Denton v Eurobodalla Shire Council [2013] NSWADT 165

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Denton v Eurobodalla Shire Council [2013] NSWADT 165 Hearing dates: On the papers Decision date: 24 July 2013 Jurisdiction: General Division Before: S Higgins, Deputy President Decision: The decision of the respondent is affirmed. Catchwords: Government information - adequacy of search Legislation Cited: Administrative Decisions Tribunal Act 1997 Government Information (Public Access) Act 2009 Category: Principal judgment Parties: Sharon Denton (Applicant) Eurobodalla Shire Council (Respondent) Representation: M Arch (Applicant on15 January 2013) and S Denton Applicant in person A O'Reilly (Respondent) File Number(s): 123316

reasons for decision 1The applicant, Ms Denton, seeks review of a decision of the respondent, Eurobodalla Shire Council, made pursuant to the Government Information (Public Access) Act 2009 (GIPA Act), in regard to her application for access to government information under that Act. 2Ms Denton is the owner of a property that falls within the bounds of the respondent's responsibility. Ms Denton had made several representations, including representations to her Local Member of Parliament, seeking to acquire documents associated with her property and that of her neighbours. At the suggestion of her Local Member, in September 2012, Ms Denton made a formal request, to the respondent, for access to specified documents. In particular, she requested access to a copy of 'information and engineers reports' as follows: Public works (road works) AHD surveyors report when kerb and guttering installation works 2005 cnr Headland Grove and Southhead road AHD surveyors report of road surfacing (public works) 2011 Headland Grove AHD surveyors report of public works South Head road and Kerb and Guttering (Bike path maintenance) cnr Headland Grove and Southhead road 2012 History Hydraulic report for installation of sewer line 2001 History of the area AHD surveyors reports before Headland Grove subdivision DP 255193 Lot 19 and surrounding areas 1-100 Development? On adjoining block 200 South Head Road AHD Surveyor's reports and Original house plans? 1-100 AHD Surveyor's reports of Current plans Environmental impact study? 3The respondent determined Ms Denton's application on 9 October 2012. The respondent determined to grant the applicant access to a copy of 16 documents that it had found to fall within Ms Denton's request. A schedule of these documents was attached to its written determination. In that determination the respondent also advised as follows: ... You have requested the 'Original house plans' for 200 South Head Road however due to Privacy Laws these may only be released t the property owner. I have however, included a site plan which also shows the elevation of the house. In your application, you requested an "Environmental Study'. It was unclear if you meant Environmental Study for 200 South Head Road or for the installation of the sewer line. I have provided the Statement of Environmental Effects which relates to the plan of subdivision on 200 South Head Road. I have also included the Council Report, Minute and Development Consent letter approving the subdivision. The Environmental Impact Statement undertaken in 1998 prior to the installation of the sewer line is subject to copyright and cannot be provided however the document can be inspected at Council's Administration office in Moruya. Should you wish to view the document please contact Council's Customer Service Staff. ... 4Ms Denton was dissatisfied with the response she received from the respondent. After consulting the Office of the Information Commissioner, Ms Denton made this application, to the tribunal, seeking external review of the respondent's determination. In her application for external review, Ms Denton said that the information she had received from the respondent was 'inexact.' She also explained that she needed the information requested so that she could obtain an understanding of the 2005 and 2011 public works reports and whether these works 'increased water flow' to the rear of her property and any 'implicated safety concerns.' 5Ms Denton's application first came before me at a directions hearing on 15 January 2013. At this directions hearing, Ms Denton was represented by Mr M Arch, solicitor. Mr Arch advised that Ms Denton had only very recently instructed him to appear. He said Ms Denton informed him that she had not received copies of the information sought in her access application. In particular, Ms Denton was concerned that no relevant surveyor or engineer report of the specified road works had been identified or provided by the respondent. Mr O'Reilly, who appeared by telephone, on behalf of the respondent, advised that Ms Denton had been provided with a copy of the 16 documents identified in the respondent's determination. He explained that the respondent did not hold surveyor or engineer reports as these were not always sought or obtained by the respondent when undertaking public works. 6As Ms Denton did not accept this explanation. As there was some confusion about the reports for which Ms Denton sought access, by consent, an order was made that Ms Denton provide a more detailed written explanation of the information sought in her access application. On order was also made for the respondent to provide a detailed written reply. 7Mr Arch, on behalf of Ms Denton, wrote to the respondent, on 5 February 2013, providing the additional information and the respondent replied on 18 February 2013. 8The matter came before me for further directions, on 7 March 2013. On this occasion, Ms Denton appeared in person. She again insisted that she had not been provided with the documents sought. After some discussion, I made a number of orders. I directed Ms Denton to file and serve a document that identified the information (document) for which she had sought access that she claimed the respondent had failed to provide. I also directed the respondent to file and serve a chronology of the steps taken in regard to Ms Denton's access application. By consent I also made an order that the tribunal determine this application on the papers, pursuant to s 76 of the Administrative Decisions Tribunal Act 1997. 9On 15 March 2013, Ms Denton filed and served a response to the respondent's reply. The response addressed each of the 8 items. In this response, Ms Denton asked to be provided with further documentation, information and explanations about work that had been done. Ms Denton also wrote to the tribunal on 17 March, 7 April and 23 April 2013. These communications appear to raise issues about Ms Denton's more general concerns about her property concerns and not this review application. Hence I have not considered them any further. 10The only issue in this application is whether the respondent has provided the applicant with the information sought in her, September 2012, access application. For the reasons set out below, in my view, the respondent has met its obligations under the GIPA Act and provided the applicant with the information Ms Denton requested in her access application.