OFFICIAL


PO Box 655
Ballarat Vic 3353

AUSTRALIA

Telephone: 03 5320 5500

Date:
16 May 2022
Peter Berlyn
Our Ref:
40-2122SC
By email:  xxxxxxxxxxxxxxxxxxxxxxxxx@xxxxxxxxxxx.xxx.xx
Enquiries:
03 5320 5659
Email:
xxxxxxxxxxxxx@xxxxxxxx.xxx.xxx.xx
Dear Peter,
  I refer to your application received by Council 2 May 2022, in which you sought access to
documents under the Freedom of Information Act 1982 (FOI Act).

Specifically, you advised you are seeking access to:

1.  I request a copy of correspondence , if any, sent to all affected proprietors , either by the
Ballarat City Council in its own right or as agent for the State of Victoria, advising that
zoning of their properties had altered( or was being altered and invited submissions for
or against) from' Residential' to 'Residential Growth'.

On the 13th of April last, the Director of Planning reported to the Delegated Planning
Committee Meeting that the change occurred in 2014 with an amendment in 2015. I am
unable to verify these dates.

The geographic area affected is able to be loosely described as within the area to the
east of Ballarat Grammar School, to the north by Norman Street, to the south by Howitt
Street and to the west by Gil ies. and contains a few excluded areas, eg Stockland
Shopping Centre.

2.  Also requested are copies of the documents indirectly referred to in the Instrument of
Delegation from Council latest iteration to each person appointed from time to time as a
member of the Planning Delegated Committee and includes under' Powers and
Functions' :,'relevant policies and guidelines expressed in the introduction, at item 1, the
'Planning Committee Terms of Reference' ,and, at item 2.3:' guidelines or policies which
from time to time Council adopts.'

On 8 May 2022, you emailed Council the following:

Depending on what document/s (if any) is located one or more dates wil  be exposed and
on this basis, I wish to amend my FOI request to include documentary evidence (if any) that
expresses which entity (if any) had the responsibility for consulting, receiving objections and
giving notice of the aforementioned one or two changes remembering that a number of old
time residents claim not to have ever received anything.

Clarification

I have examined the terms of your request and have determined that I require clarification in
order to process your application. Section 17(2) of the FOI Act requires that a request for access
to documents contain suf icient information concerning the documents to which access is sought
to enable an officer to identify the relevant documents.

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  An applicant under the FOI Act must define with as much precision as possible the documents
sought. If a request is ambiguous or otherwise il  defined, it may not comply with the FOI Act and
may not be processed.

In its present form, I consider that the request does not meet the requirement provided for in
section 17 of the FOI Act. Without further clarification it may not be possible to identify all of the
documents which you are seeking to access.

Under section 17(3) of the FOI Act I have a duty to help you frame the request in such a way
that it complies with section 17(2). Accordingly, I invite you to clarify the request so as to enable
this office to identify the documents sought.

To assist you with the clarification of the terms of the application, the following information has
been provided and questions posed.

Point 1

My understanding of this point is that you are seeking copies of the initial letters sent to
affected property owners advising that zoning of their properties had been altered.

Furthermore, if the above does not exist you are seeking a document (in any form) which
states which entity (if any) had the responsibility for consulting, receiving objections and giving
notice of the aforementioned

Can you please confirm if my interpretation above is correct?

Point 2

In this Point of your application you have sought access to “copies of the documents indirectly
referred to in the Instrument of Delegation from Council latest iteration to each person appointed
from time to time as a member of the Planning Delegated Committee and includes under' Powers
and Functions' :,'relevant policies and guidelines expressed in the introduction, at item 1, the
'Planning Committee Terms of Reference' ,and, at item 2.3:' guidelines or policies which from
time to time Council adopts.'”.

My understanding  is  that  in regard to ‘copies of the documents indirectly referred to in the
Instrument of Delegation from Council latest iteration to each person appointed from time to time
as  a member of the Planning Delegated Committee?’  you are requesting the following
documents which outline the Council or Representation for Committees and External Bodies for
2022:
Council Meeting agenda – 24 November 2021 (pg. 402)
Council Meeting minutes – 24 November 2021 (pg. 22)

Furthermore, my understanding is that in regard to ‘item 2.3 ‘guidelines or policies which Council
from time to time adopts’ you are requesting the following documents to which the Instrument of
Delegation infers:
Governance Rules
Commit ee Policy
Planning Delegated Committee Terms of Reference
Policy for Council Consideration of Planning Applications
  Can you please confirm if my interpretation above is correct? And if so each of these documents
are publicly available, therefore I have included the relevant links.

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  Freedom of Information process and timeframes

In order to assist you, I have outlined below some of the provisions of the legislation and the
various timeframes applicable to different steps in the procedure which wil  impact upon the
processing of your matter.

Decision making

When the relevant documents have been identified they wil  then be assessed and a variety of
exemptions wil  be considered. The main exemptions are:
•  Documents affecting personal privacy;
•  Some internal working documents;
•  Documents relating to trade secrets (both of Council and external entities).

After consideration of the exemptions under the FOI Act it could be that some or all of the
relevant documentation cannot be provided to you.

Third parties

Under the FOI Act, Council is required to consult with individuals, businesses and government
agencies referred to in the requested documents before it is permitted to make a decision
concerning access.

Once consultation is completed, and if Council makes a decision in opposition to the views of
the individuals and businesses, or where they have not consented, they are each entitled to seek
a review of the decision by the Victorian Civil and Administrative Tribunal (VCAT). Although a
decision may be made to release the material, it must be withheld for 60 days pending the expiry
of the review period.

Access charges

Under section 22 of the FOI Act and the Freedom of Information (Access Charges) Regulations
2014 access charges are applicable to FOI requests. A summary of the charges is as follows:

Search charges
$22.215 per hour or part thereof
Copying charges
20 cents per black and white A4 page
Other charges – including
Reasonable costs incurred by the
transcription and colour copying
agency

Under section 22(4) of the FOI Act, if it is estimated that the charges may exceed $50.00, a
deposit of $25.00 is required (if the calculated charge does not exceed $100.00) before the
request is further processed.

If the calculated amount wil  exceed $100.00, the required deposit amount is 50% of the charge.
Documents are not provided until the applicable charges are paid.

Until you clarify the application, a valid request does not exist under section 17 of the FOI Act
and as a consequence the statutory timeframe to process this application has not commenced.

When clarification of the terms is received a search for documents relevant to the request wil
commence. Once the search is complete you wil  receive a further letter which wil  inform you of
the requirement to pay a deposit towards the access charges applicable to the request.

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  Irrelevant material

When giving your response would you please also provide your advice concerning section 25 of
the FOI Act? Under section 25, if a decision is made not to grant access to a document on the
basis that it is an exempt document and/or it contains irrelevant material, Council is only required
to provide you with an edited copy of that document (i.e. with the exempt material removed) if
you have indicated that you would wish to receive an edited copy.

Diversion of resources

Under section 25A(1) of the FOI Act, access to documents can be refused on the grounds that
the work involved in processing the request would divert the  resources of the agency
substantially and unreasonably from  its other operations. I am drawing  your attention to this
section so that when you clarify your request it is done in such a way so as not to evoke this
provision of the FOI Act.

Please note that if you:
•  Fail to begin consulting with Council to clarify your request;  or
•  Fail to provide an amended request;  or
•  Fail to otherwise make the request compliant with section 17 of the FOI Act
within 21 days from you receiving this notice, Council may refuse to comply with your
request.

Should you require further information in relation to your application, please do not hesitate to
contact me directly on 03 5320 5659.

Regards,

Sarah Cuthbert
Statutory Compliance Of icer

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Document Outline