Goodenough v Coffs Harbour City Council

The Airport lease process

1. In May 2019, KPMG were retained as the independent expert advisors for the Airport Lease process following a tender process that began in February 2019. The agenda for this meeting attached an assessment of KPMG's tender. The agenda marks it as "Confidential" pursuant to s 10A(d)(i) and (d)(ii) of the Local Government Act. This is not included in either the open or closed evidence in these proceedings.
2. According to the Council's minutes of meeting of 9 May 2019: 1. $450,000 was allocated by the Council in the 2018/19 budget for the Coffs Harbour Airport Independent Advisory Consultancy from the Council's Strategic Initiatives Reserve; and 2. approval was given to the payment of KPMG's fixed fee pursuant to a fixed fee contract which was $872,000 excluding GST.
3. The motion was not unanimous with Councillor Townley voting against the motion.
4. According to the evidence of Mr Beswick, the Airport lease process was managed in five stages as proposed by KPMG being: 1. The first stage involved a "Review" by which a gap analysis report would be produced so by KPMG to establish an action plan for the transaction. The indicative timing was between June to August 2019. 2. The second stage was a period to obtain "Expressions of interests and non-binding bids". The indicative timing was between August to October 2019. This stage included: 1. marketing sounding; 2. registration of interest and advertising campaign; 3. receipt of confidentiality deed polls; 4. issuance of information memorandum and process letter; 5. non-binding bid process from 1 to 25 October 2019; and 6. bid receipt and evaluation 1. The third stage was "Tender for Binding Bids." The indicative timing being from November 2019 to February 2020. 2. The fourth stage was "Preferred tenderer lease negotiations and execution" being from February to March 2020. 3. The fifth stage was lease monitoring.
5. Mr Beswick also gives evidence that "at the commencement of the airport lease process" other third-party service providers were retained including: 1. the law firm Ashurst to provide legal advice; 2. O'Connor Marsden to prepare an Airport lease probity plan; and 3. Other experts to provide due diligence reports on various elements and for inclusion in a data room for the third stage.
6. The evidence before this Tribunal does not include a copy of legal advice from Ashurst or the probity plan as described above.

Non-binding bid process

1. On 27 August 2019, an advertisement was listed in the Australian Financial Review and distributed to an email database of groups that were perceived to have a financial interest in airports. This was part of the registration of interest stage which was stage two.
2. According to Mr Beswick, parties who registered their interest were provided with, inter alia, a request to submit their details and to execute a Confidentiality Deed Poll. According to Mr Beswick, this "Confidentiality Deed Poll" (as described by Mr Beswick) was prepared by Ashurst and: … set out [that the] information disclosed by potential bidders or the Council and its advisors during the bidding process was to be kept strictly confidential.
3. Mr Douglas Park, who is a director of the Intervenor and an investment manager of Palisade Investment Partners Limited (being the investment manager of the company that owns 100% of the shares in the Intervenor) (Palisades) exhibits a copy of the deed poll which was executed by Palisades on 27 September 2019 to his Affidavit which was prepared by Ashurst (the Deed Poll). He describes it as a "confidentiality agreement". In the context of describing the Deed Poll, Mr Park states: The bid and tender process required the exchange of confidential information between Palisade and Council with both parties committing to preserve the confidences of the other. Palisade signed a confidentiality agreement as part of the tender process to ensure all information shared y Council to Palisade in connection with the Coffs Harbour Airport was not disseminated (noting this information is commercial-in-confidence). Palisade's submissions during the tender process was shared on a strictly private and confidential basis and the non-indicative binding bid submission document contained an explicit confidentiality requirement for Council. A copy of the confidentiality agreement is exhibited at Tab 1 of DP-1. …If Palisade had been made aware that confidentiality would not be preserved during any stage of the process for acquiring the long term lease of the [Airport], Palisade would have reassessed its approach to participating in the process including its approach to negotiating the Transaction Documents.
4. Mr Park does not annex "non-indicative binding bid submission document" to his Affidavit and given the substance of the documents that are before the Tribunal, it is unclear what document he is referring to as discussed further below.
5. Upon receipt of a signed deed poll from a potential bidder, an "Information Memorandum" which was prepared by KPMG was issued as well as the "Non-Binding Bids Process Letter" which provided the potential bidder with the terms and conditions that applied to the process including those related to confidentiality.
6. The form of the "Non-Binding Bids Process Letter" is in evidence as Appendix A to the Evaluation Report described at paragraph 48 below.
7. Between 1 October 2019 to 29 October, potential bidders were given an opportunity to provide a non-binding bid.
8. Between 16 October 2019 to 12 November 2019, the Council exhibited an updated Airport Master Plan which has been updated from an existing 2014 Airport Master Plan (the Draft Plan) which overlapped with the period that potential bidders could provide a non-binding bid as described above. During the period of exhibition three written submissions were received.
9. By at least 28 November 2019, the non-binding bids received by Council had been evaluated and given a score by what is described as the "Evaluation Panel". An Evaluation Report was prepared (the First Evaluation Report). The First Evaluation Report is not included in the open evidence.
10. [NOT FOR PUBLICATION]
11. [NOT FOR PUBLICATION]
12. On 28 November 2019, there were several meetings of Council as described by Mr Beswick: 1. the Council resolved to adopt the Draft Plan and Mr Beswick exhibits a copy of the agenda of Council's meeting (but not the minutes of meeting nor a copy of the Draft Plan). The agenda attached "Confidential Submissions" that the agenda describes as being confidential in accordance with s 10A(2)(e) of the Local Government Act because it allegedly "contains information that would, if disclosed prejudice the maintenance of law". The agenda states: The CHA Master Plan Update 2019 is the key planning document for the airport and its adoption and implementation will contribute significantly to the future success of the airport. 1. the Council also had a meeting regarding the lease of the airport which is described in the agenda as "Airport Long Term Lease". The agenda notes that by this time the non-binding bids received by Council had been evaluated and the recommendation was that the Council progresses the lease process to binding bids and allocate necessary funds. Attached to that agenda was the Evaluation Report and term sheets which are both marked "Confidential". The Evaluation Report is marked confidential pursuant to s10A(2)(c) and (d)(ii) of the Local Government Act. No basis is given in the agenda for the marking of "Confidential" with respect to the term sheets. 2. With respect to "Economic - Delivery Program/ Operational Plan Implication", the agenda notes: The cost of progressing the airport lease model through to conclusion is estimated to be in the order of $700,000. A large portion of this will need to be spent on further vendor due diligence (financial, tax, environmental and technical), lease and other agreement preparation, probity and advisory services in the binding bids stage. This will be funded from the Coffs Harbour Airport Business Unit Reserve. Importantly, the investment in the Non-Binding Bids and Binding Bids processes need to be considered in the context of the likely returns to Council and the community from a successful binding bid and potential lease, as identified in Confidential Attachment 1 [which is the Evaluation Report] 1. In respect of the Airport long term lease, the Council resolved to: 1. Progress the Airport Lease Model to the Tender for Binding Bids Stage; 2. Consider and adopt the recommendations as detailed in the Evaluation Report; 3. Allocate $700,000 from the Coffs Harbour Airport Business Unit Reserve to fund the lease process 4. Note that a further report on the outcome of the Tender for Binding Bids Stage will be provided to Council for consideration. 1. The resolution was not unanimous with Councillors Amos and Townley against the proposal.

Binding bid process

1. The evidence with respect to the commencement of the bidding process is difficult to reconcile as explained below.
2. Prior to the opening of the binding bids, a "Binding Bids Evaluation Plan" had been developed by Council. The "Binding Bids Evaluation Plan" set out an evaluation process by providing direction and guidance to "personnel" that would be involved in the evaluation of the binding bids. The purpose of the plan being, inter alia, to ensure that the evaluation process is conducted with due probity and all personnel involved in the evaluation process understood the process and their roles.
3. [NOT FOR PUBLICATION]
4. [NOT FOR PUBLICATION]
5. On 5 December 2019, by way of letter from KPMG, the Council exclusively invited Palisade to submit a binding offer to lease the Airport. This is referred to as the "Binding Bid Process Letter".
6. [NOT FOR PUBLICATION]
7. According to the "Binding Bid Process Letter", the period of exclusivity was from the date of the letter until 3pm on 2 March 2020. Unlike "Non-Binding Bids Process Letter", this letter places restrictions on the Council in Clause 6 including but not limited to not discussing or negotiating the long-term lease with another third party. However, these restrictions were limited to the period of exclusivity and designed to give effect to the promise of an exclusive period of negotiation. Otherwise, the confidentiality obligation as provided in this letter was in identical terms as the confidentiality obligation in the "Non-Binding Bids Process Letter" (but for the fact that it references the contents of the "Binding Bid Process Letter" as opposed to the "Non-Binding Bids Process Letter"). The "Public Access to Information" Clause is also identical.
8. Mr Beswick gives evidence that additional due diligence was undertaken by and further development of key transaction documents was undertaken by Council. This development was undertaken "following the resolution to go to tender [of 28 November 2019], and prior to going to Tender" being development of the following which were then provided to the bidder: 1. the Lease; 2. Implementation Agreement; 3. Development Agreement related to the Enterprise Park; and 4. Transitional Services Agreement
9. Mr Beswick also gives evidence that the "tender proposal documents" were not released by Council until 3pm 12 June 2020 being after the period originally set for the submission of a binding bid.
10. This can be contrasted with what is described in the other documentation before the Tribunal which states that: 1. According to numerous agenda's, the tender for binding bids commenced on 12 June 2020 (See for example agenda dated 26 November 2020). This date correlates with the release of the tender proposal documents. 2. According to the agenda dated 26 November 2020, negotiations with Palisade did not commence until 15 October 2020. 3. This sits uneasily, however, with the "Binding Bid Process Letter" which is dated 5 December 2019 which, on its face initiates an exclusive negotiation period in the context of submitting a binding bid with the "binding bid process" as described in that letter including the release of transaction documents by Council to Palisades; exchanges of those documents with comments by Palisades and commercial meetings to discuss the "commercial parameters"; 4. [NOT FOR PUBLICATION] 5. [NOT FOR PUBLICATION]
11. The absence of at least the "Equity Commitment Deed" is explained by Mr Beswick as follows: On 26 November 2020 the outcomes of the negotiations were reported to Council and Council resolved to execute the Transaction Documents, excluding the Equity Commitment Deed which was no longer required due to a final financial arrangement of the lessee.
12. According to the definition of Transaction Documents in the Airport Lease that was ultimately signed, a Financier Tripartite Deed exists but as noted above, is not before the Tribunal.
13. Mr Beswick attempts to explain the delay to the binding bid process with reference to the Covid-19 pandemic, the withdrawal of Tiger Airways services from Coffs Harbour and the voluntary administration of Virgin Australia.
14. In any case, the indicative timeframe for Stage 3 was extended by request. The submission deadline for a binding bid to be submitted was extended to 3pm on 17 July 2020.
15. Following this time, Council reviewed the binding bid received from Palisades and took advice from third parties and the Council's Evaluation Panel.
16. A Binding Bid Evaluation Report was prepared for Council's consideration (the Second Evaluation Report). This included a summary of Palisade's departures from the tender documents.
17. It is not clear precisely when the Second Evaluation Report was made available to Council as it is marked "August 2020" but it must have been provided on or after 12 August 2020 given that the document attached as Annexure A is marked this date. According to the agenda dated 26 November 2020, it was "provided to Council on 27 August 2020" which was the same day as Council's meeting resolving to negotiate with the "preferred tenderer" (as described below).
18. [NOT FOR PUBLICATION]
19. The Second Evaluation Report is not included in the open evidence.

The issue of re-zoning and Council's potential conflict of interest is raised in the media

1. On 12 August 2020, being around the same time as the Second Evaluation Report, an article was published in the Daily Telegraph entitled "Airport re-zoning bid raises questions - One councillor asking: "just who is making this request?". That article states: A PROPOSAL to re-zone land in the council's Airport Enterprise Park development is raising an important question: just who is making this request? A Coffs Harbour City Councillor is also asking why rezoning has now been put on the table while negotiations for a long-term lease of the airport and the Enterprise Park development are currently underway. A report, which will go to the council at this week's meeting, states there is potential conflict arising as council is both the developer of the 23ha park through the Airport Development Group, as well as the approval authority. The report therefore seeks to amend the probity plan so that council is no longer the approval authority for any requests to re-zone the area, which is currently zoned for aviation-related activities. While the council is the owner of the land, negotiations are currently underway to handover the airport and Enterprise Park development to a third-party company under a long-term lease. The lease has not been finalised and a report on the chosen bidder is yet to go to a council meeting. Councillor Sally Townley has now questioned why probity around rezoning has all of a sudden become urgent. "Legal advice dated just a few days ago advises that council may have a conflict of interest is a rezoning is proposed and council is both developer and approval authority," Cr Townley said. "But so far there has been absolutely no public disclosure of what the Airport Development Group are considering with regard to rezoning. "So it places councillors in an awkward position that rezoning is suddenly introduced when the negotiations for the airport lease are actively underway." In November 2019, after numerous non-bindings bids had been received during the expression of interest process, councillors had voted to advance the lease to the binding bids stage. At the time it was slated that the management of the airport would be officially handed over to a private company by the end of March, however this was delayed due to COVID-19. A council report now reveals the result will go to a council meeting at the end of August.

The binding bid of Palisade

1. [NOT FOR PUBLICATION]
2. [NOT FOR PUBLICATION]
3. [NOT FOR PUBLICATION]
4. [NOT FOR PUBLICATION]
5. [NOT FOR PUBLICATION]
6. The Council was due to meet on 27 August 2020 to consider the way forward with respect to the Airport long term lease. According to the agenda for that meeting, the recommendation was to: 1. Progress the airport lease through negotiations in-line with the recommendation contained within the Binding Bids Evaluation Report; and 2. Receive a further report on the outcome of the negotiations.
7. The agenda attached the following documents all marked "Confidential": 1. A document described as "Issues and Options" which is noted as confidential pursuant to s 10A(2)(c) of the Local Government Act 2. Binding Bids Evaluation Report; 3. The Binding Bid which is described as the Binding Bids and 4. Airport Lease Transaction Documents.
8. A few days prior to that meeting on 22 August 2020, the Daily Telegraph published an article entitled "Crunch time for Coffs Airport lease - Councillors set to make crucial decision on the proposed long-term lease of the airport" which states: IT'S crunch time for the proposed lease of the airport and Enterprise Park development, with Coffs Harbour City Councillors to make a crucial decision on the matter on Thursday. Councillors will vote whether to officially enter into negotiations that would ultimately see the management of the council-owned assets handed to a private company under a long-term lease. According to the report being put before councillors, although it is not recommended, this would essentially be the last opportunity to pull out of the lease process without facing significant reputational risk. The recommendation in the report is that councillors should vote in favour of progressing the lease to the next stage, and begin negotiations with the binding bidders. Many details including just who these bidders are, and how long the lease will be for, remains confidential at this stage. The report states that if councillors do vote to enter into the negotiations, a further report on the outcome will be brought back for consideration in 4-6 weeks. However the report warns that it would be unreasonable for the council not to finalise the lease agreement after this point, not only for the council's reputation but also because of the financial risks. The council has so far spent about $1.6 million on the lease process, including on advisory and services, market forecasts and environmental investigations. After the negotiation stage, this is expected to rise to $2 million. The council had first voted in favour of exploring the potential of a long-term lease with an expression of interest process back in December 2018.
9. According to Mr Beswick, on 27 August 2020 Council resolved to pursue the recommendation in the Second Evaluation Report to negotiate with the "preferred tenderer". It is unknown whether this was carried unanimously or otherwise as a copy of the minutes of that meeting has not been included in the evidence before this Tribunal.

Concerns amongst some of the Councillors regarding transparency

1. By around September and October 2020, the evidence supports that there were concerns by some of the Councillors as to the implications of progressing the Airport lease as well as the lack of information disclosed to the public with respect to the proposal, specifically the term of the lease.
2. On 10 September 2020, Councillors Arkan, Amos and Swan sought to rescind the resolution that was made on 27 November 2020. According to the recission notice, if that motion was successful, they intended to move the following: 1. That Council 1. Bring back a report containing further information on the implication of potential financial impacts of an additional 50 years option. 2. Provide a further detailed direct comparison on the financial implications and advantages of maintaining airport management under Council control verses leasing options. 3. Seek further clarity as to our control over hours of operation, projected flight paths and anticipated arrival and departure times over the length of the lease.
3. The motion resulted in a tied vote with Councillors Arkan, Amos, Swan and Townley voting in favour and Councillors Knight, Adendorff, Cecato and Rhoades against. The Mayor used his casting vote and the recission notice was declared lost.
4. On 8 October 2020, Councillor Amos sought by way of Notice of Motion for the length of the lease to be disclosed to the public on the basis that it was no longer commercial-in-confidence information. Noting that at this time neither the length of the lease nor the identity of the potential lessee had been disclosed.
5. The Agenda for that meeting attached two documents that were, once again, marked confidential. The documents are described as 1. "Disclosure of Confidential Information - Letters" and the basis of the claim of confidentiality is purportedly s10A(2)(c) of the Local Government Act; and 2. "Length of Proposed Airport Lease Contract - Advisor's Advice."
6. Neither of these documents are before the Tribunal.
7. The Agenda states: Rationale: *The circumstances surrounding the Airport Lease negotiations have now reached a point where the length of lease proposed should no longer be classified as commercial in confidence. The proposed lease length should now be available to the public. This disclosure will have no impact on the lease negotiations now. Information as to the application of the commercial in confidence principle is defined in the NSW local Governments Act as follows. d) commercial information of a confidential nature that would, if disclosed- (i) prejudice the commercial position of the person who supplied it, or (ii) confer a commercial advantage on a competitor of the council, or reveal a trade secret," Staff Comment: Previous Council reports on Airport Management and Governance Options, and the Proposed Long Term Lease have cited section 10(2)(c) of the Local Government Act 1993 for the reason for attachments to be treated as confidential, which states: (c) information that would, if disclosed, confer a commercial advantage on a person with whom the council is conducting (or proposes to conduct) business, The airport lease transaction is at the sensitive stage of negotiation with a preferred bidder. Council advisors do not recommend the disclosure of partial lease information at this time. Their detailed reasons are contained in the Confidential Attachment with summary statements provided in italics below. From a probity standpoint: In summary, making public the proposed length of the Airport Lease Contract at this point of the Transaction runs against probity principles and accepted negotiation practice and is not recommended.
8. According to the agenda for the meeting of 12 November 2020, on 8 October 2020 it was resolved that: That Council write to the potential lessee of the airport asking for permission to release the length of the lease and option of the airport with an expedited response. This response is to be reported by Council with a view to providing transparency and confidence in the community.
9. Mr Beswick states in his open affidavit: Following the Motion, Council sought the response of the preferred tenderer as to whether they would object to disclosure of the length of the term of the Airport Lease
10. The "detailed reasons" upon which the Council was of the view that it required Palisades permission has not been disclosed in these proceedings.
11. The letter from Council to Palisades is dated 13 October 2020 (as disclosed in the agenda for the meeting of 12 November 2020 (the Permission Letter)). The letter was marked as a confidential attachment to the agenda of 12 November 2020 on the basis of 10A(2)(c) of the Local Government Act as is the "Advisor's Advice".
12. The Permission Letter stated, in part: Although a holistic and agreed communications strategy will be required once a lease transaction is entered into by both parties, Council would appreciate your consideration and agreement to a limited disclosure of currently confidential information in line with Council's resolution.
13. The Council's view that there was a need for a "holistic communications approach" is disclosed in the open evidence and specifically the agenda of 12 November 2020 which states: A holistic communications strategy will need to be prepared to ensure the appropriate messaging is provided if the negotiations with the Bidder are successful and a transaction is announced to the market, including which key points to highlight to give context to the decision to enter into such transaction.
14. Palisades letter in response is not included in either the open or closed evidence. However, it is extracted in the agenda dated 12 November 2020 with the Council acknowledging in that agenda that the extract represents "the substantive part of their response" (the Permission Response Letter). As extracted, Palisade's response stated: Many thanks for your letter dated 13 October 2020. Given negotiations on the transaction are still ongoing we do not consider it is appropriate to publicly disclose aspects of the potential transaction at this time. [We] fully support transparency and community engagement (including disclosure of the length of the lease and option of the airport) once negotiations have been finalised and a transaction is signed. We are hopeful this point is only several weeks away. Accordingly, we respectfully decline the request at this stage. We hope you can appreciate our position on this matter. We appreciate the Council's continued engagement on the lease process. We look forward to successfully concluding our negotiations shortly and working together with Council to operate and grow the airport into the future. [Emphasis added]
15. According to the agenda dated 12 November 2020, the reasoning given by Palisades is consistent with "external advice" but as noted above, a copy of this advice is not before the Tribunal. Some reasons are given in the agenda dated 12 November 2020 which includes, inter alia, that the release of information is subject to "binding confidentiality agreements with the bidders, which moderate the type of information that can be disclosed". To the extent these "binding confidentiality agreements" are references to the Deed Poll, the "Non-Binding Bids Process Letter" and/or the "Binding Bids Process Letter", my findings with respect to this allegation of confidentiality are below.
16. On 12 November 2020, Councillor Rhoades moved on the motion that the following motion be put (the Motion): Interrupt negotiations with any potential lessee until approval is given by that entity to allow Coffs Harbour City Council to provide to the Coffs Harbour community some meaningful information as to the length of lease and lease option being proposed.
17. Councillors Adendorff, Cecato and Rhoades voted for the Motion to be put and Councillors Knight, Amos, Arkan, Swan and Townley voted against and the motion lost.
18. Debate continued and later at the same meeting, another vote was taken and the motion to put the Motion was carried. In that vote, Councillors Knight, Adendorff, Cecato and Rhoades voted in favour and the Mayor used her casting vote such that the motion was carried.
19. On the Motion being put, all the Councillors voted against it except for Councillors Amos and Arkan.

The meeting of 26 November 2020 and a further attempt to stop the signing of the Transaction Documents

1. The agenda for the meeting of 26 November 2020 recommended, inter alia, that a delegation be given to the General Manager to sign the Transaction Documents and: Note the development of a joint communication plan with the preferred tenderer
2. The agenda notes that the costs associated with the Airport Lease process, to date, were $1.9 million with the total costs projected to be $2 million.
3. Attached to that agenda was a "Lease Negotiation Report" which is, once again, marked "Confidential" on the basis of s 10A(2)(c) of the Local Government Act. This document is not before the Tribunal. Also attached were the "Transaction Documents".
4. The "Transaction Documents" that were ultimately signed on 9 December 2020 were: 1. Implementation Deed; 2. Airport Lease which was a lease for 50 years with a 49 extension option; 3. Airport Lease Supplemental Deed; 4. Transitional Services Agreement; 5. Development Agreement; and 6. Independent Certifier Deed.
5. The Transaction Documents are in evidence except for the "Independent Certifier Deed." The Lease is part of the open evidence and marked "I4". The other Transaction Documents are part of the closed evidence and marked "Confidential I5".
6. According to the evidence of Mr Arthur Chant (who is an aviation consultant and specialist who advised Palisade on their tender and subsequently accepted a position on the board of the Intervenor) the Transaction Documents were intentionally structured so that the purported "sensitive information" were in the documents other than the Lease - the Lease being the only document that would be made public. Mr Park refers to this as being "intentionally agreed".
7. The minutes of the meeting of 26 November 2020 reflect the differing views of Councillors as to the transaction. The motion having been put resulted in a tie with Councillors Knight, Adendorff, Cecato and Rhoades voting for the motion and Councillors Amos, Arkan, Swan and Townley voting against. The Mayor used her casting vote and the resolution was passed. The amendment that was proposed by Commissioners Amos and Arkan was also lost namely that rather than executing the Transaction Documents, the Council should prepare a report to highlight alternate management arrangements for the Airport.
8. The next day, on 27 November 2020, the following article appeared in the Daily Telegraph. It was entitled "'Let's get on with it': Council votes to privatise airport - "This is about the future of this town, not whether you're paying more or less parking fees," one councillor said": THE management of Coffs Harbour Regional Airport will officially be placed into the hands of a private company under a long-term lease. Coffs Harbour City Councillors last night debated for nearly an hour before coming to a tied vote on executing the controversial airport lease. An exasperated Michael Adendorff had told his fellow councillors they were experiencing 'analysis paralysis' before urging them to move on. "This is not about mum or dad flying to Sydney - this is about serious business," he said. "This is about the future of this town, not whether you're paying more or less parking fees. Let's just get on with it, please." It has been more than three years since the airport lease process first began, with a succession of decisions by councillors having led up to the ultimate vote last night. The details of the lease - including who the lessee is - has been bound by confidentiality, which has proven contentious among some councillors and the public. Councillors were last night split on whether to execute the lease with some arguing council was best placed to operate the public asset, while others said the airport would not prosper particularly after COVID-19 without the experience and investment from the private lessee. The lessee, who still remains confidential at this stage, will take over both the airport and Enterprise Park development. Cr George Cecato, who was a tenant at the airport for several years, urged councillors to vote in favour of the lease. He revealed former long-term airport manager Dennis Martin had sent councillors an email prior to the meeting which contained four pages on why they should do so. Mr Martin had held the position under contract with the council since 2008, before retiring last year. He had taken over the management with a view to establish it as a stand-alone business, with revenue more than doubling during his time in the position. Cr Cecato further revealed the interim subcontractor manager, Glenn Robinson, had also "strongly suggested" the lease, expressing concerns for the airport in the next 5-10 years due to COVID-19. "It's time to make a decision, it's time to look at the future and take the airport to the next level - the lease will allow us to do exactly that," Cr Cecato said. Cr Sally Townley, against the airport lease, argued that privatisation would see prices rise for the travelling public. She also shared concerns that handing over the development of the Enterprise Park at this 'midway' point would see council suffer a loss. "What we have at the moment is a transport hub which gives affordable air travel - and accessible air travel - to tens of thousands of people in the region. "I don't think you'd find an example of an airport anywhere which became cheaper after privatisation. "Prices are going to escalate because the investor's responsibility is to their shareholders, whereas council's responsibility is to ratepayers and also the travelling public to create a transport hub all people can use." After some debate, the lease execution was put to the vote with councillors Adendorff, Keith Rhoades, Denise Knight and Cecato voting in favour, while Townley, Paul Amos, John Arkan and Tegan Swan voted against. Mayor Cr Knight's casting vote brought it over the line. Details including who the lessee is, and how long it will be for, will soon be made public with the lessee now working with council to develop a communications strategy.
9. Prior to the execution of the Transaction Documents, Councillors Swan, Townley and Amos called an extraordinary Council meeting on 2 December 2020 and sought to rescind the resolution of 26 November 2020 and to move on the motion that the Council not proceed with the long term lease of the Airport at that time. As with the motion of 26 November 2020, Councillors Knight, Adendorff, Cecato and Rhoades voted against the motion and in support of signing the Transaction Documents and Councillors Amos, Arkan, Swan and Townley voted for it. On the minutes of meeting, it states: The motion on being put to the meeting in a tied vote and therefore, the motion was declared lost in accordance with the Code of Meeting Practice, Clause 11.3

The Transaction Documents are signed which include confidentiality provisions

1. On 9 December 2020, the "Transaction Documents" were signed. The Transaction Documents contained provisions relating to confidentiality.

Council meetings following the signing and Council's media release representing the value of the Airport Lease as $500 million

1. The next day, on 10 December 2020, the Council had a further meeting according to an article dated 21 December 2020 published in the News of the Area published an article entitled "Business And Industrial Rezoning Sought For Airport Enterprise Park". The agenda nor the minutes of that meeting have been included in evidence by either party. The description given to the matters disclosed at that meeting by way of the article include: 1. the current re-zoning of the land intended for the Enterprise Park was currently zoned as SP1 Special Activity (Air Transport Facility) under the Coffs Harbour Local Environment Plan 2013 which constrains land uses to airport operations and aviation related uses; 2. the proposal in order to facilitate the Enterprise Park was to apply to have the land re-zoned to B5 (Business development) and IN1 (General Industrial) while retaining some SP1 zoning; 3. Council resolved to: 1. Request the Minister for Planning to appoint the Northern Regional Planning Panel to be the Planning Proposal Authority for the re-zoning application (identified as the "Proponent Led Planning Proposal - Request to Amend Local Environmental Plan 2013 for the Coffs Harbour Airport Enterprise Park"). 2. Approve the lodgement of the re-zoning application. 1. the Northern Regional Planning Panel had been delegated as the Planning Proposal Authority for the rezoning application so as "to resolve Council's conflict of interest in being both the developer of the Park and the regulatory authority". Commissioner Cecato being quoted as disclosing that this "removal" of Council was the substance of the legal advice received by the Council. Commissioner Cecato is quoted as disclosing, inter alia: … our legal advice has been that we remove ourselves. 1. Mr McGrath (General Manager) disclosed that the Transaction Documents account for the potential change in value of the lease attributable to a change in zoning which is why the "draft form [of planning proposal] was shared with the lessee".
2. That article states in full: WITH the new lessee of Coffs Harbour Airport and the length of the lease now public knowledge, Coffs Harbour City Council is seeking to rezone the nearby Airport Enterprise Park to attract industrial and high-tech businesses into the area. Council is currently constructing the approved 98 lot subdivision at Coffs Harbour Airport. The subdivision application was approved by the Joint Regional Planning Panel in 2017, and will deliver a 43-hectare subdivision yielding 23 hectares of leasable land. Airport Enterprise Park is currently zoned SP1 Special Activity (Air Transport Facility) under the Coffs Harbour Local Environment Plan 2013 (LEP), and land uses are constrained to airport operations and aviation related uses. Council is now seeking to lodge a Proponent Led Planning Proposal (PLPP) to request an amendment to the LEP for the subdivision, to rezone the site to allow for further land uses. The PLPP seeks to create three distinct and well defined zones within the Airport Enterprise Park (AEP) including retaining areas of SP1 zoning, as well as creating a B5 (Business Development) precinct and an IN1 (General Industrial) precinct. "The current SP1 zoning over the entire subdivision creates limitations on the types of businesses that can establish within the AEP," a Council report on the rezoning stated. "A successful rezoning of the AEP subdivision will have a positive impact upon the Coffs Harbour community by providing a greater range of business opportunities within the subdivision and enhance its attractiveness to new business to the region." The Northern Regional Planning Panel have been delegated by Council to be the Planning Proposal Authority for the rezoning of the Airport Enterprise Park to resolve Council's conflict of interest in being both the developer of the Park and the regulatory authority, in relation to the development of the subdivision. Cr George Cecato said at Council's latest meeting on Thursday 10 December the rezoning was needed to ensure that Council attracts a "wider suitability of business". "We need to complement the SP1 zoning with additional permissible uses," Cr Cecato said. "Long ago we seeked and we got conditional approval by the NSW Department of Planning, Industry and Environment; there will be three distinct and well defined zones and our legal advice has been that we remove ourselves. "Rather than us assessing the planning proposal we delegate that authority to the Minister and we suggest that they appoint the Northern Regional Planning Panel." Cr Sally Townley was one of several councillors to express concern over the proposed rezoning. "If this rezoning proposal is eventually successful I would assume that land would have a much higher market value so I just wonder how we feel about that in view of the fact that we just made arrangements for the lease at a market value of the existing zoning," Cr Townley asked Council staff at the recent meeting. Coffs Harbour City Council general manager Steve McGrath said the potential Airport Enterprise Park rezoning formed part of the Airport lease negotiations. "That was all part of the negotiations, and the values that were attributed were based on achieving a certain zoning outcome along the line and that's why the proposal in a draft form was shared with the lessee," Mr McGrath said. "It has been factored into." Mr McGrath said the vision was for high-tech businesses to take up space within the Airport Enterprise Park. "They're the sort of businesses that we want to attract to assist the City in its growth," he confirmed. "Employment generation activities is the primary purpose of the Airport Enterprise Park zone." Cr Paul Amos and Cr Michael Adendorff questioned what businesses were permissible in a B5 Business Development zone. "I'm thinking that the composition of this Enterprise Park needs more scrutiny because it sounds like we can have a car yard sitting at an entry to our City," Cr Amos said. "What we see here now is an Enterprise Park, just with those very words people are not thinking car yards. "I think this needs more thought." Council staff stated that under the Coffs Harbour Airport lease arrangement Council has retained responsibility to develop the Airport Enterprise Park. "It (Council) is the one who has received the grant funds from both the Federal and State Government and it is responsible for filling those grant deeds," Council staff stated. "When the Airport Enterprise Park has been developed it will then be the lessees responsibility." General manager Steve McGrath confirmed that development applications for businesses within the Airport Enterprise Park will still need to be lodged with Council for approval. "The only role that the NRPP is being asked to take on in this particular issue is to handle the gateway proposal, the rezoning, once that's achieved it's like any other land in Coffs Harbour," Mr McGrath said. "Development applications need to be lodged with Coffs Harbour City Council and processed, so Council does have a say through that process ultimately." Councillors resolved to request the Minister for Planning to appoint the Northern Regional Planning Panel to be the Planning Proposal Authority for the Proponent Led Planning Proposal-Request to Amend Local Environmental Plan 2013 for the Coffs Harbour Airport Enterprise Park, and [to approve] the lodgement [of] the Proponent Led Planning Proposal-Request to Amend Local Environmental Plan 2013 for the Coffs Harbour Enterprise Park. The B5 Business Development zone is for business, warehouse and specialised retail premises uses that require a large floor area such as warehouses or distribution centres, specialised retail premises, hardware and building supplies, landscaping material supplies and garden centres. The IN1 General Industrial zone caters for businesses like those in the South Coffs Industrial area including agricultural produce, depots, funeral homes, garden centres, general industries, kiosks, landscaping material supplies, light industries, fuel depots, neighbourhood shops, places of public worship, takeaway food, timber yards, vehicle sales etc.
3. On or around 16 December 2020, the Council released a media release. Mr Beswick gives evidence of the media release and describes it as recording the Council's representation that the Airport Lease was valued at $500 million. Mr Beswick provided a link to that media release but the link is not effective. The Second Applicant has, however relied upon that media release as part of its evidence which is dated 16 December 2020 and is entitled "Coffs Council secures Landmark Airport Lease Deal worth almost $500 million". That media release states: Coffs Harbour City Council has secured Palisade Investment Partners as its commercial operating partner for the long-term lease of Coffs Harbour Airport, with the value to the community forecast at almost $500 million over the term of the lease and option. Palisade Investment Partners, one of Australia's leading regional airport investors has entered into a 50-year lease, with an additional 49-year option, of the Coffs Harbour City Council owned airport. The agreement includes $81.5 million in fixed payments over an initial period including for the development of the Airport Enterprise Park, a 23-hectare greenfield employment precinct adjacent to the airport. Council will also receive a share of revenue earned from both the Airport and Enterprise Park, forecast to be in excess of $400 million over the term of the lease and option. Palisade will be able to take up the 49-year lease extension option subject to a range of legal and commercial requirements being met. Coffs Harbour City Council General Manager Steve McGrath said he was pleased to have reached such a positive outcome for the community with such an experienced commercial airport operator. "This deal is great news for the community as this revenue stream will allow the Council to fund strategic community projects into the future. This will also allow us to invest in improved services for current and future generations," he said. Coffs Harbour City Council Director of Business Services Andrew Beswick said the Palisade team would draw on the expertise and resources from its existing airport investments, which includes Sunshine Coast Airport, Darwin Airport, Alice Springs and Tennant Creek as part of their portfolio. Coffs Harbour Airport will be their fifth aviation asset. "With the total value of the partnership to the Coffs Harbour community sitting at almost half a billion dollars, this deal demonstrates that our airport is considered a high-quality asset with substantial growth potential," Mr Beswick said. "We have secured a strong financial outcome that exceeds both the pre-COVID valuations provided by two independent experts when we started the Airport lease process. This is an important point for the community to know. "In addition to a very positive financial result, the deal will also see Council's continued involvement in the airport with the contract conditions requiring that Council will be consulted on the master planning and strategic direction of the airport," Mr Beswick said. Palisade Investment Director, Mike Reynolds, said they were very excited at the potential of Coffs Harbour Airport. "The Coffs Harbour region has a great deal of potential and we're really looking forward to becoming an active part of the community, supporting tourism growth and other local industries," Mr Reynolds said. "We look forward to building on the expertise of the existing Coffs Harbour Airport team to grow this critical infrastructure asset." KPMG Real Estate Advisory acted as the commercial and financial advisor to Coffs Harbour City Council throughout the lease process. Market engagement included market sounding, global expression of interest, a binding bid phase and subsequent exclusive negotiation period to finalise the lease with Palisade. A further report will be brought before Council on a holding structure and governance arrangements for funds received from the lease. These arrangements will uphold the current Council resolution that no revenue will be directed towards the Cultural and Civic Space project. Palisade Investment Partners is set to take over airport management in early 2021, subject to customary regulatory approvals. Once finalised, the lease will be registered and publicly available to view. [Emphasis added]
4. According to the media release, the $500 million appears to be a value attributed based on projections and therefore assumptions. The way this projected value has been calculated is unclear based on the materials before the Tribunal.

A question is raised regarding the value of the Airport Lease

1. In February 2021, Councillor Amos put the Councillors on notice of the following question: Question •The recent awarding of the long term lease over the Coffs Harbour Regional Airport was supported publicly by a forward cumulative "forecast" based on projections provided by the bidder over 99 years. Due to significant variations in the continuity of when income is expected to be received, what is the actual net present value of the income stream, as presented to counsellors and applying the diligence of consultants KPMG for the Coffs Harbour councillor's ultimate consideration? That is, what is value to the community expressed in today's dollars, of the proposed 99-year lease term?"
2. The response from Council as contained in an agenda for the meeting of 11 February 2021 was: The net present value of the negotiated 50 year airport lease and 49 year option is calculated to provide a benchmark to compare to valuations and to other offers received as part of the evaluation process. The net present value is between $127.5 million and $132.3 million and is significantly higher than two independent valuations, the net asset value recorded in the Coffs Harbour Airport's balance sheet, and also higher than the binding bids received in October 2019 before the COVID-19 pandemic. The airport lease has not been structured for Council to receive a single upfront lease premium (such as the net present value) but as a combination of an upfront payment, deferred payments and a share of revenue each year. The cumulative value of these payments are estimated to be in the order of $500 million, in nominal dollar terms, over the lease and option periods.
3. On 10 February 2021, and after the agenda for the 11 February 2021 meeting had been made available, the Daily Telegraph published an article entitled "A good deal?: Real value of airport lease revealed - A councillor has questioned the publicly touted $500m value of the airport lease - with new figures suggesting it may not be worth all it's cracked up to be.". That article, which is reproduce in full below, refers to Councillor Amos seeking greater transparency with respect to the Airport Lease. The article states: One councillor's crusade for transparency on the long-term lease of Coffs Harbour Airport and the Enterprise Park development has revealed new figures, suggesting the deal may not be worth all it's cracked up to be. After more than two years of confidential discussions, Coffs Harbour City Council announced in December that it had struck a $500m deal with investment firm Palisade Investment Partners to lease the assets over a potential 99-year period. However Cr Paul Amos has suggested that this publicly touted figure of $500m is not an accurate representation of just how much the deal is actually worth. Cr Amos questioned senior council staff about the real value of the lease, considering the lease is structured so that the council's income would be received at varying times over the 99 year period as opposed to an upfront payment. In the council agenda for this week, Cr Amos received a written response to his question of just how much the real value of the lease is in today's dollars, which takes into account factors such as inflation. The Director of Business Services Andrew Beswick replied that the real value of the lease is between $127.5m and $132.3m in today's dollars. Cr Amos explained to The Advocate that this means the community could be looking at an income of up to $1.3m a year from the deal. Cr Amos has repeatedly expressed his concerns on handing over the Enterprise Park - the "golden goose" - saying it would be a missed opportunity for council to develop the precinct itself and reap the revenue. "Remember - this is not just for the airport, but also the 99 industrial lots that go with it," he said. "I was worried about the income stream, because if you've got something going over a 100 years ... it's going to skew the value of that deal. "I'm totally satisfied my question has been answered. The real figure in today's dollar terms is $130m for 99 years." According to Palisade Investment Partners, the terms of the lease include an upfront payment of $25m to council, additional payments totalling $56.5m over seven years (including contributions to the development of the Airport Enterprise Park) and a share of revenue from both the airport and Enterprise Park operations. With the lease being touted to the community as a "landmark deal" of $500m when it was executed late last year, Mr Amos declined to comment when asked whether he felt there was an issue of transparency regarding this publicly released value. "All I'll say is the most accurate figure to assess the value as presented by the council's consultants is $130m." Despite this, the Director of Business Services stated in his response that the real value of between $127.5m and $132.3m was higher than two independent valuations, the net asset value recorded in the Coffs Harbour Airport's balance sheet, and also higher than the bindings bids received in October 2019 before the COVID-19 pandemic. The lease has not yet commenced.

Transition period and the hand-over of Airport

1. By May 2021, the Airport was being transitioned to Palisades. On 2 May 2021, the Daily Telegraph published an article entitled "Lots to come: New Coffs Harbour Airport operators look to the future". That article describes: early excavation works being underway at the Enterprise Park and an expectation that transition period would conclude in "about a month's time".
2. On 31 May 2021, Council ceased 'owner-occupied operations' of the Airport.
3. On 1 June 2021, the Daily Telegraph published the following article entitled "Coffs Harbour Airport privatised as long-term lease officially begins": Coffs Harbour Airport has officially been privatised, with operations now transferred to Palisade Investment Partners under a long-term lease. The lease, which began on Tuesday June 1) after a lengthy transition period, has the potential to be in place for nearly a century with Palisade signing on for 50 years with a 49-year extension option. It includes the development and operations of the Airport Enterprise Park, a $26m, 23-hectare commercial, industrial and logistics precinct adjacent to the airport which is under construction. Incoming General Manager Frank Mondello has taken on the reins after leaving the ranks of the management team at Sunshine Coast Airport. He's led a number of significant projects including the Sunshine Coast Airport Expansion Project, which brought a new internationally capable $344m runway into operation last year. Mr Mondello joins Coffs Harbour as part of Palisade's newly established management group dubbed Agilis Airports, which has been formed to oversee the operations of both the Sunshine Coast and Coffs assets. Coffs Airport and the Enterprise Park is also now being overseen by a board chaired by aviation industry stalwart Dennis Chant, who was formerly the CEO of Queensland Airports Limited. Mr Mondello said the region had an "exciting" future and the assets played a crucial role in helping reach its potential. "Over the last few months, we have been working closely with the existing Coffs Harbour Airport team and the Coffs Harbour City Council to add more destinations, airlines and frequencies and to ensure a smooth transition of airport operations," he said. "I'm looking forward to working closely with the tourism industry, local businesses and the broader community to ensure we make the most of the opportunities for the airport to deliver benefits to the region." Palisade Investment Partners' Investment Director Mike Reynolds said Coffs Harbour was set to benefit from a significant pipeline of investment, such as the $1.8 billion bypass project and the $194 million Coffs Harbour Hospital Campus Expansion. "The Coffs Coast region is one of the fastest growing regional areas within NSW and the airport presents an exciting opportunity not only for the Coffs community, but also for Palisade investors," Mr Reynolds said. "We look forward to working with Coffs Harbour City Council and the broader region to grow the airport through aviation capacity and diversifying revenue with the development of the Airport Enterprise Park." After years of confidential discussions with Council it was announced in December that Australian investment firm Palisade, headed up by CEO Roger Lloyd, had secured the lease of the airport. Coffs airport marks its fifth aviation asset with Palisade having signed a 99-year lease of Sunshine Coast Airport in 2017. It also has ownership in the Airport Development Group, which manages Darwin, Alice Springs and Tennant Creek airports under a 99-year lease. The long-term lease will see Council share revenue from both the airport and Enterprise Park operations. It includes an upfront payment to council of $25m, and additional payments totalling $56.5m over seven years in a deal that was controversially touted to be worth $500m to the Coffs community. Competition has well and truly heated up at Coffs Harbour Airport, with an influx of new services and routes introduced in recent months as Palisade began the transition. Coffs Harbour now has a direct service to Melbourne, which Qantas launched in April. Weeks later, Qantas also launched its new direct Brisbane service. Regional airline Link Airways - which had been the sole airline along the Coffs Harbour to Brisbane route since 2016 - has now upped the ante weeks after Qantas moved to gain a foothold on the route, increasing its flight frequency to 12 weekly services over the weekend and offering new deal fares. Rex Airways also entered the fray in March, launching direct services to Sydney. Gareth Williamson, General Manager of Aviation Business Development for Agilis Airports, told The Advocate last month that Rex Airlines was helping to fill the void left by Virgin, which withdrew from the region in April due to the impacts,on COVID-19. "It was disappointing that Virgin did suspend its services, but we're confident we'll be able to welcome them back in the region at another point in time," Mr Williamson said. Speaking on the "exciting" plans in the pipeline for the airport, he revealed the airport had strengthened its partnership with Qantas with an aim to establish a whole network between Coffs and capital cities in a way that had never been done before. "They see the potential to bring high value tourism, as well as to open up more connections for those travelling for business or to see family - all those reasons why domestic travel has bounced back from COVID-19 really well," he said.

Evidence relied upon to show "lease monitoring" and the reporting of financial impacts

1. On 23 June 2023, the Council met regarding what is described in the agenda as "Coffs Harbour Airport Draft Operating Plan". According to the executive summary in the agenda: The Lease between the City of Coffs Harbour (City) and Coffs Harbour Airport Pty Ltd (CHAPL) contains provisions, under Clause 30, for the Airport Lessee to provide the Lessor (the City) with a Draft Annual Operating Plan by 30 May of each year. This report brings to Council the draft Annual Operating Plan FY24 (AOP24) submitted by CHAPL. Clause 30 requires the Lessee to genuinely consider the comments of the Lessor prior to finalising the Annual Operating Plan.
2. Attached to the agenda is the operating plan which is again marked "Confidential" purportedly pursuant to s10A(2)(d)(l) of the Local Government Act which provides that information need not be disclosed if it contains commercial information of a confidential nature that would, if disclosed prejudice the commercial position of the person who supplied it. This document is not in evidence and nor is the minutes of the meeting.
3. In addition, Mr Beswick gives evidence that the Council is required to report the Airport Lease's financial impacts through its audited General Purpose Financial Statements in accordance with accounting standards and the NSW Local Government Accounting Code. He exhibits excerpts from the Council's publicly available financial disclosures. Council's financial statements for the FY 2022 record $1.6 million in expenses attributed to "Coffs Harbour Airport - Enterprise Park Redevelopment". The financial statement elsewhere states "The lease of the Enterprise Park assets is not included as it is still under construction by Council and the underlying asset is not yet available for use by the lessee."

Access application and responses

1. On 17 February 2023, the Second Applicant, by way of his solicitors, wrote to the Council making an access request under the GIPA Act for: 1. The instructions (or brief) to the consultant(s) engaged by Council to assist with the preparation of documentation for the rezoning of the Airport Enterprise Park (including any planning proposal) which sets out the scope of work to be completed. 2. The date on which the consultant report(s) referred to above are due to be provided to Council. 3. We do not require any pricing information and agree for this to be redacted.
2. According to Mr Gooley evidence, the letter was rejected by Council on the basis that it was not a valid GIPA Application.
3. On 4 May 2023, the Council received the access application pursuant to the GIPA Act relevant to these proceedings. At that time, the access application sought access to the Transaction Documents other than the Lease which was publicly available.
4. On 8 May 2023, the Intervenor received correspondence from Council in which Council notified the Intervenor of an access application in respect of the Transaction Documents. That letter states, in part: As some of the information concerns your business, commercial, professional or financial interests, I am required to consult with you before making a decision.
5. According to that letter, Council requested that the Intervenor advise within five working days if there was an objection to the release of the information. That equated to a response by 16 May 2023. The letter stated that if no objection was received by that time, it will be considered that there was no objection.
6. Despite the time limit, on 29 May 2023, the Intervenor communicated its objection to the Council by way of letter. It stated, inter alia: When the Airport Lease was being prepared, [Council] and the [Intervenor] agreed that the Airport Lease would be registered with the NSW Land Registry Services and be publicly available on the register. In recognition that certain information was commercially sensitive, there was mutual agreement between Council and [the Intervenor] that such commercially sensitive information would be documented by way of separate Transaction Documents to prevent these from becoming publicly available. [The Intervenor] objects to the release of the Transaction Documents pursuant to clauses 4(b) and 4(d) of the Table in section 14 of the GIPA Act on the grounds that the Transaction Documents contain (or are entirely comprised of) commercial-in-confidence provisions or provisions that, if released, would prejudice [the Intervenor's legitimate business, commercial, professional and financial interests.
7. In that letter, the Intervenor contended that disclosure of the Transaction Documents would reveal the cost structure, components of financial modelling and/or profit margins. It submitted that the disclosure of that information would place it at a substantial commercial disadvantage in negotiating with contractors. The concern being that the Transaction Documents could be used as a tool by others to undercut the Intervenor in its negotiations for key contracts which could prejudice its legitimate business, commercial, professional or financial interests. The letter also refers to "Objections by [the Intervenor's] Stakeholders" being Palisade.
8. By letter date 30 May 2023 (being the next day), the Council provided the First Applicant with a Notice of its decision in respect to the access application. The Council concluded that the disclosure of the documents could reasonably be expected to have the effects as provided in section 14 table 4(b) and (d) and there was an overriding public interest against disclosure of the documents (the Decision).
9. On 19 July 2023, the Second Applicant wrote to the Council. That letter states: I am writing to you to outline my concerns regarding the level of secrecy over the development of the airport land and the inadequacy of Council's conflict of interest policy. … Registration of the airport lease I refer to comments made on behalf of Council at the meeting of 23 March 2023 that the head lease for the [Airport] was a public document as it was registered. While I concede that the Cuncil has registered the airport lease, I do not consider that Council has been transparent in its dealings. This is because the key documents setting out the commercial arrangements and profits to Council have not been registered and are not public. These documents include the terms of the:- o Airport Lease Supplemental Deed, o the Development Agreement, o the Implementation Agreement and the Transitional Services Agreement (Related Lease Documents). Without a copy of the Related Lease Documents, it is not possible to understand the development plans, rights and obligations of Council as the head lessor and having regard to its regulatory roles and obligations. The 'entire deal' continues to be hidden and legitimate access is now being obstructed and hindered! Council has now refused my freedom of information requests for the Related Lease Documents, and other critical documents including communications between Council and its planning consultant on the proposed development of the airport. Council has also refused to conduct an internal review of their decision under the GIPA Act and have stated this sis due to 'staffing constraints'. … Concerns regarding the conflict of interest police … Given Council's dual role and its obligations to maximise the economic benefit to Council under the lease, the Conflicts Policy should ensure that an independent party oversees all applications in relation to the development of the airport land. Finally, I again call on Council to release the Related Lease Documents and other communications to shine a light on the secret deal that has been done.
10. On 21 July 2023, the application for administrative review of the Decision was filed in this Tribunal.

Rezoning

1. [NOT FOR PUBLICATION FOR 35 DAYS]
2. [NOT FOR PUBLICATION]
3. [NOT FOR PUBLICATION]
4. [NOT FOR PUBLICATION]
5. [NOT FOR PUBLICATION]

The parties

1. As explained above, the Respondent is the Council and ran the tender process in relation to the Airport Lease and Development.
2. The First Applicant, Ms Goodenough, is an employee of the law firm Fishburn Watson O'Brien which is the law firm retained by the Second Applicant. The proceedings were initiated with Ms Goodenough as the named Applicant who was also the person to whom the Original Decision was addressed. It is not in dispute that the Second Applicant is and, at all material times, was the active party with respect to the initiation of these proceedings and the provision of instructions to Fishburn Watson O'Brien. By consent, the Second Applicant was joined to these proceedings and the First Applicant played no active role.
3. The Second Applicant is a corporate entity belonging to a group of associated entities referred to as "Bachrach Naumburger Group" in the Affidavit of Mr Stephen Gooley (BNG Group). Mr Gooley is the general manager of the BNG Group including the Second Applicant and provided evidence by way of affidavit. Mr Gooley was not cross-examined and his evidence was not challenged and is accepted.
4. As described by Mr Gooley - through the entities within the corporate group including the Second Applicant, BNG Group owns numerous shopping centres and commercial properties throughout Australia, including but not limited to the following interests in Coffs Harbour: 1. Park Beach Plaza a shopping centre comprising a gross lettable floor area in excess of 40,000 m2 with tenants such as Woolworths, Target, Big W, Aldi, Richie's IGA, JB Hi-Fi and Terry White Chemmart; 2. Homebase shopping centre comprising a gross lettable floor area in excess of 20,000m2 with tenants such as Harvey Norman, Fantastic Furniture, Macleod's Furniture Court, Adairs and Centrelink; 3. Property including: 1. land holding in a property located at the corner of Arthur Street and Richmond drive, Coffs Harbour; 2. two properties in the Harbour Drive Coffs Harbour Jetty Area; 3. an aged care facility known as The Shoreline; and 4. residential apartment building of 27 apartments on Arthur Street, Coffs Harbour.
5. According to Mr Gooley and the BNG Group pay more than $400,000 in council rates each year and is responsible for management of more than $700 million of real property assets in Coffs Harbour. His interest in information the subject of the GIPA access request is borne out of BNG Group's investment in Coffs Harbour and his concern that: … the touted benefit to Coffs Habour of the deal with the Intervenor of $500 million was a significant overstatement of the true value, and … the ratepayers of Coffs Harbour have not received good value for the deal. I am also concerned that Council has undertaken significant risk in terms of expenses potentially to be incurred by it in relation to its arrangements with the Intervenor, although none of the information made publicly available by [the Respondent] in relation to its arrangements with the Intervenor sheds any light on those potential liabilities.
6. The reference to "$500 million" is a reference to the media release dated 10 February 2021 and described above.
7. The Intervenor and its relationship to Palisade is described below: 1. The Intervenor is the trustee of the Coffs Harbour Airport Trust. The Intervenor was registered on 2 November 2020. 2. The units in the Coffs Harbour Airport Trust are held by Coffs Harbour Airport Holding Pty Ltd in its capacity as trustee of the Coffs Harbour Airport Holding Trust. 3. The units in the Coffs Harbour Airport Holding Trust are held by Pinnacle RE Services Limited in its capacity as trustee of the Palisade's Diversified Infrastructure Fund No. 3. 4. Palisade is the investment manager of Palisade's Diversified Infrastructure Fund No. 3. According to the Affidavit of Mr Park, Palisade is an infrastructure manager focused on mid-market opportunities in Australia, New Zealand and North America. It operates a diversified portfolio with a focus on various infrastructure sectors, including airports.

The task of the Tribunal

1. The Tribunal's task is to make the "correct and preferable decision", having regard to the material before it: s 63 of the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). The Tribunal re-makes the decision, as if it were the administrator: Commissioner of Police v Danis [2017] NSWCATAP 7 at [31].
2. In considering an application for review, the Tribunal is not constrained to have regard only to the material that was before the respondent but may have regard to any relevant material before the Tribunal at the time of its review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409. In this regard, in addition to the material that was before the respondent, the Tribunal had before it the submissions and evidence filed in the proceedings by each of the parties including the Intervenor as summarised below.
3. In determining the application, the Tribunal may affirm the decision, vary the decision, set aside the decision and make another decision in substitution for the decision set aside, or set aside the decision and remit the matter for reconsideration by the respondent in accordance with any directions or recommendations of the Tribunal: s 63 of the ADR Act.

Statutory framework and legal principles

1. There is no dispute as to the applicable legislation and applicable principles.

The GIPA Act

1. Section 3 of the GIPA Act prescribes the object of the legislation. This ensuring that there is open government by authorising and encouraging public release of government information and giving members of the public an enforceable right to access government information. It is the intention of Parliament that the GIPA Act be interpreted and applied so as to further its object.
2. The term "government information" is defined in s 4 of the GIPA Act as information contained in a record held by an agency. The term "record" is defined in cl 10 of Schedule 4 as: (1) In this Act - record means any document or other source of information compiled, recorded or stored in written form or by electronic process, or in any other manner or by any other means. (2) A reference in this Act to a record includes a reference to a copy of the record. (3) For the purposes of the definition of record in this Act, the knowledge of a person is not

Presumption in favour of disclosure and the balancing exercise

1. Section 5 of the GIPA Act provides that there is a presumption in favour of disclosure of government information. Section 9 of the GIPA Act provides that applicants for access to government information have a legally enforceable right to be provided with access to it unless there is an overriding public interest against disclosure.
2. Section 12 of the GIPA Act provides that there is a general public interest in favour of the disclosure of government information that is not covered by overriding secrecy laws. The category of public interest considerations in favour of disclosure is not limited. Subsection 12(2) sets out several examples of public interest considerations in favour of disclosure.
3. Access is restricted only when there is an overriding public interest against disclosure: see Taylor v Destination NSW [2020] NSWCATAD 137 at [6].
4. The Respondent bears the onus of satisfying the Tribunal that its decision is justified: s 105(1) of the GIPA Act.

The public interest

1. The public interest is not a defined or fixed concept, including in the GIPA Act regime. It is a concept which is core to agency decision-making about access to government information: Moran v Shellharbour City Council [2022] NSWCATAD 112 at [56).
2. Individual interests in seeking information may coincide with the public interest. In McKean v Attorney-General and Justice [2015] NSWCATAD 176 at [34], the Tribunal found that an applicant's interest in seeking access to information for reasons extraneous to himself, coincided with the benefits that arise from public scrutiny as enhancing government accountability, and the applicant being a member of the public.
3. A private interest may highlight a public interest, it does not constitute public interest: Jy v Commissioner for Police, NSW Police Force [2008] NSWADT 306 at [55].
4. Section 13 of the GIPA Act provides that there is an "overriding public interest against disclosure" of government information for the purposes of the Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure.
5. The balancing exercise set out in section 13 "is a question of fact and degree, requiring the weighing or competing matters, and is a task not amenable to mathematical calculation": Battin v University of New England (2013) NSWADT 73 at [74]; Johnson v Wollondilly Shire Council [2022] NSWCATAD 182 at [21].

Public interest considerations against disclosure

1. Section 14(1) of the GIPA Act provides that it is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1 to the GIPA Act.
2. The public interest considerations listed in the Table to s 14 of the GIPA Act are the only other considerations that may be considered under the GIPA Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information.
3. When assessing the public interest considerations against disclosure it is necessary to examine these at a broad operational level as many of the considerations are concerned with the systemic features of the operation of government: Camilleri v Commissioner of Police, NSW Police Force [2012] NSWADT 5; Johnson v Wollondilly Shire Council [2022] NSWCATAD 182 at [26).
4. The words 'could reasonably be expected to' require the Tribunal to determine whether the effect that is alleged to occur with disclosure of the information could reasonably be expected: Johnson v Wollondilly Shire Council [2022] NSWCATAD 182 at [26]. In Male v Kempsey Shire Council [2022] NSWCATAD 39 at [78]-[81], the Tribunal set out a detailed examination of the words 'could reasonably be expected to'. The term 'prejudice' has its ordinary meaning, that is, "to cause detriment or disadvantage" or "to impede or derogate from": Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60].

Other relevant legislation and government policy considerations

1. The Respondent is provided with a general power to exercise functions conferred on them by or under the Local Government Act: see s 21 of the Local Government Act, or by or under other legislation: s 22 of the Local Government Act.
2. Further, the Respondent is provided with a general power to do "all such things as are supplemental to, or consequential on, the exercise of its functions": s 23 of the LG Act, subject to the principles in Chapter 3 and subject to any guidelines issued by the Departmental Chief Executive under s 23A.
3. Section 24 of the LGA broadly describes the service functions of Councils: 24 Provision of goods, services and facilities and carrying out of activities A council may provide goods, services and facilities, and carry out activities, appropriate to the current and future needs within its local community and of the wider public, subject to this Act, the regulations and any other law.
4. In connection with undertaking its service functions, the Council has obligations relating to procurement activities. In particular, the Council must invite tenders before entering into any contract for the provision of goods and services involving an estimated expenditure of $250,000 or more: s 55(1)(e) and s 55(3)(n)(i) of the LGA.
5. Chapter 4 of the LGA contains provisions which relate to how the community can influence what a Council does. Under s 10A(1) of the LGA, a meeting of the Council or Committee of the Council may be closed to the public where discussion concerns information or commercial information of the type or nature more particularly described in s 10A(2)(c) and s 10A(2)(d). Section 10A is extracted above.
6. The Council is also subject to government policies, procedures and guidelines (government policy documents) in relation to procuring goods and services from the private sector. These include the following documents which were annexed to the affidavit of Mr Beswick: 1. Council Statement of Business Ethics and its earlier counterpart; 2. Council Procurement Procedure Manual and its earlier counterpart; 3. Code of Conduct Policy and its earlier counterparts 4. Tendering Guidelines for NSW Local Government (dated October 2009) prepared by the Director General under s 23A of the LGA and issued by the NSW Department of Premier and Cabinet. Under s 23A(3) of the Local Government Act, a Council must take the Tendering Guidelines into consideration before exercising any of its functions.

Issues for determination

1. Consistent with the statutory framework and legal principles, the issues to be decided in these proceedings are: 1. to identify the public interest considerations in favour of disclosure and the decide what weight is to be afforded to them including any personal factors 2. to identify the public interest considerations against disclosure (specifically Items 1(d); 1(g); 4(b) and 4(d) of the s14 Table) and decide the weight to be afforded to them including any personal factors. 3. whether the submitted public interest considerations to refuse to release the information, if made out, outweigh the public interest considerations in favour of disclosure.

Evidence

1. In addition to the Second Applicant's oral submissions, the Second Applicant relied upon: 1. Company summary search extracted from ASIC's database of the Second Applicant dated 11 March 2024 marked "A1"; 2. Affidavit of Mr Steven Gooley dated 12 February 2024 marked "A2"; 3. Written submissions dated 13 February 2024 marked "A3"; and 4. Collection of media articles ranging in dates from 7 December 2018 to 1 June 2021 marked "A4".
2. In addition to the Council's oral submissions as well as adopting the Intervenor's oral submissions, the Council relied upon "open evidence" as well as "closed evidence" with the latter being subject to suppression orders pursuant to s 64 of the of the Civil and Administrative Tribunal Act 2013 (the CAT Act) until further order: 1. Affidavit of Mr Andrew Beswick dated 24 November 2023 marked "R1; 2. Confidential Affidavit of Mr Andrew Beswick dated 24 November 2023 marked "Confidential R2"; and 3. Written submissions dated 28 November 2023 marked "R3"
3. Mr Beswick gave oral evidence and was cross-examined.
4. In addition to the Intervenors oral submissions, the Intervenor also relied upon "open" and "closed" evidence: 1. Affidavit of Mr Arthur Dennis Chant (with highlights showing redacted/ closed portions of material) dated 20 December 2023 marked "Confidential I1" (First Chant Affidavit); 2. Affidavit of Mr Douglas Park (with highlights showing redacted/ closed portions of material) dated 20 December 2023 marked "Confidential I2" (Park Affidavit); 3. Affidavit of Mr Arthur Dennis Chant (with highlights showing redacted/ closed portions of material) dated 6 March 2024 marked "Confidential I3" (Second Chant Affidavit); 4. Exhibit to the First Chant Affidavit marked "I4"; 5. Confidential Exhibit to the First Chant Affidavit marked "Confidential I5"; 6. Confidential Exhibit to the Park Affidavit marked "Confidential I6"; 7. Confidential Exhibit to the Second Chant Affidavit marked "Confidential I7"; 8. Confidential written submissions in chief (with highlights showing redacted/ closed portions of material) dated 20 December 2023 marked "Confidential I8"; and 9. Confidential written submissions in reply (with highlights showing redacted/ closed portions of material) dated 6 March 2024 marked "Confidential I9".
5. During the course of the closed portion of the hearing, the Tribunal requested that it be taken to any authorities which consider a situation where it is known at the time of deciding an access application pursuant to the GIPA Act that the claim for confidentiality of a particular fact or circumstance is of a temporal nature and what significance (if any) does that knowledge have on the access application. Senior Counsel for the Intervenor requested that a short note be provided to the Tribunal after the oral hearing. To ensure procedural fairness, a timetable was set to allow a right of response to the Applicants. Written submissions were received from the parties and considered by the Tribunal.
6. As noted above, the suppression orders pursuant to s 64 pertaining to the "closed evidence" were made "until any further order". For the reasons that follow, I set aside orders 4 and 5 made on 12 March 2024 to the extent that they pertain to the following information and/or documents (such that the following information and/or documents no longer fall within the meaning of "Confidential Material" as defined in order 2): 1. The names of the Transaction Documents which the Intervenor has redacted in its written submissions. In this respect, the names of the Transaction Documents are disclosed by way of the definition in the Lease as well as the open portions of Mr Chant's Affidavit of 20 December 2023. 2. The fact that the Implementation Agreement relates to, amongst other things, the transfer of certain assets for the operation, maintenance or development of the Airport and the grant of the lease of the "Leased Area" (being defined as the land described in item 3 of the reference schedule to the Lease). The Leased Area includes the area designated for the Enterprise Park (that area also being described by Council in agendas). This is part of the open evidence being part of the definition of the "Implementation Agreement" in the Lease. 3. The fact that the Development Agreement relates to the development of the "Leased Area" by the Intervenor which is disclosed at Clause 18.1 of the Lease. 4. The fact that the Transitional Services Agreement relates to the provision of services during a transitional period as it is self-evident from its title. The fact there was a transitional period is again disclosed in the agendas and minutes of meetings and publicised in the media. 5. The fact that the current zoning of the site proposed for the Enterprise Park and the need to rezone the site which is a matter of public knowledge as evidenced in the minutes and agendas of the Council and publicised in the media. 6. The Permission Letter. The substance of the information contained in that letter has already been disclosed in the open evidence and specifically the agenda of 12 November 2020 (i.e. seeking a response of the preferred tenderer as to whether they would object to disclosure of the length of the term of the Airport Lease). The Council's view that there was a need for a "holistic communications approach" is also disclosed in that agenda. 7. Any other information disclosed publicly by virtue of this decision. 8. The documentary evidence relied upon by the Respondent and the Intervenor to contend that an obligation of confidentiality arises either with respect to the tender process or the executed Transaction Documents being: 1. the Confidentiality Provisions of each of the Transaction Documents including the definitions of the defined terms as used in those provisions. 2. the Deed Poll. 3. the Non-Binding Bids Process Letter 4. the Binding Bids Process Letter
7. In respect of the documents listed at paragraphs 176(8), the Intervenor (and through adoption of the Intervenor's submissions; the Council) have sought to rely upon these clauses and/or documents to support the allegation that the Transaction Documents were created and information disclosed which was protected by "confidentiality agreements" and confidentiality obligations. According to the Intervenor (and Council) the purported confidentiality obligation meant that information shared by Palisade (purportedly on behalf of the Intervenor) would be kept confidential. In making this submission, the Intervenor (and Council) have relied upon the purported substance of those "confidentiality agreements" and disclosed the purported substance of those agreements to strengthen and support their resistance to the access application - all while failing to disclose copies of the "confidential agreements" or the provisions (as the case may be) to the Applicants.
8. Legal professional privilege is implicitly waived where, by reason of the conduct of the holder of the privilege, it would be unfair to maintain the privilege, that is, it would be unfair to allow the holder to use or refer to the privileged material and yet assert that the material, or material associated with it, can be withheld: Attorney-General (NT) v Maurice (1986) 161 CLR 475; 69 ALR 31. I see no reason why the same principle would not apply to a claim of confidentiality. As such, even assuming that such documents were confidential (and I make no such finding), it would be unfair in the circumstances of this case to allow those documents to be withheld.
9. This finding is also consistent with the obligation of this Tribunal to give reasons and the need for decision-makers to ensure transparency in decision-making. Without reference to these documents, the reasoning of this Tribunal is not exposed. As stated in the joint judgment in Ex parte Palme 216 CLR 212 at [40] per Gleeson CJ, Gummow and Heydon JJ: The purpose underlying the obligation to give reasons is in part the discipline of rationality, being the antithesis of arbitrariness, which follows from the exercise of justifying a conclusion, together with the transparency of decision-making, which permits the parties and the public to understand the result reached. However, this purpose must be given practical effect in particular circumstances.
10. Given the substance of the documents listed above and the manner in which they are relied upon by the intervenor (and the Council), I see no reason why those documents ought to be suppressed in these particular circumstances.
11. The Intervenor (and Council) have been heard in an open and closed hearing as to its contention that the totality of the Transaction Documents (apart from the Lease) and information exchanged during the tender process are confidential because the information was subject to confidentiality obligations. For the reasons given, I do not accept that submission in the terms it has been put. However, the Applicants have not had the opportunity of considering the information the subject of the Setting Aside Order (to the extent it is not otherwise disclosed). Nor the opportunity to make submissions in consideration of that information. If my decision was otherwise than to set aside the Respondent's Decision and grant access to the information responding to the access application, I would provide the Applicants with an opportunity to do so consistent with notions of procedural fairness. However, given that I have granted the access application, a further hearing to allow the Applicants a further opportunity address the Tribunal is unnecessary.
12. Otherwise, I have maintained the suppression orders with respect to information that is not responsive to the access request and/or has not been relied upon by the Intervenor (and Council) to allege that an obligation of confidentiality exists. This information is marked "NOT FOR PUBLICATION".

Submissions

1. The Respondent and the Intervenor contended that the Decision should be affirmed.

The Respondent's submissions

1. In addition to adopting the Intervenor's submissions summarised below, the Respondent also argued that: 1. While conceding that disclosure could reasonably be expected to promote open discussion of public affairs, inform the public about the operations of agencies and ensure effective oversight of the expenditure of public funds - the Respondent nonetheless contended that the considerations against disclosure dominated. 2. In this respect, the Respondent submitted that the information that would be disclosed would fall within the meaning of "confidential information" pursuant to s 32(1) of the GIPA Act because it is purportedly "commercial-in-confidence provisions" and, as such, the considerations in s 14, clause 4(c) and (d) apply. The Respondent described its concern as being that disclosure of the "confidential information" would adversely impact Council's ability to enter commercially competitive contracts as companies would be hesitant to engage if they thought their commercial information would be made public.

Intervenor's submissions

1. The Intervenor's position (which the Respondent has adopted), is that the information responding to the request is contained solely in the Development Agreement. After consideration of the various Transactions Documents, I accept this contention.
2. The Intervenor submitted that the public interest considerations against disclosure of the information responding to the access request outweighed considerations for disclosure. Like the Respondent, the Intervenor conceded that a degree of weight should be given to the general public interest considerations. The Intervenor referred to (a), (b) and (c) to the note to s 12(2) of the GIPA Act, namely: (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds
3. However, it was submitted that the weight should be limited because information sufficient to promote open discussion with respect to these elements is already publicly available. In this respect, the Intervenor relied upon: 1. The Lease which is publicly available as are minutes of various Council meetings; 2. Council's alleged compliance with processes prescribed by the tendering Guidelines for NSW Local Government as well as applicable legislation and as such, the public can be assured that public funds have bene expended appropriately and the processes adopted by Council are consistent with their obligations. 3. Council's financial reports which are audited and published which are available and will continue to be available.
4. The Intervenor also drew the Tribunal's attention to the disclosure regime provided by the GIPA Act and specifically that Division 5 of the GIPA Act prescribes that government contracts in excess of $150,000 be published but excludes confidential information including "commercial-in-confidence provisions" pursuant to s 32.
5. With respect to the considerations against disclosure, reliance was placed on Items 1(d); 1(g); 4(b) and 4(d) of the s14 Table, being: 1. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally) - … (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions … (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence … 4. There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects - … (b) reveal commercial-in-confidence provisions of a government contract; … (d) prejudice any person's legitimate business, commercial, professional or financial interests

Intervenor's Submissions with respect to Item 1(d) and 1(g) of the s 14 Table

1. With respect to item 1(d), the Intervenor's primary argument was that the confidentiality of the Transaction Documents for the purposes of Item 1(d) arose by way of a contractual right and specifically by virtue of the confidentiality provisions and definition of "Confidential Information" in the Transaction Documents. In its written submissions, the intervenor solely referred to such provisions in the Implementation Agreement however in oral submission, reliance was placed on that obligation as created by the Transaction Documents.
2. In any case, this contractual right of confidentiality was said to be enlivened because the Transactions Documents fell within the definition of "Confidential Information" which is part of the open evidence being adopted in the Lease (the definition being extracted at paragraph 225 above) because: 1. "all of the terms of the Transaction Documents" relate to the business, assets or affairs of the Intervenor and Palisade and the "vehicles interposed between Palisade and the [Intervenor]" and so fall within (a) of that definition. In this respect, reliance was placed on the meaning of "Related Entity" in that deed. 2. The definition expressly includes information concerning the existence and terms of this document or any of the Transaction Documents at (b). 3. the Intervenor "made this information available to Council through the process of drafting and agreeing to the Transaction Documents, or Council otherwise obtained it through that process" and so the terms of the Transaction Documents fall within (c) of that definition. 4. "the [information in the] Transaction Documents [is] information which by [its] nature is confidential which Council as Recipient knew or ought to have known is confidential" for the purposes of (d) of the definition of "Confidential Information" because: 1. The definition expressly includes at (b), the Transaction Documents 2. The Intervenor insisted that the Transaction Documents be confidential. In this respect, reliance is placed on Mr Beswick's evidence and specifically paragraphs [56]-[63] of his Affidavit of 24 November 2023. These paragraphs of either of open or confidential Affidavit of Mr Beswick do not support this proposition. 3. Palisade and Council entered into a confidentiality deed during the tender process; and 4. The "explicit confidentiality requirement for Council" contained in the "non-indicative binding bid submission document"; and 5. the sensitivity of the information contained in the Transaction Documents with respect to re-zoning and the price paid by the Intervenor to Council. With respect to the later, it is argued that disclosure of the price paid to Council for the Enterprise Park and services in connection with its development would allow "reverse engineer[ing of] financial modelling" of the Intervenor and could prejudice the Intervenor's ability to negotiate competitive leases and to compete with other property developers.
3. Additionally, reference was made to an equitable obligation of confidentiality in the Intervenor's written submissions and reliance was placed on AFW v Workcover Authority of NSW [2013] NSWADT 51 and Optus Networks Pty Ltd v Telstra Corp Ltd (2010) 265 ALR 281. The basis of this was said to be for the same reasons as those given for why the Transaction Documents ought to be treated as confidential as described at paragraph 191.
4. With respect to why the disclosure of the Transaction Documents would prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, the Intervenor relied on Mr Beswick's and Mr Park's evidence that if there was disclosure of the Transaction Documents, other companies would be hesitant to engage with Council on the basis that their commercially valuable information may be made publicly available and, given the lack of competition, this would have an adverse impact on the arrangements that could be achieved by the Council with third parties.
5. With respect to item 1(g), the Intervenor submitted that the conditions under which the Council received the Transaction Documents were that their terms be kept confidential and relied upon the contentions as summarised above with respect to item 1(d). Reliance was placed on Male v Kempsey Shire Council [2022] NSWCATAD 39 at [273] for the proposition that despite the tension between s 113 of the GIPA Act and item 1(g) of the table to s 14, that it is still open to the Tribunal to conclude that release of the information could reasonably be expected to found an action for breach of confidence.

Intervenor's submissions with respect to Item 4(b) and 4(d) of the s 14 Table

1. The Intervenor submitted that the Transaction Documents are "government contracts" as referenced in item 4(b) (which is accepted by the Second Applicant) and contain "commercial-in-confidence" provisions as defined in the GIPA Act.
2. With respect to the provisions said to be "commercial-in-confidence", the Intervenor attached a Schedule to its written submissions setting out the provision and the reason each falls within that definition.
3. The reasons given for why information responding to the Rezoning Information Access Request is commercial in confidence is as summarised at paragraph 191(4)(e) with it being submitted that such information if disclosed would cause substantial commercial disadvantage (and fall within (e) of the definition) and the pricing information would also fall within (b) and (c).
4. With respect to items 4(b) and 4(d) and the alleged prejudice to the business, commercial, professional or financial interests of the Intervenor (as well as Palisade, the investors in the Palisade Diversified Infrastructure Fund and Council), the Intervenor submitted that: 1. disclosure of the terms and conditions contained in the Transaction Documents (other than the Lease), creates a risk that Palisade's position as to particular matters (including concessions made for the purposes of this transaction) will be exposed which another regional airport operator in a future transaction may use in negotiations to their advantage undermining Palisade's bargaining power. This prejudices Palisade's ability to realise and maximise investment made by the stakeholders for the investment fund 2. if Palisade elects in the future to relinquish its interest in the Airport by selling the units in the Coffs Harbour Airport Holding Trust, disclosure of the terms of the Transaction Documents may prejudice those negotiations. 3. the disclosure of the terms and conditions creates a risk that such information could be used by the Intervenor's competitors which includes, according to the Intervenor, BNG Group who has an interest in the Homebase retail centre and which may compete with the Enterprise Park for tenants in the future. 4. knowledge of the price paid by the Intervenor as disclosed in the Development Agreement would allow a reverse engineering of the Intervenor's financial modelling which could be used to the Intervenor's disadvantage. 5. [NOT FOR PUBLICATION FOR 35 DAYS]

The Second Applicant's submissions

1. The Second Applicant submits that it has a legitimate interest and motivation in obtaining the information given its interests in Coffs Harbour and as a "major ratepayer" in the local government area. Reliance is placed on Mr Gooley's evidence which was unchallenged.
2. In response to the Intervenor's contention that sufficient information is publicly available, the Second Applicant contends that the Lease, Council's agendas and minutes, financial reports and statutory prescribed public registry listing of information are insufficient to understand Council's rights and responsibilities in the absence of disclosure of the Transactions Documents. In this respect, the Second Applicant also draws the Tribunal's attention to the fact that the attachments to Council's agendas and minutes are often marked "confidential" and so the information disclosed and available is limited in any case.
3. In response to the Intervenor's submissions related to Items 1(d) and (g), the Second Applicant submits that the obligation of confidentiality as contained in the Lease permits disclosures which are required by law including "to satisfy the requirements of any Government Agency, administrative or judicial body or tribunal". In those circumstances, Council is taken not to have breached its obligations. Otherwise, the Second Applicant contends that there is no prejudice to the Council if the information is disclosed because firstly, the arrangement is not being negotiated but is a concluded transaction and secondly, there is only one airport in Coffs Harbour so there is no chance of a duplicate transaction such that disclosure would put the Council at a commercial disadvantage in respect of such a duplicate transaction. Evidence from Mr Park that it would not enter into negotiations with the Council in the future if there were not confidentiality arrangements are therefore not apposite in the current circumstances.
4. In response to the Intervenor's submissions related to Items 4(b) and (d), and without having seen the Transaction Documents, the Second Applicant accepted that: 1. The Transaction Documents are likely to be "government contracts" for the purposes of item 4(b); 2. The Transaction Documents likely contain some provisions which satisfy the definition of "commercial-in-confidence provisions"; and 3. Were the Transaction Documents to be revealed (in their entirety), the interests of the intervenor could reasonably be expected to be prejudiced.
5. However, as pointed out by the Second Applicant, the access application seeks specific and discrete parts of the Transaction Documents and those sections that fall within items 4(b) or 4(d) could be redacted. Additionally, the Second Applicant denies that it is a competitor of the Intervenor or Palisade.
6. The Second Applicant contends that disclosure is warranted because: 1. Public interest considerations in favour of disclosure and provided in items (a) to (c) in the note to s 12(2) of the GIPA Act; 2. The significance of the Airport and Enterprise Park to the Coffs Harbour community; 3. The circumstances and controversy in which the Lease arrangements were finalised; 4. The lengthy term of the Lease; and 5. The limited public information which clearly identifies Council's rights and obligations pursuant to these arrangements.

Consideration

1. I am required to determine which considerations (either for or against disclosure) have greater weight when applying the public interest balancing test as required by s 13 of the Act. The essence of the balancing test in these proceedings requires me to weigh the need for Councils to be transparent and accountable in their dealings and specifically, to obtain value for money in their expenditure of public funds, the privatisation of State assets and in upholding their duty to avoid a conflict of interest, against their obligations to not reveal confidential provisions of a government contract, not prejudice any person's legitimate business, commercial or financial interests and not diminish the competitive commercial value of any person's information. This is to be done having regard to the factual circumstances as presented in the evidence.

Public interest considerations in favour of disclosure

Items (a) to (c) of s 12(2) of the GIPA Act

1. It is not in dispute that the considerations in favour of disclosure as provided in items (a) to (c) of s 12(2) of the GIPA Act are relevant. Those considerations are: 1. Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. 2. Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. 3. Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds.
2. I accept this proposition which is consistent with the Council's Statement of Business Ethics which states: Our business decisions will be made in a transparent, accountable, honest and professional manner.
3. The Procurement Policy that lists transparency as an objective of "all procurement activities" and the Tendering Guidelines states: Purchase and disposal activities using the tendering process for local government, and other government agencies, are governed by strict considerations of probity, transparency and accountability in expenditure of public funds for public purposes.
4. The circumstances of this case support that there is a clear public interest in the Lease and the Development which is of significance to the people of Coffs Harbour and New South Wales. The evidence supports that there is a public interest in disclosure of information to allow for an understanding of the variables and risks of the transaction to Coffs Harbour and any liability of Council, the impact of privatisation of the Airport on the community, the management of what has been described as Council's conflict of interest in respect of the necessary re-zoning to create the Enterprise Park and the legitimacy of Council's claims in respect of the benefit of the transactions to the rate payers of Coffs Harbour.
5. The importance of this transparency is also reflected in the correspondence of the Council and the Intervenor and the public statements made on behalf of the Council.
6. In respect of the former, the Council acknowledges in the Permission Letter the need for a "holistic communications strategy" so as to appropriately inform the Coffs Harbour community when an agreement is reached (however, it is not clear on the evidence whether this "holistic communications strategy" has been implemented). In any case, the need for transparency is also acknowledged by the Intervenor in their response to that letter which is recorded in the agenda dated 12 November 2020: [We] fully support transparency and community engagement (including disclosure of the length of the lease and option of the airport) once negotiations have been finalised and a transaction is signed.
7. In respect of public statements made on behalf of the Council, the Council has made public statements with respect to the alleged benefit of the arrangements with the Intervenor including publicising the claim that the Lease and Enterprise Park has a forecast value of $500 million. As extracted above, the media release of the Council states: Coffs Harbour City Council has secured Palisade Investment Partners as its commercial operating partner for the long-term lease of Coffs Harbour Airport, with the value to the community forecast at almost $500 million over the term of the lease and option.
8. By way of this media release, the Council implicitly acknowledges that there is a legitimate interest in the community in understanding the value of these arrangements and a need to keep the community informed.
9. The issue in dispute is what weight should be given to these considerations. As summarised above, the Intervenor (and Council) argue the weight to be given should be "limited" because sufficient information is publicly available and, in this respect, refers to the Lease, Council's agendas and minutes, financial reports and statutory prescribed public registry listing of information.
10. I do not accept that the information that is publicly available means that little weight should be given to these considerations. In this respect, having considered the Transaction Documents, I accept the submissions of the second Applicant that one cannot understand Council's rights and liabilities with respect to infrastructure type works; the terms and conditions related to re-zoning and, for that matter, the financial consideration in respect of the transactions by reference only to the Lease. Likewise, Council's financial reports and statutory prescribed public registry is insufficient to understand Council's rights and responsibilities and the contingencies and variables that exist.
11. Additionally, Council's agendas and minutes of meetings do not fill this shortfall of information because many documents of substance are attachments to the agendas which have been marked as "confidential" pursuant to s 10A of the Local Government Act. To my count, there are 21 attachments to 13 agendas that are before this Tribunal. Of the 21 attachments, 18 attachments are marked confidential. Of the 18 attachments, approximately only four are before this Tribunal.
12. Further, the practice by the Council of making public statements including regarding the alleged benefit to the Coffs Harbour community without disclosure of information to support such statements sits uneasily with notions of fairness and transparency because there can be no effective contradictor to such claims.
13. I further accept, consistent with Mr Gooley's Affidavit, that he has a legitimate interest and motivation in obtaining the information given his interests in Coffs Harbour and as a "major ratepayer" in the local government area. I accept that Mr Gooley's interest in the information the subject of the GIPA access request is borne out of BNG Group's investment in Coffs Harbour and his concern that the alleged benefit as represented by Council is an overstatement; that Council has "undertaken significant risk in terms of expenses" and these concerns are exacerbated by the lack of information being made publicly available to "shed light" on these issues.
14. I regard these considerations in favour of disclosure to be strong and have afforded them a substantial amount of weight.

Item 1(d) of the s 14 Table - prejudice the supply of confidential information that facilitates the effective exercise of an agency's functions

1. Clause 1(d) is concerned with the future supply of confidential information, in determining whether disclosure would prejudice the supply of information and impede an agency in the effective exercise of its functions.
2. The Tribunal is guided by the decision in Collins v Department of Finance, Service and Innovation [2018] NSWCATAD 60 at [61] (Collins) which identified three elements to be considered in determining the application of item 1(d): "The relevant elements of Clause 1(d) are: (1) the information was obtained in confidence [by the Agency]; (2) disclosure of the information could reasonably be expected to prejudice the supply of such information to the Agency in future; and (3) the information facilitates the effective exercise of the Agency's functions."
3. In determining the first element, the Appeal Panel in Commissioner of Police, New South Wales Police Force v Camilleri (GD) [2012] NSWADTAP 19 at [33] said that whether information is "confidential information" is to be examined "primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received". The Appeal Panel went on to say at [34] that the inquiry concerning cl 1(d) "should focus on the point of receipt, and the administrative standards and community understandings which surrounded it".
4. In Australians for Sustainable Development Inc v Barangaroo Delivery Authority [2013] NSWADT 252 at [68] the Tribunal found that the confidentiality of information can be inferred from the circumstances in which it was provided to the agency, even if not expressly stated.
5. As is made clear in the decision of Collins, the inquiry also requires the information that was obtained to be "confidential information" in substance. At [63] to [64] of that decision, Senior Member Montgomery states: The Tribunal is to consider the nature of the material sought to be protected, the extent to which material of that kind can only reasonably be obtained by confidential communication and the extent to which guarantees of confidentiality may be necessary. That is, would disclosure of the information sought damage the ability of the agency to obtain similar information in future? The agency's evidence is examined in regard to the conditions under which it conducts the service within which the information was received and the extent to which the information in issue facilitates the effective exercise of that agency's functions. [Emphasis added]

First element: Whether the information was obtained in confidence

1. As summarised above, the Intervenor (and Council) rely upon a contractual obligation of confidence as created by the Transaction Documents as being the circumstances by which the terms and conditions of the Transaction Documents were made available. Specifically, the Intervenor (and Council) submit that all of the terms of the Transaction Documents, including those that respond to the access request, fall within sub-paragraphs (a) to (d) of the definition of "Confidential Information".
2. In respect of this contractual obligation, the Lease defines "Confidential Information" as: Confidential Information means information that: (a) relates to the business, assets or affairs of the Discloser or any of its Related Entities; (b) includes information concerning the existence and terms of this document or any of the Transaction Documents; and (c) is made available by or on behalf of the Discloser to the Recipient, or is otherwise obtained by or on behalf of the Recipient; and (d) is by its nature confidential or the Recipient knows, or ought to know, is confidential. Confidential Information may be made available or obtained directly or indirectly, and before, on or after the date of this document.
3. The meaning of the "Transaction Documents" in the Lease included the Transaction Documents (as defined in this decision) with the exception of the Independent Certifier Deed.
4. The meaning of "Related Entity" is: "Related Entity for an entity means any entity which: (a) Controls the first entity; (b) the first entity Controls; or (c) is under common Control with the first Entity."
5. The meaning of "Control" is: "Control has the meaning given to that term in section 50AA of the Corporations Act as in force on the date of this document and: (a) in the case of a corporation, includes the power (whether it is legally enforceable or not) to control, whether directly or indirectly, the composition of a majority of the board of directors of that corporation or the voting powers of the majority of the voting shares of the corporation; and (b) in the case of a unit trust or partnership, includes the power (whether it is legally enforceable or not) to control, whether directly or indirectly, the appointment or removal of the trustee of the trust or the general partner of the partnership, the composition of a majority of the board of directors of the trustee or general partner or the voting rights of the majority of the securities of the trust or partnership"
6. Clause 40 of the Lease states: 40.1 Use and Disclosure of Confidential Information A party (the Recipient) which acquires Confidential Information of another party (the Discloser) must not: (a) use any of the Confidential Information except to the extent necessary to exercise Its rights and perform its obligations under this document; or (b) disclose any of the Confidential Information except in accordance with clauses 40.2 or 40.3 or with the prior written consent of the Discloser. 40.2 Disclosures to personnel and advisers (a) The Recipient may disclose Confidential Information to: (i) an officer, employee, agent, contractor, its financiers, potential financiers, investors, investment bankers, consultants, accountants or legal, financial or other professional adviser; or (ii) in the case of the Airport Lessee, for so long as a Fund Manager or any Related Entity of that Fund Manager (each a Fund Manager Entity) manages any fund that has a direct ownership interest in the Airport Lessee, any officer, employee, agent, contractor, financiers, potential financiers, investment bankers, consultants, accountants or legal or other professional advisers of any Fund Manager Entity or any fund (including its direct investors or special purpose vehicles) that has a direct ownership interest in the Airport Lessee and is managed by a Fund Manager Entity, if: (iii) the disclosure is necessary to enable the Recipient to perform its obligations or to exercise its rights under this document or the disclosure is otherwise necessary in the ordinary course of the Recipient's business; and (iv) prior to disclosure, the Recipient informs the person of the Recipient's obligations in relation to the Confidential information under this document and obtains an undertaking from the person to comply with those obligations. (b) The Recipient must ensure that any person to whom Confidential Information is disclosed under clause 40.2(a) keeps the Confidential Information confidential and does not use it for any purpose other than as permitted under clause 40.2(a). 40.3 Disclosures required by law (a) Subject to clause 40.3(b) below, the Recipient may disclose Confidential Information that that party is required to disclose: (i) by Law or by order of any court or tribunal of competent jurisdiction; or (ii) by any Government Agency, stock exchange or other regulatory body. (b) If the Recipient is required to make a disclosure under clause 40.3(a) above, the Recipient must: (i) to the extent possible, notify the Discloser Immediately it anticipates that it may be required to disclose any of the Confidential Information; (ii) consult with and follow any reasonable directions from the Discloser to minimise disclosure; and (iii) If disclosure cannot be avoided: (A) only disclose Confidential Information to the extent necessary to comply; and (B) use reasonable efforts to ensure that any Confidential Information disclosed is kept confidential. 40.4 Permitted disclosure by the Airport lessor In addition to the disclosures permitted under the remainder of this clause 40.4, the obligations of the Airport Lessor under this clause 40.4 will not be taken to have been breached to the extent that the Confidential Information of the Airport Lessee is disclosed by the Airport Lessor: (a) to any Councillor of the Airport Lessor; (b) to satisty the requirements of any reporting or recognised public obligations of the Airport Lessor; (c) to satisty the requirements of any Government Agency, administrative or judicial body or tribunal; or (d) to comply with any annual reports to any Government Agency, and the Airport Lessor will not be required to comply with the requirements of clause 40.3(b) in respect of any such disclosure. 40.5 Return of Confidential Information Except: (a) to the extent that a party is required by Law to retain the information; or (b) as may be specifically agreed to the contrary by a party in writing, each party must promptly return (or account for, if return is not possible) all information and records containing the Confidential Information on or immediately after the expiry or termination of this document. 40.6 Survival of obligations The obligations in this clause 40 survive any termination or expiry of this document, for so long as information continues to be Confidential Information. 40.7 Agreed Announcements (a) Except as otherwise provided for in this document, no party may make any public announcement relating to this document or any of the Transaction Documents. (including the fact that the parties have executed this document) unless the other party has consented to the announcement, including the timing, form and content of that disclosure, or unless the announcement would be permitted under an exemption In clause 40.3. (b) The Airport Lessor or a representative of the Airport Lessor may make a public statement relating to this document and the other Transaction Documents.
7. With respect to the other Transaction Documents: 1. Regarding the Lease Supplemental Deed and the Transitional Services Agreement: 1. Clause 1.3 of the Airport Lease Supplemental Deed; and 2. Clause 17 of the Transitional Services Agreement provides that Clause 40 of the Lease (extracted above) is incorporated into those agreements. 1. Regarding the Implementation Agreement and the Development Agreement: 1. Putting to one side what appears to be a typo in the definition of "Confidential Information" in the Implementation Agreement (as acknowledged by Mr Beswick in his use of "[sic]" in extracting it and in the Intervenor's written submissions) and small changes in expressions that make no material difference, the definition in both agreements is consistent with that in the Lease (as are the definitions), 2. The clauses providing for Use and Disclosure of Confidential Information (equivalent to Clause 40.1 in the Lease); equivalent to Disclosures to personnel and advisers (equivalent to Clause 40.2 in the Lease); Disclosures required by Law (equivalent to Clause 40.3 of the Lease); Survival of obligations (equivalent to Clause 40.6 of the Lease) and Return of Confidential Information (equivalent to Clause 40.5 of the Lease) are the same as those contained in the Lease. 3. However, the clause headed "Permitted Disclosure by Council" is different from the equivalent clause in the Lease (Clause 40.4 of the Lease) and also different from each other. 4. With respect to the Development Agreement: 1. At Clause 26.4 of the Development Agreement, it includes as a permitted disclosure the following which does not appear in the Lease or the other Transaction Documents before the Tribunal: To the extent [the Council] believes it is necessary to disclose the Confidential Information to publicly demonstrate the financial benefit and value of the transactions contemplated by this document or any other Transaction Document 1. Significantly, unlike the Lease that does not obligate the Council to enter any consultation with the Lessee or take any prescribed steps with respect to "permitted disclosures" under Clause 40.4, the Development Agreement provides for notification and consultation in the case of certain "permitted disclosures" including this one and two others which are identical to disclosures provided in the Lease at Clauses 40.4(b) and 40.4(d) (Consultation and Notification Requirements). 1. With respect to the Implementation Agreement: 1. Clause 20.4 of the implementation Agreement provides identical permitted disclosure as the Lease (without the addition as provided in the Development Agreement). 2. However, despite the permitted disclosures being identical to that provided in the Lease, the agreement includes the Consultation and Notification Requirements as provided in the Development Agreement.
8. Despite the differences in the confidentiality provisions of the Transaction Documents, it is clear that establishing that a piece of information falls within the meaning of "Confidential Information" is only part of the inquiry to ascertain whether information was obtained in confidence. As is made plain by the contractual provisions, whether a contractual obligation of confidentiality is imposed on Council depends upon the confidential information being disclosed by the Intervenor (as "Discloser") to the Council (as "Recipient"). It is only in these circumstances that it can be said that information was obtained in confidence by the Council. Conversely, where confidential information has been disclosed by Council to the Intervenor, no obligation of confidentiality on Council arises with respect to that information and the Council is free to disclose that information unimpeded by any contractual obligation of confidentiality.
9. The relevant "circumstances" pertaining to the information the subject of the access request is the circumstances by which Council agreed to undertake certain works and services (i.e. "agreed to be undertaken" by Council being the phrase adopted in the access request). It follows that "the relevant circumstances" for the purposes of considering whether information was disclosed confidentially is the time when agreement was reached with Council. The potential disclosure by each party to the other was that they agreed to be bound by the specific terms and conditions contained in the Transaction Documents by executing those documents and the contractual obligation of confidentiality arose in parallel. In other words, each became the "Discloser" of information and the "Recipient" of information - that information being that the other agreed to be bound by the terms and conditions contained in the Transaction Documents.
10. This information fell within the meaning of (a), (b) and (c) of the definition of "Confidential Information" because disclosure: 1. would disclose what the Intervenor had agreed to with respect to its business, assets and affairs as they relate to the Lease and Development; 2. would disclose the terms of the Transaction Documents that the Intervenor had agreed to; and 3. that information was disclosed by the Intervenor to the Council by executing the Transaction Documents.
11. For reasons consistent with the findings under the heading "First element: Whether the information responding to the access request is confidential" below, I do not find that (d) of the definition is applicable.
12. Irrespective, I am satisfied that the confidentiality provisions of the Transaction Documents were such that an expectation of confidentiality was mutually set in the 'minds' of both the Council and the Intervenor with respect to the terms and conditions of the Transaction Documents (with the exception of the Lease) and as such, with respect to information responding to the access request.
13. While I am satisfied of an expectation of confidentiality based upon a contractual obligation contained in the Transaction Documents: 1. I also find that this expectation of confidentiality was qualified and a "permitted disclosure" of Confidential Documents included "to satisfy the requirements of any Government Agency, administrative or judicial body or tribunal". 2. This finding of expectation based upon the contractual provisions does not decide whether the information that the parties wished to be subject to non-disclosure obligations was in substance and assessed objectively, commercially sensitive, "commercial-in-confidence" and/or confidential. This is considered at paragraphs 251 to 259 below under the heading "First element: Whether the information is confidential".

Other findings with respect to the Intervenor's submissions regarding information being disclosed in confidential circumstances

1. I do not accept the Intervenor's submissions that: 1. "confidentiality agreements" created during the tender process support that information was provided by the Intervenor to the Council in confidence for the purposes of sub-paragraph (d) of the definition of "Confidential Information". First, any information circulated during the tender process is not responsive to the access request which is limited to what was agreed to by Council. Secondly, the interpretation given to these documents by the Intervenor (and Council) is incorrect for the reasons below. 2. the confidentiality provisions in the Transaction Documents offer any protection to Palisade as a "Related Entity" (as referenced in the definition of Confidential Information in sub-paragraph (a)); and 3. the Intervenor made the information in the Transaction Documents available to Council through the process of drafting the Transaction Documents.
2. With respect to the alleged confidentiality obligations created during the tender process, the Intervenor makes reference to the evidence of Mr Beswick and Mr Park who refer to the following as creating obligations of confidentiality during the tender process: 1. The Deed Poll 2. The Non-Binding Bids Process Letter 3. A "non-indicative binding bid submission document" (as referenced at paragraph 43 above) 4. The Binding Bid Process Letter.
3. First, with respect to the Deed Poll, I do not accept Mr Beswick or Mr Park's characterisation of the Deed Poll with respect to a purported obligation of confidentiality.
4. Contrary to the description given by Mr Beswick of a general obligation of confidentiality of all information disclosed by potential bidders arising by virtue of the Deed Poll - the duty of confidentiality as provided in the Deed Poll is self-evidently solely for the benefit of the Council and not the benefit of the party or parties registering their interest (the Recipient). One does not need to access the document itself to know this. It is known because the "open" evidence discloses that it is a deed poll issued by Council which was executed by Palisades relating to obligations of confidentiality. Irrespective of the precise substance of those confidentiality obligations, it is self-evident that a deed poll executed by Palisades could not have created rights of confidentiality accruing to Palisades (or the Intervenor which did not exist at this time) and corresponding obligations of confidentiality on the Council because it is self-evident that the Council was not a party to the Deed Poll. This is self-evident because unlike an agreement, a deed poll involves the participation of only one party (or several parties acting jointly) by which that party expresses their intention, commitment, or promise in favour of a specific entity or individual. In this case, and based on only the open evidence, it is clear that the Deed Poll was expressing the intention, commitment, and promise of Palisades of confidentiality in favour of the Council.
5. As such, there was no reasonable basis upon which Palisades (or the Intervenor) ought to have had an expectation that information disclosed by Palisade would be kept confidential by the Council because of the Deed Poll. No such promise could have been made nor obligation created by way of this document. Despite describing the Deed Poll as a "confidentiality agreement", Mr Park's description is not inconsistent with my reasoning as he describes the obligation of confidentiality applying to information shared by Council to Palisade and not the other way around. There is no reference by Mr Park, at least with respect to the Deed Poll, of a like obligation with respect to information shared by Palisade to Council. Mr Park states: Palisade signed a confidentiality agreement as part of the tender process to ensure all information shared by Council to Palisade in connection with the Coffs Harbour Airport was not disseminated (noting this information is commercial-in-confidence).
6. This conclusion is affirmed by the Deed Poll itself. For example, Clause 2.1(b) and (c), provides that it is the Recipient who owes an obligation of confidence to the Council and the Council has all rights to such Confidential Information.
7. The "Non-Binding Bids Process Letter" states (noting that CHCC is the Council): All information concerning the Bid Process, including the contents of this Indicative Bid Process Letter and the fact that confidential information has been disclosed to you, is to be kept strictly confidential at all times in accordance with the Confidentiality Deed Poll (CDP). The terms and conditions of this letter apply in addition to, and do not limit the CDP. Terms not defined in this Indicative Bid Process Letter have the meaning given to them in the CDP executed by the Bidder. All information provided to you both verbally and in writing by or on behalf of CHCC in relation to the Proposed Transaction and CHCC is "Confidential Information" as outlined in the CDP. Should you or any Authorised Person be found to be in breach of the CDP, CHCC reserves the right to immediately exclude you from the Bid Process.
8. Additionally, the letter states at clause 13 entitled "Public Access to Information": a. You should note that document relating to the Proposed Transaction (and related bid process) may be disclosed by CHCC to the public if required under the Government Information (Public Access) Act 2009 (NSW) (GIPA Act). b. The Bidder, if requested by CHCC, must provide within a reasonable time period, such information as is required by CHCC to enable CHCC to comply with its obligations under Division 5 of Part 3 of the GIPA Act to keep a register of government contracts. c. CHCC may publish the names of any person involved in the Proposed Transaction (and related bid process), including the Bidder and the details of the Bidder's documents to any of CHCC'S related entities or table any documents required or invited by any Process Letter to be submitted for the Proposed Transaction, or any extract, in any meeting of the councillors of CHCC, in ach case other than on a confidential basis.
9. Additionally, to the extent that Mr Park's reference to a "non-indicative binding bid submission document" (as referenced at paragraph 43 above) is to the "non-binding bids process letter", I also reject that this letter created any obligation on the Council of confidentiality. That letter, consistent with the Deed Poll, expressed that the obligations of confidentiality remained an obligation of the bidder and not of the Council. Further, the letter expressly provides that the Council may need to disclose information received by it so as to comply with its GIPA obligations. As with the Deed Poll, there was no reasonable basis, based on the terms of this letter, upon which Palisades (or the Intervenor as a future-related entity to Palisades) ought to have had an expectation that information disclosed by them would be kept confidential by the Council generally but by virtue of the express terms of this letter, Palisades could not have had such an expectation in the context of a GIPA application.
10. As with the Deed Poll and the "Non-Binding Bids Process Letter", there was no reasonable basis, based on the terms of the "Binding Bid Process Letter", upon which Palisades (or the Intervenor who still did not exist in any case) ought to have had an expectation that information disclosed by them would be kept confidential by the Council generally but by virtue of the express terms of this letter, Palisades could not have had such an expectation in the context of a GIPA application.
11. In respect of the Intervenor's contention that Palisade is a "Related Entity" for the purposes of the meaning of Confidential Information in the Transaction Documents (sub-paragraph (a)), reliance is placed on a company search of the Intervenor and Palisade and unit certificates for Coffs Harbour Airport Trust and the Coffs Harbour Holding Trust and the descriptions given in the Affidavit evidence of the relationship between those entities. Even accepting that the Intervenor is in the same corporate group with Palisade (albeit two or three levels removed from the Intervenor), the evidence is insufficient to satisfy me that Palisade "controls" the Intervenor for the purposes of section 50AA of the Corporations Act or otherwise pursuant to the meaning of "Control" in the Transaction Documents (see above for the definition of "Related Entity" and "Control"). Establishing that two entities are part of the same corporate group, does not establish that proposition.
12. Accordingly, for the purposes of these proceedings, I have no basis to find that where the information relates to Palisades "business, assets and affairs", that the confidentiality provisions of the Transactions Documents offers any protection to Palisade who is not a party to the Transaction Documents.
13. Lastly, with respect to the contention that the Intervenor made the information in the Transaction Documents available to Council through the process of drafting the Transaction Documents - there has been no attempt by the Intervenor or Council to identify the information in the Transaction Documents that was disclosed to the Council by the Intervenor (as opposed to the other way around) during the negotiations. There is no evidence to support that the Intervenor made available to Council "all of the terms of the Transaction Documents" by the process of drafting them. Rather, the evidence of Mr Beswick is that the Transaction Documents were prepared by Council and disclosed as part of the Tender Documents. This is reflected in the fact that the Transaction Documents are marked with the "Ashurst" logo being the Council's lawyers in respect of the transaction. No doubt, negotiations were undertaken on behalf of the Intervenor and information was disclosed by it - but where to draw that line to make good that submission is unclear on the evidence before this Tribunal. However, I do not find that information disclosed during the negotiation is responsive to the access request in any case given that the access request is limited to what was agreed by Council.

First element: Whether the information responding to the access request is confidential

1. The Intervenor (and Council) contend that information responding to the Infrastructure Access Request and the Rezoning Information request is exclusively contained in the Development Agreement. Having reviewed the Transaction Documents, I accept this proposition.
2. [NOT FOR PUBLICATION FOR 35 DAYS]
3. [NOT FOR PUBLICATION FOR 35 DAYS]
4. [NOT FOR PUBLICATION]
5. The Intervenor's contentions (adopted by Council) as to why the information disclosed in these parts are confidential are summarised in detail above.
6. In short, it was submitted that disclosure of these clauses would place the Intervenor at a substantial commercial disadvantage in relation to (a) other contractors; (b) with competitors and (c) with any counter-party if it ever elects to relinquish its interest in the Airport. The intervenor also contended that release of that information to the Second Applicant would be releasing it to a direct competitor of the Intervenor due BNG Group's property holdings and specifically HomeBase which is a relevant matter to consider pursuant to s 55 of the GIPA Act.
7. In respect of those submissions and having considered the clauses responsive to the access requests: 1. I do not accept that the release of the information responsive to the access requests would allow "reverse engineer[ing of] financial modelling" of the Intervenor and could prejudice the Intervenor's ability to negotiate competitive leases and to compete with other property developers. I see no basis for this claim based on the information that responds to the access requests and other than the assertion that such "reverse engineering" was possible, no attempt was made to make that claim good. 2. I accept that disclosure of certain clauses would disclose where the Intervenor has accepted a "reasonable endeavours"-standard as opposed to a "best endeavours"-standard but to the extent that this information comes to the attention of counterparties in future negotiations, I do not accept that this would cause substantial disadvantage to the Intervenor's position. 3. with reference to the Schedule to the Intervenor's written submissions in chief, which is relied upon to support that the provisions are "commercial-in-confidence" - no reference is made in that Schedule to the clauses responding to the Infrastructure Information Access Request. With respect to the Intervenor's written submissions in reply, they too make no specific reference to any of the clauses responding to the Infrastructure Information Access Request as being "commercial in confidence" provisions (the reference being limited to information responding to the Rezoning Information Access Request). As such, no support for this proposition has been given by the Intervenor (or Respondent) by virtue of these documents. 4. with reference to the information responding to the Rezoning Information Request: 1. [NOT FOR PUBLICATION FOR 35 DAYS] 2. [NOT FOR PUBLICATION FOR 35 DAYS]
8. With respect to the Intervenor's claim that an equitable obligation of confidentiality arises with respect to the information, I also reject this contention. An equitable obligation of confidence arises where the formalities for the formation of a contract are not present and information has the necessary quality of confidence is imparted in circumstances importing an obligation of confidence. Parry-Jones v Law Society [1968] 1 All ER 177; R Meagher, J Heydon and M Leaming, Meagher Gummow & Lehane's Equity: Doctrines & Remedies (4th ed, 2002), [41-020]; Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434, 443; Smith Kline & French Laboratories (Aust) Ltd v Secretary, Department of Community Services and Health (1990) 22 FCR 73, 86-87. For the reasons given, I reject the contention that the information responsive to the access request has the necessary quality of confidence to enliven this equitable duty.
9. Consistent with my findings above, I do not accept that the information that responds to the access requests is objectively confidential in substance. As such, the controversy as to whether the Second Applicant or BNG Group is a competitor of the Intervenor for the purposes of s 55 of the GIPA Act need not be resolved however, I note that for that competition to exist, so much as tenants of business premises are concerned, the Enterprise Park would need to exist or at least its existence would need to be assured. Without that, there are no business premises to be leased presently or in the future. The evidence before this Tribunal is that the Enterprise Park is still being developed and the necessary rezoning has not yet been obtained. Those facts sit uneasily with the contention that the Intervenor is in direct competition with the Second Applicant.

Second and third element: Whether disclosure could "prejudice" the supply of information to the respondent in the future and the effect of disclosure on an agency's functions

1. The second element concerns whether the disclosure of the information could reasonably be expected to prejudice the supply of information to the respondent in the future: Hurst v Wagga Wagga City Council [2011] NSWADT 307at [60], Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [52]; Walker v Northern Beaches Council [2021] NSWCATAD 251 at [139] stated: "… the Tribunal must consider whether material of the kind sought to be protected would, if released, prejudice the supply of similar material in the future as a matter of reasonable expectation (Director General, Department of Education & Training v Mullett (GD) [2002] NSWADTAP 13 at [58] ; cited in Medlyn v Cmr for Police [2020] NSWCATAD 125 at [88]-[89]."
2. The third element involves an evaluation of the effect of the effect of disclosure on the agency's functions.
3. Given that I have not accepted that the information that responds to the access request is objectively confidential, I do not accept that the disclosure of it in response to the access request would prejudice the supply of similar material in the future and nor would it have a detrimental effect of the agency's functions. The parties expectation, created by way of agreement between them, of non-disclosure of all provisions in the Transaction Documents except those contained in the Lease cannot lead to a different conclusion where the information that responds is not objectively confidential. To find otherwise, would allow parties to effectively contract out of the GIPA Act by including vastly expansive confidentiality provisions which would frustrate and make redundant the purposes for which that legislation was enacted namely as per s 3(1): 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 …
4. Accordingly, I give little weight to this consideration.

Item 1(g) of the s 14 Table - found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence

1. This consideration against disclosure applies if disclosure of the information could reasonably be expected to found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence.
2. It was held in AFW v WorkCover Authority of NSW [2013] NSWADT 51, that it is ultimately a question of fact as to whether information was obtained "in confidence". While I accept that the answer to the inquiry will depend on how the information was obtained, it will also depend on the manner the obligation of confidence arose and whether a breach of that obligation arises from its disclosure, in the circumstances. As stated in Thomson v Commissioner of Police [2021] NSWCATAD 53: In Re B and Brisbane North Regional Health Authority [1994] QICmr 1; (1993) 1 QAR 279 it was held that the words "found an action for breach of confidence" in the Queensland Freedom of Information Act, should be taken to refer to a legal action brought in respect of an alleged obligation of confidence in which reliance was placed on one or more of the following causes of action: * a cause of action for breach of an obligation of confidence; * a cause of action for breach of a contractual obligation of confidence; * a cause of action for breach of a fiduciary duty of confidence and where account is taken of the recognised defences to an action for breach of confidence. This case was followed in Public Service Association and Professional Officers Association, Amalgamated Union of NSW v Director General, Premier's Department. That matter concerned an application under the repealed Freedom of Information Act 1989, however I am satisfied that this principle applies equally under the GIPA Act.
3. The parties in these proceedings concentrated on the apparent tension between clause 1(g) and section 113 of the GIPA Act. Section 113 restricts the possibility of an action for breach of confidence in that the Respondent is protected from any claim for breach of confidence. These provisions were considered by Senior Member McAteer in Hopson v Commissioner of Police, NSW Police Force [2017] NSWCATAD 379. At paragraph [71] he stated: 71. … the GIPA Act contemplates (by the fact that cl (1) (g) sits outside of Sch (1), that there will be circumstances whereby irrespective of the fact that the release of information could found an action for breach of confidence etc., that information will be invariably released. If it is released after a proper consideration of the application, the agency is quarantined from any legal repercussion arising by the operation of section 113. 72. Cl 1 (g) includes other words than 'breach of confidence', namely or otherwise result in the disclosure of information provided to the agency in confidence.
4. The Intervenor relied on Male v Kempsey Shire Council [2022] NSWCATAD 39 at [273] for the proposition that despite the tension between s 113 of the GIPA Act and item 1(g) of the table to s 14, that it is still open to the Tribunal to conclude that release of the information could reasonably be expected to found an action for breach of confidence.
5. I accept that proposition. As stated by Senior Member McAteer, s 113 is consistent with the fact that information may still be released in circumstances where it would constitute a breach of confidence because that is but one factor to consider in the weighing up exercise. In those circumstances, s 113 protects the agency from that action. Therefore, consideration is given to whether there would be a breach in the circumstances of item 1(g) without reference to s 113. To the extent that Moran v Shellharbour City Council [2022] NSWCATAD 112 held differently, I do not accept that interpretation.
6. However, I do not accept that where the obligation of confidentiality is purely contractual (as in the present circumstances), that the ambit of that duty (including contractual qualifications) is irrelevant to the inquiry pursuant to item 1(g) of the s 14 Table. Such provisions are clearly relevant in defining the obligation and whether disclosure of the information by the agency could found an action against an agency for contractual breach of confidence.
7. As noted in paragraph 237(1) the contractual obligation of confidentiality was qualified and a "permitted disclosure" of Confidential Documents included "to satisfy the requirements of any Government Agency, administrative or judicial body or tribunal". The meaning of "Government Agency" includes the Council and a requirement of the Council is to comply with the GIPA Act. As such, disclosure of "Confidential Information" to comply with the GIPA Act was and is a permitted disclosure. Given my ultimate findings with respect to the access applications, I am of the view that the information responsive to the access requests be released consistent with the agent's obligations pursuant to the GIPA Act. I am therefore not satisfied that disclosure in the present circumstances could found an action against an agency for breach of confidence.
8. Even if this was incorrect, as I have found that the obligation of confidence is purely contractual, the action as against the agency would be limited to a claim for breach of contract and it is unclear what damages could be said to flow from that breach given that I have found that the information the subject of that obligation to the extent it responds to the access application is not objectively confidential.
9. That leaves the question of whether in the disclosure of information provided to an agency in confidence. For the reasons at paragraphs 236 and 237, I accept that there an expectation of confidentiality was mutually set in the 'minds' of both the Council and the Intervenor with respect to the terms and conditions of the Transaction Documents (with the exception of the Lease) and as such, with respect to information responding to the access request.
10. However, given my findings that information that responds to the access requests is not objectively confidential in substance, I give this consideration little weight.

Items 4(b) and 4(d) of the s 14 Table - reveal commercial-in-confidence provisions of a government contract and/or prejudice any person's legitimate business, commercial, professional or financial interests

1. Clause 1 of Schedule 4 of the GIPA Act defines "commercial-in-confidence provisions" to be: "commercial-in-confidence provisions" of a contract means any provisions of the contract that disclose-- (a) the contractor's financing arrangements, or (b) the contractor's cost structure or profit margins, or (c) the contractor's full base case financial model, or (d) any intellectual property in which the contractor has an interest, or (e) any matter the disclosure of which would place the contractor at a substantial commercial disadvantage in relation to other contractors or potential contractors, whether at present or in the future.
2. The Intervenor submitted, and the Second Applicant accepted, that the Transaction Documents are "government contracts". The Second Applicant also accepted that there would be some "commercial-in-confidence" provisions in the Transaction Documents as defined in the GIPA Act.
3. However, for the reasons given at paragraphs 251 to 259 above, I do not accept that the information responsive to the access requests is "commercial in confidence"; that its disclosure would prejudice the Intervenor's legitimate business, commercial, professional or financial interests or place it at a substantial commercial disadvantage.

Conclusion

1. Section 5 of the GIPA Act establishes a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure. Therefore, the requested information must be released unless there is an overriding public interest against disclosure.
2. I do not accept, for the reasons above, that the considerations against disclosure outweigh or override the public interest in favour of disclosure. The Intervenor (nor the Council) have not overcome the presumption in favour of disclosure.
3. In the final analysis, having considered the evidence and the submissions, including reading the confidential material and having applied the principles in s 15 of the Act, I have concluded that on balance, the considerations against disclosure do not outweigh those in favour of disclosure. The considerations in favour of disclosure significantly outweigh the considerations against disclosure.
4. Disclosure of the information in response to the access requests by way of a redacted copy of the Development Agreement as well as those parts of this decision that discloses this information is to occur 35 days after this decision is published. This qualification is to allow the parties to take such steps as they deem appropriate including exercising any appeal rights and/or application for a stay. If this short delay was not provided, the information which is responsive to the access requests would be immediately disclosed by virtue of this decision and become immediately publicly available information. This process would frustrate each party's ability to challenge this decision by predetermining the outcome of any appeal.

Orders

1. I make the following orders: 1. The orders numbered orders 4 and 5 made on 12 March 2024 be set aside to the extent that they pertain to the following information and/or documents (such that the following information and/or documents no longer fall within the meaning of "Confidential Material" as defined in order 2 made on 12 March 2024): 1. The names of the Transaction Documents. 2. The fact that the Implementation Agreement relates to, amongst other things, the transfer of certain assets for the operation, maintenance or development of the Airport and the grant of the lease of the "Leased Area" including the Enterprise Park. 3. The fact that the Development Agreement relates to the development of the "Leased Area" including the Enterprise Park. 4. The fact that the Transitional Services Agreement relates to the provision of services during a transitional period 5. The fact that the current zoning of the site proposed for the Enterprise Park and the need to rezone the site which is a matter of public knowledge as evidenced in the minutes and agendas of the Council and publicised in the media. 6. The Permission Letter. 7. Any other information disclosed publicly by virtue of this decision. 8. The documentary evidence relied upon by the Respondent and the Intervenor to contend that an obligation of confidentiality arises either with respect to the tender process or the executed Transaction Documents being: 1. the Confidentiality Provisions of each of the Transaction Documents including the definitions of the defined terms as used in those provisions; 2. the Deed Poll; 3. the Non-Binding Bids Process Letter; and 4. the Binding Bids Process Letter 1. The decision of the Respondent is set aside. 2. Within 5 days of the making of these orders, a copy of this decision be provided to the Respondent and Intervenor with the following paragraphs unredacted: 1. Paragraphs marked "NOT FOR PUBLICATION"; and 2. Paragraphs marked "NOT FOR PUBLICATION FOR 35 DAYS". 1. Within 35 days of the making of these orders: 1. The information responsive to the Infrastructure Information Access Request and the Rezoning Information Request (as defined at paragraph 2 of this decision) be provided to the Second Applicant by way of a redacted copy of the Development Agreement redacted consistent with paragraphs 252 and 253 of this decision. 2. A copy of this decision be published with the following paragraphs unredacted: 1. Paragraphs marked "NOT FOR PUBLICATION FOR 35 DAYS"

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 September 2024