In a period of a week, the NSW Civil and Administrative Tribunal (NCAT) has handed down two judgements addressing whether a person should have access to copies of plans received by a Council as part of a development application. The two cases provide a valuable insight as to how Councils should consider providing access to information under the Government Information (Public Access) (GIPA) Act 2009, for information that may be protected by copyright. In both cases the applications related to access to copies of plans submitted to Council that had been publicly exhibited.
Pycon Homes and Constructions Pty Ltd and Port Macquarie-Hastings Council
On 7 September 2016 Senior Member McAteer handed down his judgement in the matter of Pycon Homes and Constructions Pty Ltd and Port Macquarie-Hastings Council [2016] NSWCATAD 206. This matter considered an application by Pycon Homes for floor plans received by the Council as part of a development application (DA). The Applicant had first seen the plans when they were publicly exhibited as part of Council’s assessment of the development application. The Applicant observed that the plans were identical to plans that it had prepared and shown to the owner of the land the subject of the DA as part of a proposal submitted to the owner for works. That proposal was unsuccessful some time before the other plans were lodged with Council.
Council refused access to the plans citing that the inappropriate release of the internal floor plans could compromise the owner’s security (T3(f)); that the release of information that was protected by copyright could diminish the competitive commercial value of the information(T4(c)) and prejudice the legitimate business, commercial professional or financial interests(T4(d)).
The senior member found that in case the plans were not ‘open access’ documents that the Council was required to provide proactive access to as the documents fell within the exception at schedule 1 Clause 3(2) of the GIPA Regulations. Accordingly the information was to be dealt with as the Tribunal would deal with a formal access application.
In both decisions considered in this blog SM McAteer considered the guidance provided in the Information Commissioner’s guidance document ‘Knowledge Update’ (March 2012).
The Senior Member undertook a comparison of the plans that were held by the Council with the plans that the Applicant had prepared for the owner and concluded that plans were very similar with some aspects of the plans bearing a strong visual resemblance and objective similarity whereas other aspects of the plans were strikingly similar.
The senior member in considering the s 13 balancing test attributed significant weight to the public interest in allowing the Applicant copies of the plans so that he could take proceedings with respect to the copyright that the Applicant believed had been breached. Relevant to this aspect was the fact that the owner had seen the Applicant’s plans prior to the creation of the plans that had been submitted to the Council as part of the DA. This evidence supported the suggestion that there may have been a breach of copyright by the person who created the plans submitted to the Council.
As the plans had been made public by the Council as part of DA process, this application focused on whether a copy of the plans should be provided to the Applicant. In this regard the senior member found (pursuant to s72(2) GIPA Act ) that providing a copy of the plans would not involve a breach of the copyright of the creator of the plans submitted to the Council.
Walker v Gosford City Council
On 14 September 2016 Senior Member McAteer handed down his judgement in Walker v Gosford City Council [2016] NSWCATAD 207. This matter considered a similar application to that in Pycon Homes. Again the application for review involved access to building design plans that had been submitted to the Council as part of a development application and while the Applicant had inspected the plans as part of the DA process, Council would not provide the Applicant with a copy of the documents. This matter related to the form of access being provided – s72 GIPA Act.
In this matter the senior member found that the architectural plans or drawings fell within the definition of ‘artistic works’ to which s40-42 of the Copyright Act 1968 (Cth) applies and that these matters were matters for which a claim of copyright subsists.
The Information Commissioner provided submissions in this matter and while it did not address the facts of the matter it submitted that the Council and Council officers should not breach copyright laws and in such cases Councils should provide ‘view only’ access with facilities provided to members of the public to take copies only where exemptions under the Copyright Act allowed the provision of copies (e.g fair dealing for research or study) or consent was received from the copyright owner.
In affirming Council’s decision to refuse to provide a copy of the plans to the Applicant, Senior Member McAteer distinguished this matter from Pycon Homes as there was no suggestion of the misappropriation of another person’s copyright in this matter.
The Senior Member had significant regard to s6(6) and section 72(2)(c) of the GIPA Act that provided that the Council should not disclose government information that would involve an infringement of copyright.
The Senior Member affirmed the decision of the Council .
Links to the decision can be found at :
Pycon Homes and Constructions Pty Ltd and Port Macquarie-Hastings Council
Walker and Gosford City Council
For further information about any GIPA Act issues please contact Carlo Zoppo, Partner on (02) 8235 9705 or carlo.zoppo@lindsaytaylorlawyers.com.au.
