The respondent is to release disputed documents 1 and 2 to the applicant in full, save for the name and signature of the assessing Council officer on the last page of disputed document 1. This order comes into effect on the expiry of 28 days from the date of this decision.

Mr Richard Sexton, Manager Corporate Administration and Mr Gary Healy, General Manager Development

1. Mr Costa is a town planner in Mildura. He believes the respondent (Council) has made patently inconsistent decisions in relation to planning permit applications for two nearby pieces of land, both in Benetook Avenue, Mildura. His client's applications seeking to establish a warehouse were refused on the basis that a mandatory 25m setback from the road is required. On the other hand, a permit was granted for the expansion of a veterinary practice on the other site ─ within the 25m setback. (Mr Costa was not involved in that application.) He says the circumstances of the two sites are relevantly the same. Under the Freedom of Information Act 1982 (FOI Act) he seeks the documents relating to the grant of the permit for the veterinary practice.
2. Mr Costa first made an application in August 2010 on behalf of the owner of 691 Benetook Avenue Mildura for the construction of a new warehouse. This was refused by the Council in February 2011. The reason was that under clause 2.0 of Schedule 9 to the Design and Development Overlay at clause 43.02 of the Mildura Planning Scheme, there is a requirement for a 25m setback for the road, and that clause explicitly states this cannot be varied by permit. So Council had no power to allow the development.
3. However, in April 2011, a permit was granted for the expansion of the veterinary practice on land nearby, on the opposite side of Benetook Avenue, at No. 634. This decision was made under delegation. That is, it was made by a Council officer, Mr Gary Healy, General Manager Development, as the Council's authorised delegate, rather than by the Council constituted by the councillors themselves.
4. In response, Mr Costa made a second application on behalf of his client, very substantially to expand an existing shed on the land at 691 Benetook Avenue. This too was refused, on the same basis as before. Mr Costa commenced a VCAT review of that decision. There was a Practice Day hearing before Deputy President Gibson in September 2013. Mr Costa sought a copy of the documents relating to the grant of the permit for the veterinary practice at 634 Benetook Avenue. That request was refused on the basis that the rights and wrongs of the decision in relation to a nearby property were not relevant to the Tribunal's consideration of the application concerning 691 Benetook Avenue. Deputy President Gibson commented that it may be more appropriate to obtain such documents under FOI.[1] Subsequently, Mr Costa withdrew the VCAT review application in relation to 691 Benetook Avenue.
5. Although Mr Costa submitted a second planning permit application for 691 Benetook Avenue on behalf of his client for a development which would have intruded into the setback area, it was clear from his submissions that he regards the grant a permit for the veterinary practice in the face of that mandatory setback requirement as being a wrong decision, and one which he wishes to expose as such. He pointed to the comments of Deputy President Gibson that there appears to be a discrepancy in the decision making by Council concerning the application of DDO9.
6. On 14 October 2013, Mr Costa made an application under the FOI Act, in effect, seeking all Council documents relating to the handling of the planning permit application for 634 Benetook Avenue which he did not already hold, or were not available as public documents. Initially, the request was refused, but following consultation with the FOI Commissioner, a fresh decision was made by Council. Some documents were provided, but others were refused. Council's fresh decision was reviewed by the FOI Commissioner, who determined that some further material should be released.
7. By the time the matter came on before the Tribunal there were three documents in dispute. During the course of the hearing, it was agreed that one of these could in fact be released, namely, the 'Planning Delegation Report - Condition Requirements' (1 page).
8. This left two documents in dispute. Disputed Document 1 is the Planning Delegation Report for 634 Benetook Avenue (10 pages). This is the report prepared by a more junior officer of the Council which sets out the circumstances of the application, the subject site, notification which was undertaken and considers how the criteria applicable under the planning scheme should be considered for that application. It is dated 15 April 2011. While more than half of the text in this document was released, all the key components expressing views and recommendations were redacted from the version provided to Mr Costa. Mr Healy said in his oral evidence that this Report recommended the refusal of the permit for the expansion of the veterinary clinic.
9. Disputed Document 2 is a one page memorandum dated 19 April 2011 to the Manager, Development Services (Mr Andrew Millen) from the General Manager, Development (Mr Gary Healy). This was withheld in full. Mr Healy said this memorandum conveyed his decision as the Council's delegate to grant the planning permit application for the expansion of the veterinary practice at 634 Benetook Avenue. His witness statement said:

[28] This document outlined my decision following consultation with the CEO [of Council] in regards to the granting of the permit. This memorandum outlined my opinions as to how I came about this decision, however does not go into detail regarding all of these deciding factors.

1. Mr Healy said in evidence that the decision to grant overrode the officer's recommendation to refuse. This was on the basis that the proposed extension was in an area which had been enclosed by a structure for a long time. It enjoyed existing use rights.
2. The Council maintained that both the Planning Delegation Report (in part) and the memorandum (in full) were exempt under s 30 of the FOI Act, as internal working documents. The Council contended it would be contrary to the public interest to release these documents under the FOI Act. Section 33 of the FOI Act (information relation to personal affairs) was also relied upon in relation to one name and signature on disputed document 1.

1. The starting point under the FOI Act is a presumption that any person has the right to obtain documents from government agencies subject only to exceptions and exemptions set out in the FOI Act. Section 3(2) states that it is the intention of Parliament that the provisions of the FOI Act be interpreted so as to further that object, and any discretions conferred by the Act shall be exercised as far as possible so as to facilitate and promote, promptly and at the lowest reasonable cost, the disclosure of information.
2. The respondent bears the onus of proof in seeking to establish that the disputed documents are exempt.[2]

(1) Subject to this section, a document is an exempt document if it is a document the disclosure of which under this Act -

(a) would disclose matter in the nature of opinion, advice or recommendation prepared by an officer...or consultation or deliberation that has taken place between officers... in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency...; and

1. It is clear that s 30(1)(a) is satisfied in relation to the two disputed documents: They both relate to consultation or deliberation that has taken place between officers in relation to the Council's deliberative processes in deciding whether or not to grant the permit. Disputed document 1 also comprises matter in the nature of opinion, advice or recommendation prepared by an officer.
2. The real question here is whether disclosure of the two documents would be contrary to the public interest under s 30(1)(b).

1. The main witness for the Council was Mr Gary Healy. As stated, he is the General Manager, Development, and the ultimate decision-maker in relation to the planning permit for the veterinary practice at 634 Benetook Avenue. Mr Richard Sexton, Manager Corporate Administration, also gave evidence on behalf of the Council. His evidence was generally supportive of Mr Healy's. He did not, however, have a detailed knowledge of the planning decision making process as relevant to this application.
2. For the applicant, Mr Costa did not give evidence. He relied on written material setting out the history of the various applications in relation to properties in Benetook Avenue, supported by cross-examination and oral submissions. Mr Costa contended that the need for transparency in Council decision-making was paramount.
3. Mr Healy said in his witness statement:

It is my view that the Council ought to be judged by the decisions it makes, rather than the unendorsed preliminary views of a more junior officer expressed as part of the Council's deliberative processes. The decision I made to grant the permit is now a matter of public record. If the documents in dispute are disclosed, it could cause speculation about the views and options canvassed in those documents, and cause unnecessary debate about whether those views or options were appropriate in light of the final decision made.

1. Council's evidence in relation to disputed document 1 was consistent with its submission to the FOI Commissioner:

It would be unfortunate should a Council officer feel concerned that any advice or opinions written for their Manager would be the subject to an FOI application and could be used for the purpose of discrediting council.

1. Mr Healy also said that if the two disputed documents were released, they would cause confusion, speculation, and unnecessary debate if they were referred to in isolation, given that they reached different conclusions as to whether the permit should be granted or not.
2. In his oral evidence, Mr Healy distinguished Officer's Reports which are provided to councillors in order to enable them to determine non-delegated planning permit applications on the one hand, from reports prepared for senior council officers, to enable them to make decisions as council's delegate (such as disputed document 1 in this case) on the other.
3. Mr Healy said the former reports, provided to enable councillors to make decisions, are more 'polished' and more comprehensive. He said that the Council had in the past disclosed Planning Delegation Reports such as disputed document 1, but had changed its policy. He was asked what the consequences would be if they were required to be released. He said there was no particular downside, apart from the additional workload on officers to put them in a more 'polished' form, equivalent to Officers' Reports released where non-delegated decisions are made by Council.
4. In my view, there is no significant difference between the contents of the Planning Delegation Report in this case and the contents of the report which was set out in the Council Minutes of another decision made by Council (relating to 691 Benetook Avenue) provided by Mr Costa (which I accept is representative of the general content of Officer's Reports in relation to non-delegated decisions). Both set out reasonably comprehensively the details of the subject site, the application, consultation and/or notification undertaken, the applicable planning controls, an analysis of how these apply to the subject site, and the officer's recommendation as to the decision which should be made on the planning permit application.

1. Neither party referred to the case law in relation to the application of s 30. Council said it was not aware of any cases dealing with Officer's Reports. Neither am I.
2. In determining whether disclosure would be contrary to the public interest, the Tribunal must weigh the competing interests, for and against. It is a balancing exercise, but one which starts from the point of the Council having the onus to show that s 30 (1)(b) is satisfied.
3. There are numerous cases where documents have been held to be exempt under s 30 on the basis that they constitute preliminary advice by more junior officers to a more senior decision-maker, who chose not to follow that advice. In many circumstances, there will be a strong public interest in not releasing such preliminary or 'thinking' documents of an agency─ especially in relation to the process of policy formation. There will be a justifiable concern that the authors of those documents would be more reticent in how they express their views, which are of value to the process, if they knew they would be publicly released.
4. The position is quite different here, however, because of the particular context in which these documents have been created, namely, as part of the planning permit application process under the Planning and Environment Act 1987. The planning regime in Victoria is one which involves a very high degree of public involvement, and of provision of information to the public, about planning approval decisions. This reflects the fact that planning decisions are different to decisions made in many other permit or licensing contexts - they affect the amenity of neighbouring land and the public realm, and the community as a whole has a significant direct interest in the detail, the process, and the outcome.
5. Another point of distinction between planning and many other permit or licensing decisions is that planning decisions are about land use, not individuals. Planning permits run with the land, and with rare exceptions, the identity of the applicant is not relevant.
6. These considerations are reflected in the fact that when non-delegated decisions are made by Councils, the Officer's Report, or the contents of that report, are generally made publicly available in the council agenda papers. Officer Reports encapsulate the specific framework within which planning discretions are exercised, under the various heads of policy and specific requirements and discretionary criteria set out in the planning scheme. They are generally published on councils' websites. Also, if a planning permit decision is taken to VCAT on review, the Officer's Report is part of the material which is required to be provided by the council under VCAT's Planning Practice Note No. 2. Thus these become available for viewing by any member of the public as part of the Tribunal's file. This applies whether the decision was made under delegation or not. Regardless of the mode of decision making, Officers Reports are generally regarded as public documents.
7. In this instance, however, the planning permit application for the veterinary practice at 634 Benetook Avenue did not go to VCAT, and, as the decision was made under delegation, the Planning Delegation Report was never made publicly available by the Council.
8. The reality is that the council Officer's Report is often the single most important document in explaining the basis on which decisions on planning permit applications are made by councils. Where the officer's recommendation is accepted, the Officer's Report generally explains the reasons for a council's decision. Where it is not, and the officer recommendation is not accepted by the councillors, the reasons will be apparent from the debate, which is publicly conducted. This reflects an appropriate level of transparency in decision-making in relation to planning applications, and is in the public interest.
9. When a decision is made under delegation, there is a similar public interest in the reasons for decision being made apparent. Those reasons would be disclosed by the Officer's Report, where the delegate accepts that officer's recommendation. Where the delegate does not, the full reasons for the decision should be apparent from viewing the officer's report, plus the document(s) which set out the delegate's reasons for overturning the officer's recommendation. In this way, the public is able to see the reasons for the decision.
10. Mr Healy said in his witness statement that:

Disclosure of these documents could also cause confusion in the community about the way the Council deals with such planning applications in circumstances in which the Council has attempted to put its position on the public record. In making my final decision, I took into account a number of factors which are not dealt with in either of the documents in dispute. If these documents are released, however, those reasons would not be evident to the public. This could give rise to the potential for the contents of the documents to be used out of context or for unintended purposes, such as misleading future applicants, applicants raising inappropriate or irrelevant grounds for consideration, or seeking to use the document for inappropriate purposes in influencing the Council's planning officers or decision-makers.

1. The effect of that contention is that where some of the reasons for a decision are set out in a document which overrides the Officer's Report, but others are not, neither document should be released. I can well understand that release of those documents could lead to a lack of clarity as to all the reasons for a decision. In many instances, the fact that documents forming part of the decision making process only tell part of the story has been found to be a proper basis for non-disclosure. But in my view, in the particular circumstances here, the countervailing public interest in planning approval decisions being made transparently outweighs that concern.
2. Decisions in planning permit applications are in the nature of operational decisions, applying planning policies, rather than decisions made in the course of policy formation. So the considerations referred to in many of the authorities relating to the need to protect the 'delicate' process of policy development do not apply here.
3. In my view, given the impact which planning decisions have on the community, and the high degree of public participation in the planning process (as opposed to many other types of decisions by local and State Government) it is incumbent on councils to articulate full reasons for planning decisions, especially where made under delegation. Where the record does not show all the reasons for a decision, it is in the public interest for that to be apparent, too. Planning decisions frequently confer very valuable property rights, and the mischief which could flow from a lack of accountability is obvious.
4. Council's case included references to concerns about it being discredited or criticised. But the risk of political criticism is not of itself a public interest argument.[3] Nor in this instance is the fact that criticism might follow from release of the disputed documents a strong factor under s 30 (1)(b). As stated, if all the documents which are available do not adequately explain the decision, it is in the public interest that that in itself should be apparent.[4]
5. Nor do I accept that Council officers would be less likely to be frank and candid in preparing officer reports for delegated decisions if they know they are likely to be released publicly. The effect of Mr Healy's evidence was that if officers knew that Officer Reports to senior officers who will make delegated decisions would be publicly released, they would make them more 'polished', but not otherwise approach their task differently. And in relation to disputed document 2, I conclude the same result would follow from a senior council officer having knowledge that his or her decision would be likely to be open to potential public scrutiny. Documents which better and more accurately express the reasons for a decision which has been made are the likely result, and that is in the public interest.
6. Accordingly, I conclude that the Council has not demonstrated that it is contrary to the public interest to disclose the two documents n dispute. In fact, it is in the public interest for them to be disclosed.

SECTION 33- DOCUMENTS AFFECTING PERSONAL PRIVACY

1. Finally, the Council also indicated it relied on s 33 of the FOI Act in relation to one small part of disputed document 1, namely, the 'assessing' officer's name and signature on the last page. This was on the basis that this Council officer was of a sufficiently junior rank such as to fall within the category of persons whose identity the Tribunal would usually accept should not be disclosed. Mr Costa said he did not seek that name. I accept that name and signature are exempt under s 33, on the basis that release would involve the unreasonable disclosure of information relating to the personal affairs of that officer. I note however, that in other instances, a more robust approach may be taken, such that it is not seen as inappropriate that the name of council officers involved in the preparation of Officer Reports be disclosed.

[1] Byrne Plaster Group v Mildura City Council [2013] VCAT 1613 at [4]. See also Byrne Plaster Group v Mildura City Council (Red Dot) [2013] VCAT 723, determined by Deputy President Gibson on 9 May 2013, relating to an earlier application to VCAT concerning Mr Costa's second planning permit application.

[3] Osland v the Secretary Department of Justice (2008) 234 CLR 257, [56], [123], [153]; Friends of Mallacoota Inc v Department of planning and Community Development [2011] VCAT 1889 at [56].

[4] It is noted that a quantity of correspondence between the applicant for the expansion of the veterinary practice and the Council relating to that application was earlier released to Mr Costa in response to his FOI request. It was included in the material filed by the Council under s 49 of the Victorian Civil and Administrative Tribunal Act 1998.