South Dural Residents and Ratepayers Group Inc. v Roads and Maritime Services - [2019] NSWCATAD 83 - NSWCATAD 2018 case summary — Zoe

NSWNSWCATAD

South Dural Residents and Ratepayers Group Inc. v Roads and Maritime Services

[2019] NSWCATAD 83

NCAT Administrative and Equal Opportunity|2018-12-13

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2018-12-13

Source

Original judgment source is linked above.

Judgment (27 paragraphs)

[1]

Background Facts

The Applicant was formed in 2006, and the principal object of the SDRRG is to support proposals to improve and develop the South Dural area and change the zoning from rural to residential.
A proposal to develop South Dural (SD) was submitted to the Department of Planning & Infrastructure (DP&I) by Hornsby Shire Council (Council), in 2013, and in 2014, a 'Gateway determination' was made by the Minister allowing the planning proposal to rezone South Dural for urban development to proceed, subject to certain outlined conditions.
One of the conditions imposed on Council was that prior to public exhibition, there was an obligation on Council to undertake: - 'Infrastructure strategy and business plan including assessment of all infrastructure requirements, demonstrating that the development can be undertaken at no additional cost to government and identifying responsibility for the delivery of infrastructure'.
The landowner members of the Applicant selected the Folkstone/Lyon Group as proponent and potential developer of the SD area to conduct the necessary studies and put a development proposal to Council. The proponent submitted an approximate figure for the upgrade of the SD road infrastructure of $158 million.
The Respondent agency was tasked with advising government regarding the planning, assessment and estimated costing of road works required to allow the proposal to proceed.
Council advised in 2017 that the Minister (responsible for the Road and Maritime Services (RMS)) 'has been advised that this figure ($158m) is significantly lower than estimates by RMS which indicate that the necessary road works will cost in excess of $300million'. Council stated that 'Therefore, the planning proposal is not feasible in its current form.' The Gateway determination was later terminated.
The Applicant filed a GIPA application, seeking access to documents dealing with the scope of proposed road works and calculations for the period April 2016 - September 2017. The Applicant considers the RMS estimates are too high.

[2]

The Application for Access

The Applicant sought access to the following information: All documents, records and files including electronic files, being evidencing or recording the scope of works and calculations of the cost of works relating to the proposed road infrastructure for the planning proposal to rezone land in South Dural for urban development the subject of a Gateway Determination by the Minister of Planning and Infrastructure dated 7 March 2014.
The scope of the access application was clarified, to confirm that the Applicant was seeking: ... documents dealing with the scope and calculations of the RMS figures, as you [the Applicant] have been advised by Hornsby Council that the amount was originally $150,000 and is now calculated at $300 million or more. You seek all calculations and scope held by Roads and Maritime with regard to the proposed road infrastructure in South Dural.
The scope of the application was further clarified, to confirm that the request related to information from April 2016 to September 2017. Initially the Respondent identified 28 documents which it withheld or redacted. The Applicant sought administrative review of the decision.
The parties have been in conciliation discussions and certain documents have been released, but 17 documents out of the original 28 remain in contention.
The Tribunal has been provided with a consolidated schedule of documents showing those released and those withheld in whole or part.
In relation to the remaining 17 documents, the agency has determined that there is an overriding public interest against disclosure. It relies on different grounds for different documents. The following are all the Table items in s14 of the GIPA Act upon which reliance was placed: 1(e), 1(f), and 4(c). The Respondent also later relied on Table item 5(e). The relevant provisions in the Table to s14 GIPA Act state as follows: 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):… (e) reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency, (f) prejudice the effective exercise by an agency of the agency's functions,… 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: … (c) diminish the competitive commercial value of any information to any person. … 5 Environment, culture, economy and general matters 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: … (e) expose any person to an unfair advantage or disadvantage as a result of the premature disclosure of information concerning any proposed action or inaction of the Government or an agency. :…

[3]

The Evidence

Mr Langford, Director, North West Precinct, RMS gave evidence by open and confidential affidavits and in confidential hearing. He has held this role for 18 months. He has held equivalent roles in RMS for approximately 5 years.
He is accountable for road network performance across the Western and Northern parts of Sydney. All projects and proposals that have the potential to impact on the road network in this precinct are referred to his team for consultation.
The South Dural planning proposal was a major development in the precinct. RMS had been in contact with the developer as part of the developer assessing the impact of the development on New Line Road and Old Northern Road. RMS did not agree with the developer's assessment of the impact and indicated that RMS would not support the outcome of that assessment.
Given the scale of the disagreement between the developer and RMS, the DP&I asked RMS to undertake its own assessment of the South Dural Planning Proposal, specifically in regards to the road infrastructure requirements and cost of upgrades required to New Line Road and Old Northern Road. Mr Langford's team assessed the road infrastructure aspects of the Proposal, which involved strategic modelling, preparing strategic design drawings of the road upgrades, identifying residential properties which would need to be acquired to allow for the upgrades, estimating the costs of the upgrade works and property acquisitions, and liaising with the Department of Planning and Infrastructure in regards to the Proposal.
There was a large difference in the costs estimates prepared by the proponent versus the costs estimates prepared by RMS and this raised serious concerns for RMS. RMS provided the results of that assessment to the developer and DP&I .
Mr Langford stated that even though the South Dural Planning Proposal has been withdrawn, it is possible that another proposal for the South Dural area could be made in future. Alternatively, the Government may allocate funding to proceed with the New Line Road and Old Northern Road upgrades in future. Mr Langford's evidence was that planning for the road network looks well into the medium term future and needs to take into account future development proposals in the surrounding areas which could have an impact. It would be short sighted to only take regard of this particular development when surrounding areas are also the subject of development proposals. He also gave evidence that road planning needs to look not only at the subject area, here South Dural, but to have regard to 'upstream' and 'downstream' effects that new and improved road works might have on other roads. For example, it would not be regarded as good planning to relieve a bottleneck at one point simply to move it a couple of kilometres down the road. It is these considerations, amongst others that led the agency to form a view about the cost of road works that would be required.
Mr Langford stated that he believed that disclosure could prejudice RMS's ability to impartially assess any future proposal and negotiate financial contributions. He also said that it could prejudice RMS's ability to procure contractors to undertake the upgrade works in future (by way of competitive tender processes), as the market would know RMS's estimates of rates and total costs for the works and therefore, RMS's ability to obtain a lower price and achieve best value for money would be hindered.
He was also concerned about the disclosure of any information relating to potential property acquisitions, as these properties were identified for internal assessment purposes only and the owners of these properties have not been consulted (as the proposal did not reach a stage that required that sort of consultation). Therefore, property owners may be distressed to learn that their properties had been considered for acquisition. Additionally, disclosing the valuations of these properties could prejudice RMS in any future negotiations with these owners.
Finally, RMS' assessment of the impact of the Proposal was based on a detailed analysis of the proposed development, which includes information which is commercially sensitive to the developer. Without the developer's consent he did not think it appropriate to disclose to information as it may reveal the developer's costs and methodology to competitors. The Tribunal made an order allowing the Respondent further time to approach the developer to seek consent but nothing further has been forthcoming.
In his confidential affidavit and evidence Mr Langford stated that the circumstances in this case were somewhat unusual. The RMS assessment was performed expeditiously to assist the DP&I to assess the costs and impacts of the development. Usually there would be some form of public consultation on traffic impacts of a proposed development, and Mr Langford is concerned that to release the information before any proposal is fully developed and displayed for public consultation could cause public anxiety relating to land which may or may not be identified for resumption.
He says release of the information now could also adversely affect the government's ability to negotiate competitively in relation to future upgrades of the relevant main roads by revealing details of the agency's work on likely costs. It appears that improvements to the road network in the North West Precinct are under continuous review, and even if it may seem that a project is some way off in the future there is potential for it to be given priority through reallocation of funding if the need for greater urgency is established.
He also provided confidential commentary on the reasons for withholding each of the documents in contention.
The Applicant referred to an email released to it which stated that: - "TfNSW and RMS currently have no funding allocated for the upgrade of the infrastructure required to enable development of the South Dural Urban Release Area, within the 4 year budget nor the 10 year planning horizons."
The Applicant places great reliance on this document to submit that given the apparently very long time horizon that it was difficult to see how there is any relevant connection between the disclosure of this information now and any likely prejudice the Respondent might suffer, because for all intents and purposes, nothing is happening. The Gateway determination has concluded, the proponent has withdrawn and RMS is apparently not considering road upgrade works for the SD area at the moment. It says even if the SD proposal is resurrected property markets will have no doubt changed by then, and so the information the Respondent does not want to release would not be current and capable of prejudicing the effectiveness of its functions.

[4]

THE RELEVANT PRINCIPLES

The GIPA Act is designed to provide open access to government information unless there is an overriding public interest against disclosure. This open access policy is expressed in a number of places in the GIPA Act including ss 3, 5, 9, and 12. These provisions provide strong public interest grounds in favour of disclosure. Further, examples of factors favouring disclosure are set out in s12(2) GIPA Act and the Applicant says the most relevant in the present case are: (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.
I am unable to see a sound basis for reliance on paras (d) and (e).
Against these positive factors are the public interest considerations against disclosure which can only consist of those items (or grounds) set out in the Table in s14 GIPA Act (s14(2)). The positives and negatives must weighed against each other to determine whether the negatives override the positives (s13 GIPA Act). The principles that apply to the determination are set out in s15 GIPA Act. This requires, in the first place a "rather abstract analysis" of the reasonable likelihood of the disclosure having the claimed prejudicial effects on future supply of similar material to the government (Department of Education and Training v Mullett [2002] NSWADTAP 13). This analysis is then applied to the facts of the case at hand as part of the weighing process under s13 GIPA Act, following the principles in s15 (Commissioner of Police, NSW Police Force v Camilleri [2012] NSWADTAP 19).
Section 14 requires consideration of whether the disclosure could reasonably be expected to have the effects referred to in the various provisions of the Table in s14. It was held in Leech v Sydney Water Corporation [2010] NSW ADT 298 that the test to be applied is an objective one approached from the viewpoint of a reasonable decision maker. Something which could be reasonably expected is something more than a mere possibility or risk, and must be based on real and substantial grounds not purely those which are speculative or hypothetical.
The principles of interpretation to be considered are as follows:

[5]

Clause 1(e)- reveal a deliberation or consultation conducted, or an opinion, advice or recommendation given, in such a way as to prejudice a deliberative process of government or an agency

For the public interest consideration against disclosure in clause 1 (e) to apply, the Respondent must establish that the information in issue could reasonably be expected to 'reveal a deliberation' in such a way to 'prejudice a deliberative process' of the Respondent. That is, a relevant connection must be established between the deliberation as contained in the withheld information and the Respondent's 'deliberative processes' (Fire Brigade Employees' Union v Fire and Rescue (NSW) [2014] NSWCATAD 113).
The meaning of the term 'deliberative process' was considered by the Administrative Appeals Tribunal ("the AAT") in Re Waterford and Department of the Treasury (No 2) (1984) 5 ALD 588 (Re Waterford) at [58] to [61], in the context in which it appeared in section 36 of the Freedom of Information Act 1982 (Cth) (FOI Act Cth), as it applied at that time. Although clause 1(e) of the GIPA Act and section 36 of the FOI Act Cth are not the same, they both deal with the disclosure of information concerning the 'deliberative process' of government or an agency, and as such Re Waterford remains instructive.
The Tribunal defined 'deliberative process' as 'involv[ing] the weighing up or evaluation of the competing arguments or considerations that may have a bearing upon one's course of action... It by no means follows, therefore, that every document on a departmental file will fall into this category... documents disclosing deliberative processes must, in our view, be distinguishable from documents dealing with the purely procedural or administrative processes involved in the functions of an agency'.' The Tribunal adopted this analysis in Fire Brigade Employees' Union v Fire and Rescue (NSW) [2014] NSWCATAD 113.
There are two general elements which must be satisfied in order for this public interest consideration against disclosure to apply: i) the information must reveal a deliberation, consultation, opinion, advice or recommendation; and ii) disclosing the information must be reasonably expected to prejudice a deliberative process.
This requires there to be a connection between the opinion, advice or recommendation and the relevant deliberative process (Luxford v Department of Education and Communities (NSW) [2016] NSWCATAD 118, at [103]).
In Miskelly v Transport for NSW [2017] NSWCATAD 207 at [72], the Tribunal described the first element of this public interest consideration against disclosure as follows: The 'deliberative process' of an agency has been described as its 'thinking processes ... including those by which it seeks internal input and discussions as to different courses of action, evaluates the wisdom of them, and the relative benefits and detriments of them: Cameron v Commissioner of Police (NSW) [2014] NSWCATAD 13 at 66, or its 'internal thinking': Fire Brigade Union v Fire and Rescue (NSW) [2014] NSWCATAD 133. The Tribunal also accepted that "prejudice" has its ordinary meaning: "to cause detriment or disadvantage" or "to impede or derogate from" (Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [60]).

[7]

T4(c) - diminish the competitive commercial value of any information to any person

The Respondent submits that the information is primarily as follows: 1. property acquisition cost estimates; 2. budget estimates; and 3. Muller partnership report dated 29 January 2016 (commissioned by RMS)
The Tribunal has observed that the term "competitive commercial value" "connotes information of commercial value gained in, or relating to, a competitive commercial or business context, including competitive information relating to the competitive purchase and provision of government services" (McKinnon v Blacktown City Council [2012] NSWADT 44 at [80]).
The Respondent contends that the property acquisition cost estimates have commercial value as these relate to the estimated market price of the properties and disclosure of this information would diminish its value as it would hinder the Respondent's negotiating position in future.
The Respondent also contends that the budget estimates also have commercial value, as these reveal the Respondent's estimates of costs for certain works that the Respondent may procure in future and disclosure of this information would greatly diminish its value, as the market would be privy to the Respondent's costs estimates and baselines.
The Respondent also contends that the Muller partnership report has commercial value, as the Respondent paid for this report to be prepared and it estimates (and details) the costs of works for potential future road upgrade projects. Disclosure of this information would greatly diminish its value, as the market would be privy to the Respondent's costs estimates and baselines.
Finally, the Respondent considers that the disclosure of the information to which access has been withheld could reasonably be expected to expose the developer to a disadvantage because details about the proposed development, the scale, timing, cost and impact on the road network would be disclosed to the developer's competitors. This is particularly concerning in circumstances where Council has determined not to proceed with the development as originally proposed. To disclose this information now without consent of the developer would reveal the developer's methodology and costs to the market (including competitors) could impact on the developer's ability to submit a competitive development proposal at a future time.
In answer to this, the Applicant says that property values are freely available to most people on the internet and that there is no 'competitive commercial value' attached to this information that is in some way special such that it cannot be released now. The Gateway determination is at an end, and the SD area road infrastructure upgrade is in the far future apparently. It says by the time this type of information might become relevant or useable or valuable, the property market would have no doubt changed. It cites cases which have said that information which is aged or out-of-date has no remaining commercial value (Cannon v Australian Quality Eggs Farms Limited (1994) 1 QAR 491 at [56]), and, that information of commercial value may expire with the passage of time (Re Brown and Minister for Administrative Services (1990) 21 ALD 526 at 533).
The Applicant further submits that as the Respondent is a government instrumentality it is 'not for profit' so cannot be concerned with commercial issues surrounding information. This indicates a very limited view of the scope of commercial value of information. The agency regularly enters into commercial arrangements involving commitment of public funds and it is of vital importance that it expends them wisely by maintaining commercial confidentiality of its bargaining position.

Parties

Applicant/Plaintiff:

South Dural Residents and Ratepayers Group Inc.

Respondent/Defendant:

Roads and Maritime Services

Legislation Cited (6)

Freedom of Information Act 1989(NSW)

Administrative Decisions Review Act 1997(NSW)

Civil and Administrative Tribunal Act 2013(NSW)

Government Information (Public Access) Act 2009(NSW)

Freedom of Information Act 1982(Cth)

Roads Act 1993(NSW)

Cases Cited (7)

Jurisdiction

The Tribunal obtains its jurisdiction to review the agency's decision under s100 GIPA Act (which provides that a person who is aggrieved by a reviewable decision of an agency may apply to the Tribunal for administrative review under the Administrative Decisions Review Act 1997 (ADR Act)); ss9 and 63 of the ADR Act; read together with s30 of the Civil & Administrative Tribunal Act 2013 (CAT Act). The Tribunal is required to determine what is the correct and preferable decision having regard to the material then before it including any relevant factual material and any applicable written or unwritten law (s63(1) ADR Act). The Tribunal makes its own decision in place of the Respondent without any presumption that the agency's decision is correct.
The role of the Tribunal is to review the merits of the refusal decision of the agency on the access request, taking account of the scope of information that falls within the access application and has been considered for access, the information which has been provided to the Applicant, and any further relevant material. It is not a review of the decision of the agency on any internal review of the original access decision requested by the Applicant.
The process for deciding whether to grant access to information is to identify the applicable factors in favour of granting access; then to identify the applicable public interest factors against such disclosure (which can only be from those items set out in the Table in s14 of the GIPA Act). Then it is necessary to allocate weight to each of the positive and negative factors. This is followed by a process of weighing in the balance the positive and negative elements to reach a decision as to whether access should be granted or not (where the negatives override the positives) (Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286).
In summary, the GIPA Act relevantly provides that there is a presumption in favour of disclosure of government information unless there is an overriding public interest against such disclosure (s5 GIPA Act). Relevantly in this case some of the documents contain "open access information" that an agency must mandatorily and proactively release unless there is an overriding public interest against disclosure (s6 GIPA Act). A person who makes an application to access government information has a legally enforceable right to be provided with such access unless there is an overriding public interest against disclosure (s9 GIPA Act). The public interest considerations in favour of disclosure are set out in s12 GIPA Act.
There is an overriding public interest against disclosure if, and only if, there are public interest considerations against disclosure which, on balance outweigh the public interest considerations in favour of disclosure (s13 GIPA Act). The public interest considerations against disclosure are set out exhaustively in s14 in a Table. Section 15 of the GIPA Act provides for certain principles that apply to the determination of whether there is an overriding public interest against disclosure.

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