Lamont v Central Coast Council

[2025] NSWCATAD 163

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Lamont v Central Coast Council [2025] NSWCATAD 163

Hearing dates:

28 February 2025

Date of orders:

14 July 2025

Decision date:

14 July 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J Sullivan, Senior Member

Decision:

(1)   The decision under review is varied to grant access to the “Draft 01” and the “Draft Final” versions of the Report titled “Stage 6 Cost-Benefit Analysis of Wamberal Terminal Coastal Protection Options”, dated 26 June 2021 and 27 April 2021 respectively.

(2)   The Respondent must give effect to these orders within 14 days.

(3) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), publication of parts of these reasons marked “Not for publication” is prohibited.

(4) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of confidential material at pars [26]-[28] and Annexure H to the Applicant’s statement dated 23 January 2025 is prohibited.

Catchwords:

ADMINISTRATIVE REVIEW – request for information – draft Reports withheld by Council – whether overriding public interest considerations against disclosure

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Government Information (Public Access) Act 2009 (NSW)

Cases Cited:

Cameron v Commissioner of Police, NSW Police Force [2014] NSWCATAD 13

Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19

Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286

Hurst v Wagga Wagga City Council [2011] NSWADT 307

Leech v Sydney Water Corporation [2010] NSWADT 298

McKinnon v Secretary, Department of Treasury [2006] HCA 45

McLennan v University of New England [2013] NSWADT 113

Re Waterford and Department of the Treasury (No 2) [1984] AATA 67

Salmon v Department of Justice (Corrective Services New South Wales) [2014] NSWCATAD 160

Sobh v Victoria Police (1993) 1 VR 41

South Dural Residents and Ratepayers Group Inc v Roads and Maritime Services [2019] NSWCATAD 83

Category:

Principal judgment

Parties:

Corinne Lamont (Applicant)
Central Coast Council (Respondent)

Representation:

Applicant (Self-represented)

Solicitors:
Wilshire Webb Staunton Beattie (Respondent)

File Number(s):

2024/00409349

Publication restriction:

Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), publication of parts of these reasons marked “Not for publication” is prohibited.

Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of confidential material at pars [26]-[28] and Annexure H to the Applicant’s statement dated 23 January 2025 is prohibited.

reasons for decision

1. On 20 August 2024 the Applicant, Ms Lamont, requested information from Central Coast Council (“the Council”) in an application made under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act).

2. She requested draft versions of the final report titled “Stage 6 – Cost Benefit Analysis of Wamberal Terminal Coastal Protection Options” published by NSW Department of Planning Industry Environment – Manly Hydraulics Laboratory in association with UNSW Sydney – Water Research Laboratory and Balmoral Group Australia, for Central Coast Council dated December 2021 (“Final Report”).

3. Three drafts of the Final Report were responsive to her request:

1. Document 1: Preliminary Draft – dated 27 April 2021

2. Document 2: Draft 01 – dated 25 June 2021

3. Document 3: Draft Final – 18 October 2021

(“Requested Information”).

4. On 8 October 2024, the Council refused access to the Requested Information (“Decision”). The Decision relied on the public interest considerations against disclosure in clauses 1(e), 1(f), 4(e) and 5(c) of the Table in s 14(2) of the GIPA Act. I will refer to clauses as “items” for convenience.

5. The Applicant applied to the Tribunal for review of the Decision on 4 November 2024.

6. The Respondent says that there is an overriding public interest consideration against disclosure relying on items 1(e), 1(f) and 1(g).

Materials before the Tribunal

7. Prior to the hearing, the Applicant provided:

1. her Application to the Tribunal dated 4 November 2024 (A1);

2. two witness statements (of herself, Ms Lamont) filed on 23 January 2025 (A2) and 17 February 2025 (A3); and

3. an outline of submissions filed on 24 February 2025 (A4).

8. Prior to the hearing, the Respondent provided:

1. a GIPA Review form, emailed on 21 November 2024 (R1);

2. an affidavit of Benjamin Fullagar (“Mr Fullagar”) filed on 9 January 2025 (R2);

3. an affidavit of Kerri Donelan (“Ms Donelan”) dated 7 January 2025 and filed on 13 January 2025 (R3);

4. a second affidavit of Mr Fullagar dated 5 February 2025 and filed on 6 February 2025 (R4);

5. an affidavit of Dylan Taylor (“Mr Taylor”) dated 5 February 2025 and filed on 6 February 2025 (R5); and

6. an outline of submissions filed on 21 February 2025 (R6).

9. At the hearing, the following additional documents were received by the Tribunal:

1. from the Applicant:

1. a Closing Statement (A5)

2. from the Respondent:

1. a copy of the Final Report dated December 2021 (R7)

2. an email dated 25 November 2024 from Manly Hydraulics Limited (“MHL”) to the Council (R8);

3. a bundle of documents relating to “No Wamberal Beach Seawall Incorporated” (R9);

4. a document titled “Respondent’s Detailed Submissions” (R10); and

5. a bundle of authorities (R11).

10. Document R10, provided by Ms Rose (the solicitor for the Council) at the hearing, was objected to by the Applicant, and both parties were provided 7 days for any final submissions post the hearing to accord procedural fairness. The Tribunal is not bound by the rules of evidence, and may inform itself on any matter as it sees fit.

11. The guiding principle of the Tribunal in s 36(1) of the Civil and Administrative Tribunal Act 2013 (“NCAT Act”) is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. And only matters relevant to the question for decision will (indeed can) be considered. As stated by the High Court in McKinnon v Secretary, Department of Treasury [2006] HCA 45, in the context of the Freedom of Information Act 1982 (Cth):

“11.   To decide … whether there are reasonable grounds for a claim that a course of action (such as disclosure of a document) would be contrary to the public interest, involves an evaluation of the known facts, circumstances and considerations which may bear rationally on the question…. If a piece of information, or an opinion, or an argument, can have no rational bearing on a question for decision, it is irrelevant, and must be left out of further consideration. Otherwise, being relevant, just decision-making requires that it is to be taken into account.”

The Statutory Framework under the GIPA Act

12. The objects of the GIPA Act are set out in s 3, which provides:

3   Object of Act

(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.

13. The information the subject of the application is government information and the Council is an agency which holds the information: s 4(1) of the GIPA Act.

14. Section 5 provides that there is a presumption in favour of the disclosure of government information unless there is an “overriding public interest against disclosure”.

15. The question in this case is whether there is an overriding public interest against disclosure of the information sought by the Applicant for the purpose of s 13 of the GIPA Act which states:

13 Public interest test

There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest.

16. Section 12(1) provides that there is a “general public interest in favour of the disclosure of government information”.

17. Section 12(2) provides that nothing in the Act limits any other public interest consideration in favour of the disclosure of government information, which may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. A number of examples are set out, but they are not exhaustive.

18. In this case, the Respondent asserts that clauses 1(e), 1(f) and 1(g) of the Table in s 14 apply and that, on balance, there is an overriding public interest against disclosure.

19. Section 15 sets out the principles that are to be applied when determining whether there is an overriding public interest against disclosure:

15   Principles that apply to public interest determination

A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles—

(a)  Agencies must exercise their functions so as to promote the object of this Act.

(b)  Agencies must have regard to any relevant guidelines issued by the Information Commissioner.

(c)  The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account.

(d)  The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account.

(e)  In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information.

20. Section 54 of the GIPA Act contains a requirement that an agency is to take steps, which are reasonably practicable, to consult with specified persons before providing access to information. That requirement only applies to information which is of a kind that requires consultation under s 54(2): see s 54(1).

21. Section 55 of the GIPA Act provides:

55   Consideration of personal factors of application

(1)  In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section—

(a)  the applicant’s identity and relationship with any other person,

(b)  the applicant’s motives for making the access application,

(c)  any other factors particular to the applicant.

(2)  The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information.

(3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency’s consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2–5 (but not clause 1, 6 or 7) of the Table to section 14.

(4)  An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for.

(5)  An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity.

(6)  An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person.

Context of the Requested Information

22. Wamberal Beach is located on the Central Coast, above Terrigal. It has faced significant coastal erosion concerns for decades. In 2017, the Gosford Coastal Zone Management Plan (CZMP) prepared by Worley Parsons for Gosford City Council, was gazetted. This plan included Wamberal Beach within its scope.

23. Around the same time, Marsden Jacobs conducted a preliminary cost-benefit analysis (CBA) for Wamberal Beach. Commissioned at no cost to the Council and provided by the NSW Government, this preliminary report indicated a seawall was the least preferred option.

Council Governance

24. In 2016, Gosford City Council amalgamated with Wyong Council to form a new entity. Due to financial difficulties, the Council was placed under external administration in 2020.

25. In May 2020, the Council commissioned MHL to undertake the Wamberal Terminal Coastal Protection Assessment (the six “stages” are explained below in the evidence of Mr Fullagar).

Community and Political Involvement

26. Also in 2020, the NSW Government established a Seawall Advisory Taskforce for Wamberal Beach. The Taskforce included the local State MP, who had advocated for the construction of a seawall. Council representatives began attending from the second meeting onward. Taskforce minutes (which were made publicly available) were in the evidence. The Taskforce remained active until approximately 2023.

27. Following the Council ending administration, the Applicant was one of the new Councillors elected and appointed in October 2024.

The Applicant’s circumstances

28. The GIPA Application was lodged with the Council prior to the Applicant’s appointment as a Councillor. I accept it was lodged in her personal capacity, and not as a Councillor.

29. Having regard to the evidence in her statements, and under cross-examination, it is clear she has been a member of various community groups against the building of the seawall.

30. She continues to oppose the building of the seawall following her appointment as a Councillor. She said that her campaign for election as a Councillor was based on her opposition to the building of a seawall and her concerns with processes followed by Council in this regard. She makes various allegations of conflicts of interest in respect of Council staff members.

31. She also opposes the evidence and submissions presented by Council that the 2017 CZMP endorsed the option of building a seawall.

32. She says that there are serious governance and probity concerns because a decision was essentially made by the Council to build a seawall while under administration, the 2017 CBA was ignored, and the Stage 6 CBA Report was never issued in a draft form which permitted public consultation to meaningfully occur (unlike the reports for Stages 1 to 4).

Evidence of Mr Fullagar

33. Mr Fullagar provided evidence in his two affidavits and oral testimony. He was cross-examined by the Applicant. Some of his evidence was confidential and presented in a “closed” hearing (without the Applicant present) as required by s 107 of the GIPA Act. The “closed evidence”, and parts of these reasons, are not for publication and confidentiality orders have been made.

34. Mr Fullagar has a Bachelor of Engineering (Environmental) from Newcastle University and 25 years’ experience in a range of environmental engineering, coastal and estuary management, project management and water resources planning.

35. He has worked for the Council (and predecessor Councils) since February 2004. He is “Section Manager Catchments to the Coast”, and in that role he manages a team of staff responsible for coastal and estuary management along the central coast.

36. He had been involved in the relevant matters concerning Wamberal Beach since around 2017.

37. He confirmed that the Council was placed into administration in October 2020, a CEO of the Council appointed by the administrator, that there were no appointed Councillors during the period of administration, and that the Requested Documents were prepared during this period. By that time new Councillors were appointed in October 2024, the public consultation process conducted by Council had commenced and ended, and a DA Application for the building of a vertical seawall at Wamberal Beach had been lodged in 2023.

38. He confirmed that he was involved in the engagement of MHL to prepare the relevant reports.

Preparation of the Reports and the consultation process

39. The assessment outcomes were to be delivered via a series of reports for 6 stages of work:

Stage 1. Review of previous studies

Stage 2. Coastal protection amenity assessment

Stage 3. Seawall concept design options

Stage 4. Sand nourishment investigation

Stage 5. Provision of coastal monitoring (online webpage)

Stage 6. Cost benefit analysis and distributional analysis of options

40. The outcomes for Stage 5 were published on the Council’s website. No other “report” was issued for Stage 5.

41. “Final draft” reports for Stages 1 through 4 were issued for public consultation and feedback.

42. By contrast, no “Final draft” report for Stage 6 was issued for public consultation. Rather, it was issued to the public in the form of the Final Report, at the same time as the final reports (which had regard to the public consultation and feedback) were issued for Stages 1 to 4, in February 2022.

43. He acknowledged that the options to address the coastal erosion at Wamberal Beach was an important and topical project. He was aware of this because he was one of the “faces” of the Council in respect of the various phases of the consultation processes conducted with the community in respect of the project.

44. Mr Fullagar received the drafts from MBL. He did not explain the specific input that he or others at the Council had in any detail, or the process as to how that occurred.

45. No contract recording the actual terms of any engagement by Council with MHL or any other person were in evidence.

Opportunities for community feedback

46. Mr Fullagar explained the process of “rounds” of community consultation.

47. Relevantly, the second round of consultation was the release of “Final Drafts” in May 2021 for the Stage 1 to 4 reports, all written by MHL. He said the Stage 6 draft report was simply “not ready” to be released at the same time; although the initial intention for them to go out together, that did not happen. He explained that it involved professional economists, and engineers working through details and testing assumptions, particularly noting the comments in the first draft report. He said it was finished in December 2021 and was sent out in February (after the Christmas break). He said there were still opportunities to provide comments and also to speak at Council meetings.

48. He did not appear to dispute the Applicant’s position that 3,200 objections to the seawall were received by the Council.

49. He said the Stage 6 CBA was very complicated, and the other Stages less so. The costs in the Stage 1-4 reports also “fed in” to the Stage 6 CBA. MHL was involved in deliberations not only with the Council but also with other subcontractors. The Stage 1-4 “final drafts” were marked “public” by MHL, so they had reached a point where they were happy to go to the public domain.

50. Following the end of the second consultation period, the Stage 1-4 reports were updated to take into account Council’s consideration of the public feedback. He was cross-examined as to what other changes may have been taken into account through either staff input or information received from the Taskforce. He confirmed there were a number of earlier drafts taking into account conversations and deliberations between MHL and subconsultants as well, and the public versions were ready for the community to see. He said that the author of the report made the decision whether they would be made public or not.

46. The third round of consultation was the placing of all reports for community consultation, on 17 February 2022. All were marked “Final”. Council was open to receiving comments on all of these documents until 20 March 2022, receiving 113 submissions on a whole raft of different things, some relating to the Stage 6 CBA and some to the other stage reports. This was the first time the Stage 6 CBA (the Final Report) had been provided to the public.

47. His Second Affidavit at Annexure E (p134) provided a summary of this third round of consultation (“Phase 3”) of the consultation that occurred, including the number of downloads of the reports and other data relating to the consultation. It was an extract from Council’s website titled “yourvoiceourcoast.com”. It also stated:

“Online feedback forms results revealed the following:

•   The beach amenity impacts as a result of potential seawall are a significant concern for the community.

•   Concerns that the sole beneficiaries of the potential seawall are private property owners, there is also apprehension that the resulting benefits for private property owners will be at the detriment of the broader community with the loss of the public beach.

•   There is uneasiness around the initial cost of construction and ongoing maintenance of the seawall and concerns that this will be propped up by public funds.

•   The community is concerned that alternative solutions for Wamberal Beach were not included in the technical reports, resulting in doubt being cast on the proposed solutions.

Feedback received indicates an overall opinion that there has been a lack of genuine community consultation with only one solution (Terminal Protection/Seawall) being discussed and considered.”

53. Mr Fullagar said that Council’s decision making was very open and transparent across the board. In this case, the report was ready for public engagement when it was marked public by MHL. He said that Council had been completely open throughout the whole process with the consultation. It was going “above and beyond” by having four rounds of consultation for the project as a whole. The project was not just about the CBA; that was not the only basis for Council’s decision-making nor for the lodgment of DAs by private property owners.

54. He said the document was very technical, and the deliberations were the testing of assumptions and supporting calculations; and the key deliberative process that was in question. It was open to be commented on. If the community pointed out something erroneous post final, it could have been revised.

Decision by Council

55. Mr Fullagar said that the decision by “Council” (relevantly, the then administrator, as advised by the CEO and Council officers who in turn advised as to the feedback received) was made on 28 June 2022. That was the formal decision to proceed with the building of the vertical seawall.

Subsequent events

56. Mr Fullagar confirmed he was also involved in the engagement of MHL to work on engineering design requirements for a vertical seawall. He explained in cross-examination that was outlined in a public media release dated 16 February 2022. That was a stage that also was subject to public consultation. It was identified that the engineering design requirement would be required to be submitted with a development application. He said it became apparent that a document would be required to help to assist with the DA process, but also to assist with the DA assessment process as well. Council later adopted those after public consultation. The DA was lodged at the end of 2023, went on public exhibition in mid 2024 and was subject to assessment by Council but required consent by a different authority, being the Regional Planning Panel.

57. The Applicant asked questions of Mr Fullagar regarding his involvement with the Wamberal Protection Authority (WPA), and assertions regarding him being conflicted as a “co-proponent” or “partner” with the WPA in respect of the DA: see Annexure K to the Applicant’s 23 January 2025 Affidavit. He said his role was demarcated in terms of probity controls and a probity plan. He explained that the Council (for its land parcels, being the beach accessways) signed a landowners consent that the DA be lodged to include those parcels of land. There was also a legal agreement for the preparation of technical documents and reports to form the supporting documents for the DA, and for Council to pay a proportion based on the land size for its proportion of the land. That was also made public on the Council’s website.

Review of the Requested Information

58. The following emerges from Mr Fullagar’s evidence and my review of the Requested Information as contained in each document.

Document 1

59. [Not for publication]

60. [Not for publication]

61. [Not for publication]

62. [Not for publication]

63. [Not for publication]

64. [Not for publication]

65. [Not for publication]

66. Mr Fullagar said at [12] that Council was not provided with a clean copy of Document 1.

67. [Not for publication]

68. [Not for publication]

69. I find that when Document 1 was issued to Council by MHL, it was stated to be strictly confidential, incomplete and not for further distribution.

70. I also find that Document 1 was an initial working draft at an early stage of consultation. It was the “initial thinking” of the relevant team preparing and reviewing it. It contained many markups and numerous comments which revealed the consideration and agitation of many issues, with input from many persons, which were unresolved.

Document 2

71. [Not for Publication]

72. [Not for publication]

73. No further evidence was provided which explains the nature of the deliberations which occurred or what deliberations were “revealed” in respect of Document 2.

Document 3

74. Document 3 was the third draft version, being the “Draft Final” dated 18 October 2021.

75. During the hearing, the Respondent indicated that it would take instructions as to whether Document 3 could be provided to the Applicant. On 29 May 2025, the Tribunal was advised in writing that the Respondent did not consent, prior to publication of this decision, to the release of any documents the subject of these proceedings.

76. [Not for Publication]

77. [Not for Publication]

78. [Not for publication]

“Not ready to be released”

79. [Not for publication]

80. [Not for publication]

81. The Tribunal is not permitted to have regard to whether the information will be misinterpreted or misunderstood in determining whether there are public interest considerations against disclosure. Evidence placed before the Tribunal to this effect must therefore be ignored as a factor in my consideration of the legal tests below: see s 15 of the GIPA Act.

Claims by the Applicant

82. [Not for publication]

83. [Not for publication]

84. I am satisfied that the Council is not a named applicant on the DA, and that it signed a landowners’ consent for the land that Council owns in respect of that DA. The letter agitated at the hearing was written in 2023, quite a time before the DA was lodged in 2024, and quite a time after the Final Report was released in February 2022.

The Decision on the GIPA Application

85. Kerri Donelan swore an affidavit on 7 January 2025 and was not required for cross-examination. She was the Governance and Access to Information Officer at Council, and made the decision on the Applicant’s GIPA Application (Annexure E) dated 8 October 2024.

86. The Decision confirmed the general public interest in favour under s 12(1).

87. Noting that the examples in s 12(2) were not exhaustive of public interest considerations in favour of disclosure, she concluded that disclosure of the information could reasonably be expected to:

1. promote open discussion of public affairs, enhance Government accountability or contribute to positive and information debate on issues of public importance (Example (a) in s 12(2)); and

2. inform the public about the operations of Council and, in particular, Council’s policies and practices for dealing with members of the public (Example (b) in s 12(2)).

88. Each of these considerations were given “significant weight”.

89. She also considered the “personal factors of the application” under s 55. She noted that the Applicant would like the Requested information “so that you can complete your objection to DA/947/2024”. She also ascribed “significant weight” to this.

90. She said that four public interest considerations against disclosure in s 14 were relevant because:

1. Item 1(e): “There is a real risk that information presented in draft reports, not presented in the final report, may be used in such a way to try and prejudice the delivery of strategic actions adopted by Council and the NSW Government.”

2. Item 1(g): “[The Council] engaged [MHL] at cost, in good faith and with the expectation of confidentiality in order to prepare qualified scientific analysis and recommendations on the strategic management of Wamberal Beach. Release of information may present a loss of confidence in the ongoing professional relationship between MHL and [the Council] moving forward.”

3. Item 4(e): “Releasing information from draft documents that have not been adopted threatens to undermine the effectiveness and integrity of the Cost Benefit Analysis that has been completed, finalised and adopted.”

4. Item 5(c): “Misuse of draft information to try and prevent the delivery of strategic management actions at Wamberal Beach could present a real risk to safety of occupants of houses, or beach users as a result of further coastal erosion events that are not appropriately mitigated.”

91. She gave these considerations “significant weight” against disclosure.

92. The conclusion was one sentence: “Having weighed up the considerations, I have decided that there is an overriding public interest against disclosure of the information.”

Other GIPA Applications

93. Ms Donelan’s affidavit at [7]–[9] and Annexures C and D revealed that the NSW Government (DCCEEW now in place of DPIE) had also received the same request from the Applicant, and had consulted with Luke Sulkowski (Unit Manager, Environmental Management at the Council) under s 54 of the GIPA Act. Mr Sulkowski wrote to DCCEEW on 13 September 2024 saying “MHL had also requested the same information from Council on 22 August 2024”, and that access had been refused on the basis of grounds 1(c), 1(e), 1(f), 1(g), 4(d), 4(e), 5(a) and 5(c). Mr Sulkowski responded to DCCEEW setting out those grounds. Ms Donelan said at [10] of her Affidavit that she “used some of the information that Luke [Sulkowski] sent me to make my decision”.

94. Mr Sulkowski’s objections advised to DCCEEW:

1. Mirrored the wording in the Decision (as issued to the Applicant by Ms Donelan):

1. at item 1(e);

2. at item 1(g) – in respect of item 1(c) and item (g) as advised to DCCEEW: and

3. at item 4(e); and

4. at item 5(c)

2. Included the following additional objections under other items:

Item 1(f): prejudice the effective exercise by an agency of the agency’s functions: opponents of the current adopted strategic management of Wamberal Beach have demonstrated misrepresentation of information, and threaten to misue [sic] draft information in the same manner which could have real effects on the safety and wellbeing of members of our community.

Item 4(d) prejudice any person’s legitimate business, commercial professional or financial interests: the current strategic approach to management of Wamberal Beach, as discussed in the requested Cost Benefit Analysis, is the most cost effective approach for the Central Coast Community. In addition, the efforts of various landowners (both Council and private landowners) who are trying to advance the delivery of an adopted terminal protection structure, to protect private and public land and safety, risk having their financial interests placed at further risk by continued efforts to undermine this adopted strategic approach with the application of disinformation from draft documents that are provided them [sic].

Item 5(c): endanger, or prejudice any system or procedure for protecting, the life, health or safety of any animal or other living thing, or threaten the existence of any species: misuse of draft information to try and prevent the delivery of strategic management actions at Wamberal Beach could present a real risk to safety of occupants of houses, or beach users as a result of further coastal erosion events that are not appropriately mitigated.

Evidence of the Applicant

95. Ms Lamont filed extensive materials with the Tribunal, some of which were in the form of Witness Statements which also contained submissions. The key facts are set out above.

96. Under cross-examination, Ms Lamont confirmed she had a very special interest in the seawall, and had set up the Wamberal SOS with other people. She acknowledged she was the public officer of that association as registered with Fair Trading but said she was no longer a member of it. She said it was necessary to form a legal entity so that the organisation could engage a solicitor.

97. It was put to Ms Lamont that she had acknowledged at par [23] of her witness statement that she was bound by confidentiality in respect of the documents received by the Council in her capacity as a Councillor.

98. Her professional qualifications are in accounting and she is not a coastal engineer.

99. The Applicant was taken to cl 9.1.1 of the Council’s “Councillor and Staff Interaction policy” which was attached to the Statement of Dylan Taylor at Annexure D p.10 and p.19. It was put to her that she had breached her obligations and that had an impact on Council staff.

100. She acknowledged that she received copies of the draft documents in her capacity as a Councillor (at [23]). Annexure G was the email under which they were received. They were received, accordingly, on a confidential basis. She understood they could not be made public. She did not understand this did not allow her to file open statements in these proceedings referring to the documents in issue.

101. She said that her allegations regarding conflicts of interest were based on her reading of documents which she put in evidence before the Tribunal, and her understanding of the relationship between Council and the WPA.

Objections to evidence

102. I accept the objections to evidence by the Respondent in respect of pars [26]-[28] and Annexure H to the Applicant’s statement dated 23 January 2025, a matter conceded by the Applicant at the hearing. Confidentiality orders have been made below in respect of those materials.

103. She did not agree that it was her objective to circulate the draft documents to criticise the conclusions they came to. She said she wanted everything to be available because the process should be fully transparent as to what happened, and it was now complete.

Jurisdiction, onus and task of the Tribunal

104. The decision to refuse access to information in response to an access application is a “reviewable decision” under s 80(d) of the GIPA Act. It is an “administratively reviewable decision” under s 9 of the Administrative Decisions Review Act 1997 (NSW), and invokes the administrative review jurisdiction of the Tribunal under s 30 of the Civil and Administrative Tribunal Act 2013 (NSW). The Applicant is the access applicant, is aggrieved by the decision, and her application to the Tribunal was filed within time.

105. Having established jurisdiction, the Tribunal’s function under s 63 of the ADR Act is to determine, based on the material before it, what is the correct and preferable decision. The Tribunal may make orders affirming, varying or setting aside the decision, substitute its own decision, or remit the matter to the Council for further determination.

106. The onus is on the Respondent in these proceedings: s 105(1) of the GIPA Act. Therefore, the Respondent must provide evidence sufficient to prove the facts necessary for the Tribunal to make a determination in its favour.

107. In determining the correct and preferable decision on administrative review of a decision to refuse access to information, the well-established weighing approach is as outlined in Commissioner of Police, NSW Police Force v Camilleri (GD)[2012] NSWADTAP 19, at [24]–[25]:

“Putting to one side the cases where a conclusive presumption is relied upon, the Act envisages a two-step approach to the question of whether information has been properly refused.

… The agency case for refusal must rely on one or more of the section 14 Table considerations. The Tribunal’s task is then to weigh that case against the factors favouring disclosure (s 13), mindful of the injunctions that appear in both ss 12 and 15. It is important, in our view, that the Tribunal proceed in the structured way reflected by these provisions…”.

108. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286, the task of the Tribunal was described as follows:

“…. in all cases other than those falling under the terms of Schedule 1, the public interest test under the GIPA Act involves the following:

(a) identifying the public interest in favour of disclosure;

(b) identifying the public interest against disclosure; and

(c) determine where the balance lies”.

109. Determining where the balance lies between the competing interests is “a question of fact and degree, requiring the weighing of competing matters, and is a task that is not amenable to mathematical calculation”: Hurst v Wagga Wagga City Council [2011] NSWADT 307 (“Hurst”) at [94]; Salmon v Department of Justice (Corrective Services New South Wales) [2014] NSWCATAD 160 at [46].

110. The legislation refers to where disclosure ”could reasonably be expected” to have the relevant effect. What this means was described in Leech v Sydney Water Corporation [2010] NSWADT 298 (“Leech”) in the following terms, at [25]:

“The term ‘could reasonably be expected’ has been considered in a number of cases. The words have their ordinary meaning: Searle Australia Pty Ltd v PIAC (1992) 108 ALR 163. The test to be applied is an objective one, approached from the view point of the reasonable decision-maker: Neary v State Rail Authority. Something which could reasonably be expected is something which is more than a mere possibility, risk or a chance. It must be based on real and substantial grounds, and it must not be purely speculative, fanciful, imaginary or contrived: Searle Australia Pty Ltd v PIAC”.

111. The word “prejudice” in the context of the public interest considerations against disclosure, is to be given its ordinary meaning, namely: “to cause detriment or disadvantage”: see Hurst at [60], McLennan v University of New England [2013] NSWADT 113 at [38] and Sobh v Victoria Police (1993) 1 VR 41.

Preliminary matters

112. Confidentiality orders were made by the Tribunal because the Requested information was subsequently provided to the Applicant by the Council in her capacity as a Councillor, and subject to confidentiality obligations. To the extent that the Applicant has filed evidence or made submissions regarding the content of the Requested Information, they are not considered. The Tribunal itself has had regard to the content for the purpose of considering the legal tests it is required to determine, and forms its own opinions.

113. Nor is it the role of the Tribunal to adjudicate on the merits of the process or role undertaken by Council, nor on decisions made or not made by the NSW Government, the Taskforce or the Council.

114. To the extent that the Respondent raises matters relevant to the Applicant which are “personal factors of the application” for the purpose of s 55 of the GIPA Act, the Respondent now acknowledges (R10) that these cannot be taken into account. The personal factors of the application listed in s 55(1)(a), (b) and (c) may be taken into account in support of public interest considerations in favour of disclosure (s 55(2)), but not in regard to public interest considerations against disclosure listed under clause 1 of the Table in s 14(2) of the GIPA Act: see s 55(3). I find that the arguments raised by the Respondent in respect of the particular comments made by the Applicant are within this category that I am not permitted to have regard to.

112. To the extent that Mr Fullagar’s evidence is that the release of the information would or could confuse or mislead people, that evidence also cannot be taken into account under s 15 of the GIPA Act.

Step 1 - Public interest considerations in favour of disclosure

116. In addition to the general public interest in favour of disclosure (GIPA Act, s 12(1)), there are the following public interest considerations in favour of disclosure of the information sought by the applicant. Many of these were acknowledged not only in the testimony of Mr Fullagar, but also from the webpage information in Ms Donelan’s affidavit, and the public consultation process undertaken by Council, the Taskforce and the thousands of public responses recorded by those documents.

117. There is a strong public interest in contributing to positive and informed debate on issues of public importance, including, broadly, the issue of how to protect a community against the effects of climate change and/or coastal erosion. Recent “record breaking” storms along the Australian eastern coast, and their devastating consequences, further heighten community concerns. The competing views and interests have continued unabated since the CBA prepared back in 2017 which noted (p13 of the Annexures to Mr Fullagar’s affidavit):

“The CBA concludes that one of the engineering options considered (Options 2-7) are expected to provide a net public benefit for the local community and for visitors to the area, under base assumptions. Only a Planned Retreat (Option 8) provides greater benefits than a continuation of the current approach of no specific managed intervention (Option 1, maintaining current, status quo approaches).

The analysis concludes that the net costs imposed on residents, visitors and other parties from the loss of the beach and construction of a seawall, exceed the net benefits stakeholders would receive from the effects of a seawall. The key beneficiaries from construction of a seawall are the approximately sixty owners of beachfront properties at Wamberal.”

118. The Requested Documents fit squarely within this area of public concern, where it is also acknowledged by the Respondent’s witnesses that there are highly contested community views on the building of a seawall.

119. The public interest in the project is also evident from the very fact that public consultation was undertaken. There is voluminous evidence before the Tribunal seeking to provide information to the public and obtain views and undertake consultation processes.

120. That this was a topic of great concern and competing views of various proponents for and against the seawall cannot be disputed.

121. In respect of the personal factors of the application, s 55 permits the Tribunal to take into account:

1. the applicant’s identity and relationship with any other person,

2. the applicant’s motives for making the access application,

3. any other factors particular to the applicant.

122. When the Application was first lodged with the Respondent, the Requested Information was stated to be required by the Applicant for the purpose of making a submission against the DA.

123. Regardless of whether that DA process has moved on, I find that the underlying reason was to obtain more transparency over the matters considered by the Council in conjunction with other parties in the absence of Councillor oversight at the relevant time the drafts were in the course of preparation. The evidence also establishes that there were no Councillors appointed at the relevant times the drafts were prepared.

124. I also find that her past associations with community groups establish her strong interest in the matter for the purpose of such dissemination.

125. I find these public interest considerations in favour of disclosure to be of significant weight.

Step 2 - Public interest considerations against disclosure

126. There is no conclusive presumption against disclosure that arises in this case (see s 14(1)).

127. The public interest considerations against disclosure are limited to those set out in the Table to s 14 of the GIPA Act. The Respondent seeks to rely on items 1(e), 1(f) and the second part of item 1(g) as set out below.

1. Item 1(e) [disclosure could reasonably be expected to] reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency; and

2. Item 1(f) [disclosure could reasonably be expected to] prejudice the effective exercise by an agency of the agency’s functions; and

3. Item 1(g) [disclosure could reasonably be expected to] … otherwise disclose information provided to the agency in confidence.

Item 1(e)    reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process

128. There are two elements to the consideration under item 1(e). First, the information must reveal a deliberation, consultation, advice or recommendation – the “internal thinking” – of an agency; Fire Brigade Employees’ Union v Fire & Rescue (NSW) [2014] NSWCATAD 113 (“Fire Brigade EU”). Secondly, the disclosure of that information must reasonably be expected to prejudice a deliberative process; South Dural Residents and Ratepayers Group Inc v Roads and Maritime Services [2019] NSWCATAD 83 at [42]–[47].

129. The Applicant says that unlike Stages 1 through 4, the Stage 6 Final Report was never issued in draft form or amended to take into account public consultation. She says that there should be transparency of the full deliberative processes that resulted in the release of the Final Report. She does not contend that there were no deliberative processes under way at the time the drafts were prepared. Rather, she says that item 1(e) no longer has effect because the deliberative process was clearly at an end upon the Final Report being published. She says that the very purpose of the GIPA Act is to make those deliberations transparent and open for all to see.

130. However, item 1(e) is not restricted to the specific deliberative process that was undertaken. In Commissioner of Police v Camilleri [2012] NSWADTAP 19 (“Camilleri”) , the Appeal Panel considered (at [26]) that s 14 considerations need to be examined at a broad operational level and that those considerations “are concerned with systemic features of the operation of government”. Accordingly, even though the specific process the subject of the deliberations has concluded, that does not mean, as the Applicant asserts, that the consideration in item 1(e) should not be considered.

131. In accordance with this approach, the essence of the Respondent’s claims (which the Tribunal is permitted to consider) is that:

1. the Requested Information comprises working drafts still undergoing the deliberative process – being communicated between Council and its engaged consultants for comment before being refined in a form suitable for public release, and thereby reveal initial thinking and deliberations; and

2. there is a reasonable expectation that future deliberative consultations would be prejudiced by the disclosure of the Requested Information because it will open up the ability for people to be critical of a deliberative process and that moving forward, staff members and staff that engage with Council will be fearful of discussing drafts, saying the wrong things, and that the process of deliberation will be prejudiced as a result.

132. Accordingly, the focus turns to whether the documents reveal the deliberative process, and whether a relevant connection is established between the deliberation as contained in the withheld information and the Respondent’s future “deliberative processes”: see Fire Brigade EU at [57] – [58].

133. The action of deliberating, in common understanding, involves the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one’s course of action: see Re Waterford and Department of the Treasury (No 2) [1984] AATA 67; (1984) 5 ALD 588 at [58] to [61].

134. It has been accepted that the release of records revealing sensitive deliberations could be reasonably expected to hinder future communications, thus impacting on the ability of the Respondent to effectively address such issues: Cameron v Commissioner of Police, NSW Police Force [2014] NSWCATAD 13.

135. The reasonable expectation of prejudice is an objective test, as explained in Leech. The test of reasonableness applies not to the claim of harm but to the objective assessment of the expected adverse effect.

136. I find that Document 1 reveals such deliberations (or alternatively, consultation) by reason of it being the initial draft replete with numerous comments as found above. I find that Document 1 is within item 1(e) and that disclosure of the comments would reveal the “initial thinking” and would reasonably be expected to prejudice the open sharing of such ideas in future deliberations by the Council. Document 1 is also in a substantially different form to the later drafts.

137. The evidence in respect of Documents 2 and 3 was less persuasive and general in nature. It did not provide me with a clear understanding of what was “revealed” that would be reasonably expected to prejudice future deliberations, nor what future deliberations would be prejudiced if the information in those documents was released.

138. Documents 2 and 3 were also different from Document 1 in many respects:

1. They do not reveal any comments by particular persons, nor do they contain markups from previous versions;

2. Large sections of the information mirror the text disclosed in the Final Report. There can be no reasonable expectation of prejudice by disclosure of information which has already been publicly disclosed.

3. To the extent that assumptions or conclusions have changed from the Final Report, they reveal the position adopted, but not the deliberations by which they were arrived at.

4. I am therefore not satisfied that item 1(e) applies to the information in Documents 2 or 3.

5. Alternatively, if I am wrong and item 1(e) applies, I would accord it only low weight.

139. [Not for publication]

140. I find that item 1(e) applies to the information in Document 1 and is of significant weight as a public interest consideration against disclosure of that draft.

141. I find that item 1(e) does not apply to the information in Documents 2 and 3 and that, even if it did apply, it would be of low weight.

Item 1(f)

142. Item 1(f) applies if the disclosure of the government information could reasonably be expected to prejudice the effective exercise by an agency of the agency’s functions.

143. The same arguments were essentially run by both parties, with the Applicant again submitting that the relevant function was completed, and denying the Respondent’s position that her claims against Council and its staff are unfounded.

144. As with item 1(e), item 1(f) is also concerned with the future exercise by an agency of the agency’s functions.

145. The Respondent, which has the onus of proof, submits that disclosure could reasonably be expected to prejudice the effective exercise in the future of the Council’s “policy functions”. I found the evidence regarding such functions to be more in the nature of assertions, without any specificity regarding the functions or who performed them. Nonetheless, I am satisfied that the function of Council includes the setting of policies regarding environment matters affecting the local government area.

146. However, for the same reasons considered in respect of item 1(e) above, I only find that item 1(f) has been satisfied in respect of Document 1 which is afforded significant weight. Alternatively, if item 1(f) has been satisfied in respect of Documents 2 and 3, they are of low weight, noting that:

1. large parts of the text have been made publicly available; and

2. the personal factors of the application must not be taken into account.

Item 1(g)

147. Item 1(g) is relied on by the Respondent only in respect of the second half of that provision. It appears that item 1(g) was not raised in the written submissions filed in accordance with the orders of the Tribunal prior to the hearing, but was present in the “expanded” written submissions handed up at the hearing, and in the oral submissions at the hearing (in my view with somewhat lesser force that the items above).

148. The submissions reflect the reasons given in the original Decision in respect of item 1(g) noted above; that the Council engaged MHL with the expectation of confidentiality and release of information may result in a loss of confidence in the ongoing professional relationship between MHL and the Council moving forward.

149. There was no evidence from MHL regarding the terms on which it was engaged, nor the confidentiality provisions that applied to consultations more generally. The Information Commissioner has said that the item presumes that the material in issue will have been supplied on a confidential basis.

150. I accept that there were specific instructions as to confidentiality received from MHL in respect of the information in Document 1 when it was sent to the Respondent. I therefore find the factor to apply to that document.

151. In respect of the other documents, there was no evidentiary support regarding terms of engagement, confidentiality provisions or the supply of information more generally. I am therefore not satisfied that the Respondent has satisfied its onus of proving that item 1(g) applies to the Requested Information in respect of Documents 2 and 3 or, alternatively, I find that if it did apply, it would be of low weight.

152. I also observe that consultants who deal with Councils are well aware that Councils and any other relevant “agencies” are subject to obligations under the GIPA Act, and only a conclusive presumption against disclosure (not relevant here) would offer complete protection from disclosure.

Step 3 - Balancing the considerations

153. Having regard to my findings above, I conclude, on balance, that:

1. the public interest considerations against disclosure outweigh the general presumption and public interest considerations in favour of disclosure in respect of the information in Document 1; and

2. the general presumption and public interest considerations in favour of disclosure outweigh, by a significant margin, the public interest considerations against disclosure in respect of the information in Document 2 and Document 3.

154. For these reasons, the correct and preferable decision is that the Respondent’s decision under review should be varied such that the information contained in Documents 2 and 3 should be released in full to the Applicant.

Orders

155. I make the following orders

1. The decision under review is varied to grant access to the “Draft 01” and the “Draft Final” versions of the Report titled “Stage 6 Cost-Benefit Analysis of Wamberal Terminal Coastal Protection Options”, dated 26 June 2021 and 27 April 2021 respectively.

2. The Respondent must give effect to these orders within 14 days.

3. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), publication of parts of these reasons marked “Not for publication” is prohibited.

4. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), disclosure of confidential material at pars [26]-[28] and Annexure H to the Applicant’s statement dated 23 January 2025 is prohibited.

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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 July 2025