McDonald v Ku-ring-gai Council

McDonald v Ku-ring-gai Council - [2022] NSWCATAD 17 - NSWCATAD 2021 case summary — Zoe

[4]

Application for cost and feasibility studies

On 15 November 2019, the applicant made an access application under the GIPA Act to the Council, seeking, in so far as is presently relevant, the following information: "1. Correspondence between Council and the five short listed developers for the Lindfield Hub (LVH) project from the close of expressions of interest to date. ... 4. Reports by RLB Quantity Surveyors, MBM Quantity Surveys (sic), Jones Lang La Salle, CBRE and KPMG relating to the LVH Project. ... 8. The following attachments to the document titled "Lindfield Village Hub - update" referred to in item GB.4 of the minutes of the Ordinary Meeting of Council held on 26 June 2018: -"Attachment A1 - Lindfield Village Hub - Update - Due Diligence Extract"; and -"Attachment A2 - Lindfield Village Hub - Update - Key Target Dates". ... 10. The following attachments to the document titled "LVH Planning Proposal" referred to in Item GB.1 of the Minutes of the Ordinary Meeting of Council held on 23 July 2019: -"Attachment A1: LVH - Summary of Feasibility Report (2)"; -"Attachment A2: LVH - CBRE - Commercial Appraisal 130619(2)"; -"Attachment A3: KPMG - Project Outputs Analysis (2); -"Attachment A4: Feasibility - KPMG Market Report (2); and - "Attachment A5: LVH - MPAC Report with MPU Responses - 1 July 2019 (2)". ... 12. The following attachments to the report titled RFT05-2019 - Lindfield Village Hub Developer - Tender Readiness" referred to in GB.1 of the agenda for the Ordinary Meeting of Council to be held on November 19, 2019: -"Attachment 1: Report - LVH - NS Projects -191025 LVH Development Review Tender Readiness - FINAL"; -"Attachment 2: Report - MPAC Draft LVH Report 31 October 2019"; -"Attachment 3: Confidential Attachment - Pre Tender Review Issues"; -"Attachment 5: Report - LVH - CBRE - Commercial Appraisal - Addendum Report draft 151019 (Confidential) V2(2) - October 2019"; and -"Attachment 6: Summary - LVH - KMC - Financial considerations"."
On 23 December 2019, the Council notified the applicant of its decision to refuse to deal with the application on the basis that to do so would involve an unreasonable and substantial diversion of the Council's resources.
On 3 February 2020, the applicant sought an internal review of that decision and, in so doing, reduced the scope of information sought.
On 21 February 2020, the Council notified the applicant of its decision to release two documents and its decision to refuse access to the remaining information responsive to the access application.
On 17 April 2020, the applicant applied to the Information and Privacy Commission ("IPC") for an external review of the Council's decision.
On 30 June 2020, the IPC recommended that the Council make a new decision pursuant to s 93 of the GIPA Act.
On 17 September 2020, the Council made a new decision, by which it provided access to some of the information caught by the access application but refused to provide access to the remainder. The Council also found that a document, which was prepared by Mirvac Residential (NSW) Developments Pty Ltd ("Mirvac"), could be disclosed however Mirvac objected to such disclosure. Mirvac requested an internal review and on 16 October 2020, the Council determined that there was an overriding public interest against disclosure of Mirvac's document.
On 20 November 2020, the applicant lodged an application for review with the Tribunal.

[7]

The Tribunal's task

The Tribunal's task, briefly stated, is to decide what the correct and preferable decision is as to whether access should be provided to the withheld information, having regard to the material before it, including relevant factual material and any applicable written or unwritten law. The Tribunal re-makes the decision, as if it were the administrator. The material before the Tribunal may include material not before the Council and the Tribunal's decision is focused on the present position, not the position at the time of the original decision: s 63 of the ADR Act; YG v Minister for Community Services [2002] NSWCA 247 at [25]; Frugtniet v Administrative Decisions Tribunal (Appeal Panel) [2005] NSWCA 257 at [45]; Commissioner of Police v Danis [2017] NSWCATAP 7 at [31].
In so doing, the Tribunal is to ensure that it does not disclose any information for which there is an overriding public interest against disclosure; or in respect of information which the Council has claimed there is such an overriding interest but for which the Tribunal finds there is not: s 107 of the GIPA Act; University of New South Wales v McGuirk [2006] NSWSC 1362 at [91]. To that end: 1. the Tribunal received on a confidential basis the following material ("the Council's Confidential Material"): 1. a Confidential Bundle of Documents (of four volumes); 2. a confidential affidavit of Mr Geoffrey Douglas, the Council's Group Lead, Major Projects, affirmed 3 May 2021; 3. the Council's closed submissions dated 3 May 2021; 4. a bundle of third-party objections; 1. part of the hearing occurred in the absence of the applicant and her counsel; and 2. the parts of these Reasons marked "NOT FOR PUBLICATION" are not to be published or otherwise disclosed to any person other than the Council or its legal representatives.
An order was made by another Senior Member of the Tribunal on 19 May 2021 (i.e., prior to the hearing) that the Council's Confidential Material not be disclosed other than to the Council without a further order of the Tribunal.
The applicant sought an order varying the 19 May 2021 order so as to allow her to see the Council's Confidential Material. During the hearing, the Tribunal dismissed that application and indicated that reasons for that dismissal would be provided in these Reasons.
That application was dismissed for following reasons.
First, s 107 of the GIPA Act provides: 107 Procedure for dealing with public interest considerations (1) In determining an application for NCAT administrative review, NCAT is to ensure that it does not, in the reasons for its decision or otherwise, disclose any information for which there is an overriding public interest against disclosure. (2) On an NCAT administrative review, NCAT must receive evidence and hear argument in the absence of the public, the review applicant and the applicant's representative if in the opinion of NCAT it is necessary to do so to prevent the disclosure of information for which there is an overriding public interest against disclosure. (3) On an NCAT administrative review, NCAT must, on the application of the Minister administering this Act or the agency, receive evidence and hear argument in the absence of - (a) the public and the applicant, and (b) the applicant's representative if NCAT is of the opinion that it is necessary to do so to prevent the disclosure of information for which there is, or for which there could be or is claimed to be, an overriding public interest against disclosure.
Secondly, the Tribunal was (and is) engaged in an "NCAT administrative review", being an "administrative review under the ADR Act" of the decisions made by the Council (s 100 of the GIPA Act).
Thirdly, the Council claimed that the Council's Confidential Material contains information for which there is an overriding public interest against disclosure.
Fourthly, the Tribunal, having considered the Council's Confidential Material, was (and remains) of the opinion that it is necessary to receive that evidence in the absence of the applicant and the public so as to prevent its disclosure. To allow its disclosure would have circumvented an object of the GIPA Act, namely, to allow the refusal of access for which there is an overriding public interest against disclosure (s 3(1)(c) of the GIPA Act).
Fifthly, having formed that opinion, the Tribunal was (and is) compelled by s 107(3) to receive the evidence on that basis.
The applicant submitted that the 19 May 2021 order amounted to a denial of procedural fairness, in that it placed her in a position of having to address the Council's case and to present her own case without the benefit of knowing the contents of the Council's Confidential Material.
It may be acknowledged that the Tribunal is required to afford procedural fairness to the applicant and the application of s 107(3) placed the applicant at a disadvantage. However, it does not follow that 19 May 2021 orders effect a denial of procedural fairness.
It is well established that the content of the obligation of procedural fairness is dependent upon the statutory framework in which the Tribunal's decision is to be made.
In this regard, s 107(3) is clear in its terms. That is, the legislature has specifically determined that if the criteria specified therein have been satisfied then applicants are not to have access to the subject information. This is consistent with the GIPA Act generally, which provides for the refusal of access to information which is the subject of an overriding public interest against disclosure (as to which, see further below). As noted above, were the Council's Confidential Material to have been released to the applicant prior to or during the hearing this would likely have rendered futile the application of those parts of the GIPA Act relied upon by the Council in support of its position that the underlying information is information for which there is an overriding public interest against disclosure.
As Principal Member Pearson noted in Forbidden Foods Pty Ltd v Rice Marketing Board for the State of NSW (No 2) [2020] NSWCATAD 73 at [28], s 107 qualifies the principles based on the presumption of open justice otherwise applicable to proceedings in the Tribunal. See also the observations of Principal Member Titterton in Sheehy v Commissioner of Police; Rapisarda v Commissioner of Police; McDonald v Commissioner of Police; Housego v Commissioner of Police [2018] NSWCATAD 73 at [25]-[33].
The applicant relied upon the following authorities: 1. HT v The Queen [2019] HCA 40; (2019) CLR 403. Apart from the statements of general principle such as the content of the obligation of procedural fairness varying according to the context, this authority is of little relevance as it concerns a criminal proceeding and critically no consideration of the GIPA Act; 2. State of New South Wales (Justice Health) v Dezfouli [2008] NSWADTAP 69. That decision concerned s 75 of the Administrative Decisions Tribunal Act 1997 (NSW) ("ADT Act"), which is in similar terms to s 64 of the NCAT Act. Critically, it did not consider the operation of s 107 of the GIPA Act; and 3. Australians for Sustainable Development Inc. v Barangaroo Delivery Authority [2013] NSWADT 252. The applicant submitted that it is apparent that the legal representatives of the applicant in that case were given access to documents which the respondent claimed were confidential. However, it is not apparent that this occurred prior to the publication of that decision. Further, that case involved an order made under s 107(2) which excluded the applicant and its legal representative (at [7]) and an order was made under s 107(3) (at [14]). As noted above, an order under s 107(3) excludes an applicant and their legal representative (among others).

[10]

2012

On 29 May 2012, the New South Wales State Government announced that it proposed to build a 3-storey above-ground commuter carpark on land owned by the Council at Lindfield ("Site").
In October 2012 Support Lindfield Inc. ("Support Lindfield") was formed.
Support Lindfield is a not-for-profit community group, which is managed by a committee of 11 local residents and business people on a voluntary basis. It was formed as a community-led initiative to halt development of the proposed above-ground carpark and to lobby the Council to build instead a below-ground carpark and a mixed-use precinct with community buildings and parks, boutique shops, cafes, restaurants, apartments and a below-ground supermarket ("Lindfield Village Hub"). Support Lindfield's mission is to get the Lindfield Village Hub built and for it to meet the needs and expectations of the community.
Support Lindfield: 1. acts as a conduit between the community and government in relation to the Project, seeking to represent community interests and give the community a voice; 2. undertakes community surveys which elicit hundreds of responses and give it a strong understanding of the prevailing views in the community; 3. passes the information obtained in those surveys onto the Council and to state and federal politicians; and 4. aims to keep the community informed of what is happening with the Project through regular update emails sent to its database, the use of social media, public awareness campaigns and community forums. The Support Lindfield database currently has over 1,800 contacts, and an active Facebook page.
The applicant, in her capacity as President of Support Lindfield since October 2012, and as a long-term Lindfield resident, has closely monitored the progress of the Project. The applicant also regularly receives emails from, and has discussions with, residents and business owners who are interested in the Project.
In November 2012, Support Lindfield convened a community forum, which was attended by about 80 residents and business people. The purpose of the forum was to discuss alternative ideas for developing the Site.
Between November 2012 and January 2013, there was correspondence between Support Lindfield, the Premier of New South Wales and the Minister for Transport regarding the Project.

[13]

2015

Between 21 March 2015 and 14 May 2015, the Council publicly exhibited illustrative plans and consulted the community and key stakeholders.
In April and May 2015, Support Lindfield ran an online community survey seeking views on the four options. Support Lindfield collated the results and presented them to the Council.
On 15 April 2015, MBMpl Pty Ltd ("MBM") prepared a report titled "Budget estimate - Preliminary budget estimate report".
On 4 May 2015, Support Lindfield convened a fourth community forum. There were about 170 attendees.
On 25 May 2015, Rider Levett Bucknall provided a letter to the Council which contained the results of Rider Levett Bucknall's peer review of the MBM preliminary estimate report.
On 6 October 2015, Council met. In a report prepared for that meeting Council officers: 1. provided a "comprehensive assessment" of the four exhibited options; 2. recommended that the Council adopt Option 2; 3. referred to the economic feasibility analysis of the options carried out by MBM, which had been peer reviewed by Rider Levett Bucknall and further refined by Jones Lang LaSalle; and 4. stated that based on the economic feasibility analysis, Option 3 presented the most financially rewarding proposition for the Council with Option 2 also a 'break even' proposition.
The Council resolved to: 1. adopt Option 2 from the original masterplan, with a 7-storey height limit, as the preferred option for the Project; 2. adopt a variation of Option 2, for the purposes of an expression of interest to be advertised; 3. adopt a schedule of community infrastructure elements as mandatory requirements for the Project; 4. encourage innovation by accepting non-conforming bids; 5. adopt the following general programme for the next phase of the Project: 1. advertisements for expression of interest to be made by the end of October 2015; 2. expressions of interest submissions to be received by December 2015; 3. expressions of interest to be evaluated in January 2016; 4. a preferred development company to be selected by early 2016; 5. negotiation with the preferred development company to be completed by mid-2016; and 6. submission of development application to be completed by late 2016.
None of the programmed dates were met.
The Council subsequently prepared a planning proposal seeking to amend the zoning, maximum building height and floor space ratio ("FSR") for the Site to reflect Option 2.
On 8 December 2015, Council met. In a report prepared for that meeting Council officers recommended a change in the project delivery method from a voluntary planning agreement to a public private partnership ("PPP"). Council officers noted that the Council had "consulted extensively with the community regarding this project. In addition, the private sector has also been consulted with during the market sounding meetings held in October. Should the project not progress as planned, it will lead to irreparable damage to Council's reputation with the community and with the market."
On 8 December 2015, the Council resolved: 1. to deliver the Project as a PPP as per legal advice and, before seeking any expression of interest, to undertake the actions and processes required to establish a PPP; and 2. that a revised program for the Project be prepared in light of PPP requirements and reported to the Council in 2016.

[15]

2017

In early 2017, the Council was awarded a commendation for its masterplan by the Greater Sydney Commission through the Greater Sydney Planning Awards. The judging panel's comments on the Project included "Ongoing involvement of the local community has ensured the project meets the community's vision; by leveraging their passion and expertise they have championed the project."
In 2017, according to the applicant, nothing much seemed to happen with the Project and the community was largely left in the dark as to how the Project was progressing.
Between January and May 2017, Support Lindfield made a number of requests for meetings with Council staff, but those requests were declined.
On 23 May 2017, the Council departed from its 8 December 2015 resolution to proceed via a PPP and resolved instead to use a competitive tendering process.
On 27 June 2017, the Council met. In a report prepared for that meeting Council officers recommended what they described as "minor amendments" to the mandatory requirements for the Project and the masterplan. The Council officers indicated in that report that these changes had come about as a result of: 1. work undertaken by the Council's seven Project Advisory Groups established to inform the development of a Technical Brief to guide all outcomes of the expression of interest and tender process, which groups had convened roughly 50 meetings and recorded over 700 comments; and 2. consultation with Roads & Maritime Services.
On 27 June 2017, the Council unanimously resolved to largely adopt the officers' recommendations.
In August 2017, Support Lindfield held a community forum at which candidates for election to the Council's Roseville and Gordon wards spoke. Each candidate was asked whether they would agree, if elected, to hold a Council forum to provide the community with an update on the progress of the Project, within 60 days of the election. All candidates agreed.
On 5 December 2017, the Council hosted the forum that had been promised by candidates at the August 2017 Support Lindfield community forum. The applicant recalls that most of the Support Lindfield committee attended the forum. The presentation slides produced at that meeting indicated that a needs analysis, public consultation and master planning for the Project were complete, funding approval was in progress and project delivery was scheduled for 2018 to 2021. So far as the applicant can recall, this meeting was the first time the Council stated there was a requirement for the Project to be "self-funding".

[16]

2018

On 10 April 2018, the Council resolved to establish a Lindfield Village Hub Community Reference Committee ("CRC") and selected seven community members and Councillors to sit on the CRC. The members of the CRC included the applicant and another person as representatives of Support Lindfield. The Council convened three meetings of the CRC before dissolving it at the Council meeting held on 26 February 2019 (as discussed below).
In May 2018, Fabcot submitted to the Council a second unsolicited proposal for the development of the Site. A copy of that proposal was not made publicly available.
On 26 June 2018, Council met. In a report prepared for that meeting, Council officers stated that: 1. the Council's Resourcing Strategy 2013 - 2025 (revised June 2015) provides that where Council plans a large scale 'community hub' type project, such as planned for Lindfield Village Hub it is expected that: "…these projects should be commercially feasible in their own right such that they do not require the disposal of other assets, long term borrowings, or a drain on ordinary rates revenue..."; 2. in late 2017, a review of the Council's Long Term Financial Plan was undertaken, which reaffirmed the requirement for projects such as the Project to be self-funding, including being able to provide for asset depreciation over the long term; 3. in late 2017 and early 2018 the Council re-visited the Delivery Strategy for the Project to find ways to make the Project become "self-funding" both in terms of cost to construct / deliver and funding of operational and maintenance costs, including depreciation; and 4. analysis provided by CBRE indicated that the market could possibly offer development solutions that would meet the Council's financial requirements and deliver the community infrastructure and services identified in the Council's adopted masterplan, which may require controls for the Project to increase from the adopted masterplan of FSR 1.3:1 to something approaching FSR 2.5:1, subject to planning assessment.
On 26 June 2018, the Council: 1. acknowledged that it was not feasible to proceed with the masterplan adopted on 6 October 2015, which had an FSR of 1.3:1; 2. noted that it had yet to agree on an updated FSR or height requirements for the Project, and acknowledged that there was a delicate balance between a self-funding project with a greater FSR as against a more financially onerous project with a lower FSR that may require other sources of funds to cover lifecycle costs; 3. resolved that the Council pursue an expression of interest from the market in or around October 2018, for the development of the Project; 4. resolved that the Project requirements, including the Council's preferred financial and above ground density requirements, would be confirmed at a meeting of the Council prior to the release of the expression of interest; and 5. resolved that the Council not consider any unsolicited proposal during the competitive tender process being undertaken for the Project.
On 14 August 2018, the Council met. In a report prepared for that meeting, Council officers: 1. proposed project objectives that were stated to reflect the current key priorities in a Community Strategic Plan and the financial objectives requested of the Project, and which would be used to inform the forthcoming masterplan, planning proposal, consultation and expression of interest/request for detailed proposal; 2. proposed expression of interest evaluation criteria and weightings; 3. provided target dates for expressions of interest, culminating in a shortlist recommendation to be made to the Council in December 2018; and 4. recommended that the Council adopt the project objectives, evaluation criteria and weightings and note the target expression of interest timing and milestones.
The proposed project objectives included the following "economic objectives": 1. capital funding - capital to build new community facilities, excluding any section 94 funding; 2. ongoing revenue - revenue streams to fund ongoing costs of running the Council's buildings and services; 3. growth - new jobs and populations in Lindfield to sustain local economies; 4. legacy - the Council to retain ownership of land and new buildings for future generations; and 5. catalyst - investment attracted to Lindfield and Ku-ring-gai.
On 14 August 2018, the Council: 1. unanimously resolved to adopt the project objectives, evaluation criteria and weightings for the expression of interest for the Project, with the addition of requirements regarding aesthetic design and developer experience; and 2. noted the target expression of interest timing and milestones.
In October 2018, the Council issued a request for expressions of interest for the Project to the open market.
On 2 November 2018, the Council received 18 submissions in response to the request for expressions of interest.

[17]

2019

On 26 February 2019, the Council met and resolved: 1. to accept the list of companies recommended by Council officers to be invited to tender for the Project (and which were identified in a confidential report); 2. that invitations to tender be sent to these companies; and 3. to dissolve the CRC.
Shortly after that meeting, the Council announced the five shortlisted developers - Aqualand Developments Pty Ltd ("Aqualand"), Fabcot, Frasers Property Australia, Mirvac and the Planum Billbergia consortium.
On 23 July 2019, the Council met. In a report prepared for that meeting Council officers recommended that maximum height limits for the Site be increased to 8, 10 and 14 storeys, and that a planning proposal be submitted to rezone the Site again to allow this greater height and increased density. This was stated to be necessary because of the project objectives for the Project adopted by the Council on 14 August 2018, which included the requirement for the Project to be "self-funding". Council officers acknowledged that "the current community generally prefers building height at 7 to 8 storeys...but [this] must be balanced with financial and urban planning responsibilities for the future."
The applicant's evidence is that the community was outraged by the Council officers' recommendations, that the proposed increase in maximum height limits was very substantial and that Support Lindfield campaigned strongly against the increased heights proposed. Support Lindfield lobbied Councillors on behalf of the community to retain the 7-storey height limit and also encouraged community members to make their views known to Councillors.
At the 23 July 2019 Council meeting, the Council did not reach a resolution in respect of the Council officers' recommendations regarding increased heights and the submission of a planning proposal. The matter was relisted for the Council meeting on 20 August 2019.
On 13 August 2019, a public forum was held. Nine people spoke in relation to the officers' recommendations on the Project and all of them were against the recommendations.
On 20 August 2019, the Council met and resolved to lodge a planning proposal for the project based on "…a height control of no higher than the highest building in Lindfield being 23-41 Lindfield Avenue (known as the Aqualand building) which equates to no more than a 9-storey building on the Lindfield Village Hub site…" plus rooftop plant, lift overruns and rooftop communal space. The applicant's evidence is that: 1. in fact, the height limit proposed by the Council exceeded the height of the Aqualand building (which is 8-storeys) and that this was justified by using a "line of sight" approach with the slope of the Site meaning it could accommodate greater height; 2. the resolution on 20 August 2019 represented a complete departure by the Council from the original masterplan of 2015, and that considerable work and millions of dollars had gone into that masterplan. It involved a host of consultants, including engineers, architects, quantity surveyors and financial consultants. As outlined above, budgets and economic feasibility analyses were prepared, confirming the feasibility of the project and market sounding was carried out, which endorsed the project's commercial viability. There was extensive community consultation in 2015, managed by an external consultant and Option 2, which was the option that the Council had selected, had strong community support; and 3. public sentiment in 2019 was that the Council had failed to genuinely consult the community on what were very significant changes to the Project. The Council had carried out what it described as "engagement" through information sessions at Gordon Library, a telephone survey conducted by a marketing company and workshops, however, the perception was that these activities were aimed at selling the changes to the community rather than representing a genuine attempt to obtain community input. The applicant's evidence was that this was particularly disappointing given the highly effective community consultation the Council carried out in respect of the original masterplan in 2015, which had resulted in a high level of community engagement.
In October 2019, the Council lodged a new planning proposal with the Council's regulatory planning department. The planning proposal was not made publicly available at that time.
On 19 November 2019, the Council unanimously resolved to authorise its General Manager to finalise the tender documents and issue the documents to the shortlisted tenderers.
In December 2019, the Council issued a Request for Tender ("RFT") to the shortlisted developers, with tenders to be submitted in April 2020. The RFT was not made publicly available.
The tenderers were invited to tender as part of a "selective tender process" conducted under s 55 of the Local Government Act 1993 (NSW) ("LG Act") and reg 168 of the Local Government (General) Regulation 2005 ("Regulation"). The Council chose this method over the "open tender process" provided for under reg 167 of the Regulation, which involves inviting tenders by public advertisement.

[18]

2020

On 3 April 2020, the Council received tenders in response to the RFT from Aqualand and Fabcot.
During April and May 2020, the Council conducted tender evaluations.
On 15 May 2020, Mr Douglas who, as noted above, is the Group Lead, Major Projects of the Council, replied to an email the applicant had sent to the General Manager on 5 May 2020 in which the applicant had enquired about the timeframe for the evaluation of tenders for the Project and for announcing the successful tenderer. Mr Douglas responded that a timeframe for a report to the Council on assessment of tenders was yet to be determined.
On 25 May 2020, the applicant wrote to the Mayor and Councillors expressing concerns that Support Lindfield had with the lack of progress of the Project and lack of transparency and accountability. The applicant asked for answers to certain questions.
On 24 June 2020, the applicant received a response to her letter dated 25 May 2020 from Councillor Ngai. In his letter, Councillor Ngai made the following comments about the decision to move away from the 2015 masterplan: 1. in September 2017, the newly elected Council was informed that some key costs had unintentionally been left out of the financial modelling for the 2015 masterplan and that the Project was not viable at 7-storeys once these costs were included, with increasing building heights being the only way to achieve viability; 2. he had explored other options for achieving financial viability, including using funds from the proposed sale of the existing library site or negotiating with ALDI and Woolworths, but both of these options were opposed by the majority of Councillors; 3. at community consultation workshops, community members said they would accept 14-storeys after being told by Council staff that only 14-storeys would be self-funding; and 4. he disagreed with the approach taken at the workshops because the "self-funding" definition excluded the proceeds from the sale of library site, future rates collected from neighbouring Lindfield households and developer contributions for future Lindfield dwellings, and he believed that by using this "unusual" definition of self-funding, without disclosing the methodology, residents were being influenced to support 14-storeys.
On 30 June 2020, Council met. In a report prepared for that meeting, Council officers: 1. stated that both of the tenders received (from Aqualand and Fabcot) were non-compliant; 2. stated that the Fabcot tender was also non-conforming because it contained material variations from the request for tender and was conditional; 3. stated that given tenders had been invited by select process, the tender documentation comprised commercial information of a confidential nature which could not appropriately be the subject of community consultation on legal, commercial and probity grounds; and 4. recommended that the Council decline to accept the tenders and authorise the General Manager to commence negotiations with a view to entering into a contract in relation to the subject matter of the tender.
On 30 June 2020, the Council resolved to: 1. decline to accept any tenders received in response to the request for tender; 2. enter into negotiations with any possible providers with a view to entering into a contract in relation to the subject matter of the request for tender; 3. decline to invite fresh tenders or applications; and 4. delegate to the General Manager authority to conduct the negotiations, which must be conducted over a period of no more than 3 months and report the outcomes of those negotiations to the Council by no later than October 2020.
The resolution to "enter into negotiations with any possible providers" was made pursuant to reg 178(3)(e) of the Regulation. Reg 178(3) provides that a Council that decides not to accept any of the tenders for a proposed contract must either postpone or cancel the proposal for the contract; or invite fresh tenders; or invite fresh applications from persons interested in tendering; or carry out the requirements of the contract itself; or (relevantly for present purposes, in reg 178(3)(e)) "enter into negotiations with any person (whether or not the person was a tenderer) with a view to entering into a contract in relation to the subject matter of the tender".
Mr Douglas' evidence is that in resolving to negotiate with "any possible providers", Council was merely complying with the requirements of reg 178(3), by passing a resolution for the purposes of reg 178(3) and that Council was not suggesting that it was willing to negotiate with anyone who submitted an unsolicited proposal.
After tenders were received, Council negotiated with the tenderers.
In July 2020, the Council submitted a planning proposal to the Department of Planning, Industry and Environment.
On 27 July 2020, the Mayor of the Council responded to the applicant's letter dated 25 May 2020. In that letter the Mayor stated that: 1. the reason why the 2015 masterplan did not proceed is a matter of public record (June 2018 Council meeting); 2. the reasons broadly related to the Council's adopted policies: Long Term Financial Plan, Resourcing Strategy and housing targets; and 3. "...I observe a growing irritation from the constant complaints by Support Lindfield. Your tactics are not being well received by all councillors. We've already seen councillors vote to disband the consultative committee. Councillors in other wards are keen to progress delivery of Hubs in their wards and they are currently in a queue behind Lindfield."
On 20 October 2020, the Council met. In a report prepared for that meeting, Council officers noted that negotiations had progressed but not reached a conclusion, with further details provided in a confidential attachment. The Council noted receipt of that confidential report.
On 8 December 2020, the Council met and: 1. noted that the tender and subsequent negotiation period had coincided with the COVID-19 pandemic, creating a global economic downturn, uncertainty in the property market and impacting on project viability and competitive tension; 2. noted that an offer had not yet been received that was financially viable; 3. resolved to continue to negotiate with any possible providers, while undertaking a review of the Council's project assumptions and objectives; and 4. resolved that the confidential report referred to in the previous paragraph be withheld from the public as recommended by Council officers.

[20]

The applicable law

The applicable law includes the GIPA Act and legal principles applying to the provisions of that Act. Interpretation of the GIPA Act is governed by s 3 of that Act which provides: 3 Object of Act (1) In order to maintain and advance a system of responsible and representative democratic Government that is open, accountable, fair and effective, the object of this Act is to open government information to the public by: (a) authorising and encouraging the proactive public release of government information by agencies, and (b) giving members of the public an enforceable right to access government information, and (c) providing that access to government information is restricted only when there is an overriding public interest against disclosure. (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information.
Section 9 (1) of the GIPA Act provides: 9 Access applications (1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information.
The onus of establishing that the Council's decisions are justified lies on the Council: s 105 GIPA Act. That means the Council must, first, identify the information contained in each document which it contends should be withheld from the applicant because the public interest considerations against disclosure of the information contained in the document outweigh those in favour; and secondly justify its decision through submissions and evidence, sufficient to satisfy the Tribunal: Taylor v Office of Destination NSW [2018] NSWCATAD 195 at [20]; Forbidden Foods Pty Ltd v Rice Marketing Board of New South Wales [2020] NSWCATAD 18 at [52].
In considering whether there is an overriding public interest against disclosure of particular information, the following sections of the GIPA Act (together with ss 3, 9 and 105) are germane: 5 Presumption in favour of disclosure of government information There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. … 12 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note: The following are examples of public interest considerations in favour of disclosure of information: (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. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. (3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies. … 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. … 14 Public interest considerations against disclosure (1) 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. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. … Table 1 Responsible and effective government 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): … (f) prejudice the effective exercise by an agency of the 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 Business interests of agencies and other persons 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 - (a) undermine competitive neutrality in connection with any functions of an agency in respect of which it competes with any person or otherwise place an agency at a competitive advantage or disadvantage in any market, … (d) prejudice any person's legitimate business, commercial, professional or financial interests, … 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles: (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information. 55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section: (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2-5 (but not clause 1, 6 or 7) of the Table to section 14. ...
Thus, it may be seen that the GIPA Act creates a presumption in favour of disclosure of government information unless there is an overriding public interest against disclosure of that information (s 5 GIPA Act), and the applicant has a legally enforceable right to the government information she seeks, subject (again) to there not being an overriding public interest against disclosure (s 9 GIPA Act).
There will be an overriding public interest against disclosure for the purposes of the GIPA Act if and only if there are public interest considerations against disclosure which outweigh the public interest considerations in favour for disclosure (s 13 GIPA Act).
The presence of particular considerations against disclosure, being those set out in Sch 1 of the GIPA Act, is sufficient to compel the conclusion that there is an overriding public interest against disclosure such that the information is not to be disclosed (s 14(1) GIPA Act).
However, absent a Sch 1 consideration against disclosure the Tribunal's task is to consider and weigh in the balance: 1. the public interest considerations in favour of disclosure, which are unlimited and include: 1. the general public interest in favour of disclosure (s 12(1) GIPA Act); 2. the examples listed in the note to s 12(2) of the GIPA Act; and 1. the public interest considerations against disclosure, which are limited to those in the table in s 14 of the GIPA Act.
In undertaking this balancing task, the Tribunal is entitled to take into account the "personal factors of the application" as factors in favour of disclosure (s 55 GIPA Act). The personal factors of the application are described in s 55 as: 1. the applicant's identity and relationship with any other person; 2. the applicant's motives for making the access application; and 3. any other factors particular to the applicant.
The Tribunal is also entitled to take into account personal factors of the application as factors against disclosure, but only to the extent that those factors are relevant to the consideration of whether disclosure of the information could reasonably be expected to have any of the effects referred to in cll 2, 3, 4 or 5 of the table in s 14 of the GIPA Act.
In the present case, the Council does not rely upon any of cll 2, 3 or 5 of the table in s 14 of the GIPA Act, but it does rely upon cl 4. It follows that the personal factors of the application may be taken into account as factors against disclosure of the information sought by the applicant only when considering whether disclosure of the information could reasonably be expected to have the effect described in a relevant sub-clause of cl 4.
The balancing exercise requires the Tribunal to make a broad value judgment. However, that judgment is to be made, not in a vacuum, but instead in a context which has regard to the objects of the legislation, the general presumption in favour of disclosure of government information, and the principles set out in s 15 of the GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 at [104].

[28]

Could reasonably be expected

Each of these public interest considerations against disclosure includes the chapeau to s 14 which contains the phrase "… could reasonably be expected to have one or more of the following effects …". The principles to be applied in considering whether disclosure of information "could reasonably be expected" to have a particular effect were summarised in Transport for NSW v Searle [2018] NSWCATAP 93 at [68] as follows: "68. There was no dispute between the parties that: … (2) The words "could reasonably be expected" are to be given their ordinary meaning. They require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that disclosure would have the relevant effect: Attorney-General's Department v Cockcroft (1986) 10 FCR 180 at 190.5; Raven v The University of Sydney [2015] NSWCATAD 104 at 48. As was made clear by Hayne J in McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61] - ... when their Honours said, as they did, that the words required a "judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous," to expect certain consequences, they are not to be understood as having used the latter expression as a paraphrase of the former. Rather, they are to be understood, and have since been understood, as doing no more than drawing an emphatic comparison. To do more would have been, as their Honours correctly said, "to place an unwarranted gloss upon the relatively plain words of the Act." (3) In order to discharge the onus, the appellant needed to show more than a mere possibility, risk or chance of prejudice. It must be based on real and substantial grounds: Australian Vaccination Network v Department of Finance & Services [2013] NSWADT 60 at [22]. (4) It will not be sufficient for the decision-maker to proffer the view. It must be supported in some way: Manly v Ministry of Premier and Cabinet (1995) 14 WAR 550 at 573G; Raven at [53]. (5) "Prejudice" is to be given 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]. (6) The question as to prejudice to future supply was not to be determined by reference to the particulars of the instant situation. It was not necessary to show that it could reasonably be expected to occur on every occasion. It was to be determined at a broader operational level. Hence, the fact that in the instant situation the specific individual(s) supplying the information was unlikely to be inhibited even if there was disclosure was not determinative against the agency: Camilleri at [21], [22] and [26]."
Whether disclosure of particular information "could reasonably be expected to" have a particular effect is a question of fact to be established to the relevant standard of proof, on the balance of probabilities: Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 at [42]; McMillan v Commissioner of Police, NSW Police Force; Brady v Commissioner of Police, NSW Police Force [2013] NSWADT 53 at [66].
The requirements for proof of questions of fact in administrative review proceedings generally were summarised by the Appeal Panel in Meacham v Commissioner of Police [2020] NSWCATAP 107 at [54] and [83]: "[54] Despite not being bound by the rules of evidence, the Tribunal is required to base its findings of fact on "logically probative material", and not on "mere suspicion or speculation", as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 ("Pochi") at 62, 68 (Deane J); [1980] FCA 85; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 ("Sullivan") at [5]-[8], [15]-[17] (Logan J). It is an error of law for the Tribunal to make a finding of fact with no evidence, or no probative evidence, to support it. … [83] Proof of matters which are asserted is required in a practical sense, and a party asserting a fact is generally required to provide evidence to substantiate it. As noted above, the Tribunal is required to base its findings of fact on "logically probative material": Pochi at 62, 68; Sullivan at [5]-[8], [15]-[17]."
In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 the Appeal Panel considered the evidence required to establish that disclosure of the information could reasonably be expected to have a particular effect. After referring to Searle and the authorities discussed in that decision, the Appeal Panel said at [59]: "Based on these authorities when considering the evidence on which it is asserted that disclosure "could reasonably be expected" to have a particular effect, the following principles should be kept in mind: (1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient; (2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect; (3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses."

[38]

Consideration

The Tribunal is satisfied, for the reasons given by Mr Douglas, that cll 1(f), 4(a) and 4(d) apply to the information in Document 6.
As to cl 1(f): 1. this clause operates when disclosure of information could reasonably be expected to have the effect of prejudicing the effective exercise by the Council of its functions. The Tribunal accepts that one of the Council's functions involves the development of Project; 2. the Tribunal also accepts that the carrying out of this function may involve negotiations with parties who have submitted a tender to the Council as well as negotiations with parties who have not submitted a tender; and 3. [NOT FOR PUBLICATION]
As to cl 4(a): 1. this clause operates when disclosure of information could reasonably be expected to have the effect of undermining competitive neutrality in connection with the function otherwise place the Council at a competitive advantage or disadvantage in any market; and 2. in the present case, there is a considerable overlap between the operation of cl 4(a) and cl 1(f) which has been considered above. The Tribunal is satisfied the Council competes with other developers of property vicinity of the land the subject of the Project and that the release of the information could provide to other developers a competitive advantage in obtaining that information at minimal cost.
As to cl 4(d): 1. this clause operates when disclosure of information could reasonably be expected to have the effect of prejudicing any person's legitimate business, commercial, professional or financial interests; and 2. there is a considerable overlap, in the present case, between the operation of cl 4(d) and cll 1(f) and 4(a) which have been considered above. The Tribunal is satisfied that the Council has a legitimate business, commercial, and financial interest which could reasonably be expected to be prejudiced by the release of the information.
Thus, the Tribunal is satisfied that the public interest considerations against disclosure in cll 1(f), 4(a) and 4(d) have been established. Those public interest considerations should be given considerable weight, particularly in the context in which the negotiation process remains on foot and could be jeopardised, to the detriment of the community which has funded the Project to date in the amount of many millions of dollars.
Taking into account all the considerations in favour of disclosure described at paragraphs 130-135 above and those against disclosure discussed above, the Tribunal's view, on balance, is that the correct and preferable decision is to refuse access to the information in this document.

[96]

Privacy and Confidentiality

In Mr Douglas' opinion, in order to protect the integrity of the Project procurement process and give stakeholders the confidence to do business with the Council, it is essential that those stakeholders (including proponents, tenderers, parties in negotiations, consultants and other contractors) consider Council to be a trustworthy and reliable business partner. In his opinion, maintaining confidentiality of information provided by stakeholders is fundamentally important to this.
This requirement is reflected throughout Council's governance controls which apply to the Project. Council's Statement of Business Ethics requires it to "protect privacy and confidentiality" of the people and business it is dealing with. Section 3.1.3 of the Council's Probity Plan states: "Confidentiality Management & Protection of Intellectual Property Although accountability and transparency are fundamental to the work of public sector organisations and public officials, there is some information that needs to be kept confidential, at least for a specified period of time, in order to protect the integrity of the process and give stakeholders the confidence to do business with the Council, on this Project. This information can include reports commissioned for the Project, working documents, Project budgetary and financial information, the content of proposals, intellectual property, stakeholders pricing, and profit structures." and: "As part of the strategy to mitigate the risk of losing control of confidential information, Council will undertake the following to reduce the risk of the unauthorised release of confidential information: Commercially sensitive information - Any information that is commercially sensitive or commercial in confidence will remain confidential. Any information that is proprietary information will remain confidential and access should be limited to a "need to know" basis. It is critical that the Project Team form an opinion and advise Council what information is considered to be confidential or commercial in-confidence…"
Clause 3.1.5 the Probity Plan states: "Confidential Documents The following items should be maintained as confidential: Any Project Financial and Budgetary Documentation which may be used as a benchmark during the evaluation of submissions as part of the procurement process; Any information related to the Project and process that is not publicly available; Procurement clarification questions and responses; Confidential information produced as part of the evaluation process (e.g., meeting minutes, evaluation reports, reports inter alia); Other information related to the processes that is not publicly available; and Any other information determined by the MPSC, Project Team or Evaluation Committee, to be confidential."
The Probity Plan requires that a Confidentiality Deed is to be signed by any person, whether they are Council staff or a consultant to the Council, who has access to confidential information. Staff have been rigorous in the administration of this requirement from the start of the project.
The privacy and confidentiality provisions of the Probity Plan and other Council documents seek to protect the integrity of the procurement process, which includes protecting the commercial in confidence material and other corporate intellectual property that has been supplied to the Council as part of the procurement processes for the Project.
In Mr Douglas' opinion, the Council's detailed processes requiring confidentiality provides greater confidence to those parties dealing with Council that their supplied materials are being treated in confidence, and it enhances Council's reputation as a trustworthy and reliable business partner.
In his opinion, maintaining this good reputation greatly benefits the Council because it helps to enhances value for money outcomes for the ratepayers on all aspects of Council procurement across all its business units.

[97]

Tender Evaluation Processes

Whilst the tender process under the LGA Act has concluded, the procurement process has not, and as part of the procurement process, the Council may wish to speak with parties that did not submit a formal tender.
The Council's aim is to get the best value for money outcome for the community. In Mr Douglas' opinion, in order to achieve this outcome: 1. it is essential for the Council to retain control of information contained in the RFT documents and the attached schedules; 2. it is also necessary for the Council to retain control of other information about the Project which contains details about the commercial and legal framework of the Project including information about costing and possible legal structures. The Council has very strict processes in place to maintain the confidentiality of information associated with the Project; 3. the release of this information would weaken the Council's position in the procurement process because the Council would longer have control of how the information may be used in the community; 4. during the EOI and tender process, Council staff and consultants were able to gain valuable commercial intelligence from the market. Should the Council engage with potential proponents (who have not seen the tender documents or other Council documents containing commercial and legal information about the Project), it may want to discuss alternative structures or frameworks for the Project. In Mr Douglas' opinion, the Council's bargaining position would be weakened if the potential proponent were to be aware of what was contained in the RFT documents and other documents that contain commercial and legal information about the Project; and 5. the disclosure of the RFT documents could reasonably be expected to prejudice the effective exercise by Council of its functions as an agency. These functions broadly include the development of community land and assets for the benefit of the broader Ku-ring-gai community and its ratepayers, in the context of a marketplace of competing developer organisations. In particular, these functions include Council's stewardship of appropriate and suitable development that has regards to its functions as a strategic planner for the community where it is required to consider appropriate provision of community facilities for existing and future populations.
In this stewardship role, the Council seeks to develop, operate, and maintain well designed community assets that are suitable for the location on which they are proposed. This function of the Council, which extends to preparation of tender documents, involves the articulation of the requirements for excellence in public development projects. These functions include the Council's considerations of such things as: 1. appropriate development of its land having due regard to environmental impacts including visual, scale, overshadowing, traffic including pedestrian and vehicular movement patterns, and the like; 2. creation of a social and community destination to revive and enliven declining parts of the local centres in the community; 3. architectural design quality of buildings; 4. quality of surrounding streetscapes and the public realm; 5. quality of community open space and associate landscape design; 6. provision of a library and community meeting spaces for community benefit; 7. suitable provision of thriving and appropriate retail facilities to meet community needs; 8. excellence in housing design; and 9. provision of suitable parking facilities.
The Council's success as an agency turns on how well it delivers public benefits to its community within the constraints of the opportunities of the land, and the project feasibility.
In undertaking its function to deliver a public benefit through the Project, Council does not work in a vacuum, but competes with other developers of property in the vicinity. Such organisations can be public or private organisations.
The preparation of the RFT Documents has involved significant expense in terms of staff and consultant time. This was done to allow Council to exercise it function to develop public land for community benefit.
The RFT documents are mutually interdependent and together set out Council's requirements to the marketplace for the creation of the Project for the benefit of the Community and the ratepayers. A key objective of the documents is to maximise commercial returns through the tender process and subsequent procurement process. This is achieved by the rigorous documentation of Council's requirements, including legal and commercial terms and clear definition of scope of works. Release of this category of documents publicly where it could reasonably be expected to benefit competitor organisations would create detriment and disadvantage to the agency function to deliver value for money community assets.
The Council remains in negotiation with interested parties for the delivery of this project and the disclosure of this category of documents publicly at this time would prejudice such negotiations. Release of this category of documents would cause plausible and foreseeable detriment and disadvantage to the negotiations not only with the current parties, but with any future possible providers of the development services that Council may yet negotiate with.
Such current and potentially future negotiations with parties not yet identified would very likely be detrimental to those negotiations. The success of the negotiations requires that Council maintain control of the information in the documents and release it to only those parties with whom it considers there is strategic merit for the purpose of Council undertaking its function as a negotiator for the successful outcome of the project on behalf of the community.
The suite of RFT documents have been procured by Council at significant staff and consultant expense. If disclosed, the documents and the intellectual property they contain would be available to benefit competing organisations such as developers of private or public property.
In Mr Douglas' opinion, this would place Council at a competitive disadvantage in the marketplace, now and in the future by making available information that competitors could use or adapt at minimal cost to themselves. Release of this category of documents would mean that the intellectual property associated with it would effectively be freely available to competitor organisations, thus undermining the competitive neutrality of the market in which the Council operates.

[102]

Applicant's submissions

The applicant submitted that: 1. the (open) evidence of Mr Douglas is insufficient to discharge the Council's onus under s 105 of the GIPA Act; 2. Mr Douglas' evidence is general and fails to deal with the specific information the subject of the access applications; 3. Mr Douglas does not point to any real prejudice in the exercise by the Council of its functions; 4. Mr Douglas described the Council's functions as including: "the development of community land and assets for the Broader Ku-ring-gai community and its ratepayers in the context of a marketplace of competing developer organisations. In particular, these functions include Council's stewardship of appropriate and suitable development that has regards (sic) to its functions as a strategic planner for the community where it is required to consider appropriate provision of community facilities for existing and future populations. In this stewardship role, Council seeks to develop, operate and maintain well designed community assets that are suitable for the location on which they are proposed. This function of Council extends to the preparation of tender documents ..."; 1. Mr Douglas asserted that it is "essential" for the Council to "retain control" of the information in the RFT to obtain "value for money". He also asserted that it is "necessary" for Council to "retain control" of other information about the Project; 2. Mr Douglas made broad assertions about the consequences of Council losing control of information. This evidence does not rise above the level of general assertions and fails to satisfy the "could reasonably be expected" test in the table to s 14 of the GIPA. His reasoning, taken to its extreme would justify the refusal to disclose most information of substance; 3. Mr Douglas raised the possibility, and he put it at no more than a possibility, of Council being confronted with unsolicited tenders if the RFT information was released: his principal concerns appeared to be that the workload of Council would be increased by the unsolicited tenders; and that in some way the tenderers would gain an advantage over the Council in negotiations; 4. the Council may receive unsolicited proposals in any event. There is no clearly identified reason to suggest that the Council will receive a greater number of unsolicited proposals if the RFT is made public; 5. it may be assumed that the Council has a process in place for dealing with unsolicited proposals. There is no reason to suppose that the process is inadequate. Mr Douglas is unaware of the process. That of itself suggests that the receipt of unsolicited proposals has not caused the Council any difficulties; 6. it is relevant to note that on 8 December 2020 the Council resolved to negotiate with any "possible providers" while undertaking a review of the Council's Project assumptions and objectives. That resolution effectively meant that the Council is going back to the drawing board. It did not contain a time frame for negotiations or provide for Council officers to report back to the Council by a particular date. This raises issues of transparency and accountability; 7. if release of the RFT Documents were to cause new unsolicited proposals that would be no bad thing. It would be consistent with the Council's resolution of 8 December 2020. Unsolicited proposals may lead to increased competition and therefore better outcomes for the Council in its ongoing negotiations with "possible providers"; 8. the fact that amendments may be made to the RFT in future does not justify withholding information that has been sought; 9. the Council retains the ability to vet unsolicited proposals and to weed out unqualified tenderers. The Council will retain control of any negotiations. It is a "price setter" not a "price taker"; 10. in any event, with the passing of time and the end of the selective tendering process, much of the information sought will be of historical interest rather than presently commercially sensitive; 11. if the RFT contains sensitive information that the Council has a legitimate reason for not releasing, the Council should redact the sensitive parts of the information rather than withholding it in its entirety; and 12. Mr Douglas attempted to make something of his contention that release of information may lead to misunderstanding and confusion on the part of the public. This is not a "function" of the Council for the purposes of clause 1 (f).

[103]

Council's submissions in reply

In reply, the respondent submitted that: 1. The 30 June 2020 resolution did not involve the Council "going back to the drawing board". Rather the resolution reflects the language of, and is compliant with, reg 178 which provides that a council which decides not to accept any of the tenders for a proposed contract must take particular steps including to "enter into negotiations with any person (whether or not the person was a tenderer) with a view to entering into a contract in relation to the subject matter of the tender". The resolution considered as a whole makes clear that the Council was focussed on negotiating with high quality and motivated parties and not any party that were to "throw their hat into the ring"; 2. the applicant's submissions do not engage with Mr Douglas' reasoning, other than to label it as "assertion" and to claim that Council "will retain control of any negotiations" because it is the "price setter" not a "price taker". That submission reveals a fundamental misunderstanding about the way negotiations work and the role information can play in shifting the bargaining power balance. The applicant's submissions that the information is of "historical interest" because the selective tendering process is complete should be rejected because, as Mr Douglas explains, it is the effect on the ongoing procurement process that gives rise to the relevant prejudice; 3. the applicant's submissions focus upon a concern, expressed by Mr Douglas in cross-examination that release of the RFT documents might result in the Council receiving unsolicited proposals from unsuitable parties that would be time consuming to consider and respond to. However, Mr Douglas' concern in this respect was only one aspect of the prejudice. He was careful to say in his oral evidence that the relevant prejudice was as set out in his open affidavit. In relation to this aspect of the prejudice, the applicant submitted: 1. there is no reason to suppose that Council would receive a greater number of unsolicited proposals if the RFT documents were made public. However, it is fairly obvious that a potential proponent with no information about the project is less likely to submit a proposal than one who has detailed information about Council's requirements and therefore has a "target" for its proposal; 2. the Council must have a "process in place" for dealing with unsolicited proposals and it was suggested in cross-examination that Council could simply put such proposals "in the bin". That is contrary to Mr Douglas' evidence, which was that Council could not simply discard proposals and would have to analyse and consider them before reaching a position. That is hardly surprising, and is consistent with best practice in administrative decision-making; 3. the Council's resolution to negotiate with "any possible providers" suggests they are willing to negotiate with anyone submitting an unsolicited proposal. However, that is not what the resolution suggests, for the reasons explained above; 4. that release of the RFT documents may lead to increased competition and therefore better outcomes. However, as Mr Douglas explained in his oral evidence, that reasoning is inconsistent with the procurement strategy adopted for this Project. From the outset it was conducted as a "selective tender", not an "open tender", because that was more likely to identify high quality and motivated proponents for this type of development. The Tribunal would not accept a submission from the applicant that an "open tender" may lead to better outcomes against the considered evidence of a person experienced in procurement processes such as Mr Douglas; and 1. the confidential nature of the information also illustrates a further prejudice to the agency's functions for the purposes of cl 1(f): that if such information were disclosed, it would prejudice Council's reputation as a trustworthy business partner and prejudice third parties' willingness to provide their valuable intellectual property to Council in the future.

[105]

Council's submissions

The Council's submissions concerning the operation of cl 1(g), as refined, may be summarised as follows: 1. the Council relies only on the second limb of cl 1(g), namely that disclosure could reasonably be expected to "result in the disclosure of information provided to an agency in confidence"; 2. as to the second limb of cl 1(g), it is useful to consider the authorities concerning cl 1(d) as the concepts of "information provided … in confidence" (cl 1(g)) and "confidential information" (cl 1(d)) overlap. The authorities concerning cl 1(d) of the table in s 14 of the GIPA Act (such as Luxford v Department of Education and Communities [2016] NSWCATAD 118 at [70] and Williams v Department Industry and Investment [2012] NSWADT 192) establish the following general principles: 1. the confidential quality of information is a question of fact; 2. to establish its confidential quality, information must have been applied under an express or implied pledge of confidentiality; 3. the confidential quality of the information may be inferred from the nature of the relationship between the informer and person informed; and 4. the confidential quality of the information must be determined in light of all of the circumstances of the particular case; and 1. the context in which information is supplied is significant when assessing confidentiality. In Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19, the Appeal Panel observed as follows: "33 In our view, the question of whether the information supplied is confidential information' must 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 agency's case is that all information received by the triple zero service at the point of receipt is treated as confidential. The agency's case is that members of the community expected the triple zero service to be a confidential service. In our view, the Tribunal did not adequately explain why it rejected the agency's case on this point. 34 We also agree with the agency that the Tribunal should not have introduced factors relating to the later history of the information or document. The enquiry, so far as cl 1(d) is concerned, should focus on the point of receipt, and the administrative standards and community understandings which surrounded it.".
The Council also made confidential submissions.
[NOT FOR PUBLICATION]

[106]

Applicant's submissions

The applicant submitted that: 1. the (open) evidence of Mr Douglass is insufficient to discharge the Council's onus under s 105 of the GIPA Act; 2. Mr Douglas' evidence is general and fails to deal with the specific information the subject of the access applications; 3. in cl 1 (g), "provided in confidence" relates to documents obtained by the Council in confidence. The RFT was prepared by the Council and includes information from third parties. Those parts of the RFT that were prepared by the Council do not come within clause 1 (g) and should be disclosed; 4. the information provided by third parties was provided by those parties for the purpose of release to tenderers. It is difficult to see how such information can be confidential. Having regard to the presumption in favour of access to information in the GIPA Act and the processes in place to give effect to that presumption, there is no reason to suppose that the providers of information to the Council, or tenders, would have expected the relevant information to be kept in confidence. Rather, they should have expected it would be made public; 5. the Council attempts to make something of the fact that tenderers entered into a deed of confidentiality with the Council. This is a typical requirement in tendering and imposes obligations on the tenderers, not the Council. This reflects the intention of the parties that confidentiality is a one-way obligation. If the parties intend it otherwise, it may be assumed that this would have been provided for in the Deed; 6. the existence of a deed of confidentiality between the Council and the tenderers is no reason to imply an obligation of confidentiality on the Council, at least as regards the contents of the RFT. The Council cannot avoid its obligations of disclosure simply by entering into confidentiality agreements; and 7. the passage of time, the fact that the selective tender process has come to an end and that the Council has resolved to negotiate with all possible providers has made it less likely that all of the information remains confidential in the hands of the Council.

[117]

Consideration

Clause 1(f) operates when disclosure of information could reasonably be expected to have the effect of prejudicing the effective exercise by the Council of its functions. The Tribunal accepts that one of the Council's functions involves the development of Project.
The Tribunal also accepts that the carrying out of this function may involve negotiations with parties who have submitted a tender to the Council as well as negotiations with parties who have not submitted a tender. Further, the release of information may prejudice the Council in the latter negotiations because the information may reveal a position that the Council has previously taken but does not wish to take in such negotiations, to the detriment of Council's negotiating position.
However, the likelihood of a reasonable expectation of such prejudice depends upon the nature of the particular information. The Tribunal has considered the evidence adduced by the Council (including the confidential evidence and the cross examination of Mr Douglas) and is satisfied that there is a reasonable expectation of prejudice to the effective exercise of the Council's functions if the information in each of the documents the subject of this claim were to be released. The degree of such prejudice depends upon the particular information. It is strongest for documents 1.01, 1.02, 1.02a, 2.01, 2.02, 2.03, 2.04, 2.05, 2.05a, 2.06, 2.07, 2.08, 2.09, 2.10, 2.12, 2.13, 3.01, 3.02 and 18.0, but weaker for documents 4.0, 6.0, 7.0 and 15.0.
Clause 1(g), to the extent that it is relied upon by the Council, operates when disclosure of information could reasonably be expected to have the effect of resulting in the disclosure of information provided to the Council in confidence. The Tribunal is satisfied that some of the documents comprise information provided to the Council in confidence. The importance of the preservation of that confidence in the balancing exercise depends upon the nature of the particular information and it is strongest for documents 1.01, 1.02, 1.02a, 2.01, 2.02, 2.03, 2.04, 2.05, 2.05a, 2.06, 2.07, 2.08, 2.09, 2.10, 2.12, 2.13, 3.01,3.02, but weaker for documents 4.0, 6.0, 7.0 and 15.0.
Clause 4(a) operates when disclosure of information could reasonably be expected to have the effect of undermining competitive neutrality in connection with the function otherwise place the Council at a competitive advantage or disadvantage in any market. In the present case, there is a considerable overlap between the operation of cl 4(a) and cl 1(f) which has been considered above. The Tribunal is satisfied the Council competes with other developers of property vicinity of the land the subject of the Project and that the release of the information in each of the documents the subject of this claim could provide to other developers a competitive advantage in obtaining that information at minimal cost. The degree of that advantage depends on the particular information, and it is strongest for documents 1.01, 1.02, 1.02a, 2.01, 2.02, 2.03, 2.04, 2.05, 2.05a, 2.06, 2.07, 2.08, 2.09, 2.10, 2.12, 2.13, 3.01,3.02, but weaker for documents 4.0, 6.0, 7.0 and 15.0.
Clause 4(d) operates when disclosure of information could reasonably be expected to have the effect of prejudicing any person's legitimate business, commercial, professional or financial interests. There is a considerable overlap, in the present case, between the operation of cl 4(d) and cll 1(f) and 4(a) which have been considered above. The Tribunal is satisfied that the Council has a legitimate business, commercial, and financial interests which could reasonably be expected to be prejudiced by the release of the information in the documents the subject of this claim. The degree of that prejudice depends on the particular information, and again it is strongest for 1.01, 1.02, 1.02a, 2.01, 2.02, 2.03, 2.04, 2.05, 2.05a, 2.06, 2.07, 2.08, 2.09, 2.10, 2.12, 2.13, 3.01 3.02 and 18.0, but weaker for documents 4.0, 6.0, 7.0 and 15.0.
Thus, the Tribunal is satisfied that the public interest considerations against disclosure have been established to the extent described above. Those public interest considerations should be given considerable weight, particularly in the context in which the negotiation process remains on foot and could be jeopardised, to the detriment of the community which has funded the Project to date in the amount of many millions of dollars.
Taking into account all the considerations in favour of disclosure described at paragraphs 130-135 above and those against disclosure discussed above, the correct and preferable decision is to refuse access to information which has been withheld which is described in the second part of the Schedule, with the exception of documents 4.0, 6.0, 7.0 and 15.0.

[119]

SCHEDULE - DOCUMENTS REMAINING IN DISPUTE 2020/00330934 - Cost and feasibility studies Document Basis of Claim under s14 Document 4a - Letter from Mirvac dated 28 October 2019 Cll 1(f), 4(a) and 4(d) Document 6 - RLB - March 2016 - Concept Design Stage Estimate Report Cll 1(f), 4(a) and 4(d) Document 7 - RLB - March 2016 - Lifecycle Costing Assessment Cll 1(f), 4(a) and 4(d) Document 10 - MBM - April 2016 - Peer review of RLB Cll 1(f), 4(a) and 4(d) Document 11 - JLL - June 2016 - Scenario Analysis Cll 1(f), 4(a) and 4(d) Document 12 - JL - August 2016 - Feasibility Study of Preferred Options Cll 1(f), 4(a) and 4(d) Document 13 - JLL - September 2013 - Feasibility Report Cll 1(f), 4(a) and 4(d) Document 14 - JLL - August 2014 - Addendum No. 1 to Feasibility Report Cll 1(f), 4(a) and 4(d) Document 15 - JLL - July 2015 - Addendum No. 2 to Feasibility Report Cll 1(f), 4(a) and 4(d) Document 16 - JLL - February 2016 - Addendum No. 3 to Feasibility Report Cll 1(f), 4(a) and 4(d) Document 17 - CBRE - May 2018 - LVH Scenario Analysis Cll 1(f), 4(a) and 4(d) Document 18 - CBRE - October 2017 - Asset Strategy Report Cll 1(f), 4(a) and 4(d) Document 19 - CBRE- June 2019 - Commercial Appraisal Cll 1(f), 4(a) and 4(d) Document 20 - KPMG - October 2018 - Market Based Inputs Cll 1(f), 4(a) and 4(d) Document 21 - KPMG - June 2019 - Project Outputs Analysis Cll 1(f), 4(a) and 4(d) Document 23 - GB.4 OMC report on 26 June 2018 - Attachment A1 - LVH - Update - Due Diligence Extract Cll 1(f), 4(a) and 4(d) Document 26 - GB.1 OMC report on 23 July 2019 - Attachment A1: LVH - Summary of the Feasibility Report Cll 1(f), 4(a) and 4(d) Document 29 - GB.1 OMC report on 23 July 2019 - Attachment A4: Feasibility - KPMG - Market Report Cll 1(f), 4(a) and 4(d) Document 30 -GB.1 OMC Report on 23 July 2019 - Attachment A5: LVH - MPAC Report with MPU Responses - 1 July 2019 Cll 1(f), 4(a) and 4(d) Document 31 - GB.1 OMC Report on 19 November 2019 - Attachment A1: Report - LVH - NS Projects - 191025 LVH Development Review Tender Readiness - Final Cll 1(f), 4(a) and 4(d) Document 32 - GB.1 OMC report on 19 November 2019 - Attachment A2: MPAC Draft LVH Report 31 October 2019 Cll 1(f), 4(a) and 4(d) Document 33 - GB.1 OMC report on 19 November 2019 - Attachment A3: Confidential Attachment - Pre Tender Review Issues Cll 1(f), 4(a) and 4(d) Document 34 - GB.1 OMC report on 19 November 2019 - Attachment A5: Report - LVH - CBRE- Commercial Appraisal - Addendum Report Draft 151019 (Confidential) - October 2019 Cll 1(f), 4(a) and 4(d) Document 35 - GB.1 OMC Report on 19 November 2019 - Attachment A6: Summary - LVH- KMC - Financial Considerations Cll 1(f), 4(a) and 4(d)

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