1. The VCAT decision stated that there was no application for any commercial helicopter operations, so it was not dealing with that issue. It stated:
   1. The council considered that the use of the land to store the helicopter could be characterised as a contractor's depot as the helicopter was being stored to allow for the contracting out of the use of the helicopter for agricultural and emergency services.
   2. The applicant does not rely upon the exemptions in the planning scheme and submits the helicopter is intended to be only used for commuting by a resident of the subject land. It will be garaged on the site within the existing building along with other vehicles, plant and equipment associated with the dwelling and the agricultural uses of the land. The helicopter is not intended to be used in a commercial contracting operation.
   3. There is nothing within the application that leads to the conclusion that the land is to be used to store the helicopter as part of a contractor's depot. Locating the helicopter within the existing building on the subject land is not different to parking any other vehicle used by the residents such use is ancillary to the use of the dwelling and there is no separate requirement for a permit for a store.
2. VCAT ordered that there be no more than two flights from the land and two flights to the land per day. Flights are also generally restricted to daylight hours, after 7 am (8 am on weekends and holidays). Use for commercial charter, including scenic joy flights, is prohibited.

1. The issue which is apparently of concern to objectors is that a planning permit might in fact have been required to construct (that is, in planning terms, to develop) the structure on the premises, because at the time it was built, it was intended to be used for commercial purposes (even if not for charter operations), extending beyond the purposes for which no planning permit is required for development. It is noted that under Clause 52.15 of the Planning Scheme:

A permit is required to use or develop any land for a heliport or a helicopter landing site even if it is ancillary to another use on the land, unless the table to this Clause specifically states that a permit is not required [emphasis added].

1. The FOI applicant, Ms Wellington, submitted that the Disputed Document contains information which, on its face, concerns the apparent purpose for which Mr Metcalf constructed the structure.
2. She also refers to publicly available information relevant to the issue of whether Mr Metcalf constructed the structure for the purpose of it being a helicopter hanger. For example, she provided a copy of a Herald Sun article of 9 December 2015, which reported that Mr Metcalf and his family, who were then living in Kangaroo Ground, were relocating to Torquay, and that he intended to take his helicopter to 'his new abode'. The article included a picture of Mr Metcalf, his wife and children happily posing beside his helicopter in front of their home.
3. Ms Wellington also refers to two videos publicly available on the internet, in which Mr Metcalf refers to the shed as a 'hanger'. The first is a one and a half minute promotional video on behalf of the company which constructed the steel structure on the land. It comprises footage of the structure inside and out, and from above. The voiceover is by Mr Metcalf, who is also shown as a talking head. He fulsomely praises the company and concludes by saying he would recommend the company to anybody, 'whether they are building a hanger or something else'.
4. The second video is similar, but I understand without a soundtrack. It appears to feature some of the same footage, and some different footage.
5. The witness statement by Ms Anne Howard, the General Manager of Governance and Infrastructure at the Council, stated the following about the Disputed Document (at paragraphs [31]- [33]):
   1. The exempt document raised some matters regarding the Interested Party's intended use of the land that was not contained in the planning application itself, namely, use for business purposes. The Senior Planner subsequently contacted the planning applicant, TGM Group, seeking clarification of those matters, to determine if the planning application would need to be amended to reflect any intended use that was not contained in the original planning application and sought clarification about the purpose of some existing infrastructure.
   2. The Council received an email from the TGM Group on 1 May 2018, in which TGM Group clarified that the planning application does not seek a permit for any use other than that which is contained in the original application.
   3. Based on this, Council understood that the exempt document contained the landowner's advice to councillors about their aspirational uses of the land but that permission for these activities were not being sought at the time through the planning application.

1. These issues were the subject of two other requests under the Freedom of Information Act 1982 (FOI Act). Those requests were made by the local objectors group. They were dated 30 April and 1 November 2018 respectively. They included the Disputed Document in this case. The Council FOI officer consulted with affected third parties. The Council refused to produce the Disputed Document pursuant to those requests.
2. The applicant Ms Heather Wellington is a councillor, representing the ward of the Shire which includes the site. Accordingly, she has held a copy of the disputed document since 24 April 2018. However, in accordance with advice from a senior Council officer, she has refrained from distributing it, as it is regarded by the Shire as a confidential document. She wishes to distribute it publicly, to inform the debate about this issue. Hence, she made an FOI application for it to be released.
3. Ms Wellington did not attend the site inspection and helicopter demonstration on 24 April 2018.
4. Her FOI application was made on 20 September 2018. This application sought release of the following documents:
   1. Email and attached document dated 24 April 2018 [being the Disputed Document] sent by Tim Metcalf to Councillor Carol McGregor at 2:34 pm and subsequently email by Councillor McGregor to all Councillors at 2:48pm.
   2. Email from Bill Cathcart to all Councillors, Michelle Watt, Ransce Salan, Keith Baillie, Anne Howard and Chris Pike, 24/4/2018 3:46pm, headed 'FW: Pre-application 420 Coombes Road Freshwater Creek proposed helicopter landing site and future use of the land'.

[This document no. 2 contains within it two other emails, including the 'First Officer Email' being the email of 30 May 2016 from Roger Curnow, a planning officer of the Council, to Mr Metcalf's building design consultant, Sharon Berridge, referred to above.]

1. On 4 October 2018 the Council determined to refuse to provide any of the documents sought. It relied on s 33, and s 35(1)(b). It also relied at that stage on s 34(1)(b) (business, commercial or financial information), although the claim in relation to that exemption was later dropped. Ms Wellington sought review of that decision by the OVIC.
2. On 25 January 2019 OVIC determined to release document 2 in full, and also, the covering email comprising part of document 1. (I was told that document 2 was not actually provided to the applicant until after the 20 June 2019 VCAT directions hearing. The reason for this was stated to be that until then, the Council had been taking the jurisdictional point that OVIC had not in fact made a decision which could be reviewed by VCAT, but no longer pursued that point after 20 June 2019.)
3. That left only the email of 24 April 2018 from Mr and Mrs Metcalf to the councillor as the sole document in dispute in this case.
4. OVIC had determined that the document was exempt under s 35(1)(b) (information obtained in confidence), but, I understand, rejected the Council's claim under s 33 (personal affairs).
5. At the Tribunal in this hearing, the Council and Mr Metcalf still rely on the exemptions in s 33 and s35(1)(b).
6. Further, the Council (but not Mr Metcalf) has added an extra ground: it now also relies on s 35(1)(a) (invoking s 30 in support of its claim).
7. The Tribunal conducted a s 53A process whereby the persons whose personal affairs it was contended would be revealed by release of the Disputed Document, were notified, and given the opportunity to express their views, and to participate. Earlier, the Council itself had consulted with persons whose interests might be affected by the other FOI requests. The outcome of that consultation was made available to me.
8. On 20 June 2019, by consent, Mr Metcalf was joined to this proceeding as an Interested Party.
9. The Tribunal heard evidence from the following witnesses: Ms Anne Howard, the General Manager of Governance and Infrastructure at the Council, Mr Metcalf and Ms Wellington.

1. Section 3 of the FOI Act states that its object is to extend as far as possible the right of the community to access to information in the possession of, relevantly, municipal councils. It does this by creating a general right of access to such documents, limited only by exceptions and exemptions necessary for the protection of essential public interests and the private and business interests of persons in respect of whom information is collected and held by agencies.
2. Further, under s 3(2), the provisions of the FOI Act are to be interpreted so as to further the object set out in s 3(1), and any discretion is under the FOI 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.
3. Under s55, the Council has the onus of proving the exemptions claimed.

(1) A document is an exempt document if its disclosure under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person (including a deceased person).

(2A) An agency or Minister, in deciding whether the disclosure of a document under this Act would involve the unreasonable disclosure of information relating to the personal affairs of any person, must take into account, in addition to any other matters, whether the disclosure of the information would, or would be reasonably likely to, endanger the life or physical safety of any person.

information relating to the personal affairs of any person includes information -

(a) that identifies any person or discloses their address or location; or

(b) from which any person's identity, address or location can reasonably be determined;

1. The first question is what information in the Disputed Document relates to the personal affairs of any person. Mr Batskos, solicitor for the Council, submitted that the whole document comprises information relating to the personal affairs of Mr Metcalf and his family.
2. The Council identified six individuals who are referred to by name or otherwise, in the Disputed Document. Aside from Mr and Mrs Metcalf, the other four are all professionals involved in the planning process or Council personnel. For present purposes, I will assume that those references are to the personal affairs of those persons.[3] Clearly the most significant issue here concerns the personal affairs of Mr Metcalf and his family.
3. It is however correct to say that s 33 is not limited simply to names, addresses and other material from which that information might be able to be deduced.
4. Moving beyond that information, in my view, it might be said that some of the further information in the Disputed Document relates to the personal affairs of Mr and Mrs Metcalf, in that it refers to the circumstances relating to their purchase of the site, their accommodation arrangements and the financial implications for them of the permit not being granted in accordance with their application.
5. During the hearing, the applicant made it clear that she did not seek two short passages which particularly relate to those topics. These are two of the most sensitive passages in the Disputed Document. Consequently, those two passages, being outside the scope of the request, are not relevant to my assessment.
6. In my view, the vast majority of the text in the Disputed Document relates to matters aside from the personal affairs of Mr Metcalf and his family. Rather, it relates to technical aspects of the application concerning the extent of proposed helicopter operations, compliance with safety and amenity requirements, such as noise, and statements about the planning process, and the way in which it had proceeded.
7. Accordingly, I reject the contention that the whole of the Disputed Document relates to personal affairs. Rather, small components of it do.

1. I now consider the second limb under s 33. That is, whether, in relation to those few components which do comprise personal information, release of the Disputed Document would involve unreasonable disclosure of that personal affairs information.
2. In accordance with applicable case law,[4] the primary contentions made on behalf of the Council and Mr Metcalf were that the document would be likely to be disseminated widely, that the applicant's motives are 'not commendable', that its release would have little utility, that it was given and received in confidence, that Mr Metcalf has concerns for his family's safety, and that the Metcalfs' right under s 13 of the Charter of Human Rights and Responsibilities Act 2006 (Charter) not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with, might be breached.

1. I accept that the document would be likely to be disseminated widely, and likely publicised in the local press. There was no suggestion to the contrary, and all the circumstances point towards this occurring. Ms Wellington submits that there are unanswered questions in relation to the planning process as it applies to Mr Metcalf's helicopter operations, and that release of this document is appropriate to inform the public concerning matters which affect them, and as part of a legitimate public discussion.

1. I do not however accept that the applicant's motives for seeking the release of the document under FOI are 'not commendable'. As stated, she has had the document in her capacity as a councillor since the day it was created, but has not disclosed it, and it has remained outside the public realm. The expression 'not commendable' arises from FOI decisions referring to an applicant pursuing a personal crusade, for the purpose of embarrassing or harming persons to whom the document relates, or to harass or vilify individuals. The council's submissions said this can include 'when an applicant has demonstrated an intimidating and confronting manner towards agency officers or others, or constant questioning of agency officers as part of a persistent or constant desire to challenge'.
2. There is no basis for concluding that Ms Wellington falls into this category of persistent or pest applicants, and I conclude that she does not. There was reference during the hearing to a campaign against helicopter operations which are being conducted or proposed by Mr Metcalf, both as part of the planning permit application and review process, and otherwise. Mr Metcalf produced a copy of a flyer advertising a 'No Heliport!' Community Meeting on 7 May 2018.
3. The implication is that Ms Wellington is associated with the group of residents who have coalesced to object to Mr Metcalf's helicopter operations. She may be, to some degree. However, in her witness statement she said, in relation to her attendance at a private meeting of objectors on 7 May 2018 in the local CFA hall, that:

... the objectors asked me to invite councillors and I did so. My only role was to provide information on request, and to assist with organising the venue. My support for the objectors' group was consistent with my role and responsibility as an elected representative.[5]

1. Ms Wellington was not cross-examined by Mr Batskos, the Council's representative. She was cross-examined by Ms Jones for Mr Metcalf. But this was very brief, and only about one unrelated issue. Ms Wellington's witness statement indicates she is an experienced local government representative, and has had a career as a doctor, health administrator, lawyer and company director, amongst other things.
2. I reject the contentions by the Council that Ms Wellington's motives are 'not commendable', and that this is a factor here operating in favour of the application of the s 33 exemption.

1. I turn to the submission that release of this document will have little utility.
2. Mr Metcalf and also, in this proceeding, the Council, made submissions to the effect that the planning process concerning Mr Metcalf's helicopter operations has been completed, and releasing this document will only rekindle what was an exhausting, time-consuming and unpleasant process which was finally completed with the issue of a planning permit following VCAT's order of 26 November 2018.
3. However, it may be that there is an unresolved issue in the circumstances here. A permit for use has been obtained. But the issue of whether a permit for development of the site was required remains unclear.
4. It does appear that Mr Metcalf's intentions about the scope of helicopter operations have changed over time. In giving evidence, he said that he had hoped to establish an operation doing fire work. But he said he would not be doing that now, since the process for that is far too onerous.
5. The analysis under s 35 below provides further detail relevant to the utility of the release of the Disputed Document.

1. Similarly, I deal with the issue of confidentiality in the analysis under s 35 below. For the reasons stated below, I find that the Disputed Document was not given or received in confidence.

1. It is perhaps not surprising that local opposition has sprung up, against the use of the premises for helicopter activities. From the body language of Mr and Mrs Metcalf during the hearing, it was apparent they feel the weight of local opposition, and also that they feel some antagonism towards persons who have been involved. Mr Metcalf said his home has been subject to criticism on social media and in the media. There have been unfounded rumours about proposed helicopter-based activities. There was a reference to police being called on one occasion. This evidence was general, rather than specific in nature.
2. For the applicant it was submitted that Mr Metcalf was happy to expose his family and his property to publicity, in the form of the article and photograph of his family in the Herald-Sun, and the promotional videos on the internet showing his property, both inside, and from the air.
3. Additional submissions were received from the Council and Mr Metcalf after the hearing concerning the two videos available on the internet, via YouTube. It was said that contrary to the submission on behalf of Ms Wellington, the second video does not show Mr Metcalf's children. Having viewed the video, in practical terms, I accept it does not. It was argued by reference to Gunawan v Department of Education[6] that the existence of some personal information in the public realm does not deprive the information in question of its personal character.
4. I accept that, but nevertheless I conclude that the existence of these three items in the public realm does detract from the professed concerns about privacy and safety. The children are clearly identifiable in the Herald-Sun photo.
5. While release of the Disputed Document might lead to some publicity about helicopter operations (I am not sure how much), the matter is a legitimate topic for public discussion. In any event, the evidence falls well short of establishing a basis on which I can conclude that release of this document will cause Mr Metcalf or his family to be put at risk. This is a document which was produced during the course of an ordinary planning permit application process. Even less so am I satisfied that would be reasonably likely to endanger the life or physical safety of any person (under s 33 (2A)).

1. It was submitted that the existence in s 13 of the Charter of the right of a person not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with, is also relevant. The Council referred to the obligation in s 32 of the Charter to interpret all statutory provisions in a way that is compatible with human rights.
2. However, that was as far as the submission went. Aside from s 32, I note the obligation on the Tribunal under s 38, in effect, to give proper consideration to a relevant human right, and to avoid acting in a way which is incompatible with a human right.
3. To the extent the right in s 13 of the Charter is engaged or affected as part of dealing with this FOI request, the evaluative process which is involved in considering the claimed exemptions is similar to, and in this instance satisfies the requirements of, the process required to be carried out under the Charter, such that any limitations placed on that human right are justified under s 7 of the Charter.

Section 33 - Mr and Mrs Metcalf - Conclusion

1. Weighing up all the above factors, and consistent with what I understand to have been the decision of OVIC, I find that in relation to those components of the Disputed Document which do relate to personal affairs, release would not involve unreasonable disclosure of personal affairs information of Mr Metcalf or his family.

Section 33 - persons other than Mr and Mrs Metcalf

1. While the main focus under s 33 was on the personal affairs of Mr and Mrs Metcalf, the Council did also refer to four Council personnel and professionals whose personal information is said to be contained in the Disputed Document. Of those persons, three are named (one, being a councillor, is referred to by first name only). The fourth is said to be referred to indirectly, in a manner which might enable some people to identify that person.
2. The fact that such persons might be referred to in the document is quite unsurprising, given their professional responsibilities. Their names are already apparent from other publicly available Council documents forming part of the planning process. They were participants in the public planning process.
3. As noted, both the Council and VCAT conducted a consultation process with those Council personnel and professionals whose personal information is said to be contained in the Disputed Document. In total this produced responses from three of those persons. There was no objection from the councillor. One response focussed more on exemptions other than s 33, so those components are not relevant to the present consideration of s 33. None of the responses provided any specific information which would give rise to concerns about unreasonable impingement on their privacy or were such as to suggest that release of the document would be unreasonable under s 33.
4. I was told the Council employee(s) involved are non-executive Council officers. But that is not of much significance here. As noted, their involvement in the course of the ordinary planning process is a matter of public record. This is consistent with the way in which very many thousands of planning permit applications are dealt with each year in Victoria, by, no doubt, hundreds of planning officers, whose names appear quite properly on the documents they work on, which are publicly available. There is no more reason for the names of the planning officers here to be withheld, than there is for the other applications handled by the State's planning system.
5. Consistent with what I understand to have been the OVIC decision, I find the Disputed Document is not exempt under s 33 in relation to the personal information relating to those persons.

Section 35 - material obtained in confidence

1. The Council and Mr Metcalf relied on s 35(1) which provides:
   1. Documents containing material obtained in confidence

(1) A document is an exempt document if its disclosure under this Act would divulge any information or matter communicated in confidence by or on behalf of a person or a government to an agency or a Minister, and -

(a) the information would be exempt matter if it were generated by an agency or a Minister; or

(b) the disclosure of the information under this Act would be contrary to the public interest by reason that the disclosure would be reasonably likely to impair the ability of an agency or a Minister to obtain similar information in the future.

1. The Council relied on both s 35(1)(a) and (b). The first requirement under both these limbs is that the material have been communicated in confidence to the Council.

Section 35(1) - Communicated in confidence

1. In relation to confidentiality, Ms Wellington argued:
   • When it was sent, it was not marked or stated to be confidential (although it was accepted that this is not determinative).
   • There is no apparent benefit in this kind of information in the document being kept confidential, in contrast to situations where complaints are made to councils to enable them to perform law enforcement functions or conduct investigations.
   • The information in the document regarding Mr Metcalf's business affairs lacks detail and is benign from a business competition perspective.
   • The Disputed Document was sent to seek to persuade councillors to approve a planning permit application. The planning process under the Planning and Environment Act 1988 is based around full transparency, and it would be incongruous to accept that a permit applicant's submission to councillors about the merits of the application was made in confidence.
   • The contention of confidentiality is undermined by the fact that when the applicant asked a question arising out of the Disputed Document at the Council meeting on the day the document was sent (24 April 2018) there was no objection by either the Council, or by Mr or Mrs Metcalf, who were present at the meeting, that Ms Wellington was trespassing into confidential matters.
2. Dealing first with the last dot point above, Mr Metcalf's evidence was that his wife did seek to intervene during the Council meeting on 24 November 2018. However, it is not contended that this was to object on confidentiality grounds. Mr Metcalf's evidence was that they 'were stunned and very angry at the Applicant's allegations that the Respondent should "wind back the clock" and we [should] seek a retrospective permit for our home'.[7] It was also pointed out on behalf of Ms Wellington, that the Council had not taken any steps to remove the audio recording of this Council meeting from the internet. It was contended, in effect, that this supported her contention that at the time, confidentiality was not a particular concern of either the Council or the Metcalfs. I agree.
3. The Council did not contend that the email was explicitly stated to be confidential when sent by Mr Metcalf. Nor that it was received at the time by councillors and Council officers explicitly as a confidential document. As the Council submitted, however, that is not determinative.
4. Ms Howard (the Council's General Manager of Governance and Infrastructure) indicated the document was not treated as part of the publicly available material during the subsequent consideration of the planning permit application by the Council, and then by VCAT.
5. In her witness statement, Ms Howard said that at a subsequent meeting with Mr Metcalf on 6 June 2018, she recalled that he told her that he and his wife had an expectation that the Disputed Document was only to be received by the councillors and senior officers responsible for assessing the planning application.
6. In relation to confidentiality, Mr Metcalf's witness statement included the following:
   • At the time the document was prepared his expectation and understanding was that it would be treated as confidential
   • When the Council consulted with him as part of its response to FOI applications for release, his response was that the document was provided in confidence, and that confidence should be maintained
   • 'My wife and I prepared the document to recap on our meeting and considered it an efficient way to make sure the concerns and questions raised had all been addressed and adequately understood. For example, it was always our intention to use the helicopter predominantly for business (lifting), rather than concerns expressed by the public about hypothetical usage of the helicopter (for commercial charter).'
   • If the document were disclosed, he would not provide similar information to the Council in the future.
   • He was concerned about the impact which release of the document would have for himself and his family, in terms of safety. His home has been the subject of criticism on social media and in the media. On one occasion he had to call the police concerning an incident at his home.
7. Mr Solomon-Bridge, for Ms Wellington, contended that there was an element of rewriting of history in the written and oral evidence given by Mr Metcalf. He suggested Mr Metcalf was at times vague and evasive. He suggested Mr Metcalf's denial that he could recall the contents of the videos referred to above was not credible. In my view there is something in these criticisms.
8. However, in relation to one particular matter, in my view it is clear he did give a frank response. He said that he and his wife had started drafting the Disputed Document before the helicopter demonstration with councillors (which was at 2.00pm on 24 April 2018) and finalised it and sent it, after that demonstration. It was urgent at the time -the matter was being considered at the Council meeting at 6.00 pm. In that context, in giving oral evidence, Mr Metcalf said words to the effect that confidentiality concerns were the furthest thing from his mind at that point. I regard that statement as significant (notwithstanding submissions subsequently made by his solicitor seeking to downplay the effect of this statement, and also that he did then qualify it by saying he was dealing with Council on a 'private matter').
9. In relation to confidentiality, the conclusion which naturally arises from the evidence is that at the time the document was sent, Mr Metcalf's overriding concern was to convey the arguments it contained in support of his planning permit application, which was to be considered by the Council in two or three hours' time. It is understandable that after the event, he would not wish the document to be publicly available. But all the indications from the contents of the document, and from the circumstances in which it was sent (and utilised in the meeting - as noted, Ms Wellington asked a question arising from it) point towards Mr Metcalf's overriding concern being to obtain the grant of the permit. To the extent that this might entail that the matters in the Disputed Document were made public, the evidence indicates that was a secondary concern at the time.
10. In my view, the fact that this document was produced during the planning process, indeed, at what was then seen as a pivotal moment in the determination of a planning permit application, strongly militates against it having confidential status. The general principles which I referred to in the decision of Roy Costa Planning & Development v Mildura CC[8] are applicable here: The planning regime in Victoria is one which involves a very high degree of public involvement. This is because planning decisions 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. Planning decisions frequently confer very valuable property rights, and the mischief which could flow from a lack of accountability is obvious.
11. The Council submitted that the Costa case can be distinguished from the present one on the basis that in Costa, the council had refused to release its planning officer's report on a planning permit application, whereas here, all Council officer material relating to the planning permit application has been released. In my view, however, that is not a determinative point of distinction. It is contrary to the spirit and practice of planning law for an applicant to be able to send confidential submissions to councillors to which other participants in the process are denied access.
12. I am not satisfied that the Council (or Mr Metcalf) have discharged their onus of proving that the Disputed Document was communicated in confidence.
13. That is sufficient to dispose of the s 35 claims. However, for completeness, I nevertheless proceed to consider whether the further requirements of s 35 are satisfied.

Section 35(1)(a) - Would the information be exempt if it were generated by an agency?

1. Section 35(1)(a) was relied on by the Council. No submission was made on behalf of Mr Metcalf in relation to s 35(1)(a).
2. As explained in relevant authority,[9] s 35(1)(a) in effect deems the person who generated the document to be (relevantly) an 'agency', and provides that the document will be exempt if it falls within one of the other exempt categories within the FOI Act. In this instance, the Council contends that it is s 30 of the FOI Act which applies in this way. This requires that a s 30 analysis be done in relation to the Disputed Document.

1. Section 30 relates to 'internal working documents'. It provides:
   1. Internal working documents

(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 Minister, or consultation or deliberation that has taken place between officers, Ministers, or an officer and a Minister, in the course of, or for the purpose of, the deliberative processes involved in the functions of an agency or Minister or of the government; and

1. The Council submitted that it was evident from the face of the document that, if an agency had generated the email, it would properly be said to comprise matter in the nature of opinion, advice or recommendation, or consultation or deliberation, in that it related to Council deliberations about whether a planning permit should be issued. I agree. So the first limb of s 30 is satisfied.
2. The second requirement of s 30 is that disclosure of the email would be contrary to the public interest.
3. In relation to that matter, the Council's submissions were as follows (the [square bracketed] paragraph references below cross-refer to relevant passages in the witness statement of Ms Howard):
   • Confusion could arise from the release of the document. The planning officer's assessment of the planning application could be unfairly questioned or debated. It may create the misleading impression that planning officers were deliberately selective in considering matters; the public is unlikely to appreciate that the planning officer's statutory responsibility is to assess only the matters contained in a planning application and not to have regard to public perceptions or speculations.
   • Release of the document 'could cause misunderstanding between those who oppose an assessment and the planning officers who assessed the application' [45].
   • It could hinder Council receiving similar communications about other planning applications. 'If developers or potential applicants perceive that anything they communicate, including musings of possible future uses of land that may not eventuate, could be released under the FOI Act, I do not think they would be as forthcoming in their discussions with Council planners.' [46]
   • This effect would especially be felt in the pre-application stage, when it is common for applicants to engage in wide-ranging discussions about ideas and possibilities for future development. So preliminary discussions of that nature would, in effect, be less beneficial generally. [47]-[50]
   • Disclosure could bring into question the finality of the Tribunal's planning decision: 'Permit holders would be further distressed by the perception that a permit granted by the Council or the Tribunal may not be a final decision that could be relied on, as disclosure of those communications would cause other parties to take adverse action against a permit holder, including action that may cause a permit to no longer be effective. This would most likely have a consequence of disrupting the likelihood of planning applicants or landowners, as it would likely be in this case.' [52]
   • 'Council statutory processes to make a decision and issue a permit (including via VCAT decision) require time, money and effort. If it can be re-opened or the permit questioned on the basis of ancillary communications like the exempt document, or by public perception or speculation, it would cause misuse of public funds and undermine the finality of decision-making.' (From the Council's 'Summary of Evidence' at page 5.)
   • Council believes that this matter was resolved with the issuing of the permit following VCAT's decision of 26 November 2018. However, a recent media article by an objector indicates their belief that a retrospective permit for development of on the property may be required. [54]
4. In my view, a number of the contentions in Ms Howard's evidence draw a long bow. The implication which seems to arise from the first and second dot points above is that release of this document might cause angst between objectors and Council planning staff. As a general proposition, misunderstandings are best dealt with by greater transparency, rather than less. That is the principle on which the FOI Act is based.
5. It is true that as part of conducting their affairs, agencies need to be able to respond to mischievous misinterpretations of material in the public realm. But that general proposition in itself is not a basis on which it can be said release of documents is contrary to the public interest. In this instance, there is no specific mischief referred to, just a general spectre of 'misunderstanding' raised.
6. Concerning 'confusion', to the extent this arises, in my view the cause is the complexity of the requirements of the planning scheme concerning use and development for Helicopter Landing Sites, and the lack of a clear narrative explaining the position. I have listened to the recording of the Council meeting on 24 April 2018. This confusion is apparent there. It is also apparent from the differing ways in which Council officers have articulated the applicable requirements throughout the process. It is hardly surprising that objectors may not have a clear understanding.
7. As part of the Council's case, it was sought to be suggested that the planning process has been completed, so there is no benefit, only downside, in releasing the Disputed Document. In effect, it is saying there is nothing of any current relevance to see here, and the downsides of releasing the Disputed Document, including potential extra expense to Council, outweigh the benefit of public disclosure.
8. The objectors' concern is that a permit for development (as opposed to use) of the site may have been required prior to construction, but was not obtained. That is, that the position might not be as simple as the Council and Mr Metcalf contends, when they suggest that the process was all finalised with the issue of the permit following the VCAT decision of 26 November 2018. On the information before me, the position of the applicant that it is not that simple at least appears to be a possibility.
9. The Council and Mr Metcalf both referred in their submissions to the statement by Deputy President Macnamara (as he then was) in Herald and Weekly Times v Victoria Police[10] that the FOI jurisdiction 'is not a standing royal commission' to investigate any government malpractice which an applicant alleges. The context in which this statement was made was the need to rein in the scope of evidence which could be led under the cloak of the public interest override. Nevertheless, I understand the point being made was that this case is not the occasion for re-running the planning process. I am conscious of that, however, as noted, the parties have different positions about whether the planning process has necessarily fully played itself out. The Council and Mr Metcalf say it is all over and done with. Ms Wellington says it might not be, for the reasons set out above.
10. In making their arguments, both parties are expressing views as to whether the planning process is finally concluded, and asking me to draw conclusions about that.
11. The role of the Tribunal in this FOI case is not to consider the merits of the potential planning issues, but simply to decide whether the Council has discharged its onus of showing whether the Disputed Document is exempt. The question as to whether there is, or could be, more to go in the planning process is not determinative, but if it is definitively finalised, that would be a factor in favour of the Council and Mr Metcalf's case, albeit just one factor - it would not necessarily be determinative.
12. I note that in oral evidence, Ms Howard accepted that from her point of view, the legality of the development (as opposed to the use) of the property had not been determined by the VCAT decision of 26 November 2018.
13. What the exact consequences of this might turn out to be, and whether they would be significant, or not, is unknown. It has been suggested that a 'retrospective development permit' might be required, in order, technically, to comply with the law. I also note that s 114 of the Planning and Environment Act 1998 provides a mechanism for taking enforcement action in the event that applicable planning requirements have not been complied with.
14. It appears from the evidence of Ms Howard and Mr Metcalf that they found the planning process long and fraught. Both the Council and Mr Metcalf have no desire at all for it to be revisited. For them it would be costly, inconvenient and tiresome to release information which might provide some basis on which this matter could be agitated once again.
15. However, in my view, it cannot be said that such potential inconvenience and tiresomeness from their point of view amounts to reasons why it would be contrary to the public interest for the Disputed Document to be released. Indeed, it would be contrary to the public interest if information relevant to the proper administration of the planning process was withheld. Also, while undue expenditure of Council's scarce financial resources should of course be avoided, it would be inappropriate if that were the motive for withholding a document which might be relevant to that question. All that said though, I reiterate, in making these statements, that it remains to be seen exactly how much significance the document actually has.
16. The starting point under the FOI Act is that documents are to be released unless the agency or affected persons can demonstrate that there are proper reasons not to. The default position is for transparency in Council processes. The above arguments do not satisfy me that release of the Disputed Document would be contrary to the public interest.
17. I turn next to the argument that release of this document would cause concerns amongst permit holders that they could not rely on permits issued by the Council. I do not accept that there is any serious risk of this occurring. If developments have proceeded without the required permissions having been obtained, then of course the remedial provisions in the Planning and Environment Act 1988 could potentially be utilised. Permit holders are aware of that.
18. Nor do I accept that release of the Disputed Document would tend to make applicants for planning permits reluctant to share information with the Council. The reality is that applicants for planning permits such as Mr Metcalf have a strong self-interest to continue to provide such information to councils in the future. The situation is quite different to that where a council officer might be argued to be discouraged by the prospect of disclosure from providing 'frank and fearless' advice.
19. I am prepared to accept that there is a public interest in applicants being able to have free and frank confidential discussions with Council officers in the pre-planning permit application phase. Innovative ideas, which could be 'risky' from a public perception point of view, could be discussed with Council personnel, and that could produce beneficial outcomes.
20. That is not the position here, however. The Disputed Document was sent well after the pre-application phase was over (as Ms Howard accepted, in oral evidence). It was sent to lobby councillors on the day that Council was scheduled to determine the application.
21. The applicant submitted that this exemption, the utilisation of s 30 as part of a s 35(1)(a) claim is most commonly done in relation to documents such as reports prepared by external consultants. I was not referred to many cases about the operation of s 35(1)(a), but that is certainly one situation in which it could arise. In Casey CC v Environment Protection Authority,[11] for example, the material being considered was advice received by the EPA from its UK counterpart.
22. Ms Wellington submitted that the Disputed Document lacked the quality of impartiality which characterises internal working documents. I agree.
23. Mr Metcalf and his company are separate stakeholders, having different interests to the Council. It would be incongruous here to equate their communications with opinion, advice or recommendations prepared to assist in an agency in its decision-making.
24. For all these reasons, I find that disclosure of the Disputed Document would not be contrary to the public interest, and so the exemption under s 30 is not made out. As a consequence, the exemption under s 35(1)(a) is not made out.

Section 35(1)(b) - Would disclosure be contrary to the public interest by reason that it would be reasonably likely to impair the ability of the Council to obtain similar information in the future?

1. As noted, I have found that the threshold requirement of confidentiality for s 35(1)(b) to apply, is not satisfied here.
2. For completeness, however, I will proceed to consider the specific requirements of s 35(1)(b).
3. I find that the disclosure of the Disputed Document would not be contrary to the public interest by reason that it would be reasonably likely to impair the ability of the Council to obtain similar information in the future. The reasons for that finding have already been articulated in the s 30 analysis above.
4. In the submissions by the Council and Mr Metcalf, reference was made to cases where documents were found to be exempt under s 35(1)(b). These related to situations where, for example, councils received anonymous 'tip offs' of illegal activities which otherwise would not likely come to their attention. Reference was also made to the recent decision of Country Fire Authority v Lockyer.[12] That was a decision involving a request for documents obtained or created by the CFA in the course of conducting an investigation into allegations of bullying and harassment at a brigade in a small community.
5. In cases of those type, it is well understandable that an agency would need to obtain information confidentially, and protect its sources, otherwise people will not come forward, and the work of the agency will be hampered.
6. However, the circumstances are quite different here. This is not a situation where there is a need to protect confidential sources of information relating to alleged misbehaviour or illegal activity.
7. Release of the Disputed Document will not tend to cause permit applicants to refrain from providing information to the Council. In my view, they will continue to provide whatever information they believe will increase the chance of their planning permit applications being granted.
8. For the reasons stated above, I find that disclosure would not be reasonably likely to impair the ability of the Council to obtain similar information in the future.
9. The exemption under s 35(1)(b) is not made out.

1. Given that I have found that none of the claimed exemptions apply, it is not necessary to consider the public interest override.

1. For the reasons stated above, the Disputed Document is not exempt under s 33 or s 35 of the FOI Act. The decision of OVIC is set aside in part. The Disputed Document is to be released to the applicant after the expiry of the applicable appeal period.

[1] Mr Metcalf operates Metcalf Crane Services Pty Ltd. It is a reasonably large company, which employs 125 people. It is not clear the extent to which various steps were taken by that company, as opposed to having been taken by Mr Metcalf in his own name. The planning permit was issued to 'Tim Metcalf'. For present purposes, it does not matter. So for simplicity, I have referred throughout this decision to activities as being carried out by Mr Metcalf, as opposed to any corporate.

[2] Metcalf v Surf Coast SC [2018] VCAT 1863.

[3] Accordingly, I need not deal with the extensive submissions provided by Mr Batskos concerning the implications of the changes to s 33 which followed the decision in Coulston v Mornington Peninsula District Hospital, unreported, VCAT, 23 November 1998, per Senior Member Megay (the 'Frankston Hospital Case').

[4] For example, Page v Metropolitan Transit Authority (1988) 2 VAR 243.

[5] Witness statement of Heather Wellington dated 16 August 2019, at [37].

[6] Unreported, VCAT, Davis SM, 15 December 1998.

[7] Witness statement by Mr Metcalf dated 30 August 2019, paragraph [7].

[8] [2014] VCAT 1360 at [25] - [40], and especially [28] and [37].

[9] Ryder v Booth [1985] VicRp 86; [1985] VR 869, Casey CC v Environment Protection Authority [2010] VCAT 453, per Macnamara DP at [28].

[11] [2010] VCAT 453, per Macnamara DP, as he then was.

[12] [2019] VCAT 667 (per Judge Hampel).