Online access to development application plans still a source of frustration
Amendments to the Environmental Planning and Assessment Act 1979 (the EP&A Act) in 2012 were designed to facilitate online access to plans and other information that form part of development consents.
Those changes extended the application of the express statutory licence to use that copyright material for the purposes of the Act.
This editorial examines the decision of the Civil and Administrative Tribunal of New South Wales (the Tribunal) in Sandy v Kiama Municipal Council  NSWCATAD 49 (Sandy v KMC).
In Sandy v KMC the Tribunal was required to determine whether the Copyright Act 1968 (Cth) (the Copyright Act) still prevented the Council from reproducing surveys and plans in responding to an application under Government Information (Public Access) Act 2009 (the GIPA Act).
The applicant applied for access to information held by the respondent Council relating to a development application for an abattoir adjacent to the applicant’s property.
The respondent’s decision included to provide “view only” access to copyright protected (including surveys, stormwater drainage plans, and building plans) documents.
The applicant sought administrative review by the Tribunal. The purpose of the applicant’s request to access the plans was for the purpose of obtaining legal advice as to the prospects of commencing class 4 proceedings in respect of the proposed abattoir. The applicant argued this was not practicable without copies of the plans.
Would there be an infringement if the copy access was allowed?
After concluding that the information was an original literary and artistic work and subject to copyright protection, the Tribunal noted that any action by the Council in reproducing or copying the work (including providing copying facilities or authorising the applicant to make copies) would infringe the copyright, unless an exception applied.
The applicant argued that it was necessary for a licence to be implied because in order for an application to be processed, third parties would need to reproduce the works. The applicant relied on section 10.14 of the EP&A Act which enables a licence to be given for the purposes of that Act. The Tribunal found this did not enable a licence for the GIPA Act. The applicant also sought to rely on section 83 of the Local Government Act 1993 which provides that on submission for approval one copy becomes property of the Council. The Tribunal found that section 83 did not purport to assign copyright and so did not assist.
As to the exceptions relied on by the applicant:
- section 41 (fair dealing for the purpose of criticism or review) did not assist the applicant as obtaining legal advice does not involve commenting on the quality or merit of the work. Further, it is Council’s purpose in copying the documents to fulfil its obligations under the GIPA Act which is relevant, not the applicant’s purpose in using the documents
- section 43(1) (reproduction for the purpose of judicial proceedings) did not assist the applicant as there was no judicial proceeding on foot
- section 43(2) (fair dealing for the purpose of giving professional advice by a legal practitioner) also did not assist the applicant, having regard to authority which established this section did not provide an exception for seeking legal advice.
Accordingly the decision under review was affirmed.
Accessing copyright material that forms parts of development applications, other than on the basis of having to attend the Council and view the material, remains a source of frustration for both applicants and council who want to make that information available online.
Even with the extension of the express statutory licence to cover more planning material in 2012, given that the bulk of access to planning material is accessed by relying on the GIPA Act, and it is clear that the indemnity only applies to the use of documents for the EP&A Act, in a practical sense those changes have not overcome the problem.
The permanent solution to this problem relies on either changes to the Copyright Act 1968 (Cth) to create a fair use exception relating to public administration, or for the State government to enter into an agreement on behalf of Councils with the Copyright Agency Limited.
Architects and others have consistently said that the cost of any royalty would be low, somewhere in the order of 20 cents per application.
It's a relatively small price to pay to facilitate online access to this important planning information.
This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.