Commentary

• This decision stands for the proposition that local councils can disclose the names and postal addresses, sourced from councils’ rates databases, of adjoining owners and occupiers of land subject to a planning permit application, to planning permit applicants, to facilitate the notification requirements in s 52 of the Planning and Environment Act 1987 (Vic) (PE Act) by the planning permit applicant, provided doing so is consistent with any statements or undertakings about the use of personal information made by the council (such as in its privacy policy and collection notices).
• This decision is significant because local councils’ ratepayer databases tend to be the most accurate and up to date source of information available about owners of land, and are often sought as a source when notice must be provided to a landowner (such as under the PE Act).
• The decision is also significant because it found that La Trobe City Council was permitted to disclose the complainants’ personal information:
  • Under IPP 2.1(a) in circumstances where disclosure was convenient but not strictly necessary to achieve the secondary purpose. VCAT rejected the Strachans’ submission that disclosure of their names was not reasonable as notice of the planning permit application could have been delivered by hand and addressed to ‘The Occupier’. Given the significant consequences of a failure to provide effective notice, it was open to La Trobe City Council to provide contact details that would allow the planning permit applicant a range of ways to provide effective notice.
  • In relation to IPP 2.1(f), in circumstances where disclosure was not expressly authorised but was rather implicit in the relevant legislative requirement. Specifically, VCAT found that once La Trobe City Council had exercised its discretion to require the planning permit applicant to give notice of the planning permit application to adjacent property owners, La Trobe City Council was authorised to provide the planning permit applicant such personal information held by them that they would use if they were to notify those adjacent property owners.

Facts and decision

• Stuart Strachan and Nick Strachan (the Strachans) owned a land in Callignee within the municipal district of La Trobe City Council.
• La Trobe City Council received two different applications for planning permits relating to two parcels of land adjoining the Strachans’ land. La Trobe City Council sent letters to the two different planning permit applicants, requesting that they provide notice to the Strachans of the planning permit. In this letter, La Trobe City Council included the names and postal addresses of the Strachans.
• The Strachans alleged that La Trobe City Council interfered with IPP 2.1 when it disclosed their names and postal addresses to the planning permit applicants. They alleged that as a result of this disclosure, their private address became known in the community and this caused them distress and disadvantage.

IPP 2.1(a) – Use or disclosure is for a related and reasonable expected secondary purpose

Submissions

• La Trobe City Council contended that:
  • the primary purpose of collecting the Strachans’ name and postal addresses was to ensure that any correspondence La Trobe City Council was required to make under the PE Act was sent to the right location; and
  • The disclosure of the Strachans’ postal address and name was for the secondary and related purpose of facilitating notification to them about a planning permit application affecting adjoining land to theirs.
• The Strachans contended that the primary purpose of collecting their postal address was for La Trobe City Council to send them rates notices. The Strachans referred to a note that accompanied the rates notice, which stated that “Personal information included in this notice is used by Council for the primary purpose of issuing and collecting municipal rates or for lawful secondary purposes.” This primary purpose was unrelated to the secondary purpose of notifying them about a planning permit application.

Decision

• VCAT held that the disclosure was authorised under IPP 2.1(a) because:
  • The primary purpose of collecting the Strachan’s personal information was (as submitted by the Council) to facilitate correspondence between La Trobe City Council and the Strachans. This primary purpose covered not only corresponding about rates, but other legal obligations that La Trobe City Council, such as providing appropriate notice regarding a planning permit application under the PE Act.
  • The secondary purpose that La Trobe City Council disclosed the personal information for was to ensure that the planning permit applicant properly notified adjacent owners and occupiers so that they could object to the planning permit application if they so wished.
  • This secondary purpose (La Trobe City Council facilitating notice by a planning permit applicant) was related to the primary purpose (La Trobe City Council providing notice directly) because both the primary and secondary purposes were about ensuring that adjacent owners and occupiers of land subject to a planning permit application were notified of the planning permit application.
  • This secondary purpose was reasonably expected because:
    • La Trobe City Council’s Privacy Policy provided sufficient notice to individuals from whom they collected personal information that it may be disclosed for a “secondary lawful purpose”; and
    • the secondary purpose was closely related to the primary purpose such that it would be expected.

IPP 2.1(f) – Use or disclosure is required or authorised by law

Submissions / decision

• La Trobe City Council contended, and VCAT largely agreed, that the disclosure was authorised (although not required) by law.
• Under section 52 of the PE Act, notice of a planning permit must be given to the owners and occupiers of land adjoining the land subject to a planning permit. Section 53 of the PE Act permits the responsible authority (in this case La Trobe City Council) to either give the notice itself or require the planning permit applicant to give the notice. The Tribunal found these notice provisions provided an implicit authorisation for a responsible authority to disclose information that it holds and would have used to notify adjacent property owners to the planning permit applicant when requiring them to provide the notice. That is, VCAT found that in this case, because La Trobe City Council had exercised its discretion to require the planning permit applicant to provide notice of the planning permit application to adjoining landowners and occupiers, the notice provisions in the PE Act provided an implicit authorisation for the La Trobe City Council to disclose the names and addresses of adjoining landowners and occupiers to the planning permit applicant for that purpose..
• In other words, if (as in this case) the responsible authority requires the planning permit applicant to give the notice, the PE Act does not explicitly authorise or require the disclosure of personal information to facilitate the provision of notice, but it does provide an implicit authority to do so.