Dolton v Eurobodalla Shire Council [2020] NSWCATAD 36

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dolton v Eurobodalla Shire Council [2020] NSWCATAD 36 Hearing dates: On the papers Date of orders: 31 January 2020 Decision date: 31 January 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: K Ransome, Senior Member Decision: The decision under review is affirmed. Catchwords: Administrative Law – Freedom of Information – access application – whether agency holds further information – reasonableness of searches Legislation Cited: Administrative Decisions Review Act 1997 Government Information (Public Access) Act 2009 Cases Cited: None cited Texts Cited: None cited Category: Principal judgment Parties: Noel Dolton (Applicant) Eurobodalla Shire Council (Respondent) Representation: Solicitors: Applicant (Self Represented) Eurobodalla Shire Council (Respondent) File Number(s): 2019/00145341 Publication restriction: Nil

REASONS FOR DECISION 1. In November 2004 Eurobodalla Shire Council (the Council) adopted the Moruya Floodplain Management Plan. According to the Council, the Moruya Floodplain Management Plan was prepared in accordance with guidance set out in the 2001 edition of the NSW Floodplain Management Manual using information from a 1996 Moruya floodplain risk management study prepared by Patterson Britton & Partners and a 1992 Moruya River flood study undertaken by the NSW Department of Public Works. 2. Since the Moruya Floodplain Management Plan was adopted the applicant, Mr Noel Dolton, has written to Council on numerous occasions raising issues and concerns with the Moruya River Floodplain Plan and requesting information. It is clear from material Mr Dolton has provided to the Tribunal that he believes the Moruya River Floodplain Plan is flawed. Over the years Council has provided him with information. 3. On 4 September 2009 Mr Dolton wrote to the then General Manager of Council and, among other things, asked Council to "fix up" errors in the Moruya River flood study by recalibrating the flood model. On 25 September 2009 the General Manager wrote to Mr Dolton and stated that Council would not be recalibrating the flood model and went on to say: The flood study is not in major error as you claim and there is nothing to indicate that the level of flood waters will decrease as a result of a review. This is an unequivocal statement of Council's position on the Moruya River Flood Study. 1. Mr Dolton continued to correspond with the Council on this matter and on 5 December 2018 he made an application under the Government Information (Public Access) Act 2009 (GIPA Act) requesting access to the following information: From Council's letter dated 25 September 2009, (copy enclosed) evidence being genuine reports, investigations etc, that informed Council of the following: "THE FLOOD STUDY IS NOT IN MAJOR ERROR AS YOU CLAIM AND THERE IS NOTHING TO INDICATE THAT THE LEVEL OF FLOOD WATERS WILL DECREASE AS A RESULT OF A REVIEW. THIS IS AN UNEQUIVOCAL STATEMENT OF COUNCIL'S POSITION ON THE MORUYA RIVER FLOOD STUDY." 1. On 16 January 2019 the Council made a decision that the requested information was not held by the Council. Mr Dolton seeks review of that decision. 2. The Tribunal has administrative review jurisdiction over a decision, or class of decisions, of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review: s 9(1) Administrative Decisions Review Act 1997 (ADR Act). The decision that information is not held by an agency may be reviewed by the Tribunal under s 100 of the GIPA Act. The Tribunal is required to determine what is the correct and preferable decision having regard to the material then before it including any relevant factual material and any applicable written or unwritten law: ADR Act, s 63(1).