidence” which was “not known or reasonably knowable to me at the time of the original review and therefore constitutes new evidence”.

(b)   The new evidence is said to be contained in a letter from Council to the Applicant dated 22 July 2024 (2024 Letter). This letter advised of the outcome of an investigation by Council into alleged unauthorised clearing on the Property on 18 May 2024.

(c)   In summary, the investigation found that the clearing undertaken in May 2024 was determined to be lawful. This was because Council had established that the maintenance of an asset protection zone was required under a development consent granted in respect of the Property on 10 February 2005, and the clearing was for that purpose.

(d)   Based on that finding, the 2024 Letter also advised the Applicant that Council revoked its previous enforcement action/steps in respect of clearing on the Property which, at that earlier point in time, it had understood to be unauthorised.

(e)   According to the Applicant, because of the matters communicated to her in the 2024 Letter about the permissibility of clearing on the Property, the Internal Review Decision “relied on inaccurate and incorrect legislative grounds, rendering it materially flawed”.

62. The Respondent submitted that the Applicant is wrongly conflating two very distinct matters:

1. the correctness of the decision to issue the Order in 2022, having regard to “new evidence” she received in 2024; and

2. the correctness of the Internal Review Decision in respect of alleged privacy breaches.

63. The Respondent submitted that only the second matter is amenable to administrative review by the Tribunal under the PPIP Act.

64. As noted, the Applicant’s privacy complaint related to the issuing of the Notice in December 2022. The Respondent submits that the information in the 22 July 2024 Notice of Investigation Outcome is simply not relevant to the Applicant’s privacy complaint. Further, even if it is relevant, the Respondent submits that the Applicant cannot ‘retrofit’ information she became aware of in July 2024 to facts known at the time of the Internal Review Decision.

65. Accordingly, the Applicant’s reliance upon ‘new evidence’ does not justify the delay in making the Application and should be rejected.

66. The Respondent also notes other reasons for the delay asserted by the Applicant:

Repeated Attempts to Raise the Matter with Relevant Authorities (Reason 2)

(a)   In the Extension Request, the Applicant refers to various communications she sent to Council and other bodies regarding the content of the 2024 Letter.

(b)   For the reasons set out above, the information in the 2024 Letter is irrelevant for present purposes. In any case, the communications referred to by the Applicant did not prevent her from making an Application, and do not excuse the lengthy delay in doing so.

Instructions from Privacy Commissioner to Lodge New Complaint (Reason 3)

(a)   The basis upon which the Applicant seeks to justify the delay, in paragraph 3 of the Extension Request, is not entirely clear.

(b)   The Applicant states that she requested Council to conduct a “fresh review” based on “new evidence” (the 2024 Letter), but Council did not do so. Instead, the Applicant submits that Council responded to that request for a fresh review on 13 April 2025 by “re-issuing the same internal review outcome from 13 March 2023, thereby ignoring the new evidence.”

67. The Respondent submitted that it had no power to conduct a “fresh review”. No new privacy complaint was made by the Applicant under section 53 of the PPIP Act. Rather, the Applicant continued to agitate matters with Council about the clearing on her property. This does not excuse the Applicant’s delay in making the Application.

68. The Respondent also notes:

Procedural Fairness and Interests of Justice (Reason 4)

(a)   The Applicant cites:

1. “The serious privacy breach involved public display of personal data” ...

2. “The subsequent identity theft, defamation, harassment, intimidation and bullying and by both Tweed Shire Council Employees and neighbours and financial losses exceeding $525,000, which does not include the PTSD suffered as a result”.

The Applicant has provided no evidence to establish any of the above matters.

1. “The new evidence proves that Council staff applied the wrong legislative framework in the original decision”.

Again, this statement appears to be an impermissible attempt to agitate matters in the 2024 Letter. ...

1. “I have made consistent, diligent efforts to resolve the matter without judicial intervention”

   69. The Respondent submitted that the Applicant has sent numerous emails since the notification of the Internal Review Decision, complaining about a range of matters not confined to the subject matter of the Internal Review Decision. To the extent that the Applicant submits that such complaints were attempts to “resolve the matter”, this is rejected. Moreover, it is no justification for the significant delay in making the Application.

Any relevant prejudice that would be suffered by the Respondent as a result of time being extended

70. The Respondent submitted that the prescribed period for administrative review reflects the need for finality in disputes; the efficient use of public resources; the appropriate allocation and expenditure of public funds; and evidence which is as contemporaneous as possible. The prescribed period of 28 days reflects the legislative intention that applications for review should be dealt with promptly after the relevant event.

71. Having regard to these considerations, and the significant length of time that has elapsed, the Respondent contends that it would be prejudiced if it was required to divert its existing finite resources away from its current responsibilities to defend the Application.

The merits of the Applicant’s claim.

72. The Respondent points to views expressed by Senior Member French in FDL v South Western Sydney Local Health District [2022] NSWCATAD 40 where he stated at paragraph [36]:

Section 41 of the NCAT Act confers discretion on the Tribunal to extend the time in which an application may be made. That discretion is unfettered but must be exercised judicially having regard to established principle. In short summary, time limits are to be strictly enforced unless to do so would work an injustice to an applicant. The relevant considerations are the length of the delay, the applicant’s explanation for the delay, any relevant prejudice that would be suffered by the respondent as a result of time being extended, and the merits of the applicant’s claim. In this last respect, if the delay is relatively short, it is necessary for the applicant to show that their claim is fairly arguable. If the delay is lengthy, the applicant must show that their claim has substantial merit: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22.

73. The Respondent submitted that in this case, given the very lengthy delay in making the Application, the Applicant bears the onus of demonstrating that the Application has substantial merit. It further submits that she has not established that the claim has substantial merit, in circumstances where:

1. The Applicant’s claim is misconceived. It is clear from the material relied upon by the Applicant that she is seeking to air complaints about the Respondent which are irrelevant and/or beyond the jurisdiction of the Tribunal in these review proceedings.

2. The Applicant’s claim cannot overcome the findings of the Internal Review Decision itself, including:

1. exemptions which apply to Council under section 25 of the PPIP Act when exercising functions as an enforcement authority; and

2. public interest considerations which were required to be weighed up by the Council, including the context in which the Order was issued.

3. In deciding whether or not section 25 is applicable the Tribunal is not required to go so far as to make a “microscopic comparison” of an alternative law to which an agency refers in justification: As acknowledged in PN v Department of Education and Training (GD) [2010] NSWADTAP 59 at paragraph [54].

4. It is sufficient for present purposes to note that Council is a regulatory authority with powers to investigate matters which are alleged to amount to a breach of the EPA Act, and that its investigative powers extend to formal action which includes the issue of Stop Work Orders.

5. In the present case, public considerations included Council’s role in enforcing compliance with the EPA Act with some urgency, to ensure no further clearing was undertaken on the Property, with potentially irreparable harm caused to the environment.

74. Moreover, the Respondent submitted that there is no reasonable likelihood that a review of the Respondent’s conduct by the Tribunal would result in the outcome she seeks, particularly damages for losses “exceeding $525,000”. The Tribunal’s jurisdiction to award damages to the Applicant is limited to $40,000 and only where the Tribunal is satisfied that the Applicant suffered financial loss, or psychological or physical harm because of the conduct.

75. The statutory damages in the PPIP Act are discretionary. Even if the Tribunal were to find that there had been a breach, it may decide not to take any action on the matter.

76. The Applicant bears the onus of establishing the causal link between the breach and the damage allegedly suffered. She has not provided any evidence of financial loss or physical or psychological harm arising by reason of the Respondent’s conduct.

77. In summary, the Respondent submits that the application for an extension is without merit and should be refused.

Discussion

78. As noted above, the delay in making the Application is significant. I note the Applicant’s assertion that she did not receive the Internal Review Decision. I find that assertion improbable. In any event, the delay in bringing the Application is almost two years from the date on which it is clear that the Applicant had received the Internal Review Decision.

79. It is incumbent on the Applicant to demonstrate a reasonable explanation for the delay, and the prospects of success of the Application.

80. I agree with the Respondent that the substantive matter that the Applicant seeks to have the Tribunal review, involves the decision in regard to the Applicant’s privacy complaint. That complaint is clearly focused on the 20 December 2022 Stop Work Order which required all building works and development at the Applicant’s property to stop immediately.

81. It is not in dispute that the Respondent undertook a review of the conduct which the Applicant alleged was in breach of the PPIP Act. The Tribunal’s jurisdiction is limited to reviewing the findings of the review, or the action taken by the Respondent in relation to the application. The Tribunal cannot review the correctness of the decision to issue the Order in 2022.

82. In reviewing the complaint, the Respondent relied on the exemption provided for in section 25 of the PPIP Act. As noted by the Appeal Panel in PN v Department of Education and Training, the Tribunal is not required to undertake a microscopic consideration of the applicable provisions of the EPA Act. I agree with the Respondent that for present purposes it is sufficient that the Respondent is a regulatory authority with powers to investigate matters which are alleged to amount to a breach of the EPA Act, and that its powers extend to includes the issue of Stop Work Orders.

83. In the circumstances, I agree with the Respondent that the exemption provided for in section 25 of the PPIP Act has serious implications for the prospects of success of the Applicant’s Application.

84. As explained in Jackson v NSW Land and Housing Corporation, there may be circumstances in which it might be appropriate to go further into the merits of an application. In my view, that approach is applicable in this matter. I also consider that this is a matter in which the issue of whether the Applicant can show that her case has more substantial merit than merely being fairly arguable is relevant.

85. When the circumstances in which the Respondent issued the Notice are taken into account, I accept the explanation and arguments that the Respondent has presented. In particular I note the proximity to the Christmas period and the need to investigate the matters that the Notice sought to address. I accept that this created a degree of urgency. I accept that there was a need to access historical records to establish the lawfulness of the Applicant’s actions and that it was prudent to issue the Notice to allow time for that to be done.

86. I also accept the Respondents arguments in relation to the prejudice that it would suffer should the extension of time be allowed.

87. In support of her Application, the Applicant points to the 22 July 2024 Notice of Investigation Outcome which affirms that her actions were lawful because she was permitted to undertake necessary vegetation management and tree clearing. However, whether or not her actions were lawful does not address the issue of the exemption provided for in section 25 of the PPIP Act.

88. The Applicant must show that her case has substantial merit. She has not addressed the question of the application of the section 25 exemption in any depth. I agree with the Respondent that this aspect of the Applicant’s claim cannot meet the substantial merit threshold. In my view, the weakness of this ground of the application militates against granting an extension of time.

89. In my view, there were reasonable grounds to believe that an offence may have been committed, and it was reasonably necessary for the Respondent to investigate the matter. In those circumstances, there was a reasonable basis for the issue of the Order, and some urgency to ensure no further clearing was undertaken on the Property.

90. In my view, all the relevant considerations i.e. the length of the delay; the Applicant’s explanation for the delay; any relevant prejudice that would be suffered by the Respondent; and the merits of the Applicant’s claim are weighed against granting an extension of time.

91. I do not consider that the other grounds on which the Applicant relies as the basis for an extension of time under section 41 of the NCAT Act assist. I agree with the Respondent that the grounds are not sufficient for the exercise of discretion to extend time.

92. The Applicant has not provided probative evidence in regard to her allegations that she has been harassed and intimidated, incurred numerous expenses and has the financial, emotional and reputational harm. She has not provided evidence of the alleged psychological trauma or explained how the factors that she has raised resulted in the delay in lodging the application to the Tribunal.

93. These matters could possibly be relevant to a consideration of whether the Tribunal should take any action on the matter pursuant to section 55(2) of the PPIP Act. However, that consideration follows the review of the conduct that was the subject of the application under section 53 of the PPIP Act. Given the view that I have formed in relation to the section 25 exemption, these matters are not persuasive in relation to the application for an order for an extension of time pursuant to section 41 of the NCAT Act.

94. In my view, there is no reasonable likelihood that a review of the Respondent’s conduct by the Tribunal would result in the outcome that the Applicant seeks.

95. The Applicant’s lack of prospects of success militates against granting an extension of time. Accordingly, the application for an extension should be refused.

Order

1. The application for an extension of time in which to make the application is refused.

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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

Amendments

25 August 2025 - no amendment made

Decision last updated: 25 August 2025