CITATION: ON v Marrickville Council [2005] NSWADT 274 DIVISION: General Division APPLICANT PARTIES: ON RESPONDENT Marrickville Council FILE NUMBER: 053033 HEARING DATES: 5/07/2005 SUBMISSIONS CLOSED: 07/05/2005 DATE OF DECISION: 12/02/2005 BEFORE: Montgomery S - Judicial Member APPLICATION: Privacy - information protection principle - collection - unnecessary - Privacy - information protection principle - disclosure to third party MATTER FOR DECISION: Principal matter Environmental Planning and Assessment Act 1979 LEGISLATION CITED : Environmental Planning and Assessment Regulation 2000 Privacy & Personal Information Protection Act 1998 Privacy Act 1988 (Cth) CASES CITED: Vice-Chancellor Macquarie University v FM [2005] NSWCA 192 APPLICANT REPRESENTATION: M Seymour, Barrister RESPONDENT A Galasso, Barrister ORDERS: The application is dismissed REASONS FOR DECISION 1 I have agreed not to identify the Applicant by name because of the personal nature of the information involved in this application. In these reasons I refer to the Applicant as "ON". I refer to the Respondent as "the Council". 2 On 1 November 2004, ON made a complaint to the Council that the processing of Development Applications ("DA") under the Environmental Planning and Assessment Act 1979 ("the EPA Act") infringed various Information Protection Principles ("IPPs") in the Privacy and Personal Information Protection Act 1998 ("the Privacy Act"). ON sought an internal review of that conduct under section 53 of the Privacy Act. 3 ON's complaint asserted that the Council's planning instrument DCP 21 is in breach of the Privacy Act and the Privacy Act 1988 (Cth) because the DCP requires lodgement of a DA for private sex worker home occupations. The DA process requires the provision of sensitive personal information relating to sexual activities to the Council. This personal information is then made publicly available through letters to neighbours, signposted at their residence and advertised in local newspapers distributed to tens of thousands of local residents. 4 ON's case is that the Council's conduct of 'drafting, promotion and use' of the Marrickville Local Environmental Plan 2001 ("the LEP") under the EPA Act is not in conformity with the Privacy Act. Further, the failure of the Council to draft an amendment to the LEP to conform to those requirements means that personal information is collected, retained, and disclosed in circumstances that are in contravention of the Privacy Act, and specifically in contravention of sections 8(1)(b), 11 (a), 11 (b), 12(c), and 19 of the Privacy Act. 5 The Council determined ON's complaint by reference to section 25 of the Privacy Act. The Council asserted that it is not required to comply with section 18 of the Privacy Act in circumstances where it is lawfully authorised or required not to comply with the principles concerned, or where the non-compliance is otherwise permitted under an Act or any other law. The Council further asserted that it is authorised by law to require a DA and to disclose any information, including personal information, submitted with such a DA. The Council determined that ON's complaint had no lawful basis and that the Council was not acting in breach of any of the provisions of the Privacy Act. 6 ON sought review in the Tribunal pursuant to section 55 of the Privacy Act. Applicable Planning Regime 7 It is common ground that the EPA Act erects the architecture of the planning system in NSW. Counsel for ON has provided a reasonable summary of the applicable provisions. Under section 54 of the EPA Act a council may 'decide' to prepare a local environmental plan in respect of the whole or any part of the land within its Local Government Area. The council then engages in a process of consultation with public authorities regarding the subject matter of the draft plan before submitting a draft plan to the Director-General of the Department of Infrastructure, Planning and Natural Resources. The draft plan is put on public exhibition and the public is invited to comment on the draft plan. The Director General provides a report to the Minister who will then make the plan. 8 A secondary function of a council under the EPA Act is the making of development control plans to provide more detailed provisions than are contained in a local environmental plan. State and Regional Environmental Plans may complement local plans. 9 Once the plans are made, they set the context for the consideration of appropriate development in the local government area. A local plan is the most basic instrument of the planning regime and sets out the essential tripartite distinction between: (i) development that is prohibited and so can not be carried out on the relevant land; (ii) development that will require the consent of the council to be undertaken; and (iii) development that does not need consent (i.e. 'exempt development' that can be carried out without first seeking the consent of the council. 10 For development that is not prohibited or exempt, a person must apply to the council for consent. Section 79C of the EPA Act requires a council to consider 'matters' in the assessment of the DA and whether it should grant development consent. Those matters include the provisions of an LEP or DCP, the likely impacts of the development, and the public interest. 11 Once assessed, the council will either refuse development consent or approve the development subject to conditions. The council must then notify the applicant and other persons as are required by the regulations to be notified of that determination. A council is required to keep a register of applications for development consent and their determination. 12 The Environmental Planning and Assessment Regulation 2000 ("the Regulations") provides more specific details for the making of a plan or the making of a DA than is in the EPA Act. 13 A DA must be made in accordance with the Regulations, and specifically in accordance with Schedule 1 to the Regulations. That Schedule requires the name and address of an applicant, a description of the development to be carried out and the address at which the development will be carried out. A statement of environmental effects must also be provided. 14 Clause 124 of the Regulation provides for public notification procedures for the purposes of section 101 of the Act. It refers to notice of the grant of development consent published in a local newspaper, describing the land and the development as well as notifying that the consent is available for inspection at council chambers. 15 State Environmental Planning Policy No 60 - Exempt & Complying Development ("SEPP 60") provides a State-wide policy for exempt development where a local government area has not provided for those types of development in their local plan. Clause 7 of SEPP 60 provides in part: " 7 What development is exempt development (1) Development specified in Schedule 3 that meets the standards for the development contained in that Schedule and that complies with the requirements of this clause is exempt development for the purposes of this Policy. (2) To be exempt development: (a) the development must: (i) meet the relevant deemed-to-satisfy provisions of the Building Code of Australia , and (ii) be more than 1 metre from any easement or public sewer main, and (iii) if it relates to an existing building that is classified under the Building Code of Australia as class 1b or class 2-9, the building must have a current fire safety certificate or fire safety statement or the building must be a building for which no fire safety measures are currently implemented, required or proposed, and (b) the development must not: (i) if it relates to an existing building, cause the building to contravene the Building Code of Australia , or (ii) require a tree to be removed, or (iii) create interference with the neighbourhood because it is noisy, causes vibrations, creates smells, fumes, smoke, vapour, steam, soot, ash, dust, waste water, grit or oil, or (iv) be designated development." 16 Clause 9 of Schedule 3 to SEPP 60 provides that 'Home Occupations' are exempt developments for the purposes of SEPP 60. It states: " 9 Home occupations The use of premises for an occupation carried on only by the permanent residents of a dwelling: (a) that does not require registration under the Factories, Shops and Industries Act 1962 , and (b) that is managed so that there is no interference with the neighbourhood (as identified by clause 7 (2) (b) (iii) of this Policy)." 17 Accordingly, where a local policy does not otherwise provide, a 'Home Occupation' is regulated by the State policy. A DA or assessment is not required provided that there is no interference with the neighbourhood in the form of noise, vibration, smell or debris. 18 In the circumstances of this matter, the LEP provides a different system of regulation to that provided for by SEPP 60. 19 The LEP does not purport to regulate 'Home Occupations' in general, only 'Home Occupations involving prostitution'. Such land use requires development consent in residential areas and will only be granted if carried on by not more than one prostitute. Considerations that the council will take into account in any application to conduct such a use are provided for in clause 44 of the LEP: (a) the location of the brothel or dwelling house and its proximity to any child care centre, community facility, educational establishment, hospital, place of public worship, recreation area or residential building, or any place regularly frequented by children, (b) whether the operation of the brothel or dwelling house would cause a disturbance in the neighbourhood because of its size or operating hours, or the number of people working in it, (c) the number of brothels operating in the near vicinity of the premises the subject of the application, (d) whether the operation of the brothel or dwelling house would interfere with the amenity of the neighbourhood, (e) whether suitable access is available, or proposed to be provided, to the brothel or dwelling house, (f) whether a suitable waiting area is provided in the brothel or dwelling house so as to prevent clients loitering outside the premises, (g) whether sufficient off-street parking is available or proposed to be provided, if appropriate in the circumstances, (h) the design and external appearance of the building and any associated structures and their impact on the character of the surrounding built environment, (i) the content, illumination, size and shape of any advertisement and distinctive external lighting, and (j) whether the operation of the brothel or dwelling house would cause a disturbance in the neighbourhood when taking into account any other brothels operating in the neighbourhood. 20 ON accepts that the regulation of planning issues is within the province of a locally elected council. However, ON asserts that whilst it is legally possible for the specific requirements of the LEP to displace the open-ended permissibility of the use under SEPP 60, as a subordinate instrument the LEP must nevertheless yield to an Act of Parliament. Applicable provisions of the Privacy Act 21 Section 8(1)(b) of the Privacy Act provides: 8 Collection of personal information for lawful purposes (1) A public sector agency must not collect personal information unless: … (b) the collection of the information is reasonably necessary for that purpose. 22 Section 11 of the Privacy Act provides: " 11 Other requirements relating to collection of personal information If a public sector agency collects personal information from an individual, the agency must take such steps as are reasonable in the circumstances (having regard to the purposes for which the information is collected) to ensure that: (a) the information collected is relevant to that purpose, is not excessive, and is accurate, up to date and complete, and (b) the collection of the information does not intrude to an unreasonable extent on the personal affairs of the individual to whom the information relates." 23 Section 12(c) of the Privacy Act provides: " 12 Retention and security of personal information A public sector agency that holds personal information must ensure: … (c) that the information is protected, by taking such security safeguards as are reasonable in the circumstances, against loss, unauthorised access, use, modification or disclosure, and against all other misuse". 24 Section 19 of the Privacy Act provides: 19 Special restrictions on disclosure of personal information (1) A public sector agency must not disclose personal information relating to an individual's ethnic or racial origin, political opinions, religious or philosophical beliefs, trade union membership or sexual activities unless the disclosure is necessary to prevent a serious and imminent threat to the life or health of the individual concerned or another person. (2) A public sector agency that holds personal information must not disclose the information to any person or body who is in a jurisdiction outside New South Wales or to a Commonwealth agency unless: (a) a relevant privacy law that applies to the personal information concerned is in force in that jurisdiction or applies to that Commonwealth agency, or (b) the disclosure is permitted under a privacy code of practice. (3) For the purposes of subsection (2), a relevant privacy law means a law that is determined by the Privacy Commissioner, by notice published in the Gazette, to be a privacy law for the jurisdiction concerned. (4) The Privacy Commissioner is to prepare a code relating to the disclosure of personal information by public sector agencies to persons or bodies outside New South Wales and to Commonwealth agencies. (5) Subsection (2) does not apply: (a) until after the first anniversary of the commencement of this section, or (b) until a code referred to in subsection (4) is made, whichever is the later. 25 Section 25 of the Privacy Act provides: 25 Exemptions where non-compliance is lawfully authorised or required A public sector agency is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if: (a) the agency is lawfully authorised or required not to comply with the principle concerned, or (b) non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law (including the State Records Act 1998 ). 26 Conduct is defined in section 52 of the Privacy Act, which provides as follows: " 52 Application of Part (1) This Part applies to the following conduct: (a) the contravention by a public sector agency of an information protection principle that applies to the agency, (b) the contravention by a public sector agency of a privacy code of practice that applies to the agency, (c) the disclosure by a public sector agency of personal information kept in a public register. (2) A reference in this Part to conduct includes a reference to alleged conduct. (3) This Part does not apply to any conduct that occurred before the commencement of this Part. (4) Section 53 (Internal reviews) of the Administrative Decisions Tribunal Act 1997 does not apply to or in respect of conduct to which this Part applies." 27 Section 53(1) of the Privacy Act provides that a person who is 'aggrieved' by the 'conduct' of a public sector agency is entitled to a 'review of that conduct'. Section 55(1) of the Privacy Act expressly provides that an application lies to the Tribunal for review of the conduct that was the subject of the application under section 53. Is ON a person aggrieved by the conduct of the Council? 28 ON contends that he is a person aggrieved by the conduct of the Council, being the drafting and use of an LEP that singles out a particular use of premises under the tripartite separation of uses under the EPA Act that imposes a set of specific requirements involved in obtaining permission for that use. ON says that it is this particular requirement that makes his complaint different to a general complaint about the Council's LEP. He contends that the failure of the Council to amend the LEP is conduct that continues to take place in breach of the Privacy Act. 29 The Council submits that for the purposes of the Privacy Act ON is not a person aggrieved and therefore he has no standing to make a complaint or to bring these proceedings. The Council argues that it is significant that ON has made no DA. He has never been asked for, nor provided, any information, let alone any personal information. The Council submits that, in any event, pursuant to section 25 of the Privacy Act it is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 if non-compliance is otherwise permitted (or is necessarily implied or reasonably contemplated) under an Act or any other law. The Council submits that in the scheme of the operation of the EPA Act it is not only lawfully authorised but also required to receive an application for development consent in relation to home occupation involving prostitution. Part of the assessment of that application is the receipt (rather than the collection) of the personal information. 30 As mentioned above, the term 'conduct' is defined in section 52 of the Privacy Act and includes alleged conduct. The term "conduct" in this section has a specific meaning in that it refers to acts and omissions that amount to a contravention of an information protection principle or a privacy code of practice or a disclosure of personal information held on a public register. 31 In order to determine the issue of whether ON is a person aggrieved for the purposes of the Privacy Act it is necessary to determine whether the drafting and use of the LEP is 'conduct' for the purposes of the Privacy Act. 32 ON asserts that the inclusion of 'alleged conduct' within the meaning of 'conduct' provides the basis for a complaint about conduct that would involve a breach of the Privacy Act without the need for the conduct to have actually taken place. I do not agree with this submission. In my view, the provision is intended to permit an individual to seek review of conduct where the individual has reason to believe that some conduct has occurred in breach of the Privacy Act but they have insufficient knowledge of an agency's actions to identify specific conduct. This situation may arise for example where an individual becomes aware of a document containing personal information that was produced by an agency and apparently disclosed to a third party, but the individual has no knowledge of the agency's actions in disclosing the personal information. In such a case the individual can only refer to 'alleged conduct' as they have no knowledge of what actually took place. In my view, the provision is not intended to allow an individual to seek review of anticipated conduct. An applicant will only have standing to make a complaint or to bring proceedings before the Tribunal if they are able to point to some conduct or alleged conduct that falls within the section 52 definitions. 33 In the circumstances of this matter, it is my view that the drafting and use of the LEP is not 'conduct' for the purposes of the Privacy Act. However, even if I am wrong on that issue, it is my view that ON is unable to point to any conduct or alleged conduct that is in breach of the Privacy Act. 34 I also note that I agree with the Council submission in relation to the exemption provided by virtue of section 25 of the Privacy Act. Accordingly, in the circumstances of this case the Council is not required to comply with section 9, 10, 13, 14, 15, 17, 18 or 19 of the Privacy Act. The Council is lawfully authorised by the EPA Act to receive an application for development consent in relation to home occupation involving prostitution. Non-compliance with those provisions is necessarily implied or reasonably contemplated in regard to the process of determining such an application for development consent. 35 In Vice-Chancellor Macquarie University v FM [2005] NSWCA 192 Spigelman CJ made a number of observations in relation to the legislative scheme established by the Privacy Act. He stated at paragraph 20 of his decision: "20 Division 1 of Pt 2 of the Privacy Act which I have quoted almost in full above has within it a clear bifurcation. Sections 8–11 all focus on the 'collection' of personal information. Sections 12–19 are all concerned with when a public sector agency 'holds personal information'." 36 At paragraph 30-31 he stated: "30 In this recitation of the relevant provisions that use the formulation "holds personal information", the only provisions which I have not referred to are those relating to disclosure of the information, including s18 itself. The sections to which I have referred from s12 through to s19 constitute a coherent statement of information protection principles. It is most unlikely that the non-disclosure obligations were intended to apply to information not capable of being subject to the other principles. 31 This conclusion is reinforced by the contents of s8 to s11, relating to "collection" of information. These sections represent the remainder of Div 1 of Pt 2 of the Privacy Act which identifies the Information Protection Principles that are the central focus of the legislative scheme. Information of the character in issue in these proceedings was not "collected". The first reason for this conclusion is that the information was unsolicited and, accordingly, the definition which excludes information of that character from the concept of information having been "collected" in s4(5) applies." 37 While the Council has provided the opportunity for the making of DAs, in this matter ON has not made an application for development consent. He has not provided any personal information to the Council. The Council has not requested that he provide any personal information. In my view, it cannot be said that the Council has collected any of ON's personal information. That being the case, the Council cannot be said to have breached any of the IPPs in section 8 to section 11 of the Privacy Act. 38 ON has also asserted that the Council has acted in contravention of sections 12(c), and 19 of the Privacy Act. These provisions use the formulation "holds personal information". In the circumstances of this matter it is my view that the Council cannot be said to hold ON's personal information. That being the case, the Council cannot be said to have breached any of the IPPs in those sections. 39 It is unnecessary that I deal with the other issues raised by the parties. Conclusion 40 In my view, ON has no standing to bring these proceedings. If I am wrong in that view, it is my opinion that the Council has not breached any of the IPPs of the Privacy Act as alleged. Accordingly the application should be dismissed. Order The application is dismissed. 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.