Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Walker Corporation Pty Ltd v Department of Planning, Housing & Infrastructure [2024] NSWCATAD 381 Hearing dates: 12 August 2024 Date of orders: 13 August 2024 Decision date: 13 August 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: M Riordan, Senior Member Decision: The decision under review is affirmed. Catchwords: ADMINISTRATIVE LAW – Government information – Access to information – decision to grant access - correct application of public interest test – discharge of onus – confidential information - failure to consult – correct and preferable decision Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Government Information (Public Access) Act 2009 (NSW) State Environmental Planning Policy (Sydney Region Growth Centres) 2006 (NSW) Cases Cited: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Burnett (on behalf of Burnett) v Secretary, Department of Communities and Justice [2021] NSWCATAD 114 Collins v Department of Finance, Service and Innovation [2018] NSWCATAD 60 Commissioner of Police, NSW Police Force v Camilleri (GD) [2012] NSWADTAP 19 Donnellan v Ku-ring-gai Council [2013] NSWADT 115 Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 Hurst v Wagga Wagga City Council [2011] NSWADT 307 Leda Developments Pty Ltd v Tweed Shire Council [2013] NSWADT 121 Leech v Sydney Water Corporation [2010] NSWADT 298 McKinnon v Blacktown City Council [2012] NSWADT 44 Media Research Group Pty Ltd v Department of Premier and Cabinet (GD) [2011] NSWADTAP 7 Nature Conservation Council of NSW v Department of Trade and Investment, Regional Infrastructure and Services [2012] NSWADT 195 Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 Taylor v Destination NSW [2017] NSWCATAD 272 Transport for NSW v Searle [2018] NSWCATAP 93 YG & GG v Minister for Community Services [2002] NSWCA 247 Texts Cited: None Category: Principal judgment Parties: Walker Corporation Pty Ltd (Applicant) Department of Planning, Housing & Infrastructure (Respondent) Susan Gay (Interested Party) Representation: Counsel: Mr P Knowles SC & Mr J Burnett (Applicant) Solicitors: Ms K Mattes, Crown Solicitor (Respondent) Mr J Ryan, Stringybark Legal (Interested Party) File Number(s): 2024/00132498 Publication restriction: Pursuant to s 64(1)(c) of the NCAT Act the publication or disclosure of the parts of these Reasons marked "NOT FOR PUBLICATION", other than to the applicant and respondent (Walker Corporation Pty Ltd and Department of Planning, Housing & Infrastructure) is prohibited. REASONS FOR DECISION Background 1. In this matter, Walker Corporation Pty Ltd (the applicant) has lodged an application with the Tribunal, seeking administrative review of a decision that the Department of Planning, Housing & Infrastructure (the respondent) made in respect of an application for access to information (the GIPA request) under the Government Information (Public Access) Act 2009 (NSW) (the GIPA Act) that was made by Ms Susan Gay (the interested person). 2. The application for administrative review was made under s 100(1) of the GIPA Act, which provides that a person aggrieved by a reviewable decision of an agency made under the GIPA Act may apply to the Tribunal for an administrative review of the decision under the Administrative Decisions Review Act 1997 (NSW) (the ADR Act). 3. On 24 September 2023, the respondent received the GIPA request from the interested party, which sought access to information about the West Appin Development Project. Some of the documents that were captured and determined as being within the scope of the GIPA request contained information about the applicant. 4. Pursuant to s 54(1)(a) of the GIPA Act, the respondent consulted with the applicant regarding the release of six (6) documents, to ascertain whether it objected to release of that information. The applicant objected to the release of all of the information in those documents. 5. On 12 December 2023, the respondent decided to refuse access to three (3) of the documents that were the subject of consultation with the applicant, and it extended the applicant's review rights to a number of other documents that the applicant had not been consulted on, but which were considered to be relevant to the GIPA request. 6. On 22 January 2024, the applicant requested an internal review. However, it did not seek a review of the decision to withhold documents that it was consulted on, but it was focussed on eighteen (18) documents upon which there was no consultation, as well as the three (3) documents about which it was consulted. 7. The respondent did not uphold the applicant's objections and it decided: (1) to provide access to the information: s 58(1)(a); and (2) to refuse to provide access to some of the information because there was an overriding public interest against disclosure: s 58(1)(d). 8. On 10 April 2024, the applicant lodged the current application for administrative review, which sought administrative review of both the original decision dated 12 December 2023 and the internal review decision dated 13 February 2024 on the following grounds: 1. The respondent did not comply with its statutory obligations under s 54(1) of the GIPA Act, to consult with it in respect of 18 of the documents (numbered 1, 2, 4, 5, 7, 8, 10, 11, 12, 13, 14, 18, 24b, 37, 37a, 37b and 50c, respectively) before deciding to provide access to them. On that basis, the decision was made improperly and it was denied procedural fairness. 2. The respondent failed to apply the public interest test required by section 13 of the GIPA Act in that it did not properly consider the public interest considerations against disclosure. 3. The respondent did not properly consider its submissions contained in the internal review decision dated 22 January 2024 as to why the disclosure of the access documents could reasonably be expected to: 1. Diminish the competitive commercial value of any information to it; and 2. Prejudice its legitimate business, commercial or financial affairs. 1. The applicant submitted that for these reasons, the internal review decision was "legally invalid" and the decision-maker was wrong to conclude that: 1. the information in the documents did not reveal its existing commercial activities and business practices to the extent of comprising its business interests; 2. disclosure of the information could not reasonably be expected to diminish the competitive commercial value of any information to it; 3. disclosure of the information could reasonably be expected to prejudice its legitimate business, commercial or financial affairs; 4. it is in the public interest to disclose the information; and 5. there is an overriding public interest in favour of disclosure of the documents. 1. The applicant concluded that the correct and preferable decision for the Tribunal to make is that the respondent's original decision regarding eighteen documents was legally invalid. In the alternative, the Tribunal should find that there is an overriding public interest against disclosure based upon cll 4(c) and 4(d) of the table to s 14(2) of the GIPA Act. Procedural matters 1. On 29 April 2024, Senior Member French conducted a case conference, at which Ms Boutros appeared for the applicant and Ms Mattes appeared for the respondent. There was no appearance for the interested party. 2. The Senior Member ordered the respondent to notify the interested party of the proceedings by 6 May 2024 and, if the interested party wished to participate in the proceedings, she was to file and serve an application and indicate the capacity in which she wished to participate by 27 May 2024, and if she filed such an application, the joinder application was to be listed for hearing. 3. The Senior Member ordered the applicant to file and serve evidence and submissions by 11 June 2024. He ordered the respondent to file and serve evidence and submissions by 8 July 2024. He ordered the applicant to file and serve any evidence and submissions in reply by 22 July 2024. He listed the matter for hearing on 12 August 2024. 4. On 22 May 2024, Principal Member Simon listed the matter for directions on 28 May 2024 and noted that the interested party was to lodge a Notice to be joined prior to the directions hearing. 5. On 28 May 2024, Principal Member Ransome made the following orders: 1. Susan Gay has a right to appear and be heard in these proceedings under s 104(3) of the GIPA Act; 2. Susan Gay is to give to the Tribunal and the other parties any evidence and submissions by 15 July 2024; 3. The time for Walker Corporation Pty Ltd to comply with direction 6 made on 29 April 2024 is extended to 29 July 2024; and 4. The matter remains listed for hearing on 12 August 2024. The hearing 1. The matter came before me for hearing on 12 August 2024. Mr P Knowles SC and Mr J Burnett appeared for the applicant, Ms Mattes appeared for the respondent and Mr J Ryan appeared for the interested party. 2. The Tribunal was informed that the information that is the subject of the decision under review has not been released to the interested party, pending the expiration of the applicant's rights of review. 3. The Tribunal also ascertained that the applicant and respondent had lodged documents with it on a confidential basis and it ruled that pursuant to s 64(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act), those documents would remain confidential unless a decision was made for their release. 4. Mr Ryan then filed an affidavit from the interested person and written submissions on her behalf. Applicant's opening statement 1. Mr Knowles accepted that the applicant bears the onus of proving that there is an overriding public interest against disclosure. 2. Mr Knowles initially raised an issue as to whether the access documents are within the scope of the GIPA request. However, that issue was subsequently withdrawn in view of comments made by Ms Mattes that the GIPA Act is a beneficial piece of legislation, and agencies are regularly urged not to adopt an overly narrow or technical interpretation of applications for information. 3. The Tribunal noted that pursuant to s 80 of the GIPA Act, the issue of whether information or the documents are within scope of the GIPA request is not "a reviewable decision" and that the respondent is empowered under s 76 of the GIPA Act to provide more information than what has been requested and it is not open to the Tribunal to now say that the information is outside the scope of the GIPA request and that access to that information should be refused. 4. Mr Knowles identified and pressed two further issues: 1. Whether there has been a failure by the respondent to engage in the consultation process required by the GIPA Act before disclosure, and, if so, what are the consequences of that? and 2. The application of the public interest tests to the access documents. 1. In relation to s 54 of the GIPA Act, Mr Knowles argued that this requires consultation on whether or not the public interest factors would merit non-disclosure. In this matter there is no factual dispute that the applicant was not consulted about eighteen (18) of the access documents. All but one of these documents record minutes of meetings, and they include all of the documents that are correspondence with Wollondilly Shire Council and one of the three documents of the applicant relating to the project. 2. Mr Knowles argued that the respondent's submissions do not engage with the consultation obligation and he understands that the respondent's position is that regardless of any failure to consult, the Tribunal's process includes the opportunity for the applicant to put submissions in favour of non-disclosure of the documents, and that this effectively cures or renders of no significance its failure to comply with the procedure under s 54 of the Act. 3. Mr Knowles rejected that position and he argued that the Tribunal's processes are not sufficient to remedy the non-compliance under s 54 of the GIPA Act. The applicant's position is that the Tribunal should remit the matter to the respondent so that it can engage with the consultation process required by s 54 of the GIPA Act. 4. The Tribunal asked Mr Knowles to clarify the utility in that course of action, bearing in mind that the Tribunal is conducting a hearing de novo. He replied that there are two aspects of that utility, namely: 1. It is not the Tribunal's job to conduct a de novo hearing of the decision whether or not to release the documents and it is not its role to conduct or re-conduct the consultation function; and 2. On a more practical level, the applicant is not the only party affected by the respondent's failure to consult, and he asserted that Wollondilly Shire Council and local indigenous knowledge holders were also "presumably" not consulted about the release of the documents. 1. Therefore, the Tribunal cannot remedy or cure the respondent's failure to properly comply with its s 54 obligation. The Tribunal needs to ask itself the question of "won't this just be a waste of time if the Tribunal can repeat the process for itself and make its own decision?" In some cases, the answer is "yes" and the Tribunal's processes can cure or remedy a procedural defect from earlier in the decision making process. However, cases like Taylor v Destination NSW and cases in the Commonwealth Administrative Tribunal like the People with Disabilities Australia case, demonstrate that sometimes the failure to consult with people beyond the parties at the review stage does mean that the correct and preferable decision is to start over again, so that the consultation can be done properly. 2. In relation to applying the public interest test, Mr Knowles argued that the access documents include information that was provided on a confidential basis and its disclosure will diminish its competitive commercial value, and affect the applicant's legitimate business and financial interests, and it will also prejudice the supply of such information to it in the future. 3. Mr Knowles noted that the interested party's submissions refer to the fact that the TAP process was a non-statutory process and was designed to achieve, at a stage before the formal statutory planning approval process, getting the relevant stakeholders together, to share information, to share draft project plans and to discuss and resolve potential issues such that the statutory process for planning approval could be much more streamlined. By the time an application for planning approval is made, that application already takes into account some of the comments, criticisms and suggestions of many of the relevant stakeholders. 4. Mr Knowles argued that this "sharing and commenting process" is done in a way that was expressly stated to be "confidential", and in a way which encourages all participants, but especially a developer in the applicant's position, to be candid and forthright about the terms of a proposal. That includes providing commercially sensitive information and disclosing documents which have the effect of disclosing that information provided in confidence that is commercially sensitive. That causes real concern for the applicant and there is no public interest consideration in favour of disclosure that overrides these concerns. 5. Mr Knowles stated that the applicant relies upon the following evidence: 1. Statement of Nicole Topple dated 11 June 2024 (which has an annexure "NT1". This contains a redacted schedule of documents. This was admitted into evidence and marked as Ex 1. 2. Statement of Nicole Topple dated 2 August 2024. This was admitted into evidence and marked as Ex 2. 1. Mr Knowles stated that copies of these statements (with unredacted attachments) were also filed with the Tribunal on a confidential basis. The Tribunal deferred consideration of those documents pending the conduct of a confidential hearing pursuant to s 107 of the GIPA Act and ruled that the interested person would be excluded from that hearing. Respondent's opening statement 1. Ms Mattes stated that the information that the interceded party sought in the GIPA request relates to the Technical Assurance Panel (TAP) Programme that was conducted with respect to the development of a planning proposal for the Appin Precinct. The respondent agrees with the applicant's characterization of the disputed information as broadly falling within three (3) categories. 2. Under the GIPA Act, there is a presumption in favour of the disclosure of Government information. That is the starting point for the respondent when considering a GIPA request, namely that the information must be disclosed unless there is an overriding public interest against its disclosure. 3. In this case, the respondent considered the applicant's objections to release of the information, but nevertheless considered that the public interest favouring disclosure outweighed any public interest considerations against disclosure, and determined that information should be released. However, it has not yet been provided to the interested person. 4. The terms of the GIPA request are set out in the respondent's submissions at para 6, and in particular, item 1 refers to any written DPE recommendations and reports associated with the West Appin TAP and its subcommittees that were provided to staff at Wollondilly Shire Council. This includes all forms of correspondence, digital and paper, for example, emails, briefs, reports and digital transcripts. The bulk of the documents that are in dispute are Meeting Minutes from both the TAP and its subcommittees, which were prepared by the respondent and provided to the participants of the TAP programme (including representatives of Wollondilly Shire Council). 5. The respondent stated that giving a broad and beneficial construction to item 1, they are documents that would fall within the scope of the GIPA request, because it is deliberately expressed to be very broad. It is not limited to reports in that that formal sense, insofar as it says that it should also include things like correspondence, emails, briefs, reports and, by analogy, Meeting Minutes. 6. In relation to the obligation to consult under s 54 of the GIPA Act, Ms Mattes stated: 1. It is not an obligation that is expressed in an absolute manner, or in absolute terms. The obligation only arises if the agency is of the view that a person "may reasonably be expected to have concerns about the disclosure". Therefore, a threshold level of judgment comes into play when an agency looks at the information and asks whether or not the information is something that someone is going to have concerns about. It is open to an agency to form a view that there is no reasonable basis for there to be concerns about disclosure, and that is also not a reviewable decision under s 80 of the GIPA Act. 2. It is a requirement to consult before providing access. In this case, the respondent conceded that when the original decision was made, it had not consulted the applicant with respect to some documents, but the reality is that access to them has not been provided and as access has been deferred, there is no relevant non-compliance. 1. Initially, the respondent did consult with the applicant about three (3) documents that it considered were documents about which it might object to disclosure. The applicant then wrote to the respondent and said it was aware that it had consulted with one of its consultants about these other three (3) documents and that it should be consulted as well. Ultimately, before making the original decision, the respondent consulted with the applicant about six (6) documents. 2. When the applicant outlined its objections to disclosure, the respondent inferred that those objections would extend to a broader subset of information than it had originally appreciated. In particular, the "Meeting Minutes" is a useful category to speak about, and so the respondent proceeded to make a decision with respect to all Meeting Minutes, and it decided to release those documents over the applicant's objections. 3. However, even if the respondent had only consulted the applicant about six (6) documents, the respondent deferred access to that broader subset of documents, notified the applicant of its decision to release them and informed it of its review rights. The applicant then exercised its right to seek internal review with respect to all of the access documents. 4. On internal review, the applicant made extensive submissions and detailed objections to the release of all of the access documents. The respondent considered those objections when it made the internal review decision, but it decided that access should be provided. It deferred providing access to enable the applicant to exercise its review rights before the Tribunal. 5. Therefore, any practical injustice or denial of procedural fairness, which the applicant alleges to have resulted from the lack of consultation under s 54 of the GIPA Act, has been overcome by the deferral of access to those documents, the provision of review rights to the applicant and the applicant availing itself of those review rights. 6. The Tribunal now stands in the respondent's shoes and is required to determine what is the correct and preferable decision is, with the benefit of extensive evidence and submissions from the applicant regarding its concerns about disclosure. Therefore, it is not clear to the respondent why the Tribunal would not proceed to determine the administrative review. 7. Ms Mattes noted that in the applicant's submissions in reply, it asserted that a number of parties have not been consulted by the respondent. She stated, relevantly: I have instructions which I can give from the bar table that Wollondilly Council was consulted as part of the decision making process, so that is probably the other primary stakeholder. 1. The applicant asserted that the local indigenous community was not consulted. However, s 54 imposes a consultation obligation with respect to certain categories of information, namely: (1) personal information about a person; (2) where the information concerns a person's business, commercial, professional or financial interests; (3) where the information concerns research that has been is being or is intended to be carried out by or on behalf of the person; or (4) where information concerns the affairs of a Government of the Commonwealth or another State. In this matter, there is no information in the documents that engage the interests of the local Indigenous community, but even if there was, s 54 does not impose a mandatory obligation to consult with respect to that. Accordingly, there would be no utility in remitting the matter back to the respondent for further consideration. 2. Ms Mattes stated that the respondent relied upon Affidavit of Naomi Moss was affirmed on 8 July 2024, which has an exhibit - NM1 attached. This was admitted into evidence and marked Ex R1. 3. Mattes also stated that copies of the unredacted documents had been lodged with the Tribunal on a confidential basis and the Tribunal confirmed that these documents would be considered in a confidential session under s 107 of the GIPA Act, in the absence of the interested party. Interested Party's opening statement 1. Mr Ryan stated that his client generally agreed with the respondent's approach, but that her preference was for "greater disclosure than even the department has granted in its original determination and the internal review". 2. The Tribunal asked Mr Ryan whether the interested party now wanted to apply for an administrative review of the respondent's decisions on the basis that there should have been further disclosure of information than what she was to receive? He replied, relevantly: I think position is that you're a de Novo decision maker to look at the matter afresh, and so you will hear evidence in this hearing about the public interest, which is new and has to be taken into account at the time that you hear it, with the benefit of knowing that the application was originally made on the 14th August 2023 and it's the 12th of August today. I believe it's almost exactly a year later… 1. The Tribunal asked Mr Ryan to clarify that his client was arguing that even though she's not the applicant in these proceedings who is seeking administrative review of the internal review decision, the Tribunal should nevertheless grant greater access to her? He replied "Yes" and stated that as the Tribunal must make a de Novo decision, it is not by either the original decision or the internal review decision. 2. The tribunal noted that the interested party did not seek either an internal review or administrative review of the respondent's decisions. However, she has been notified about the proceedings and she has a right to appear and be heard, but that does not mean that she has the standing of an applicant in these proceedings. She has a right to be heard with respect to why the reviewable decision is the correct and preferable decision. 3. Mr Ryan observed that there is no evidence from the applicant that other third parties have not been consulted, and if this was a real prospect "rather than a mere a speculation", one would have expected evidence to be provided. Therefore, the Tribunal should proceed to determine what the correct and preferable decision is rather than remitting the matter to the respondent. 4. Mr Ryan relied upon his client's affidavit sworn 22 July 2024, which was admitted into evidence and marked as Ex IP-A. Evidence of Nicole Topple 1. Ms Topple was called and sworn. She stated that the contents of her statement dated 11 June 2024 were true and correct. 2. Ms Topple deposed that she has been employed by the applicant in various roles for about fourteen years, She currently holds the title of Principal Planner and she oversees a variety of development projects being undertaken by the applicant, with particular expertise in: (1) strategic and statutory planning, including precinct planning in New South Wales, Queensland and the Australian Capital Territory; (2) complex greenfield planning proposals; and (3) preparing, lodging and attaining development approvals for master planned communities in New South Wales and Queensland. 3. In relation to the Appin Project, Ms Topple stated that this is predominantly located in the Wollondilly Local Government Area (a small portion falls within the Campbelltown Local Government Area) and forms part of the Greater Macarthur Growth Area, which was declared as a growth area by the NSW Government in 2019, through an amendment to the then State Environmental Planning Policy (Sydney Region Growth Centres) 2006. 4. In November 2022, the applicant lodged a planning proposal to rezone 1,378 hectares of land (1,284 hectares owned by it and 94 hectares owned by others) forming part of the Appin Precinct, known as "Appin Part 1 Precinct". This was for the rezoning of the site from Rural Landscape (RU2) to Urban Development Zone (UDZ), Infrastructure (SP2) and Environmental Conservation (C2), to facilitate urban development including the development of approximately 12,000+ dwellings. 5. The planning proposal for the Appin (Part 1) Precinct was submitted following the applicant's participation in the TAP program, which ran for a period of approximately two years from about October 2020 to September 2022. This was a pilot program to test a new way for state agencies, councils and landowners to work together to undertake strategic investigations for precincts. The purpose of the TAP program is to assist in identifying any issues with proposed developments prior to a planning proposal being submitted. 6. The Appin TAP program comprised representatives of the respondent, Wollondilly Council, Campbelltown City Council, Transport for NSW, Energy, Environment and Science Group and Sydney Water. Its establishment and conduct was governed by documents prepared by the respondent and provided to all participants, which primarily comprised: (1) Terms of reference; (2) TAP Pilot Program Guideline dated October 2020, which outlined the TAP process and the roles and responsibilities of the panel and other participants in the TAP program; Governance and Probity Plan for West Appin TAP, which outlined the governance arrangements and procedures; and (4) a confidentiality agreement, which was an annexure to the Governance and Probity Plan. It was a requirement of the respondent that all participants in the Appin TAP Program sign the confidentiality agreement. 7. Ms Topple stated that part of her role was to ensure all of the applicant's representatives and consultants involved in the West Appin TAP Program signed the confidentiality agreement. The TAP is not a statutory body and it is a mechanism for voluntary collaboration to allow state and local issues to be identified and addressed early in the preparation of a proposal to rezone land. 8. The applicant voluntarily participated in the TAP Program on the basis that the process, procedures and confidentiality regime outlined in the Governance and Probity Plan and in the confidentiality agreement was to apply to all participants. Participation included, but was not limited to: (1) being responsible for the preparation of the planning proposal and any technical studies and other documents as advised by the TAP; (2) engaging consultants to prepare a range of technical studies and to attend various meetings held as part of the TAP Program; (3) attending and engaging in meetings, including working group meetings created to collaborate and address specific and critical issues in relation to the proposed development of the Appin Precinct. These meetings usually comprised representatives of the applicant, its consultants, the respondent, other TAP Members and any other agencies or stakeholders that may have been invited; (4) addressing local, state and strategic matters beyond the Appin Precinct boundary for the broader Appin Precinct; (5) addressing the feedback provided by the TAP; and (6) providing funding to cover costs associated with the TAP. 9. The Appin TAP Program concluded in September 2022 and the TAP issued a letter dated 21 September 2021, with outcomes and recommendations to the applicant. This is publicly available on the respondent's website, but it does not include the draft proposal package that was submitted by the applicant to the TAP for review and the TAP members' comments on the draft proposal. 10. On 16 November 2022, the Minister for Planning issued a gateway determination which allowed the applicant's planning proposal to proceed subject to conditions. One of the conditions was the requirement for public exhibition of the planning proposal. It was open for public exhibition from 21 November 2022 to 19 December 2022. On 30 June 2023, the NSW Government approved the planning proposal and enacted the Wollondilly Local Environment Plan 2011 (Amendment No. 45) and the rezoning came into effect on 15 December 2023. 11. In November 2023, the applicant lodged a second planning proposal to rezone 99.4 hectares of land within the Appin Precinct, which was adjacent to the land the subject of the first planning proposal. This was known as Appin(Part 2) Precinct, to facilitate urban development including approximately 1312 dwellings. The Appin TAP program informed that planning proposal. From 15 January 2024 to 18 February 2024, Wollondilly Council sought community consultation with respect to this planning proposal and it is now in the process of undertaking an assessment of the planning proposal to form a view as to whether it is suitable for gateway determination. 12. Ms Topple stated that she was the lead planner on behalf of the applicant and ger involvement included: (1) meeting and corresponding with key stakeholders; (2) meeting and corresponding with constituents engaged by the applicant as part of the TAP program; (3) attending and participating in meetings convened as part of the Appin TAP program; (4) drafting various documents to be submitted by the applicant and corresponding with the respondent as part of the Appin TAP program; (5) the drafting and lodgement of the planning proposal for Appin (Part 1) Precinct; and (6) minor drafting of the planning proposal for Appin (Part 2) Precinct. 13. Ms topple expressed the view that all of the access documents that are the subject of these proceedings concern the Appin TAP Program and/or the applicant's proposed re-zoning of its landholdings in the Appin Precinct, and contain information that is: (1) of competitive commercial value to the applicant; (2) concerns the applicant's business, commercial, professional or financial interests as regards the Appin Precinct; and (3) is confidential. None of the documents are in the public domain. 14. In relation to public interest considerations against disclosure, Ms Topple stated as follows. Competitive commercial value of information 1. The applicant carried out a significant amount of work and incurred substantial expenses in order to engage with the respondent and other agencies in relation to the planning proposals for the Appin Precinct, including its participation in the Appin TAP program. The information that was shared with the respondent and other stakeholders as part of the TAP program was created as a result of the work and expenses incurred by the applicant. 2. The access documents contain information about: 1. How the applicant engaged with government agencies, regulatory authorities and stakeholders with respect to its proposal to re-zone its landholdings, including issues that it discussed with members of the TAP, and how it prepared for such meetings (including the engagement of consultants to prepare presentations); 2. The practices and attitudes of the stakeholders participating in the Appin TAP Program, including the practices and attitudes adopted with respect to its proposed re-zoning; 3. The financial engagements between the applicant and Wollondilly Council with respect to the TGAP program; 4. The extent of the collaboration and engagement between the applicant, Wollondilly Council and other agencies with respect to the TAP program and the proposed re-zoning of its landholdings; 5. The initial scale and estimated value of the proposed Appin Precinct development; 6. The key information that the applicant considered when making development decisions with respect to the Appin Precinct, the constraints of this development, the kinds of technical investigations required for developments of this kind, and the projected timeline; 7. The extent of the applicant's ownership of land in the Appin Precinct and the area which it proposed to re-zone; 8. The applicant's commercial views on critical aspects of the Appin Precinct development; and 9. The applicant's strategy in respect of progressing its planning proposal, including confidential and highly sensitive discussions between it and Wollondilly Council and other government agencies in the Appin TAP program around its proposed offer to fund public infrastructure (such as roads and open space) in the Appin Precinct in support of its planning proposal. 1. Ms Topple stated that this information is of competitive commercial value to the applicant as it is: 1. information that was developed by it expending time, money and other resources; 2. shows how it approaches meetings with government and industry stakeholders; 3. contains it commercial views on critical aspects of the Appin Precinct development; and 4. reveals its approach to the planning proposals submitted for the Appin Precinct and developments more generally. This information would be useful to developers who are undertaking the TAP process for similar projects, such as to re-zone land for the purposes of a large urban development. 1. Ms Topple stated that disclosure of this information would diminish the competitive commercial value of the information as it: 1. remains relevant to the applicant's commercial activities and business practices; 2. would be valuable to any proposed development or re-zoning in the Greater Macarthur Growth Area; and 3. could be used by competing developers looking to undertake similar engagements or developments. The information would allow any other developer to better understand the planning and development process for similar projects by reference to the applicant's experience and its confidential information. This would frustrate its business and commercial activities, by reducing the competitive advantage the applicant has by reason of the information prepared and disclosed s part of the Appin TAP program being disclosed to its competitors, and consequently enhancing its competitors' own operations or objectives. Prejudice legitimate business, commercial or financial interests 1. Ms Topple stated that the information in the access documents generally concern the applicant's legitimate business, commercial, professional or financial interests and disclosure of the information would: 1. provide competitors with insight into the kinds of issues the applicant is concerned with; 2. reveal the applicant's business practices and strategies in undertaking meetings and projects of this kind; and 3. ultimately prejudice its legitimate business, commercial, professional or financial interests. 1. Ms Topple expressed the view that the access documents record discussions and preliminary views from representatives of the respondent, other members of the TAP, the applicant (and its consultants) and others that pre-date the preparation and submission of the planning proposal. The information was shared with TAP members to refine the applicant's formal planning proposal application and to get feedback from technical Government officer, on the basis that it would remain confidential and confidentiality was key to ensuring open technical discussions between Government and private industry and for the free-flow of information and exchange of ideas. She stated: 39. I am concerned that if the access documents are released, there will be competing and potentially inconsistent disclosure of information to the public in relation to the Appin Precinct, particularly where some of the information is now superseded by the planning proposal submitted, which may present Walker and its planning proposals and any future approvals sought for the Appin Project in an adverse light. I am also concerned that disclosure of the access information would prejudice negotiations with landholders in the Appin Precinct, as the information disclosed included references to potential develo9pment on land not currently owned by Walker. 40. I am also concerned that, as a consequence, the information contained in the access documents could be used to campaign against approval of planning proposal for the Appin (Part 2) Precinct and any future approvals required with respect to the development of the Appin Precinct generally. This would significantly prejudice Walker's business, commercial, professional and financial interests both in relation to the Appin Precinct and more generally. Prejudice the supply to an agency of confidential information and disclosure of information to an agency in confidence 1. Ms Topple stated that it was her understanding that the Appin TAP Program was a confidential process that was intended to facilitate open, frank and transparent discussions for the purpose of reducing the burden and complexity of the planning proposal process and strategic investigations for precincts on participants such as the applicant and the respondent. 2. All of the access documents were prepared as part of the Appin TAP Program (except for document 49c), including confidential meetings and discussions held between the applicant, its consultants, various members of the TAP including representatives of the respondent, and various other parties, all of whom signed the confidentiality agreement. 3. Ms Topple stated that part of her role was to create a data room on the applicant's database to upload all documents created and shared by participants in the Appin TAP program. She had control of the database and only participants who signed the confidentiality agreement were given access. The data room was not used after April 2021, after a pause in the program to allow various matters to be addressed by government agencies. 4. Ms Topple stated that access documents 18, 24b and 50c were provided to the applicant by the respondent and she uploaded them to the data room, but the data room was deleted on 15 February 2023 with the consent of the respondent. 5. Ms Topple considered that the iterative and collaborative process provided by the TAP program is likely to be compromised if there was a risk that commercially sensitive and valuable information concerning the applicant's business and financial affairs would be disclosed to the public generally or its competitors without its consent and without any opportunity for it to make any corrections to documents that were prepared by the respondent. She stated: 45. Should such disclosure be made, I consider it likely that beyond complying with statutory obligations under the EPA Act, I, and other representatives of Walker, would have been reluctant to engage in: (a) the Appin TAP program generally; or (b) open, frank and transparent discussions with the respondent and other TAP members in relation to Walker's planning proposal for the Appin (Part 1) Precinct, especially out concern that initial ideas and information shared during the iterative process of the Appin TAP program, for the purposes of facilitating open, frank and transparent discussions, may later be misleadingly represented to the public as final proposals or decisions. 46. I had a genuine expectation and belief that Walker's communications and meetings as part of the Appin TAP program, and the documents that arose from those communications and meetings, which related to commercially sensitive and valuable business information and other matters relevant to Walker's planning proposal for the Appin (Part 1) Precinct, would be kept confidential by all participants in the Appin TAP program including the respondent. 47. I also had a genuine expectation that all documents uploaded into the data room created for the purposes of the Appin TAP program and accessible by all participants that singed the confidentiality agreement would also be kept confidential. Reveals information relating to Aboriginal traditional knowledge 1. Ms Topple expressed the view that access documents numbered 1, 5, 7, 8, 10, 11, 12 and 18 contain information relating to Aboriginal or Torres Strait Islander traditional knowledge, and particularly cultural knowledge. In about June 2021, the applicant entered into an agreement with its consultant, Waters Consultancy, for the provision of certain services in respect of obtaining information relating to cultural knowledge and values in connection with Appin Precinct from cultural knowledge holders. It was a term of that agreement that: 1. the applicant recognises that the Indigenous Knowledge Holders (defined to mean those persons who provided Waters Consultancy information in relation to the indigenous history, use and value of the site) would retain all intellectual property rights in respect of any cultural information provided to it; and 2. Waters Consultancy would procure the agreement from the Indigenous Knowledge holders for the applicant to use any of that information for the planning approval process. 1. Waters Consultancy participated in the Appin TAP Program and attended some of the meetings that are the subject of access documents numbered 7, 11 and 12. As part of the TAP program, the applicant and Waters Consultancy disclosed information obtained from discussions had with Indigenous Knowledge holders in connection with the planning proposal for the Appin (Part 1) Precinct, on the basis that this information would be kept strictly confidential. Further information 1. Ms Topple annexed a document that she described as "a confidential schedule", which describes the access documents and sets out her belief as to: 1. the competitive commercial value of information within each document; 2. the business, commercial, professional or financial interests of the applicant that will be prejudiced if the information in each document was to be disclosed; 3. information in the access documents that would reveal information relating to aboriginal traditional knowledge; and 4. the confidentiality of each of the documents. 1. In her statement dated 2 August 2024, Ms Topple replied to the respondent's submissions and Ms MOs' affidavit. She reiterated that the TAP program was a confidential process, and while not all documents would fall within the three dot points in the definition of "confidential information" set out at para 25 of Ms Moss' affidavit, she maintained that all participants in the TAP program understood that all documents were confidential and that this applied to Meeting Minutes and documents disclosed in the meetings. She stated: 13. The minutes of meetings summarised the ley information disclosed by Walker and others at each of the Appin TAP meetings, and in some instances, disclosed specific details and metrics provided by Walker in connection with its draft proposal. That information was commercially sensitive and was not to be disclosed to anyone outside of the Appin TAP program. 14. In respect of the below minutes of meeting, which were the official Appin TAP meetings, my estimate of the percentage of information recorded that are referrable to matters which Walker and, or Walker's consultants presented is as follows: (a) Minutes of meeting on 29 October 2020 (access document 18) – 75% (b) Minutes of meeting on 5 March 2021 (access documents 24b and 27a) – 75% (c) Minutes of meeting on 30 November 2021 (access document 12) – 75% (d) minutes of meeting on 1 February 2022 (access document 10) – 20% (e) Minutes of meeting on 3 May 2022 (access document 11) – 50% (f) Minutes of meeting on 30 June 2022 (access document 7) – 90%. 15. the balance of the minutes (documents #1, #2, #4, #5, #8, #13, #14) were working group meetings within the Appin Tap program which dealt with technical matters. My estimate of the percentage of information recorded in those minutes that are referrable to matters which Walker and, or Walker's consultants presented or provided is 80% to 90%. 1. Ms Topple confirmed that Ms Moss prepared the minutes, but asserted that if she had been aware that the content of the Minutes would be made publicly available, she would not have agreed to the level of detail contained in them. After the minutes were finalised, they were provided to her for uploading onto the Appin TAP data room, which "reinforced" her understanding that the Minutes were confidential. Cross-examination 1. In cross-examination, Ms Topple agreed that not all of the Meeting Minutes were uploaded to the data room as she only referred to access documents 24b and 27a, because after that "they stopped using the data room". 2. Ms Mattes noted that Ms Topple expressed some concern that the Minutes reveal information relating to Aboriginal Traditional Knowledge and Cultural Knowledge, and she asked whether she was aware that in November 2022, there was a State Heritage Listing of the Appin Site. The witness replied "Yes". 3. Ms Mattes put to the witness that as part of the applicant's proposal, proceeding through to approval, there were information reports published by consultants on its behalf relating to Aboriginal Heritage objects in the area. The witness replied "Yes", but she maintained that notwithstanding that fact there is information within the Minutes that she believed was information about Aboriginal cultural knowledge that is not already available in the public domain. 4. Ms Mattes stated that she unable to take this issue further in an open session. 5. Mr Ryan also sought to cross-examine the witness on behalf of the interested person. However, some of his questions were disallowed by the Tribunal on the basis of relevance to the issues to be determined in these proceedings. 6. Mr Ryan sought to question the witness regarding the significance of the public interest in the development. However, the Tribunal noted that neither the applicant nor the respondent asserts that there is not a significant public interest in the development for the purposes of ss 9 and/or 12 of the GIPA Act. The following exchange then occurred: Ryan: Would you agree with my observation that this period, let's say six months from December 22 to the 30th June for the formal approval was in fact a timely or a speedy exercise of government decision making? Tribunal: Excuse me. How is this relevant to a GIPA review? Ryan: It's relevant because the whole TAP which my client is seeking information about the conduct of, was set up as a preliminary to the statutory process do the statutory process under the Environment Planning and Assessment Act has objectives of transparency. Tribunal: And I am not hearing an application under that legislation. Ryan: No. Tribunal: I am reviewing a decision under the GIPA Act. Ryan: Yes. Tribunal: I am not here to conduct a hearing or an investigation into whether or not the State government approved this environmental plan in a timely or a non-timely manner. It's not relevant to the issues before me. It may be information that your client wants to obtain, but not in the context of an administrative review. Ryan: Senior Member, the whole process that was engaged in by the TAP would have been engaged in without the creation of the TAP, and this was a pilot programme which was being trialled by the government. It would have been conducted under the Environment Planning and Assessment Act. There would have been no confidentiality agreements. Tribunal: Well, with all due respect, I am not conducting a hearing under that legislation. I do not have the power to do so. Ryan: No, we're considering the status and the public interest that attaches to the information that was traded and generated the records that were and rated under the TAP, which was set up in an atmosphere of confidentiality agreements to preclude public engagement in a way that would not have occurred. We're not examining the EPA Act, we're examining this process of the TAP Panel and the extent of public interest that attaches to it because it was deliberately set up to exclude public participation. And I think in Miss Topple's affidavit here she actually refers to it in paragraph 37. Tribunal: Then take her to the relevant paragraph and put your question, because I can't work out what you're doing and how it's relevant to what I have to determine. 1. Mr Ryan sought to question the witness as to her understanding of confidentiality, but the question was disallowed on the basis that the confidentiality agreement speaks for itself. Ultimately the witness agreed with a proposition that the confidentiality of a document can change over time. Confidential hearing 1. The Tribunal conducted a confidential hearing under s 107 of the GIPA Act, in the presence of the applicant and respondent, but in the absence of the interested person. 2. [NOT FOR PUBLICATION] 3. [NOT FOR PUBLICATION] 4. [NOT FOR PUBLICATION]. [NOT FOR PUBLICATION] 1. [NOT FOR PUBLICATION] [NOT FOR PUBLICATION] 1. [NOT FOR PUBLICATION] 2. [NOT FOR PUBLICATION] 3. [NOT FOR PUBLICATION] [NOT FOR PUBLICATION] 1. [NOT FOR PUBLICATION] 2. [NOT FOR PUBLICATION] 3. [NOT FOR PUBLICATION] 4. [NOT FOR PUBLICATION] 5. [NOT FOR PUBLICATION] 6. [NOT FOR PUBLICATION] 7. [NOT FOR PUBLICATION] 8. [NOT FOR PUBLICATION] 9. [NOT FOR PUBLICATION] 10. [NOT FOR PUBLICATION] 11. [NOT FOR PUBLICATION] 12. [NOT FOR PUBLICATION] 13. [NOT FOR PUBLICATION] 14. [NOT FOR PUBLICATION] 15. [NOT FOR PUBLICATION] 16. [NOT FOR PUBLICATION] 17. [NOT FOR PUBLICATION] 18. [NOT FOR PUBLICATION] 19. [NOT FOR PUBLICATION] Resumption of the open hearing 1. The respondent called Ms Nicole Moss and she was sworn in. She stated that she is currently Manager State Rezoning for the respondent, but at the time of the Appin TAP program she was Manager Planning and Infrastructure with the Department of Planning. She stated that the contents of her affidavit were true and correct, although a reference to "Infrastructure NSW" should actually refer to "Schools Infrastructure NSW". 2. Ms Moss gave evidence as to her role in and her understanding of the access application. She stated that on 24 August 2023 she completed the search and provided documents that she thought fell within the scope of the GIPA request to Mr A Hohenzollern, Director Western District, for review. She also reviewed documents provided by Mr Lance Collison, Senior Planning Officer, that he felt were within the scope of the GIPA request. She has since been advised by the respondent that it consulted with the applicant regarding the release of information in response to the GIPA request. She noted that the applicant objected to the release of information the information, but the respondent decided to release cer5tain information over its objections. 3. Ms Moss stated that the TAP Pilot Program commenced in 2020. This sought to test a new way for State agencies, councils, landowners and industry to work together to undertake strategic investigations for precincts and to prepare proposals for re-zoning. The TAP ran for about two years and concluded by providing a final letter to the proponents on the draft structure plan and requirements to update before being considered to be 'exhibition ready'. The letters are publicly available on the respondent's website. 4. The respondent ran the TAP pilot program in two precincts – Greater Macarthur Growth Are – the Appin Precinct (predominantly owned by the applicant) and the Gilead Precinct (predominantly owned by Lendlease). The respondent provided Secretariat support for the program and she was involved in each of these panels and provided Secretariat and technical advice and support. 5. The TAP program was non-statutory and non-binding, under which panels were convened consisting of representatives from government agencies, service providers and local councils in order to provide insight into community issues, infrastructure needs and opportunities and constraints for development in a particular precinct. Through a series of meetings and workshops, the panel would work with a proponent to assist in the preparation of a proposal for development. The aim of the process was to identify and resolve complex planning issues and provided a recommended roadmap to transparently resolve key issues as proposals for development were being prepared. 6. The respondent chaired a series of workshops which had senior representatives from agencies including Heritage NSW, the Government Architect NSW, Sydney Water, Wollondilly Shire Council, Campbelltown City Council and Rural Fire Service. Additionally, the panels convened regular meetings with representatives of the proponent, the respondent, the relevant council and other agencies such as Schools Infrastructure NSW, for the purpose of discussing the various issues related to the precinct, to consider any studies that had been obtained by the proponent, to provide feedback on any draft aspects of the proposal and to progress the preparation of an appropriate proposal for development by the proponent. 7. Act of the TAPs was supported by a funding agreement between the respondent and the proponent, under which the proponent funded the involvement of State agency members and council representatives. The proponent was also required to cover the costs of preparing the planning proposal and any other studies or reports as required by the panel. As part of the process, the TAP reviewed the rezoning proposals ultimately pr5e4pared by each of the proponents for submission and provided advice to Government regarding the proposals. The proponents were not involved in formal deliberations of the TAP regarding the proposals or the formulation of recommendations to government. 8. In relation to the Appin TAP program, Ms Moss stated that between 17 August 2020 and 7 August 2023, she was the Manager in the Western District Team and she had a Secretariat role, along with her staff, for the TAPs for both Appin and Gilead projects. She arranged meetings (both full TAP mee4tings and working group meetings), distributed agendas and meeting minutes and ensured that members had access to the documents ahead of the meetings. She also provided technical support to the TAP chair and attended working group meetings as a subject matter expert, as these meetings were at the officer level to work through issues. She would brief Mr Hohenzollern on the issues discussed, the resolution of these issues or outstanding issues that required the TAP members to resolve, if possible. 9. The objective of the Appin TAP was to ensure the preparation of a draft proposal by the applicant to rezone part of the Appin Precinct, which was aligned with strategic land use planning, State and local government policies and infrastructure delivery. One of the key documents was the Governance and Probity Plan, which emphasised the importance of maintaining accountability and transparency as a means of addressing the probity risks arising in the TAP program. Part two of the Plan stated: The Department is committed to an open, transparent and accountable process that meets Government objectives to support economic and population growth and is in the public interest. To achieve this, the following measures will be undertaken: * Assurance panel meetings will be documented and identify information that is confidential and/or to be communicated to the proponent; * The interactions will be documented; and * The studies or supporting information required to accompany the proposal will be procured by the proponent. 1. The probity Plan also made provision for confidentiality to be maintained with respect to certain aspects of the TAP program. It provided that TAP par5ticipants were required to maintain the confidentiality of confidential information, and the plan required all participants to sign a confidentiality agreement. 2. The confidentiality agreement defined "confidential information" as: Any information or documents (including g in electronic form) that relate to the proposal, are not in the public domain, are identified by the Chair as confidential and/or are referred to below. This includes: * Draft structure plans, discussion papers and accompanying reports; * Technical reports, briefings and expert advice prepared or provided to inform the structure plan development and other Government planning documents; * Material or information prepared for the purpose of briefing the Secretaries of Government departments, the Minister, Cabinet or local Councillors; * Any other information or material, "as identified by the Chair". 1. Ms Moss stated that she understood that the objective of the confidentiality agreement was to allow for TAP members to be provided with information that was not yet in the public domain, such as the draft Cumberland Plain Conservation Plan, the Chief Scientist and Engineer Report, Advice on the protection of the Campbelltown Koala Population, the Outer Sydney Orbital Stage 2 alignment options, the State Heritage Register nomination for the Appin Massacre Cultural Landscape, along with draft plans from the applicant on its development proposal for the Appin precinct. It was important for this information to remain confidential at the time, as the information was in draft form and no final decisions on plans had been made. The release of such information may have led to the pre-determination of unresolved matters. The confidentiality agreements allowed the TAP to discuss many strat4egic matters that were broader than just the Appin Precinct, including the potential overlap and inconsistent advice on the alignment of the Outer Sydney Orbital through the Appin Massacre Cultural Landscape draft listing. 2. All documents that were provided by members of the TGAP, and those invited to be involved for specific reasons (for example, Heritage NSW for the Appin Massacre Cultural Landscape Stat Heritage Register listing) were considered and understood to be confidential. While there was not requirement that this material be marked as confidential, there was a common understanding on the part of TAP participants that this material was confidential and should not be disclosed or distributed outside the TAP process. 3. The Minutes of the Appin TAP comprise access documents numbered 1, 2, 4, 5, 7, 8, 10, 11, 12, 13, 14, 18, 24b and 27a of the GIPA request. Ms Moss stated that it was part of her role to prepare or review minutes of the meetings of the TAP and its various committees. The purpose of the minutes was to provide a summary of topics discussed and allow officers to brief up to their relevant TAP member on discussions held, and any actions required, to ensure that TAP members were aware of any actions. She stated: 28. …It was not my understanding at the time of preparing these minutes, nor is it my understanding now, that they were not documents that fell within the scope of the term "confidential information", as that term was defined in the confidentiality agreements. The minutes did not fall within any of the categories of information specifically identified as "confidential information" within the agreement, nor were they identified by the Chair as confidential for the purpose of the agreement. (I note that the TAP Chair, Ms Catherine van Laeren also reviewed the GIPA request and did not r5aise any concerns about the release of the Minutes). 29. When preparing the minutes, I w3as careful to ensure that they summarised the Panel's discussions at a high level, without referring to specific details of matters, where possible, that would be commercially sensitive or sensitive for some other reason. For example, while the minutes might refer to discussions about documents that would clearly be "confidential information" for the purpose of the confidentiality agreement, they w3ould not reveal the substance of those documents. In particular, I was careful to avoid including individuals' names, financial information or other information that might be considered commercially sensitive, and details of any indigenous knowledge". 30. The Probity Plan expressly recognised and contemplated that information relating to the TAP program was information to which the Government Information (Public Access) Act 2009 applied. It was at the forefront of my mind when preparing the minutes that they might ultimately be released in response to an application for information under the GIPA Act. 31. I am aware that there have been several applications under the GIPA Act for information relating to the Gilead Precinct TAP, which ran substantially in parallel with the Appin Precinct TAP and subject to the same probity plan. I am aware that minutes from the Gilead Precinct TAP have ben released under the GIPA Act. 1. In relation to GIPA request documents 37, 37a and 37b, these are internal correspondence and correspondence with the applicant and between the applicant and Wollondilly Shire Council, relating to the establishment and funding of the Appin TAP. Much of the information within this correspondence reflects information relating to the constitution and funding of the Appin TAP, which is in the public domain. However, there is information in these documents that may be commercially sensitive and the documents could be redacted to overcome any objections to disclosure. 2. Document 38 is internal remail correspondence, which refers to a meeting and includes a draft presentation, but it does not attach that presentation or provide any details of it or the substance of issues discussed at that meeting. The respondent refused access to the attachments to this email and while there are hyperlinks in the email, these are inactive. There does not seem to be any information within the email that is commercially sensitive or inherently confidential. 3. Documents 49b and 49c are a letter from the applicant to the respondent and an enclosed presentation from 2020, which includes high level information that does not appear to be of ongoing commercial sensitivity to the applicant. If there was any such specific information, it could be readily redacted. 4. Document 50c is a GIA layer provided by the applicant which shows the boundary of the Appin Precinct, from the Greater Macarthur Growth Area data, and the area of its TAP proposal. The area is generally consistent with the maps that formed part of the Planning Proposal, which has since been rezoned. While the GIA file would have additional layers in the legend, these are not displayed in the still image that has been produced. There does not appear to be any information in this document that would be commercially sensitive or which is inherently confidential. If there was any such information, it could be readily redacted from the image. 5. Ms Moss also gave evidence about the subsequent evolution of the TAP program following the rezoning of the Aerotropolis. The governance and probity plan for that TGAP program expressly stated that minutes of TAP meetings would be published on the Planning Portal or the respondent's website and made publicly accessible. Cross-examination of Ms Moss 1. Mr Knowles asked Ms Moss whether she was involved in any decision regarding the release of information by the respondent. She replied that she did a "search and retrieval", which was going through all of our own records from that period, and collating them as well as then reviewing what Lance Carson had had put through as part of that review as the Line Manager. Her role was to basically make sure that duplicates were removed and to see if there's anything that had been missed. The Line Manager reviewed what was she had located and provided to her director, Mr Adrian Holdens, who then did his review. He then signed the Search Certificate and then that went to the Executive Director, Miss Catherine van Lauren, who signed off from the Planning side of things. That then went to their GIPA team to determine the nature of the request and what gets released. 2. Ms Moss stated that if the respondent knew that a document has a third party, we can put on the form that there is a third party and note who that is. She recalled that there were some documents that were the applicant's documents and there were also some that were Wollondilly Council documents and they were noted as being a third party. The documents included minutes of meetings. 3. Mr Knowles asked the witness whether the meeting minutes were identified as having a third party? She replied that she would not have identified a third party because the Minutes were undertaken by the respondent and the Secretariat for the TAP Meeting, although she said that she wrote most of the minutes. The following exchange occurred: Knowles: And so is this your understanding, that those minutes because they weren't identified with third party documents, were not shared with either Walker or Wollondilly Council? Witness: I can't answer that because we just make that recommendation that they weren't a third party and as to whether or not they were considered to be third party or not, that was not my role. Knowles: OK. And it's just beyond your visibility... You don't know? Witness: Completely. Knowles: Thank you. Now in your own words or in one or two sentences as best you can, can you tell the Tribunal what the TAP process is? Witness: So the TAP programme was a pilot programme that ran for approximately 2 years and concluded 2 years ago with a final recommendation. We saw the TAP programme as a series of pre-lodgement type meetings where proponents would come to us with what they thought was their proposal and with agencies and Councils being involved, would look at what the strategic issues were and whether or not there was things that needed to be addressed. So there was a lot of working group meetings to deal with the technical issues during the TAP programme. We had to pause it for about 6 months and that was in April 2021. A letter was sent out to both proponents, and that was because there was some strategic information that needed to be resolved that couldn't be done while the TAP programme was running. So that's what the programme was and it concluded, after both our proponents provided their draft proposal and the Department and the TAP provided a feedback on that and what would be needed to be updated to the proposals to be deemed what we call exhibition-ready, so to come in for to start the actual planning process. Knowles: And so do you agree that one of the purposes of the TAP pilot programme was to introduce a forum for collaboration and consultation between the Department, the Council and the developer? Witness: Yes. Knowles: And that is part of that collaboration and consultation process at times, confidential information was shared between the Council, the department, the developer and other participants in the TAP. Witness: Yes. Knowles: And one of the reasons that confidential information was shared was because the TAP process was designed to allow feedback to be given by all parties concerned on things that were still really in draft or proposed form. Do you agree with that? Witness: And to comment on things that were not yet in the public arena, such as government policies as well, yes. Knowles: Yes, and I'm glad you mentioned that because the confidential information works both ways, doesn't it? Witness: It does. Knowles: The developer sharing things with the Council and the government and the government sharing things with the Council and the developer. Witness: Yes. Knowles: You made a correction to the affidavit, just to note at para 15, that the relevant body was Schools Infrastructure NSW, and not Infrastructure NSW. Schools Infrastructure NSW was relevant to the TAP process because one of the features of the proposed development is educational facilities, including a school, isn't it? Witness: That's correct. Knowles: And I don't want you to necessarily elaborate on details that might be confidential. But is it your understanding that part of the proposal for the Appin TAP involved an arrangement for how Schools were to be owned and managed that was different to has been considered in other developments? Witness: The discussions we had with Schools Infrastructure included how schools could be managed, but it's not necessarily different to how it has been done. So some of the examples that Schools Infrastructure produced is actually relevant and has been developed in other jurisdictions in Sydney. Well, so where you're alluding to the shared open space with the school, that's something that Schools Infrastructure is actually actively looking at and that was what those conversations were regarding. Knowles: And that's still an ongoing discussion. Witness: Yes. Knowles: I'm just going to move away from Schools Infrastructure and then ask you to consider one of the other issues that arose during the TAP, dealing with Local indigenous groups and the preservation of indigenous knowledge and indigenous sites? Witness: Yes. Knowles: And you are aware that often there are cultural sensitivities about the disclosure of information relating to indigenous knowledge and indigenous and sacred sites? Witness: Yes. Knowles: And one of the aspects of the TAP involved Walker disclosing with the government the results of consultation between, on one hand, consultants engaged by Walker and local indigenous people on the other? Witness: Yes. Knowles: Do you remember whether the department either through the TAP process or otherwise had direct engagement with local indigenous people? Witness: The department actually engaged their traditional knowledge advisors through a programme at the same time as the TAP was running. We were also doing an update to the (name??) MacArthur Growth Area 2040 plan. Knowles: Yes. Witness: As part of our engagement with the traditional custodians, we put out an Expression of Interest for them to come to us to provide us with that cultural knowledge. Part of our programme was also for them to then comment on the 2 TAP proposals we had with us and we had engaged Zion Consulting as our consultant for that programme and they directly engaged the traditional custodians. But yes, the department as part of that TAP programme, did have several meetings with the indigenous community. Knowles: Thank you. And when you say we had several meetings, is that the department or was it Zion Consulting at the meetings? Witness: Both. So Zion attended and they ran the meetings, but the department's representatives was generally myself and my team would attend those meetings. Knowles: And did you keep minutes of those meetings? Witness: I kept some personal notes of those meetings, yes. Knowles: And I don't need you to disclose it, but did your notes include who attended those meetings? Witness: Yes. Knowles: And if the department wanted to or needed to for some proper purpose, is there any reason the department could not get in contact with for example, the indigenous local community members who attended the meeting? Witness: I don't believe so. Knowles: That's a long way of saying, do you have their contact details? Witness: We do have their contact details. I'm just trying to remember exactly how that engagement occurred, but yes, I do believe that the department would have those details. I'd like to just note, though, that we did have 2 parts to that engagement. So there was the part that was for the department, for the Great MacArthur Growth Area work and then then there was the part that was specifically for the TAP programme. Knowles: Now, I just want you to read para 28 of your affidavit. Now I'm. I'm not asking you to give an opinion on what you think the confidentiality agreements mean, but I just want to understand what you mean by para 28 and if you want me to show you the confidentiality agreement you're talking about in that paragraph, I can. But am I right to understand that your evidence is that the Minutes of the meeting don't fall within the meaning of "confidential information" because they are neither one of the items specifically mentioned in the DOT points in the agreement or otherwise they have not been identified by the chairman of the TAP as being confidential? Witness: I would say it's both. Knowles: When you say it's both, is your opinion that the chair has to decide something is confidential for it to be confidential? Witness: If there was a understanding of the chair's role in that particular instance, if we had one agency saying that they believed something was confidential and someone else saying that they didn't, the chair would make that determination. Knowles: Now separately, can I just ask you to look at para 31? And you refer there to the Gilead Project? Is that how it's pronounced? Witness: Yes. Knowles: And is that the separate project that was running or the separate precinct TAP that was running at the same time? Witness: Correct. Knowles: Do you know when the minutes of the Gilead Precinct TAP were released under the GIPA Act? Witness: Not specifically, but it was in 2/20/23 that those GIPA requests came in, and that information was released. Knowles: So it would have been obviously released sometime after the requests were made in 2023? Witness: Again, those information requests ones had a third party. I know we that one went to Lend Lease and I think also Campbelltown may have had some documents that were noted as being third party and though we went to that third party information, I understand that they have been released. Knowles: OK. Thank you. Are you familiar in the context of the TAP process with the data room? Witness: Yes. Knowles: And the data room for the Appin TAP was managed by Walker Corporation. Is that right? Witness: That's correct. Knowles: And is it fair to say that the data room was a way of storing and accessing electronic information? Witness: That's correct. Knowles: And access to the data room was only available through a password? Witness: Email and password yes. Knowles: Email and password and that password would only be issued to eligible participants involved in the TAP? Witness: That's correct. Knowles: And to your knowledge, all of those eligible participants had signed confidentiality. Agreements? Witness: It was that the confidentiality decree that agreement was signed. We would ask if there was new participants, if there was, that they then had to provide us with that confidentiality deed and once we had that deed, my either myself or one of my team would let Walker know that that person had signed and their email address would be provided so that they could get access to that data room. Knowles: OK. I just have one last topic to ask you some questions about can you read paras 39 and 40 of your affidavit please? Witness: 39 and 40 Yep. Knowles: Now. At para 40, you refer to a specific part of the TAP for this or for the Appin TAP programme. Witness: No, that's actually for the Aerotropolis TAP. Knowles: You've pre-empted my question. We're talking about the Aerotropolis and I'm correct to say, aren't I that the Appin TAP programme did not include reference in its governance and probity plan similar to that? Witness: No, it did not, but that one is from the Aerotropolis plan. Knowles: And that governance and probity plan for the Aerotropolis TAP post-dated the plan for the Appin TAP, which had started earlier? Witness: Yes. So the Aerotropolis TAP commenced after the Appin TAP was finalised. 1. Mr Ryan also sought to cross-examine Ms Moss. In relation to minutes of the TAP meetings, Mr Ryan put to her that at the time she was taking the Minutes, she "envisaged them to be a method of transparency, which would be published". She replied that the Minutes were kept for a future date when they potentially could be released, but at the time they were taken, the information was not yet in the public realm - hence the confidentiality. 2. Mr Ryan put to the witness that there are examples of documents that were part of the TAP process, the confidentiality of which changes over time, such as studies relating to Orbital alignment and the Cumberland Plain Conservation plan, which were confidential at the time. 3. Mr Ryan asked Ms Moss if the respondent attempted to publish the Minutes before the GIPA request was received. She replied: There was a conversation and a consideration of what should be released, so they're the terms of reference, the probity plan and the governance arrangements, along with the final TAP letters and also a review that was internally done were all published, and at that point we were just seeing what would happen in terms of the GIPA requests for the publishing of information. But that that was being considered. Yes. 1. Ms Mattes did not seek to re-examine the witness and the Tribunal excused her. Evidence of the Interested Person 1. Mr Ryan relied upon an affidavit of the interested person dated 22 July 2024. This was admitted into evidence and marked ex IP-A. 2. The interested person deposed that she lodged her GIPA request because she was concerned at the use of the pilot TAP program to conduct most of the planning process behind closed doors and without public scrutiny. She sought to adduce as evidence, a copy of a Review of the TAP Program for the Greater Macarthur Growth Area, a copy of an ABC Radio report of the rezoning of the Appin Precinct and the first 27 pages of the 3 November 2023 Budget Estimates haring of the NSW Upper House Portfolio Committee No 7 – Planning and development, Submissions Applicant's open submissions 1. The applicant filed open written submissions on 11 June 2024. These were essentially addressed by Mr Knowles in his opening and I have not extracted them here. 2. The applicant filed submissions in reply on 2 August 2024. While this raised a preliminary issue regarding the scope of the GIPA request, this was ultimately not pressed in view of the operation of s 76 of the GIPA Act. 3. The applicant maintained its position that the respondent failed to consult it as required by s 54(1) of the GIPA Act within respect to 18 documents (numbered 1, 2, 4, 5, 7, 8, 10, 11, 12, 13, 14, 18, 24b, 27a, 37, 37a, 37b and 50c of the GIPA request). These comprise minutes of meetings recorded during the Appin TAP program. 4. The applicant argues that s 54 requires the respondent to take such steps as are reasonably practicable to consult with it and must take any objection to disclosure into account in the course of determining whether there is a public interest against disclosure (s 54(5)). It argued that a purported decision made without complying with the mandatory requirements of s 54 is of no effect. 5. The applicant stated, relevantly: 10. The department has not explained how a decision made other than in accordance with the requirements of s 54 of the GIPA Act is a valid decision: c.f. 1RS [35]. The Department's submissions assume there was a valid decision that could be the subject of review notwithstanding the undisputed non-compliance with s 54 of the GIPA Act, whereas the premise of Walker's contention, as articulated in AS [65]-[74], was that the process undertaken by the decision maker did not result in a valid decision that could be the subject of review. The requirement for consultation reflects an important protection for a third party whose rights would be affected by a decision to disclose documents, and reflects a requirement to afford procedural fairness before making a decision affecting a person's rights: AS [69]-[70]. The Department has failed to engage with this argument. 11. The Department has sought to distinguish the decision in Taylor v Destination NSW [2017] NSWCATAD 272: 1RS [37]-[39]. That attempt fails because the Department has not shown that there were no other third parties (i.e. other than the applicant) affected by the failure to consult. Moreover, the decision in Taylor simply demonstrates the type of prejudice that may flow from a failure to undertake the required third party consultation. The decision does not otherwise bear on whether or not the Department's decision was valid. 1. In relation to the public interest considerations in favour of disclosure, the applicant argued that the respondent's emphasis on the TAP Probity Guidelines to "an open, transparent and accountable process" is a neutral consideration when considered in relation to the references to the importance of maintaining confidentiality otherwise contained in the constituent documents for the Appin TAP project. 2. The applicant argued that the respondent's reference to public interest in scrutiny of rezoning proposals do not explain the mechanisms by which disclosure of the access documents would enhance public debate regarding rezoning. It argued that there is a substantial risk that disclosure would impair public debate in relation to those issues because it would result in disclosure of competing and potentially inconsistent information to the public. The information in the access documents may be out of date and inconsistent with more-recent accurate information. the deleterious effect that this would have on public discussion is reinforced by the likelihood that the superseded access documents will be used to campaign against development, potentially creating confusion and impairing public debate, Disclosure will likely therefore not only undermine the confidential consultation process envisaged by the TAP, but also undermine its public purpose. 3. The applicant also argued that the interested person's specific criticism of the rezoning outcomes, based on the planning proposals that it submitted, do not advance her position. To a large extent, her concerns appear to be based on evidence that is subject to Parliamentary Privilege (and which the tribunal cannot consider). There is also no reason why per subjective dissatisfaction with the planning outcome in this case means that the process warrants additional or different scrutiny from other planning proposals, or scrutiny in addition to the scrutiny that arises from the public exhibition and consultation in relation to the planning proposals. 4. While the respondent also refers to a specific public interest in facilitating scrutiny of the TAP process, the mechanism by which disclosure of the access documents would facilitate this is unclear That criticism depends on the structural arrangements of the TAP, rather than the specific content of any matters addressed as part of the TAP process in this case, 5. There is also any evidence or specific contention advanced that disclosure would facilitate the effective oversight of public expenditure. The apparent abandonment of this public interest factor is consistent with the nature of the TAP process, which was funded by the applicant as proponent. There is no reason to think that disclosure of any of the access documents would facilitate scrutiny of public expenditure. 6. Therefore, the public interest considerations in favour of disclosure relied upon by the respondent provide only a weak justification for disclosure of the access documents, if at all, and they are outweighed by the public interest factors against disclosure. Respondent's open submissions 1. The respondent filed written submissions on 10 July 2024. After discussing the background to the current dispute and the relevant legislation, the respondent noted that the applicant raised two issues: 1. Whether it failed to consult with the applicant prior to making the original decision; and 2. Whether in the case of each document, there is an overriding public interest against disclosure. 1. The applicant argued that the respondent failed to consult it regarding 18 access documents and that this failed to afford it procedural fairness and rendered the decision legally invalid. Therefore, it argues that the Tribunal should remit the matter to the respondent for the proper statutory third-party consultation process to be followed. 2. The respondent argues that any initial failure to consult with respect to those documents have been remedied by its deferral of access, consistent with the requirement in s 54(6) of the GIPA Act, and to accord it review rights with respect to those documents. There is no utility in remitting the matter to the respondent for reconsideration and the Tribunal should determine what the correct and preferable decision is, as it has sufficient evidence and submissions before it to determine whether there is an overriding public interest against disclosure of the information. 3. The respondent conceded that it only consulted with the applicant regarding six documents (15b, 38, 38a, 49b, 49c and 51a), but it is apparent that it understood that the objections expressed with respect to those documents would equally apply to additional documents that had been identified as responsive to the GIPA request. Fir this reason, despite the decision to release the additional documents that are now in dispute, it treated those additional documents as documents to which the applicant objected to the disclosure of. 4. The respondent notified the applicant of its decision to release the disputed documents even though it had not been the subject of direct consultation, including notification of its review rights with respect to their release. In making its application for internal review, the applicant was able to express its concerns and explain its objections to each of these documents. It does not accept that the consequence of its failure to consult the applicant about individual documents before deciding to release them, had the effect that its original decision was invalid and it disputes that there was any material denial of procedural fairness. To the extent that there was some irregularity regarding the scope of consultation, this was remedied by conferring review rights and by the applicant seeking internal review. 5. The Tribunal's role under s 63(1) of the ADR Act is to decide what the correct and preferable decision is and its role is not to determine the legality of the original decision. Its role is to determine what the correct and preferable decision is and whether the access documents should be released under the GIPA Act. 6. The respondent stated that this case can be distinguished from the decision in Taylor v Destination NSW, which the applicant relies upon to support its argument that the matter should be admitted to the administrator due to the failure to engage in third party consultation. In Taylor, the respondent refused access to some of the information sought by the applicant on the basis that there were overriding public interest considerations against disclosure. The respondent filed an affidavit that outlined concerns that third parties may have in relation to the release of the information. the tribunal observed that it was a difficult task to reach the correct and preferable decision in circumstances where the respondent had failed in its obligations under s 54 of the GIPA Act to consult with third parties, and had provided insufficient or unsatisfactory evidence and submissions as to why the public interest considerations against disclosure applied to the relevant information. it was on that basis that the Tribunal found that the correct and preferable decision was to remit the matter to the respondent under s 65 of the ADR Act, accompanied by an order the for the respondent to engage in consultation with all relevant third parties. 7. The respondent argued that the scenario facing the Tribunal in Taylor is not that facing this Tribunal. The applicant has now had two opportunities to ventilate its objections to the release of the information, through an internal review and an administrative review of the decision. The Tribunal has the benefit of the applicant's evidence and submissions and it is in a position to determine whether the applicant has established that there is an overriding public interest against disclosure of the information. Public interest considerations in favour of disclosure 1. On internal review, in addition to the general public interest favouring disclosure of government information, the respondent identified the following considerations in favour of disclosure: 1. Disclosure could reasonably be expected to promote open discussion of public affairs, enhance Government accountability and contribute to positive and informed debate on issues of public importance; and 2. Disclosure could reasonably be expected to ensure effective oversight of the expenditure of public funds. 1. The respondent felt it was significant that the constituting documents of the Appin TAP emphasised the importance of transparency of the TAP process. The TAP Pilot Program Governance and Probity Plan referred to by Ms Moss set out the respondent's commitment "to an open, transparent and accountable process". More-recently, the Governance and Probity Plan governing the Aerotropolis TAP, which was repurposed from the Appin TAP, now requires minutes of TAP meetings to be published on the Planning Portal of the respondent's websites and made publicly accessible. 2. The respondent noted that disclosure of information relating to the Appin TAP could reasonably be expected to promote open discussion about and contribute to positive and informed debates on the process that State agencies and other stakeholders go through to prepare rezoning proposals, particularly in respect of the Appin Precinct. Disclosure of information about significant rezoning projects is of particular public interest as it allows the public to scrutinise the steps that the stakeholders took to ensure that the proposal was aligned with strategic land use planning and other State and local Government policies. There is also a particular public interest in the disclosure of the information relating to the Tap process more generally, as it allows public scrutiny of a pilot program that tries to make for more efficient preparation and approval of rezoning proposals. 3. The tribunal has recognised this public interest in the disclosure of information relating to the handling and management of development applications and the monitoring of developments for compliance: see Hurst v Wagga Wagga City Council [2011] NSWADT 307 at [49]; Donnellan v Ku-ring-gai Council [2013] NSWADT 115 at [66]-[67]; Leda Developments Pty Limited v Tweed Shire Council [2013] NSWADT 121 at [48]-[49]. Public interest considerations against disclosure 1. The respondent noted that the applicant relies upon cll 1(d), 1(g), 4(c), 4(d) and 5(b) of the Table to s 14(2) of the GIPA Act. It addressed these considerations as follows. Clauses 1(d) and 1(g) – Was the information provided to it in confidence and would disclosure prejudice the supply to it of confidential information that facilitates the effective exercise of its functions with respect to future TAP programs? 1. In Collins v Department of Finance, Services & Innovation[2018] NSWCATAD 60, at [61], the Tribunal stated: The relevant elements of Clause 1(d) are: (1) the information was obtained in confidence; (2) disclosure of the information could reasonably be expected to prejudice the supply of such information to the Agency in future; and (3) the information facilitates the effective exercise of the Agency's functions. 1. It is also a public interest consideration against disclosure where disclosure would found an action against a party for breach of confidence or reveal information that has been supplied to an agency in confidence. 2. The threshold issue is whether the information in dispute was provided or supplied to the agency in confidence? In Commissioner of Police (NSW) v Camilleri [2012] NSWADTAP 19, the Appeal Panel of the Administrative Decisions Tribunal stated: 33. In our view, the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received. The agency's case is that all information received by the triple zero service at the point of receipt is treated as confidential. The agency's case is that members of the community expected the triple zero service to be a confidential service… 1. The respondent argued, based on Ms Moss' evidence regarding the Appin TAP program, that much of the information in issue could not be said to meet the threshold requirement of having been supplied to it in confidence. While she stated that all participants were required to sign a confidentiality agreement. Significantly, that agreement defined "confidential information" as: Any information or documents (including g in electronic form) that relate to the proposal, are not in the public domain, are identified by the Chair as confidential and/or are referred to below. This includes: * Draft structure plans, discussion papers and accompanying reports; * Technical reports, briefings and expert advice prepared or provided to inform the structure plan development and other Government planning documents; * Material or information prepared for the purpose of briefing the Secretaries of Government departments, the Minister, Cabinet or local Councillors; * Any other information or material, "as identified by the Chair". 1. It does not follow that all information related to, or generated in the course of the TAP process, was "confidential information". Ms Moss stated that under the Governance and Probity Plan, a key measure was that "assurance panel meetings will be documented and identify information that is confidential and/or to be communicated to the proponent". The meeting minutes do not fall within any of the categories of information expressly set out as being confidential under the agreement and the minutes were not identified by the Chair of the Appin TAP as being confidential information. Ms Moss stated that the Chair was internally consulted regarding this GIPA request and did not raise any concerns regarding disclosure of the meeting minutes. 2. Ms Moss stated that when she prepared the minutes, she was careful to ensure that they summarised the Panel's discussions at a high level, without referring to specific details of matters that would be commercially sensitive or sensitive for some other reason. Minutes might refer to discussions or documents that were confidential information, but they would not reveal the substance of these documents. Therefore, the minutes do not actually reveal the substance of the information so supplied. 3. Further, it is not apparent that any of the remaining information would fall within the scope of "confidential information", under the confidentiality agreement. Access documents numbered 37, 27a, 49b and 49c were not generated as part of the Appin TAB, but relate to the establishment of the TAP process. None of the documents are clearly marked as "confidential" and there is nothing in the documents that appears to be inherently confidential. 4. For these reasons, the respondent argued that there are considerable difficulties with the applicant's contention that the information in the access documents was supplied to it in confidence because it was stored on a confidential data room that it maintained. Even if the tribunal held that cl 1(d) applied, the question would then be whether the disclosure of the information would prejudice the supply of such information to the respondent. The respondent expressed doubt that disclosure of the information would "have a chilling effect on the exchange of information" or that "developers… will be reluctant to engage openly" with it as part of the TAP program, or any other pre-lodgement process. 5. The respondent concluded that it is apparent that the requirement to proactively publish meeting minutes has not deterred the engagement of developers or other stakeholders in the ongoing Aerotropolis TAP, or their willingness to share information otherwise. Rather than making other developers reluctant to engage openly with the respondent as part of the TAP program, the release of the meeting minutes in particular can reassure future stakeholders that it deliberately only includes high level information in the minutes so as to not prejudice their interests. Clauses 4(c) and 4(d) – would disclosure diminish the competitive commercial value of any information to any person or prejudice Walker's legitimate business, commercial, professional or financial interests? 1. In Media Research Group Pty Ltd v Department of Premier & Cabinet [2011] NSWADTAP 7, the Appeal Panel of the Administrative Decisions Tribunal held that for information to have a "commercial value" there should be "some uniqueness attaching to the information that justifies treating it as exclusive, secret or confidential". See also Hall v Department of Premier and Cabinet NSW [2012] NSWADT 46 at [56]. 2. In cl 4(c), "competitive commercial value" is used and this "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 use of "competitive" implies that the information would need to provide the person with a competitive edge (Nature Conservation Council v Department of Trade and Investment, Regional Infrastructure and Services (NSW) [2012] NSWADT 195 at [160]). In Manning v Bathurst Regional Council [2018] N|SWCATAD 195, the Tribunal found that information could not have "competitive commercial value" in circumstances where the Council had not identified any specific competitor with whom it was competing in a commercial sense (at [24]). 3. The respondent argued that the applicant has failed to articulate what the competitive commercial value of the information in the records is, and how that value would be diminished by disclosure. In assessing the potential for diminishment of the competitive commercial value of information, and damage to business interests, it is important to consider: (1) The high degree of generality with which matters are recorded in the Minutes of the Appin TAP; (2) The age of the information, noting that the access documents are now between 3 and 4 years old; and (3) The fact that the applicant has now lodged a Planning Proposal for rezoning in the Appin Precinct which is in the public domain. 4. The applicant submits that disclosure would reveal how it approaches meetings with government and industry stakeholders and that this is a matter that would be prejudicial to its interests. In response, the respondent argues that it is significant that the records of interactions between the applicant and other stakeholder as part of the TAP process has been expressed with such a high degree of generality and would reveal little beyond the fact that such engagement did take place. Any proponent seeking to engage with government regarding the formulation of a planning proposal must do so with some understanding and expectation that there will be a degree of transparency attending any such engagement. Clause 5(b) – Would disclosure prejudice the conservation of any place or object of natural, cultural or heritage value? 1. The applicant argues that access documents 1, 5, 7, 8, 10, 11, 12 and 18 contain information relating to Aboriginal or Torres Strait Islander traditional knowledge and that this information should not be disclosed as the information was obtained by it (through its consultants) on the basis that its use would be limited and on the basis that it would be kept strictly confidential in accordance with the confidentiality agreement signed by participants. 2. The respondent argued that disclosure of the information (other than the parts of document 12 that the internal review decision maker decided should not be released) would not prejudice the conservation of any place or object of natural, cultural or heritage value. The documents do no more than reveal that the applicant has engaged with the Aboriginal and Torres Strait Islander community and cultural knowledge advisors in the course of developing its proposal. The documents do not identify the locations of culturally significant sites (with the exception of document 8). Therefore, the minutes may be distinguished from the redacted part of document 12, which does contain information identifying specific culturally significant sites that the internal review rightly found should be released due to the potential for desecration and vandalism. 3. The respondent stated, relevantly: 83. It should be noted that neither Walker's submissions, nor Ms Topple's statement, identify how the information in these documents are capable of prejudicing the conservation of a place or object of cultural value. Instead, they submit that the information should be disclosed because of the confidentiality agreement and their agreement with Waters consultancy Pty Ltd that Walker needs to procure agreement from the Indigenous Knowledge Holders to "use those parts of the services throughout the current planning approval process… to satisfy the requirements of the planning approval process" (Exhibit NT-1 p 71). Insofar as Walker relies on the confidentiality agreement, the Department submits that that submission should fail for the reasons already outlined above in the section addressing cll 1(d) and (g). Walker's submission regarding their agreement with Waters Consultancy Pty Ltd should also fail as most of the documents, as outlined above, do not actually contain any information relating to the indigenous history, use of and value of sites and only reveal that Walker had engaged with Indigenous Knowledge Holders, which the agreement does not cover. Balancing the public interest 1. The respondent argued that the public interest considerations in favour of disclosure of information relating to the Appin TAP project are significant. The rezoning of the Appin Precinct is a matter of considerable public interest and it is consistent with the GIPA Act's objectives of promoting a system of government that is "open, accountable, fair and effective" that there be able to be scrutiny of processes involving key stakeholders, and measures taken to seek development of a proposal aligned with strategic land use planning and other State and Government policies. There is also a particular public interest in the disclosure of information relating to the TAP process more generally, as it allows public scrutiny of a pilot program that tries to make for more efficient preparation and approval of rezoning proposals. 2. Against this, the respondent argued that the applicant failed to discharge its onus of demonstrating that the various public interest considerations that it relies upon apply and it has not raised any matters that would cause the Tribunal to afford any great weight to the considerations against disclosure – if they did apply. 3. Therefore, the presumption in favour of disclosure of Government information applies. Submissions of the interested person 1. In his written submissions filed 12 August 2024, Mr Ryan stated that the interested person adopts the respondent's position that there is no utility in remitting the matter to the respondent and there is public interest in determining the matter expeditiously. The Tribunal must take account of the public interest factors, both for and against disclosure, the applicant's and respondent's submissions and the evidence and weigh the competing considerations: see Burnett (on behalf of Burnett) v Secretary, Department of Communities and Justice [2021] NSWCATAD 114 at [21]. 2. In Newcastle City Council v Newcastle East Residents Action Group [2018] NSWCATAP 254 at [59], the Appeal Panel said: 59. Based on these authorities when considering the evidence on which it is asserted that disclosure "could reasonably be expected" to have a particular effect, the following principles should be kept in mind: (1) a mere statement that disclosure could reasonably be expected to have a particular effect is insufficient; (2) there must be real and substantial grounds supporting an opinion that disclosure could reasonably be expected to have a particular effect; (3) prominence should be given to inferences capable of being drawn from established facts, rather than on the subjective views of witnesses. 1. Mr Ryan argued that the applicant has provided no real and substantial grounds to support any of their contentions and have instead relied on mere statements and opinion that a particular effect could occur. He noted the evidence of Ms Moss, with respect to the Gilead TAP, that records relating to minutes were released by the respondent under the GIPA Act. The tribunal should consider what information might be confidential, or could diminish a person's business interest, or have commercial value, and whether or not there is sufficient evidence from the applicant to sustain any of those contentions. 2. Mr Ryan argued that the lack of a statutory basis for the TAP is a significant issue why the access documents should be released. He adopted the respondent's submissions in this regard. The TAP is not authorised by legislation, but is an informal arrangement of the respondent which is participated in voluntarily by property development companies such as the applicant. Part 3 of the Environmental Planning and Assessment Act 1979 does not mention or provide for a TAP. The Tribunal should give great weight to ensuring transparency of the public authority. 3. Mr Ryan also stated: 29. While the submissions of the Respondent to the effect that the minutes of meetings were never intended to be confidential we submit that all documents responsive to the access application should be reconsidered in view of a) the passage of time lessens the commercial sensitivity of records, and b) the extent to which the pilot program deliberately placed the public process of land-use rezoning behind closed doors warrants inspection by the public. 1. Mr Ryan also argued that there is significant public interest in the outcomes of the West Appin TAP and rezoning outcomes. The interested person is particularly concerned about the impact on the local koala population and as one of the objectives of the TAP was to protect koala corridors and provide habitat revegetation, there is considered opinion in conservative not-for-profit organisations that this objective was not met. 2. Mr Ryan concluded (as he commenced in his opening), that the Tribunal should reconsider the GIPA request in its entirety, including the merit of releasing documents that the respondent either refused to provide or provided only partial access to in the reviewable decision. 3. During the hearing, Mr Ryan spoke to his written submissions. However, no additional matters were raised. Matter adjourned for consideration of confidential submissions 1. After hearing open oral submissions of the parties, the Tribunal adjourned the hearing on the basis that it would consider the confidential submissions to be filed by the applicant and respondent and would then deliver its reasons for decision. 2. These confidential submissions have the same status, and are subject to the protection afforded by s 107 of the GIPA Act. [NOT FOR PUBLICATION] 1. [NOT FOR PUBLICATION ] [NOT FOR PUBLICATION] 1. [NOT FOR PUBLICATION] Consideration Relevant legislation GIPA Act 1. Section 3 provides that the object of the Act is to open government information to the public and: (2) It is the intention of Parliament: (a) that this Act be interpreted and applied so as to further the object of this Act, and (b) that the discretions conferred by this Act be exercised, as far as possible, so as to facilitate and encourage, promptly and at the lowest reasonable cost, access to government information. 1. Section 5 provides: There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure. 1. Section 9 confers on a person making an access application a legally enforceable right to be provided with access to the information unless there is an overriding public interest against disclosure of the information. 2. Section 12 provides for public interest considerations in favour of disclosure. 3. Sections 13 and 14, relevantly provide: 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. 14 Public interest considerations against disclosure … (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information… Table 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally)- (d) prejudice the supply to an agency of confidential information that facilitates the effective exercise of that agency's functions, … (g) found an action against an agency for breach of confidence or otherwise result in the disclosure of information provided to an agency in confidence, … 4 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, (d) prejudice any person's legitimate business, commercial, professional or financial interests, … 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— … (b) prejudice the conservation of any place or object of natural, cultural or heritage value, or reveal any information relating to Aboriginal or Torres Strait Islander traditional knowledge, … 1. Section 15 provides principles that apply to a determination as to whether there is an overriding public interest against disclosure of government information: A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles— (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information. 1. Section 54 provides: 54 Consultation on public interest considerations (1) An agency must take such steps (if any) as are reasonably practicable to consult with a person before providing access to information relating to the person in response to an access application if it appears that— (a) the information is of a kind that requires consultation under this section, and (b) the person may reasonably be expected to have concerns about the disclosure of the information, and (c) those concerns may reasonably be expected to be relevant to the question of whether there is a public interest consideration against disclosure of the information. (2) Information relating to a person is of a kind that requires consultation under this section if the information— (a) includes personal information about the person, or (b) concerns the person's business, commercial, professional or financial interests, or (c) concerns research that has been, is being, or is intended to be, carried out by or on behalf of the person, or (d) concerns the affairs of a government of the Commonwealth or another State (and the person is that government). Note— The requirement to consult extends to consultation with other agencies and other governments. See the definition of person in Schedule 4. (2A) If the agency considers that information about a person consulted under this section is likely to be included in the agency's disclosure log in relation to the access application, the agency must give a written notice to the person containing the following statements— (a) that information concerning the application is likely to be included in the agency's disclosure log and that the person can object to this, (b) that there is a right of review under Part 5 of a decision by the agency to include information in its disclosure log despite the person's objection. (3) If consultation is required concerning the release of personal information about a deceased person, that consultation is to be done by consultation with a close relative of the deceased. (4) The purpose of consultation under this section is to ascertain whether the person has an objection to disclosure of some or all of the information and the reasons for any such objection. (5) The agency must take any objection to disclosure of information that the agency receives in the course of consultation into account in the course of determining whether there is an overriding public interest against disclosure of government information. (6) If consultation establishes that a person objects to the disclosure of information but the agency decides to provide access to the information in response to the application, access is not to be provided until the agency has first given the objector notice of the agency's decision to provide access to the information and notice of the objector's right to have that decision reviewed, and is not to be provided while review rights on the decision are pending. (7) Review rights on a decision are pending while the objector is entitled to apply for a review of the decision under Part 5 (ignoring any period that may be available by way of extension of time to apply for review), or any review duly applied for is pending. 1. Section 58 provides: 58 How applications are decided (1) An agency decides an access application for government information by— (a) deciding to provide access to the information, or (b) deciding that the information is not held by the agency, or (c) deciding that the information is already available to the applicant (see section 59), or (d) deciding to refuse to provide access to the information because there is an overriding public interest against disclosure of the information, or (e) deciding to refuse to deal with the application (see section 60), or (f) deciding to refuse to confirm or deny that information is held by the agency because there is an overriding public interest against disclosure of information confirming or denying that fact. Note— These decisions are reviewable under Part 5. (2) More than one decision can be made in respect of a particular access application, so as to deal with the various items of information applied for. (3) If an agency finds that information or additional information is held by the agency after deciding an access application, the agency can make a further decision that replaces or supplements the original decision, but cannot be required to make a further decision in such a case. The further decision can be made even if the period within which the application is required to be decided has expired. 1. Section 61 provides: 61 Notice of decision to refuse to provide access Notice of an agency's decision to refuse to provide access to information because there is an overriding public interest against disclosure of the information must state the following— (a) the agency's reasons for its decision, (b) the findings on any material questions of fact underlying those reasons, together with a reference to the sources of information on which those findings are based, (c) the general nature and the format of the records held by the agency that contain the information concerned. 1. Section 80 provides, relevantly: 80 Which decisions are reviewable decisions The following decisions of an agency in respect of an access application are reviewable decisions for the purposes of this Part— … (d) a decision to provide access or to refuse to provide access to information in response to an access application, (e) a decision that government information is not held by the agency, (f) a decision that information applied for is already available to the applicant, (g) a decision to refuse to confirm or deny that information is held by the agency, (h) a decision to defer the provision of access to information in response to an access application, … 1. Section 100 provides that a person who is aggrieved by a reviewable decision of an agency may apply to this Tribunal for administrative review, but an aggrieved person who is not the access applicant is not entitled to apply to NCAT for administrative review of a decision if the person is still entitled to apply for an internal review of the decision under Division 2. 2. Section 104 provides: 104 Right of appearance before NCAT (1) The Information Commissioner has a right to appear and be heard in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division. (2) The Privacy Commissioner has a right to appear and be heard in any proceedings before NCAT (and proceedings on an appeal in respect of any such proceedings) in relation to a review under this Division of a decision that concerns a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to section 14). (3) Any person who could be aggrieved by a decision of NCAT on a review under this Division has a right to appear and be heard in any proceedings before NCAT in relation to the review. 1. Section 105 provides: 105 Onus on agency to justify decisions (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. (2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review. (3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review. (4) If the review is of a decision to include information in a disclosure log despite an objection by the applicant for review, the burden of establishing whether the objection outweighs the general public interest to have the information included lies with the applicant for review. ADR Act 1. Section 63 provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. NCAT Act 1. Section 36 provides: 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it— (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to co-operate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal— (a) a party to proceedings in the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions. 1. Section 64 provides: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders— (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report, including a sound recording or transcript, of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. Reviewable decision 1. I am satisfied that the reviewable decision is that of the respondent dated 13 February 2024. Relevant legal principles 1. The legal principles are not in dispute. The current application is brought before the Tribunal under s 63 of the ADR Act, which provides that the Tribunal may review certain decisions of a respondent agency, described as a "reviewable decision". The relevant time for determination of the correct and preferable decision is the time that the decision is made: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25]. 2. In Flack v Commissioner of Police, New South Wales Police [2011] NSWADT 286 (Flack) and Hurst v Wagga Wagga City Council [2011] NSWADT 307 (Hurst), the Tribunal confirmed that the "public interest test" under s 13 requires agencies to start with the presumption in favour of disclosure of information and: (1) identify the public interest in favour of disclosure (s 12); (2) identify the public interest against disclosure with reference to the items listed in the table in s 14 of the GIPA Act (s 14 Table); and (3) determine whether the balance of the public interest lies in favour of, or against, the disclosure of government information. 3. Unless there is a conclusive presumption that there is an overriding public interest against disclosure, the Tribunal must attribute the appropriate weight to each relevant consideration for or against disclosure, but the balance is always weighted in favour of disclosure: Taylor v Destination NSW [2017] NSWCATAD 272 at [17]. If the public interest considerations against disclosure outweigh the public interest considerations in favour of disclosure, there is an "overriding public interest against disclosure": s13. 4. While a very broad value judgment is required to be made, it is not to be made in a vacuum and a judgment must be made having regard to the objects of the Act, the general presumption in favour of disclosure of government information and the principles set out in s 15 of the GIPA Act: Transport for NSW v Searle [2018] NSWCATAP 93 at paragraph [104]. Subsections 15(a) to (d) operate to promote disclosure of information (the object of the GIPA Act) notwithstanding any embarrassment to Government or potential misinterpretation. Only section 15(e) identifies a principle that mitigates the pro-disclosure aim of the GIPA Act. 5. It is only necessary that the considerations in the s 14 Table "could reasonably be expected" to have the effect identified. In this matter, the onus is on the applicant "to demonstrate with respect to each public interest consideration against disclosure upon which it relies, that disclosure could reasonably be expected to have the nominated effect": McKinnon v Secretary, Department of Treasury (2006) 228 CLR 423; [2006] HCA 46 per Hayne J at [61]. This calls for an objective test to be made from the point of a view of a "reasonable" administrator: Hall v Department of Premier and Cabinet (NSW) [2012] NSWADT 46 at [45]. This is also to be determined as a question of fact based on real and substantial grounds and not just a "mere risk or chance": Flack (at [41]) and Leech v Sydney Water Corporation [2010] NSWADT 298 at [25] (Leech). Section 54 of the Act – Consultation 1. There is no dispute that the respondent did not consult the applicant with respect to all of the Meeting Minutes that were recorded in relation to the Appin TAP. The respondent did consult the applicant on some of those Minutes and the applicant objected to their production, essentially on the basis that they were confidential and/or that they contained information that invoked cll 1(d) and 1(g), 4(c) and 4(d), and 5(b) of the Table to s 14(2) of the GIPA Act. 2. At the hearing, the applicant pressed its argument that it was denied procedural fairness and/or that the reviewable decision is "legally invalid" and it argued that the Tribunal should remit the matter to the respondent for reconsideration and proper consultation, as the defects in the consultation process could not be cured by the Tribunal determining what the correct and preferable decision is. 3. The respondent argued to the effect that the terms of the consultation obligation in s 54 of the Act are not absolute, and that the respondent considered that the applicant would have raised the same objections to disclosure of the remaining Meeting Minutes that it raised in relation to those that it was consulted about. 4. In this matter, I am satisfied that: 1. The respondent complied with the obligation to consult the applicant with respect to some of the Meeting Minutes of the Appin TAP and that the applicant objected to their disclosure on grounds of public interest. 2. The respondent then complied with its duty to consider the objections (see s 54(5)), but it decided to nevertheless release the Minutes over the applicant's objections. 3. In accordance with s 54(6), the respondent deferred granting access to the interested person until it had notified the applicant of its decision and advised it of its review rights (see s 54(6)). 4. The applicant then exercised its review rights by applying to the respondent for an internal review and then seeking an administrative review by this Tribunal. 1. Section 36 of the NCAT Act provides that the guiding principle for that Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the "just, quick and cheap resolution of the real issues in the proceedings". I am required to give effect to the guiding principle when exercising any power given to the Tribunal by the NCAT Act or the procedural rules, or in interpreting any provision of the NCAT Act or the procedural rules. 2. Section 36(4) of the NCAT Act provides that the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. 3. I am satisfied that the applicant will not be denied procedural fairness if the Tribunal conducts an administrative review of the reviewable decision and determines what the correct and preferable decision is based upon all of the information and evidence before it. 4. While the applicant asserted that the defect in the consultation process cannot be cured in that way as there was no evidence that the respondent consulted with any other interested parties, such as Indigenous Knowledge Holders or Wollondilly Shire Council and that the Tribunal should draw an inference that there was no such consultation. 5. However, the applicant did not file any evidence to support that assertion and there is no evidence before me that provides a safe climate for a finding that there was no consultation with any other interested parties or that any such inference should be drawn. 6. While the applicant relies on the decision in Taylor, I am satisfied that the facts of this matter are distinguishable from the scenario considered by the Tribunal in that matter. Accordingly, this is not a matter in which remittal to the respondent is the correct and preferable decision to make. 7. I am satisfied that the applicant has fully exercised its right to an internal review and administrative review of the reviewable decision. In these proceedings, its interests were represented by both Senior and Junior Counsel and all arguments and submissions raised by the applicant were well and truly ventilated. 8. For these reasons, I am satisfied that the Tribunal should determine the current administrative review proceedings under s 100 of the GIPA Act. The public interest test Public interest considerations in favour of disclosure 1. The respondent identified the following considerations, in addition to the general presumption in favour of disclosure of Government information: 1. Disclosure could reasonably be expected to promote open discussion of public affairs, enhance Government accountability and contribute to positive and informed debate on issues of public importance; 2. Disclosure could reasonably be expected to ensure effective oversight of the expenditure of public funds; 3. Disclosure could reasonably be expected to promote open discussion about and contribute to positive and informed debates on the process that State agencies and other stakeholders go through to prepare rezoning proposals, particularly in respect of the Appin Precinct; 4. Disclosure of information about significant rezoning projects is of particular public interest as it allows the public to scrutinise the steps that the stakeholders took to ensure that the proposal was aligned with strategic land use planning and other State and local Government policies; and 5. There is also a particular public interest in the disclosure of the information relating to the TAP process more generally, as it allows public scrutiny of a pilot program that tries to make for more efficient preparation and approval of rezoning proposals. 1. I accept the respondent's submissions, which are supported by the interested party, that the constituting documents of the Appin TAP program emphasised the importance of transparency of the process. The TAP Pilot Program Governance and Probity Plan set out the respondent's commitment "to an open, transparent and accountable process". I also consider it significant that more-recently, the Governance and Probity Plan governing the Aerotropolis TAP, which was repurposed from the Appin TAP, now requires minutes of TAP meetings to be published on the Planning Portal of the respondent's websites and made publicly accessible. 2. The Tribunal has recognised this public interest in the disclosure of information relating to the handling and management of development applications and the monitoring of developments for compliance: see Hurst at [49]; Donnellan at [66]-[67]; and Leda Developments Pty Limited at [48]-[49]. 3. In my view, each of these considerations should be afforded significant weight. Public interest considerations against disclosure 1. The applicant relies upon cll 1(d), 1(g), 4(c), 4(d) and 5(b) of the Table to s 14(2) of the GIPA Act. Clauses 1(d) and 1(g) 1. In my view, the relevant issues for determination are: 1. Was the information in the meeting Minutes provided to the applicant in confidence? And 2. Would the disclosure of that information prejudice the supply to it of confidential information that facilitates the effective exercise of its functions with respect to future TAP programs? 1. In Collins at [61], the Tribunal stated that the relevant elements of cl 1(d) are: (1) the information was obtained in confidence; (2) disclosure of the information could reasonably be expected to prejudice the supply of such information to the Agency in future; and (3) the information facilitates the effective exercise of the Agency's functions. 2. However, in this matter, the applicant is not an agency, but is rather a private corporation which was a proponent in the Appin TAP Program and at least some of the disputed information was obtained on its behalf by consultants that it engaged for that purpose. It is also a public interest consideration against disclosure where disclosure would found an action against a party for breach of confidence. 3. I accept the respondent's argument that the threshold issue is whether the disputed information was provided or supplied to the applicant in confidence? In Camilleri, the Appeal Panel of the Administrative Decisions Tribunal stated: 33. In our view, the question of whether the information supplied is 'confidential information' must be examined, primarily at least, by reference to the agency's evidence as to the conditions under which it conducts the service within which the information was received. The agency's case is that all information received by the triple zero service at the point of receipt is treated as confidential. The agency's case is that members of the community expected the triple zero service to be a confidential service… 1. The applicant's arguments in this matter are essentially based on the premise that all participants in the Appin TAP program were required to sign confidentiality agreements and that he information that was discussed during the TAP meetings was therefore confidential in nature. 2. The applicant essentially relies upon evidence from Ms Topple, that she considered the TAP process to be a confidential process and that she would have been less forthcoming in meetings etc. if she had been aware that the minutes would be made public. 3. However, while the applicant relies upon the confidentiality agreement, it does not adopt the definition of "confidential information" that is expressly defined in it, namely: 1. Any information or documents (including g in electronic form) that relate to the proposal, are not in the public domain, are identified by the Chair as confidential and/or are referred to below. This includes: 2. Draft structure plans, discussion papers and accompanying reports; 3. Technical reports, briefings and expert advice prepared or provided to inform the structure plan development and other Government planning documents; 4. Material or information prepared for the purpose of briefing the Secretaries of Government departments, the Minister, Cabinet or local Councillors; 5. Any other information or material, "as identified by the Chair". 1. In my view, it does not follow that all of the information related to, or generated in the course of the TAP process, was "confidential information". Ms Moss stated that under the Governance and Probity Plan, a key measure was that "assurance panel meetings will be documented and identify information that is confidential and/or to be communicated to the proponent". The Meeting Minutes do not fall within any of the defined categories of confidential information and they were not identified by the Chair of the Appin TAP as being confidential information. Ms Moss stated that the Chair was internally consulted regarding this GIPA request and did not raise any concerns regarding disclosure of the meeting minutes. Her evidence on this issue was not disputed by the applicant. 2. Ms Moss stated that when she prepared the Meeting Minutes, she was careful to ensure that they summarised the Panel's discussions at a high level, without referring to specific details of matters that would be commercially sensitive or sensitive for some other reason. While the Minutes might refer to discussions or documents that were confidential information, they would not reveal the substance of these documents. Therefore, the Minutes do not actually reveal the substance of the information that was supplied. 3. In any event, I note that access documents numbered 37, 27a, 49b and 49c were not generated as part of the Appin TAP process, but rather relate to the establishment of the TAP process. None of the documents are clearly marked as "confidential" and there is nothing in the documents that appears to be inherently confidential. 4. For these reasons, I am not satisfied that the information in the Meeting Minutes was supplied to the applicant in confidence. The mere fact that Ms Topple uploaded the Minutes into a confidential data room that the applicant maintained during the period of the Appin TAP process, does not establish that the contents are confidential. 5. I am not satisfied that disclosure of the disputed information could reasonably be expected to prejudice the supply of information to the applicant that facilitates the effective exercise of its functions (i.e. property development). There is no evidence before me that supports a finding that disclosure of this information would "have a chilling effect on the exchange of information" or cause developers to be "reluctant to engage openly" with the respondent as part of the TAP program or any other pre-lodgement process. 6. Similarly, I am not satisfied that cl 1(g) is satisfied. There is no evidence before me that provides a safe climate for finding that disclosure of the disputed information could reasonably be expected to found an action for breach of confidence or otherwise result in the disclosure of information provided to the applicant in confidence. 7. Having reviewed the Meeting Minutes, I am satisfied that they are written at a sufficiently high level as to not reveal any particular details of the information discussed during the meeting and/or who provided the information to the applicant. Clauses 4(c) and 4(d) 1. It is necessary to consider whether disclosure of the information would diminish the competitive commercial value of any information to any person or prejudice the applicant's legitimate business, commercial, professional or financial interests? 2. In Media Research Group Pty Ltd, the Appeal Panel of the Administrative Decisions Tribunal held that for information to have a "commercial value" there should be "some uniqueness attaching to the information that justifies treating it as exclusive, secret or confidential". See also Hall at [56]. 3. In cl 4(c), "competitive commercial value" is used and this "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 at [80]). 4. The use of "competitive" also implies that the information would need to provide the person with a competitive edge. I note that in Manning, the Tribunal found that information could not have "competitive commercial value" in circumstances where the Council had not identified any specific competitor with whom it was competing in a commercial sense (at [24]). 5. I accept the respondent's argument that the applicant has not discharged its onus of establishing the competitive commercial value of the information in the Meeting Minutes and/or how that value would be diminished by its disclosure. In assessing the potential for diminishment of the competitive commercial value of information, and damage to business interests, it is important to consider: 1. The high degree of generality with which matters are recorded in the Minutes of the Appin TAP; 2. The age of the information, noting that the access documents are now between 3 and 4 years old; and 3. The fact that the applicant has now lodged a Planning Proposal for rezoning in the Appin Precinct which is in the public domain. 1. While the applicant argues that disclosure would reveal how it approaches meetings with government and industry stakeholders, which would be prejudicial to its interests, I am not satisfied that the mere reference to certain engagements by its consultant is sufficient to prejudice its interests. I note that the evidence before me indicates that a parallel TAP process ran in relation to the Gilead Precinct, in which the proponent was Lendlease. I consider it probable, if not likely, that Lendlease engaged in similar consultations in relation to the Gilead Precinct and that the information in the Meeting Minutes is not sufficiently detailed as to prove a competitor of the applicant with a commercial or financial advantage. 2. Having perused the Meeting Minutes, I am satisfied that they reveal little beyond the fact that some engagement took place. I accept the respondent's argument that any proponent seeking to engage with government regarding the formulation of a planning proposal must do so with some understanding and expectation that there will be a degree of transparency attending that engagement. Clause 5(b) 1. The issue for determination is whether disclosure of the Meeting Minutes would prejudice the conservation of any place or object of natural, cultural or heritage value? 2. The applicant's reliance on cl 5(b) is essentially based on its assertion that its consultants obtained the information on basis that it would remain confidential. However, the issue of confidentiality is irrelevant to consideration of the application of cl 5(b). 3. There is no evidence before me that provides a safe climate for finding that disclosure of the Meeting Minutes would prejudice the conservation of any place or object of natural, cultural or heritage value. On that basis, I am satisfied that cl 5(b) does not apply. Balancing the public interest 1. I have applied the public interest test as per the decision in Flack and for the reasons set out above, I am satisfied that the public interest considerations in favour of disclosure of the access documents outweigh those against disclosure. Conclusion 1. I am satisfied that the correct and preferable decision is to affirm the decision under review. Order 1. The decision under review is affirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2024