North Coast Environment Council v Environment Protection Authority - [2021] NSWCATAD 29

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: North Coast Environment Council v Environment Protection Authority [2021] NSWCATAD 29
Hearing dates: 10 September 2020
Date of orders: 12 February 2021
Decision date: 12 February 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Montgomery, Senior Member
Decision:
The decision under review is affirmed.

Catchwords:
ADMINISTRATIVE LAW – government information – access application – provided to an agency in confidence – diminish the competitive commercial value of information – prejudice legitimate business, commercial or financial interests – public interests in favour of disclosure – public interests against disclosure – whether overriding public interest against disclosure

Legislation Cited:
Civil and Administrative Tribunal Act 2013
Administrative Decisions Review Act 1997
Government Information (Public Access) Act 2009

Cases Cited:
Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252
Destination NSW v Taylor [2019] NSWCATAP 123
Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286
Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46
Leech v Sydney Water Corporation [2010] NSWADT 198
Neary v State Rail Authority [1999] NSWADT 107

Texts Cited:
None cited

Category: Principal judgment
Parties: North Coast Environment Council (Applicant)
Environment Protection Authority (First Respondent)
Cape Byron Management Pty Ltd (Second Respondent)
Representation:
Counsel:
A Stafford (Second Respondent)
Solicitors:
S Russell (Agent) (Applicant)
K Kwan (First Respondent)
Beatty Legal (Second Respondent)

File Number(s): 2020/00117861
Publication restriction: Nil

Reasons for Decision

Introduction

This is an application for review of a decision by the Environment Protection Authority (“the EPA”) to refuse an access application by the North Coast Environment Council Inc. (“the Applicant”) under the Government Information (Public Access) Act 2009 (“the GIPA Act”).
The access application was made to the Office of Environment and Heritage (“the OEH”) and the OEH forwarded the request to the EPA. The access application requested:

The records of sources and volumes of biomass inputs to Cape Byron Power. We seek data on volumes or each biomass source for each year, and for each of Broadwater and Condong, for the last 10 years

Information to cover the period from 01/01/2009 to 27/10/2019.

The Applicant subsequently limited the application and advised that it was only seeking biomass fuel sources and volumes information and that other information is excluded.
The documents requested under the access application relate to the operations of two power stations, located at Broadwater and Condong, which generate electricity using biomass fuels. Both these power stations are owned and operated by Cape Byron Management Pty Ltd (“CBM”).
CBM has been joined as a party to these proceedings.
As the owner of the relevant power stations CBM has business and financial interests that could be affected by the release of the requested information.
The EPA has provided 10 documents to the Applicant pursuant to the access application. However, access was refused in part in respect of some information contained within each of the 10 documents (“the withheld information”). The EPA concluded that there was an overriding public…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NSWCATAD 29
Decision Date: 12 February 2021

CaseChat Overview and Summary

The case of North Coast Environment Council versus Environment Protection Authority was heard in the Administrative Appeals Tribunal. The Environment Council applied for access to certain documents held by the Environment Protection Authority under the Government Information (Public Access) Act. The Authority refused the application on the basis that disclosing the information would prejudice the competitive commercial value of the information and the legitimate business, commercial or financial interests of the Authority. The Council sought review of the Authority's decision.

The legal issues before the Tribunal were whether the Authority had correctly applied the public interest considerations set out in the Act in deciding to refuse the application for access to the documents. The primary issue was whether the public interest in favour of disclosure outweighed the public interest against disclosure. The Environment Council argued that the public interest in favour of disclosure was compelling because it related to the Authority's assessment of the environmental risks of a proposed coal mine. The Authority maintained that the commercial and financial interests of the business it regulated outweighed the public interest in disclosure.

The Tribunal found that the Authority had not erred in its application of the public interest considerations. It concluded that the Authority had properly balanced the public interest in favour of disclosure against the public interest against disclosure. The Tribunal was satisfied that the Authority had correctly concluded that the overriding public interest was against disclosure of the documents. The Tribunal found that the Authority had not acted unreasonably or irrationally in its decision-making process.

The Tribunal affirmed the decision of the Authority to refuse the application for access to the documents. The Authority was entitled to withhold the information from disclosure under the Act. The Tribunal did not make any orders for costs.

Orders

Orders of the court

The decision under review is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	North Coast Environment Council v Environment Protection Authority [2021] NSWCATAD 29
Hearing dates:	10 September 2020
Date of orders:	12 February 2021
Decision date:	12 February 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Montgomery, Senior Member
Decision:	The decision under review is affirmed.
Catchwords:	ADMINISTRATIVE LAW – government information – access application – provided to an agency in confidence – diminish the competitive commercial value of information – prejudice legitimate business, commercial or financial interests – public interests in favour of disclosure – public interests against disclosure – whether overriding public interest against disclosure
Legislation Cited:	Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997 Government Information (Public Access) Act 2009
Cases Cited:	Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 Destination NSW v Taylor [2019] NSWCATAP 123 Flack v Commissioner of Police, NSW Police Force [2011] NSWADT 286 Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 Leech v Sydney Water Corporation [2010] NSWADT 198 Neary v State Rail Authority [1999] NSWADT 107
Texts Cited:	None cited
Category:	Principal judgment
Parties:	North Coast Environment Council (Applicant) Environment Protection Authority (First Respondent) Cape Byron Management Pty Ltd (Second Respondent)
Representation:	Counsel: A Stafford (Second Respondent) Solicitors: S Russell (Agent) (Applicant) K Kwan (First Respondent) Beatty Legal (Second Respondent)
File Number(s):	2020/00117861
Publication restriction:	Nil