Fox v Yass Valley Council [2026] NSWCATAD 22;

(a) Septic tank install Application 47/79;

(b) Building Application 50/79;

(c) Building Application 130/79.

1. On 27 August 2025 (and amended on 8 September 2025), the Respondent made a decision (the reviewable decision) in which it decided: (1) provide access to the requested information subject to redactions (pursuant to s 58(1)(d) of the GIPA Act); and (2) that it does not hold some of the requested information (pursuant to s 58(1)(b) of the GIPA Act).
2. In particular, the respondent decided that it does not hold some of the requested information and, in relation to information that was located in response to the searches that were conducted under s 53 of the GIPA Act, the respondent decided that there was an overriding public interest against disclosure of some of the information because it contained personal information of an individual which was not already in the public domain: (cl 3(a) to the Table in s 14(2) of the GIPA Act). Therefore, that information was redacted.
3. The respondent provided the applicant with a Schedule of Documents, which clearly indicated the information that was located, what information was "not held," what information was released in full, and what information was redacted.
4. The applicant has applied for administrative review of the reviewable decision and for the reasons that follow, I have decided that the correct and preferable decision is to remit the matter to the respondent to make a new decision subject to recommendations made by the Tribunal.

1. Section 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act) provides:

Determination of administrative review by Tribunal

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

(a) any relevant factual material,

(b) any applicable written or unwritten law.

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

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

(a) to affirm the administratively reviewable decision, or

(b) to vary the administratively reviewable decision, or

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

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

1. On 8 August 2025, the Tribunal received the application for administrative review, which sought review on the following grounds:

1. On the 3rd July 2025, I made a GIPA Formal Access Request to the Yass Valley Council (copy of "Form Response" from the Council attached), which has not yet been addressed by the Council, in any way, to date.

I am requesting the Tribunal treat my application as a deemed refusal by the Council to determine my application.

1. The matter came before me for hearing on 9 December 2025. The applicant was self-represented and appeared by AVL and Ms C F, Senior Advisor, Governance, appeared for the respondent by AVL.
2. The Tribunal noted that neither party had been granted leave to appear by AVL and the need for an AVL hearing was not raised during the case conference. The Applicant then applied for leave on 8 December 2025.
3. The applicant stated that he had assumed that the matter would proceed by way of AVL "because all previous hearings at NCAT that I have been involved in have proceeded in this manner."
4. Ms Flint consented to the matter proceeding by way of AVL.
5. As the matter was listed for hearing and both parties were located in rural NSW, the Tribunal decided that it was appropriate to grant leave for the parties to appear by way of AVL.
6. The Tribunal observed that the respondent had not filed any submissions or evidence in the matter and that no submissions or other documents had been received from the applicant.
7. Ms Flint stated that until recently, the respondent was legally represented in the matter, but the solicitors had ceased to act. She agreed to provide the Tribunal with copies of the decision (which was amended on 1 September 2025), and the documents referred to in the Schedule of Documents by email. The Tribunal received these documents from her shortly thereafter.
8. The applicant stated that he lodged three copies of his submissions with annexures with Service NSW, in Wollongong, but he "received nothing back."
9. I made enquiries with the Registry and confirmed that no documents had been received from the applicant.
10. Ms Flint stated that the applicant had recently served his submissions on the respondent by email and she agreed to email them to the Tribunal by email. She did so shortly afterwards, but she was not able to provide any attachments.
11. The Tribunal stated that as the respondent bears the onus of justifying its decision, but it had filed no evidence in the matter, its ability to undertake the administrative review was compromised.
12. The Tribunal referred to the guiding principle to be applied to its practice and procedure as set out in s 36(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings.
13. Section 36 (4) of the NCAT Act provides:

In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings.

1. Further, s 37 of the NCAT Act provides that the Tribunal may, where it considers it appropriate, use any one or more resolution processes, which is defined in ss(2) as "any process (including, for example, alternative dispute resolution) in which parties to proceedings are assisted to resolve or narrow the issues between them in the proceedings."
2. Given the apparently narrow scope of the dispute between the parties, and as the parties were present in a virtual hearing room, the Tribunal decided to proceed with the matter in order to further clarify the issues and attempt to resolve them.

1. The decision under review was made by Peta Gardiner, Director Corporate & Community, on 27 August 2025 and it was amended on 8 September 2025.
2. Having perused the decision, I note that Ms Gardiner stated that she searched the respondent's records to find the specific documents t sought in the GIPA request, including the electronic records system using relevant search criteria and the relevant property address.
3. Ms Gardiner decided that the respondent did not hold the following documents:

(1) A "scaled site plan." However, a copy of the Site Plan that was found was released to the applicant.

(2) "Development Application submitted on 22 August 1979". This was assumed to be the Building Application 130/79), which was found, but on 1 September 2025, the applicant stated that he specifically wanted "the Development Application from 22 August 1979". Ms Gardiner stated that she received advice from professional staff that a Building Application may have been the appropriate application process at the relevant time, and that while it is "strange" that there is a resolution of Council referring to a "Development Application of 22 August 1979", but no corresponding record. She released a copy of Council's determination.

(3) Septic Tank Installation application 47/79; and

(4) Septic Tank Installation application 46/79.

1. Ms Gardiner stated that a copy of the Minutes of the Goodradigbee Shire Council for 19 September 1979, was located and that hard copies would be sent to the applicant.
2. In relation to the request for Goodradgibee shire Council's "Code for the Erection of dog Kennels and Keeping Dogs within the Shire: operative on 19 September 1979", Ms Gardiner stated that searches identified iterations of the Code and noted that the relevant legislation came into effect in 1966. A Code was located as coming into effect in 1976 and identified changes were made to it in 1981. Those documents were manually copied in full and were to be sent to the applicant.
3. Ms Gardiner stated:

"In relation to document 4.1, staff have reviewed the documentation and do not believe a Recission Motion was lodged nor determined. However, some further relevant information has been identified and provided."

1. Copies of the Building Applications 50/79 and 130/79, were released.
2. In relation to the Public Interest Test, Ms Gardiner stated that there is a legally enforceable right to access the requested information unless there is an overriding public interest against its disclosure (s 9 of the GIPA Act). Further, under s 5 of the GIPA Act, there is a presumption in favour of disclosing government information unless there is an overriding public interest against its disclosure.
3. Ms Gardiner stated that she applied the public interest test as set out in s 13 of the GIPA Act as follows:

(1) She identified any public interest considerations in favour of disclosure;

(2) She identified any public interest considerations against disclosure; and

(3) She decided where the balance between them lies.

1. Ms Gardiner stated that she did this as required by s 15 of the GIPA Act:

(1) in a way that promotes the objects of the Act,

(2) with regard to any relevant guidelines issued by the Information Commissioner,

(3) without taking into account the fact that disclosure of information may cause embarrassment to, or a loss of confidence in, the Government (as that fact is irrelevant),

(4) without taking into account the fact that disclosure of information might be misinterpreted or misunderstood by any person (as that is irrelevant), and

(5) with regard to the fact that disclosure cannot be made to any conditions on the use of disclosure of information.

Public interest considerations in favour of disclosure

1. Ms Gardiner stated that in addition to the examples provided in s 12 of the GIPA Act, she also took account of the following considerations:

Releasing information regarding the policy underpinning the steps taken by Council to manage and monitor the presence of animals on a property can promote transparency in council process and decision making. It can also inform the public about the responsibilities and operations of Council in this regard and makes public Council's policies, processes and practices for dealing with such matters. Having this information disclosed also enhances government accountability and informs the community on how public funds are expended.

Releasing information regarding the process for seeking and obtaining various approvals can promote transparency in council process and decision making. It can also inform the public about the responsibilities and operations of Council in this regard and makes public Council's policies, processes and practices for dealing with such matters. It demonstrates the rigor and approach taken by Council. Having this information disclosed enhances government accountability and informs the community on how public funds are expended.

Releasing information regarding the process undertaken by Council n relation to the regulation of animals on private property addresses the personal concerns that have been raised. Further, much of the information would be considered open access information and applying today's legislation to documents of that time would mean the information would be freely available and provided on Council's website.

1. Ms Gardiner stated that she also considered the applicant's reason for seeking the information, namely: "I'm adversely affected by Dog Kennels without any water waste management."

Public interest considerations against disclosure

1. In relation to items 1.2 and 2 of the request, Ms Gardiner referred to s 14 of the GIPA Act generally, but she did not specifically identify any clause under the table to s 14(2).
2. However, I note that Ms Gardiner referred to s 4 of the Privacy and Personal Information Protection Act 2008 (NSW) (the PPIPA), which indicates that the respondent relied upon cl 3(a) of the table to s 14(2) of the GIPA Act. This provides that there is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to reveal an individual's personal information.
3. Ms Gardiner referred to the Information and Privacy Commission's Guideline 4: "Personal Information as a Public Interest Consideration under the GIPA Act", and decided that this reinforces that information identifying an individual, whether directly or through combination with other data, must be treated as personal and subject to privacy protections. In this matter, the requested information includes names and contact details, as well as other information from which an individual's identity could reasonably be ascertained.
4. Ms Gardiner stated that she gave significant weight to the public interest considerations in favour of disclosure, except with respect to documents 1.2 and 2, as these contained personal information of an individual that had not previously been disclosed. That information was redacted from the documents released to the applicant.

1. The applicant stated that he pressed his request for the following documents:

(1) Item 4 - 1978 amendments to the Council's Dog Code; and

(2) Unredacted copies of the entries in the Applications/Approvals Register in use at the time for (a) Septic tank install Application 46/79, (b) Building application 50/79 and (c) Building application 46/79.

1. The applicant stated that the information that he has received to date indicates that the Code became operative on 19 September 1979, and that here was a 1976 version of the Code that was dated and minuted on 17 March 1976, but there were also amendments that were minuted on 19 July 1978. He stated:

As indicated in my Reply to Council Decision dated 1st September 2025 (attachment 1 - Ref: 4.1 1978 Council record of amendment to Code for Control of Dogs), this creates a problem because the next version of the Code (dated 25th March 1981) is almost identical to the 1976 version of the Code ad does not contain the 1978 amendments and that applicant has no way of knowing whether the amendments were still part of the code at the operative date. The applicant therefore requires the respondent to review its Minutes for the period 17t March 1976 to the 19th September 1979 to ascertain if the amended version of the 1976 code or the 1976 code was in fore at the operative date.

1. In relation to item (2), the applicant argued that "Registries of this nature are required by Legislation (Attachment 3) to be made available to the public on an open access basis". However, he did not identify the relevant legislation.
2. In response, Ms Flint stated that the respondent had produced the minutes dated 19 September 1979, which were the only minutes that had been found.
3. The applicant withdrew his claim for item (1) above.
4. This meant that the only remaining dispute was whether there was an overriding public interest against disclosure of the redacted information under cl 3(a) of the table to s 14(2) of the GIPA Act.
5. The Tribunal observed that the respondent had lodged copies of these documents on a confidential basis and it decided to consider them in a confidential hearing, in the applicant's absence, under s 107 of the GIPA Act.
6. Section 107 of the GIPA Act provides:

Procedure for dealing with public interest considerations

(1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure.

(2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure.

(3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of -

(a) the public and the applicant, and

(b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.

1. The Tribunal stated that following the completion of the confidential hearing it would reserve its decision. It then excused the applicant from the proceedings.

1. [NOT FOR PUBLICATION]
2. [NOT FOR PUBLICATION]

1. In the absence of evidence and submissions from the respondent in this matter, the Tribunal is not able to properly discharge its administrative review function in this matter.
2. However, noting the partial resolution of the dispute and the very narrow scope of the remaining dispute between the parties, I have decided that the correct and preferable decision is to set aside the decision under review and to remit the matter for reconsideration pursuant to s 63(3)(d) of the ADR Act, in accordance with the following recommendations:

(1) The respondent should release an unredacted copy of the letter dated 3 April 1996 (page 1 of the confidential documents);

(2) In relation to the information sought from the Dog Kennel Licence Registers, the redacted information is outside the scope of the GIPA request.

(3) In making its further decision, the respondent must clearly identify its reliance on cl 3(a) of the table to s 14(2) of the GIPA Act, and provide full and proper reasons for its decision to withhold certain information from the applicant based upon the application of the public interest test.

(1) The decision under review is set aside.

(2) The matter is remitted for reconsideration in accordance with the Tribunal's recommendations.

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.