Apartment unit

In a previous blog article we noted a number of major changes to the Western Australian planning system that came about as a result of the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Regulations).  The Regulations took effect on 19 October 2015 and cover a wide range of matters.

As promised, this article provides a more detailed analysis of aspects of the Regulations, in particular the important deemed provisions in Schedule 2 of the Regulations, that now apply to all local planning schemes.

Section 257B of the Planning and Development Act 2005 (WA) (PD Act) provides for the deemed provisions to form part of every local planning scheme in Western Australia. New local planning schemes will now be required to incorporate the deemed provisions. In the interim, the deemed provisions will prevail where they conflict with a provision of an existing local planning scheme. Those concerned with a local planning scheme will now be required to consider the effect of the deemed provisions.

The deemed provisions are extensive and cover a variety of matters including local planning strategies and policies, heritage protection, structure plans, activity centre plans and local development plans. Particularly interesting are the effects of the provisions relating to structure plans, activity centre plans and local development plans. The Regulations require decision makers to have due regard to these planning instruments in deciding applications for development or subdivision approval. However, decision makers will not be bound by the plans when making a decision.

Further, when deciding an application for development approval, the Regulations require local governments to take into account proposed local planning instruments which are being seriously considered for adoption or approval. This requirement stems from the obligation of local governments to have due regard to the principles of orderly and proper planning. Consequently, local planning documents which are still in draft form can influence a local government’s decision regarding an application for development approval. It could be said that this provision is merely the legislative reflection of the longstanding planning law principle relating to the consideration of ‘seriously entertained planning proposals’.  It remains that subsidiary planning documents such as policies cannot override the provisions of a planning scheme.

One potential effect of the new provisions may be to provide landowners and developers with increased certainty regarding the required considerations and processes relating to local structure plans, activity centre plans and local development plans. Prior to the Regulations, the obligations on decision makers to consider planning documents and their effect were often unclear.

There has been some controversy and confusion regarding the deemed provisions arising from the substance of the provisions and their layering effect in combination with existing scheme provisions.  We have been advising clients on the impact of the Regulations.  Please contact our team if you would like to clarify any aspect of the Regulations.

old books

Important changes have been proposed to the laws governing incorporated associations. It is expected that the Associations Incorporation Act 2015 (WA) (Act) will replace the Associations Incorporation Act 1987 (WA) (1987 Act) as of 1 July 2016.

The Act proposes a wide range of changes to the 1987 Act, which aim to codify general common law duties and bring the legislation in line with Corporations Act 2001 (Cth).

The Act will require associations to update their rules as well as introducing a number of changes to their management and reporting procedures.

Summary of changes

  • Management committee members and office holders of the association have increased accountability and duties including: a duty to act with care and diligence; to act in good faith for the best interests of the association; to act for a proper purpose; to not make improper use of information; to not use their position for personal gain; to not cause detriment to the association; and to avoid conflicts of interests.
  • Members of the management committee are ineligible to hold office if they are facing insolvency, bankruptcy or convicted of an indictable offence.
  • A new tiered system of financial reporting has been introduced based upon the association’s revenue. Associations with revenue above one million dollars are required to provide audited financial reports at annual general meetings and ensure that they comply with accounting standards.
  • Privacy provisions in relation to register of membership have been improved and there are limits on how the information be used.
  • Incorporated associations will be required to update their rules of association by either adopting the draft Model Rules or adapting their own rules to include new Schedule 1 requirements.
  • The Commissioner has increased powers to order an audit of financial records or review the proceedings of an association.
  • Dispute resolution processes must be included in the rules and if unresolved a dispute between members or between the association and members, may be determined by the State Administrative Tribunal.
  • The new act has increased the penalties for failure to comply with the Act.
  • Amalgamation procedures for the joining of two or more associations into a new incorporated association have been improved through an application process to the Commissioner.
  • Winding up provisions have been bought into line with the Corporations Act 2001 (Cth) to allow for the appointment of a liquidator or a cancellation of incorporation (without a liquidator).

The current requirements of the 1987 Act will continue to apply to all incorporated associations until the commencement date.

After commencement of the Act, associations will have a 3 year period in which to update their constitutions to comply with the Act, however the majority of the provisions will come into effect on the commencement date.

green plants next to a building

Important alterations were recently made to the Western Australian planning system on 19 October 2015, when the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) (Regulations) took effect and replaced the Town Planning Regulations 1967 (WA). The Regulations introduce a number of changes, namely:

  • new Model Scheme text, which provides a template for local governments to include in all new or updated local planning schemes;
  • deemed provisions, which have immediate effect and are taken to be read into every local planning scheme in Western Australia; and
  • regulations that detail the preparation and amendment procedures relating to local planning schemes and local planning strategies.

We will provide a more detailed analysis of particular aspects of the Regulations, for example, in relation to the treatment of structure plans, in the near future.


Since the date of this article, we have published a further article on the detail of particular aspects of the Regulations.

image of a dam

The Western Australian Jurist is the annual academic journal of the Western Australian Legal Theory Association, which selects high-quality papers on any topic within Legal Theory for publication. The journal is edited by Dr Augusto Zimmermann, an acclaimed Legal Theory and Constitutional Law academic at Murdoch University and Commissioner with the Law Reform Commission of Western Australia.

Glen McLeod’s article ‘The Tasmanian Dams Case and Setting Aside Private Land for Environmental Protection: Who Should Bear the Cost?’ was featured in the most recent publication of the Western Australian Jurist. The article examines some of the fundamental legal issues arising from setting aside private land for the protection of the environment by the use of laws, policy and administrative practice. The paper also explores the conflict between the use of environmental and planning measures and the nature of private property. This leads to a consideration of the point at which such inconsistency effectively constitutes a taking of an interest in land and, in such circumstances, whether the law can require the State to pay the owner just compensation.

The article is available in Volume 6 of the Western Australian Jurist via Murdoch University’s School of Law website.

canola fields

The case of Marsh v Baxter [2015] WASCA 169 (Marsh v Baxter) has gained a high level of attention across the legal, industry and public sectors.  There has been considerable coverage[1] of the long running dispute between neighbours, some considering that the case ‘was never about Marsh or Baxter’ but rather about anti GM interest groups and Monsanto.[2]

This article follows on from our previous article titled ‘The Canola GM Case – Conflicting Land Use and Buffers’ which was published in June of last year.  Following the initial judgment against Mr and Mrs Marsh (the appellants) an appeal was lodged.  The Supreme Court of Appeal dismissed the appeal and ruled in favour of Baxter (the respondent).  The appellants have sought leave to appeal the decision to the High Court of Australia.


The appellants claim for damages against the respondent arising from the escape of genetically modified (GM) canola from the respondent’s farm onto the appellants’ neighbouring certified organic farm.

The appellants’ farm, Eagle Rest (Eagle Rest), was organically certified for mixed grain, barley, oats, wheat, lupin and sheep. The certification did not extend to canola, which was not grown on Eagle Rest.

The respondent’s farm, Sevenoaks (Sevenoaks) held a conventional broadacre farming business that included growing cereal crops, canola and running sheep. Sevenoaks was separated from the western boundary of Eagle Rest by a 20.9 m wide road reserve. The respondent was aware that the appellants were organic farmers.

At the end of 2008, Mr Marsh spoke with the respondent about 12 volunteer canola plants on Eagle Rest. Canola seeds had been blown or carried onto Eagle Rest from Sevenoaks. Mr Marsh explained to the respondent that the appellants’ organic certification may be lost if GM canola made its way onto Eagle Rest because genetically modified organisms (GMOs) were not allowed in a certified organic system.

The respondent swathed the canola plants in late 2010, from which point on, canola swaths from the respondent’s farm were located on Eagle Rest. On 29 December 2010 NASAA Certified Organic (NCO) issued a decertification notice for paddocks of Eagle Rest. On 25 November 2013, the paddocks were re-certified organic by NCO.

In 2012, the appellants commenced Supreme Court proceedings against the respondent, claiming both negligence and private nuisance. The appellants pleaded that between December 2010 and November 2013, they were unable to sell crops grown or livestock raised on certain paddocks of Eagle Rest as ‘certified organic’. The sale of crops and livestock as conventional produce had resulted in lower prices than the sale of the same crops as ‘certified organic’. The extent of this damage was agreed by the parties at trial to be $85,000.

It was pleaded at trial that the respondent acted unreasonably in swathing rather than direct heading the canola crops.

Original decision

The trial judge, Martin J, ruled against the appellants, rejecting their claims that the respondent was liable in negligence and private nuisance.

On the issue of negligence it was found that the ‘airborne…incursion’ of swaths from Sevenoaks to Eagle Rest was not reasonably anticipated or expected by the respondent in November 2010. The risk of harm, identified as pure economic loss, was not reasonably anticipated or expected by the respondent in November 2010. The respondent did not owe the appellants a duty of care. It was further found that the NCO did not have the power or right to decertify Eagle Rest and acted unreasonably in doing so.

On the issue of nuisance it was found that there was no nuisance because there was no unreasonable interference with the use and enjoyment of Eagle Rest by the respondent swathing the GM canola, this being an essential element of the cause of action.

In summary, the four main reasons for the decision were that the:

·             growing of the GM canola in this case was not illegal;

·             cropping method was a legitimate farming practice;

·             cropping had been carried out competently; and

·             effect on the Appellants’ contract with NCO was not reasonably foreseeable.


The appellants sought an appeal of the trial judges’ decision on 11 grounds. Five of these grounds related to the existence and scope of a duty of care, two grounds related to breach of duty, one related to causation, two related to the construction and application of the certification standards and one ground related to nuisance. By a 2:1 majority the appeal was dismissed.  McLure P, in dissent, found that the appellants’ claims in nuisance and negligence should be upheld, while Newnes and Murphy JJA found in favour of the respondent.

McLure P in dissent

McLure P found the interference with the appellants’ use and enjoyment of their property was both substantial and unreasonable and constituted a private nuisance. At [241], McLure P professed uncertainty regarding the appellants’ primary choice of claim:

for reasons that are unclear, the appellants’ primary claim at trial and in the appeal is that the respondent was negligent, relying on (private) nuisance in the alternative.

It is clear that McLure P considered that a greater emphasis should have been placed by the appellants on the tort of nuisance instead of negligence.  This was fundamentally because the tort of nuisance seeks to protect an occupier’s interest in the use and enjoyment of land and is primarily concerned with the reciprocal rights and duties of private individuals in instances of conflicts over competing uses of land.  A similar observation was made by Martin J in the decision at first instance.

McLure P dissented from the judgment and would have allowed the appeal, finding that organic farming was not ‘hypersensitive’, noting that the organic farming was regulated by a Commonwealth backed regime and was a recognised market. McLure P, found, at [292]:

…that there was uncontradicted expert evidence…that direct heading is the better and more responsible practice when GM canola needs to be contained.

McLure P concluded that the respondent would not have suffered any prejudice by utilising the direct heading method.

Newnes and Murphy JJA in the majority

In a joint decision, Newnes and Murphy JJA upheld the earlier judgment, finding that the damage done to the appellant was not reasonably foreseeable by the respondent. They found at [695]:

the respondent was not in breach of the Monsanto licence and on the unchallengeable findings of fact by the judge, the swathing was done in the legitimate pursuit of the respondent’s interests.

They also found that the respondent had ‘sound financial and farming reasons for swathing his canola crop’ and that the onus was on the appellants to prove this was negligent, at [745].

Deciding in favour of the respondent, Justices Newnes and Murphy stated that the respondent’s lawful use of his own land did not constitute a wrongful interference with the appellants’ use or enjoyment of their land.

Newnes and Murphy JJA found that the respondent’s use of swathing was not unreasonable, but was the preferred method of harvesting in the surrounding district. They found the use of swathing was not an interference beyond what an ordinary resident of the district would expect, stating at [785-6]:

the fact that the appellants chose, for their own, presumably commercial, reasons, to conduct their farming operations subject to contractual conditions of that kind, did not mean that the lawful use by neighbouring landowners of their own land in a way which affected the appellants’ ability to comply with those conditions, constituted a wrongful interference with the appellants’ use or enjoyment of their land…

…the appellants were, of course, entitled to enter into arrangements which had the effect that their land was being put to an abnormally sensitive use, but their neighbours did not then fall under an obligation to limit their farming activities on their own land so as not to interfere with that use of the appellants’ land.

The appellants were deemed to have put their land to an abnormally sensitive use and they could not unilaterally enlarge their own rights and impose limitations on their neighbours to a greater extent than would otherwise be the case.

Our thoughts

Marsh has sought leave to appeal the Court of Appeal’s decision to the High Court of Australia.  It will be interesting to see whether the application for leave focusses on the elements of nuisance or negligence, in light of the observations of both Martin J and McLure P.

In the seminal negligence case of Donoghue v Stevenson[3], Lord MacMillan pithily stated ‘the categories of negligence are never closed’.  This sentiment was adapted by the High Court in the equally seminal nuisance case of Victoria Park Racing v Taylor[4] in which it stated ‘the categories of nuisance are not closed’.  Whatever the final outcome of Marsh v Baxter, it is clear that the common law actions of negligence and nuisance are continually being developed by the varying forms of land use conflict facing land owners and occupiers today.

[1] http://www.farmweekly.com.au/news/agriculture/cropping/general-news/gm-cost-appeal-on-hold/2727662.aspxhttp://www.abc.net.au/news/2015-09-03/organic-farmer-steve-marsh-loses-gm-appeal/6746108

[2] http://www.mccullough.com.au/page/Media/GM_crop_test_case/

[3] Donoghue v Stevenson (1932) AC 562 at [619]

[4] Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479

green hills

Glen McLeod, Chair of the International Bar Association’s Environment Health and Safety Committee

The diversity of interests and subject matter covered by environmental law and associated disciplines find expression in the environmental agenda of the International Bar Association (IBA). In this short article I give an overview of some of those subjects, which will be examined in more detail at the IBA’s forthcoming conference in Vienna, from 5 to 8 October 2015.

Judicial, legal and policy developments in climate change law

The seminal IBA Report Achieving Climate Justice and Human Rights in an Era of Climate Disruption[1] (Climate Justice Report) was launched in October 2014 at the IBA Annual Conference in Tokyo.  You can read more about the Climate Justice Report in a previous blog article here. This year the IBA’s Presidential Taskforce on Climate Change Justice and Human Rights has continued with its work, with the support of the IBA’s currentPresident David Rifkin and other senior officers, including David Estrin[2], my immediate predecessor in the Chair of the Environment Health and Safety Committee. The work of the Task Force was summarised by Mary Robinson, the United Nations Secretary-General’s Special Envoy for Climate Change, as follows:

Through this Report the legal community embraces climate justice, elucidates the links between climate change and human rights and makes clear recommendations on ways to secure justice for those affected by climate impacts.

In the past twelve months two IBA working groups have developing elements of the Climate Justice Report recommendations, in particular a Remedies Statute and an approach to justice and adaptation. Justice Brian Preston, the Chief Judge of the New South Wales Land and Environment Court is taking an active role in this work as a member of the Remedies Statute working group. The groups will be reporting on their work, including the preparation of a Report for the IBA General Conference in Washington DC, 19-23 September, 2016.

Environmental justice and the trans-shipment of waste products

International dispute resolution relating to the the trans-shipment of waste from Western Countries to the Developing World. In the words of Gordon Nardell QC[3]:

The environmental justice issue is probably the tension between the attempt to reflect the commercial reality of the situation on the one hand, and the resulting uncertainty on the other – all within the context of the precautionary principle.

This issue is being considered in the framework of trade, environmental and health and safety effects of trade, current law, legal gaps and compliance with regulations.

Dr. Patrícia Iglecias, the Secretary for the Environment in the State of São Paulo, has prepared a review of the illegal export of waste to Brazil, highlighting the environmental justice aspects and its challenges.

Other themes and subjects include the importance of the definition of waste and the application to the precautionary principle to the interpretation of legislation.

The diverse impacts of drought

Four eminent academic, environmental consulting and water industry experts from Bolivia, India, the United Kingdom, the USA and Ireland are examining the divers impacts of drought from a regional perspective. The subjects being covered include the impacts of a lengthy drought on California development and agriculture and the friction between protection of endangered fish in Northern California and providing water to Southern Californian residents. The impact of drought and climate change on sea water levels will be discussed and some positive effects of drought are being considered.

Drought and related climate change issues will also be considered from a European perspective. The indirect impacts of drought including the current refugee crisis and the exportation of water resource will also be examined, including the emerging European Union (EU) legal framework for mitigating the effects of water scarcity and drought within the EU.

Extractive industries – what happens when environmental permit conditions fail: response and remediation

Environmental permitting is a core issue for the mining industry. International variations in approach to the subject are being covered from the standpoint of industry, government and non governmental organisations. There are many lessons that can be learned in the wake of an environmental disaster, but the issues that are repeatedly focused on include regulatory prevention, remedial action, the relative merits of criminal and civil liability of the government, civil liability to third parties, public relations and correcting mistakes.

Outcomes and conference

The above subjects are being examined by the IBA’s Environment, Health and Safety Committee (EH&S) and will be on the programme for the Annual IBA conference in Vienna, 8-11 October 2015. I am planning to prepare a report on the conference, to be submitted to the Editor of Brief for future publication.

The EH&S Committee is part of a grouping within the IBA called Sustainability, Energy, Environment, Resources and Infrastructure Law (SEERIL). This group serves as a focus for the mining, energy and infrastructure industries and associated specialist areas of legal practice, including environmental, health, safety, power and water.

Glen McLeod is the Chair of the International Bar Association’s Environment Health and Safety Committee.  He will be attending the 2015 Annual IBA Conference in Vienna this October.

[1] The full report is at www.ibanet.org/PresidentialTaskForceCCJHR2014.aspx

[2] Senior Research Fellow, Centre for International Governance Innovation: www.cigionline.org/person/david-estrin

[3] www.39essex.com

house by the road

The recent decision in Taylor v City of Kwinana [2015] WASC 252 (Taylor) demonstrates the wide penalty range that can apply in the sentencing of planning offences. The appellant in Taylor was sentenced in the Magistrates Court for failure to obtain planning approval for the use of his property in Kwinana Beach. The use in question related to the storage of machinery and equipment. The City of Kwinana notified the appellant that this constituted an unlawful use and requested that such use should cease, however these requests were ignored for some 12 to 15 months.

The Magistrate imposed a fine of $30,000 and a daily penalty of $50 per day for 162 days totalling $8,100. This penalty constituted 15% of the maximum head penalty, being $200,000, and 0.2% of the maximum daily penalty, being $25,000 per day. In presenting his case for appeal the appellant claimed, amongst other reasons, that the sentence imposed by the Magistrate was manifestly excessive in that it was outside the range of penalties normally imposed for offences of this nature, having regard to the circumstances of the offence and the appellant.

The appellant claimed that the fine imposed was disproportionate to the level of offence. The appellant contended this was evidenced by the fact that it was his first offence, the contravention was low impact, easily reversible and not in a residential area and planning approval was retrospectively given. Additionally, the appellant relied on relevant case authorities.

The Supreme Court of Western Australia found that the sentence was not manifestly excessive. In coming to this conclusion Justice Le Miere referred to the observations of Justice Edelman in the case of Paolucci v Town of Cambridge [2013] WASC 50; (2013) 193 LGERA 388 (Paolucci). Justice Edelman observed that it was difficult to ascertain a clear range of penalties for ‘planning offences’, although in determining an appropriate penalty, guidance can be sought from previous decisions provided that regard is had to the facts and circumstances of each case.

Under the Planning and Development Act 2005 (WA) (PD Act) individuals found to be in breach of planning provisions face a head penalty of $200,000 and $25,000 per day for each day that they are found to be in breach. In reality, the penalty imposed could fall within an extremely wide range of monetary fines. As stated above above, the exact quantum of the penalty is to be informed by a comparison of the facts and circumstances of previous cases with those of the immediate case before the court.

While this statement is useful as an overarching principle, it does not provide a great deal of certainty to individuals who face penalties for alleged breaches of planning provisions. Unfortunately, the broad nature of planning offences necessitates a broad penalty range. For example, an individual who has not paved her driveway in accordance with the requirements of the planning approval issued by the local authority can be contrasted with an individual who has constructed an unsafe and hazardous dwelling with no planning approval whatsoever. Both of these scenarios are considered planning offences under the PD Act, yet they are clearly substantially different in facts and circumstances and therefore cannot be considered to fall within the same category of ‘seriousness’.

So what should an individual do when faced with prosecution for a planning breach? The Court’s comments in Taylor illustrate the need for a detailed knowledge of the case law history of planning breaches to determine the likely penalty in the event of prosecution. This initial assessment will assist an individual in deciding how to proceed. Without such an understanding an individual will find it difficult to assist the Court in determining a reasonable and appropriate penalty given the relative severity of the facts and circumstances. Legal advice should be sought so that an individual facing sentencing for a planning offence does not receive an overly harsh penalty.


What is a nuisance?

Nuisance is an area of tort law consisting of private nuisance and public nuisance.  A private nuisance is a tort arising from the substantial interference with the enjoyment of someone’s interest in land.  A public nuisance involves an interference with public rights affecting the public or a broader class of persons and is a crime as well as a tort.

Origin of nuisance

The law of nuisance in Australia originates from 12th century England where nuisance, known as nocumentum, developed alongside the law relating to public thoroughfares, which was introduced to England by Roman law.  Subsequently, among lesser-known examples, the Magna Carta provided for the removal of nuisances that obstructed public rights of way.

Since then, a lot has changed.  However, the fundamental principles of the law of nuisance have been settled in Australia and in England since the end of the 19th Century.

How does it work with other laws?

Modern planning and environmental laws, as well as various other public laws, carry the batten from nuisance to a considerable degree.  However, those laws do not replace nuisance and in many instances are incapable of preventing a person from protecting their interests by carrying out an action in nuisance.

Current status and recent developments

Elsewhere on this website, we have discussed the contemporary application of the law of nuisance in a number of contexts and by reference to the decisions of Barr & Ors v Bifffa Waste Services Limited [2012] EWCA Civ 312 (resident action against odour emanating from a waste plant) and Marsh v Baxter [2014] WASC 187 (financial loss suffered by non-GM crop grower after GM canola blew onto their land).

What is the future for nuisance?

The categories of nuisance are not closed and nuisance is continually being expanded and refined in interesting ways in common law countries internationally.  In the absence of civil liability legislative changes, we expect this trend to remain.

We continue to be instructed on a number of nuisance matters arising from land use conflicts.

coloured pencils


‘Much of the work we undertake involves dealing with local and state government departments.  Whether we may, for example, act for a client who lodges a development application, objects to the imposition of infrastructure affecting property rights, or seeks compensation for losses suffered due to a government decision, information is often difficult to come by.  For this reason, we commonly make information requests on local and state government agencies under the Freedom of Information Act 1992 (WA) (Act).

Although the Act purports to provide the public with a legally enforceable right to government information, agencies do not always grant access to information willingly.  This can be a significant obstacle for clients who want to know more about how a past, current or future government decision may affect them and their rights.

Structure of the FOI Act

The reluctance of many agencies to grant access to information is curious when in light of the underlying objectives and intention of the Act.

Section 3 of the Act establishes the ‘general right of access to State and local government documents’ and requires that certain documents be made available to the public.  Further, section 3(3) provides that nothing in the Act is ‘intended to prevent or discourage the…giving of access to documents…otherwise than under this Act’.  The reference to ‘otherwise than under this Act’ is a reference to Schedule 1, which contains a detailed list and description of matter that may be exempt from disclosure under the Act.

Putting aside for one moment the exemptions, it is clear that the general right of access should be the starting point for an agency receiving an information application and that the ability for an agency to claim an exemption should only be invoked as a last resort.  There should be a presumption that access to information is granted.  Unfortunately, some agencies appear to approach the task in a contrary manner, turning the application into a quest for claiming exemptions under Schedule 1.  This is add odds with an agency’s duty under section 4 of the Act to assist the public to obtain information and allow access to documents to be obtained promptly and at the lowest reasonable cost.

The types of matter exempt from disclosure include deliberations of Cabinet and Executive Council, matters that could damage inter-governmental relations, personal information, trade secrets, commercial and business information, deliberative processes of government, information subject to legal professional or parliamentary privilege, and confidential communications.  Almost every exemption contains the qualification that ‘matter is not exempt matter if its disclosure would, on balance, be in the public interest.’

Section 102 provides that in any proceedings, generally the burden of proof lies with the agency to establish that its decision was justified.  If however, the applicant alleges that it would be in the public interest to grant access to the information, the applicant bears to onus of proof.

FOI Process

In broad terms, obtaining documents under the Act can be divided into three stages.  The first stage is to prepare the original information application.  The application should not be too broad as the agency may, with notice, reduce the scope of the application to make it more manageable.  This process may result in the agency missing critical documents.  The application should also not be so narrow that the agency can discharge its duties by providing a single document matching the exact description of the request.  A balance is required.  Following receipt of the application, the agency must decide whether to grant or refuse access to documents or parts of documents.  Under the Act, the agency must make a decision within 45 days.  The average number of days is 22.9.[1] For applications that are complex or sensitive, our experience is that agencies take the full 45 days.

The second stage can be entered if the agency refuses access to documents an applicant may seek an internal review.  When applying for an internal review, particulars of the original decision must be provided.  The Act does not require the applicant to make submissions or provide grounds for the review, however, this would be advisable.  The agency has another 45 days to make a decision to uphold or modify the original decision and must appoint a different decision maker who must not be subordinate to the original decision maker.

The third stage provides an applicant with the right to seek an external review of the agency’s internal review decision. The Act establishes the body responsible for hearing the external review, the Office Information Commission (OIC), and provides the process the OIC undertakes.  The OIC takes an application for external review as a complaint against the agency withholding information.  In an effort to maintain independence, the OIC is not an office of the Public Service.  The external review process is protracted and involves making brief initial submissions, participating in a conciliation conference and possibly making further detailed submissions or attending a hearing.  At the end of the process, the OIC makes a preliminary decision which it provides to the parties before publishing.  This provides a final chance for the agency to provide the documents before a public decision is published, revealing the dispute between the parties.  Even if the decision is in the favour of the agency, the agency may suffer a degree of reputational damage in the public eye.  After all, it is in essence denying the public a document that has been alleged to be in the public interest.

In our experience, making a third party appeal to the OIC is the only way in which sufficient pressure can be placed on an agency to force it to uphold a public right.  It is unfortunate that such action has to be invoked to obtain public documents, and concerning that agencies use this to their advantage.  It is not uncommon for agencies to provide the documents at the final stage, just prior to the final decision being made.

The OIC has statistics published in its Annual Reports on which exemptions are most commonly used by agencies.  The most common exemptions claimed are the protect personal privacy, legal professional privilege , commercial or business information of private individuals and deliberative processes of government.  There is a body of decisions published on the OIC website, which inform how these exemptions have played out for information applicants who challenge the agencies decision through to the OIC external review stage.  It is our impression that the OIC generally sets the bar very high for the agency claiming the exemption.  This is considered as being consistent with the objects and intent of the Act.  It is however, disappointing that agencies continue to claim exemptions in circumstance where they struggle to meet the required burden of proof.

Interesting case

Not all disputes that arrive at OIC relate to the exemptions under Schedule 1.  There has recently been a novel matter that has been decided by the OIC, and more recently, appealed from the OIC to the Supreme Court.  Such appeals can only be on a question of law. West Australian Newspapers Ltd and Department of the Premier and Cabinet, Re [2015] WAICmr 9 involved a request by the applicant for documents relating to the government’s proposed Metro Area Express (MAX) light rail project.  The agency refused access to some documents on the grounds that they were created in Ministers’ offices during the caretaker period prior to the election and as such were not a ‘document of an agency’ as defined under clause 4 of the Glossary to the Act.  The agency alleged that the documents could not be the subject of an information request under the Act.  The OIC found that the disputed documents came within the definition of ‘relating to the affairs of another agency (not being another Minster)’ under clause 4(2) of the Glossary to the Act and ordered they be released.

As reported in a recent news article, the agency is seeking to appeal the decision of the OIC, on the grounds of ‘principle’.

We leave you with the words of the esteemed British philosopher, jurist and social reformer, Jeremy Bentham: ‘Where there is no publicity there is no justice.’[2]

[1] Western Australian Government. Office of the Information Commissioner, Annual Report 2014.

[2] Jeremy Bentham, Constitutional Code, Book II, ch. XII, sect. XIV

busy roads

Wallelup Road development Co Pty Ltd v Western Australian Planning Commission [2015] WASCA 104

The Appellant (Wattelup) applied to the first respondent, the Western Australian Planning Commission (WAPC) for approval to subdivide 3 lots of land at Wattleup Road, Hammond Park (Land). The Land is in close proximity to land used by the second respondent, Alcoa of Australia Ltd (Alcoa), for the drying, disposal and storage of bauxite residue from its alumina production facility.  Wattleup proposed to subdivide the Land into, inter alia, 147 residential lots. Another party, Primewest (Wattleup) Pty Ltd, applied to the WAPC for approval to subdivide two adjoining lots.

Under s 253 of the Planning and Development Act 2005 (WA) (PD Act), there was a deemed refusal of the subdivision applications which enlivened an entitlement to apply to the State Administrative Tribunal (SAT) for a review of the deemed refusals.

After the SAT had received the review applications, the Minister for Planning (Minister) ‘called in’ the application under s 246(2)(b) of the PD Act. The provision directed the SAT to hear the applications but, without determining them, to refer them with recommendations to the Minister for determination.

The SAT heard the applications and recommended:

  1. the applications for review be dismissed; and
  2. the deemed refusals of the subdivision applications by the WAPC be set aside and in their place decisions are substituted that   subdivision approval is refused for each of the proposed subdivisions.

Wattleup commenced an appeal in the Supreme Court from the SAT’s recommendation. The preliminary question was whether the SAT’s recommendation is a ‘decision’ for the purpose of s 105 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Section 105 of the SAT Act is the source of the Supreme Court’s jurisdiction to hear and determine appeals from the SAT.

Wattleup contended that the SAT’s conclusion and its recommendation are a ‘decision’ within the meaning of s 105(1) of the SAT Act. It submitted that ‘decision’ should be given its natural and ordinary meaning of ‘a conclusion or resolution reached after consideration’ or a ‘choice or judgment’.

The WAPC submitted that the meaning of in s 105(1) of the SAT Act is not sufficiently broad to encompass a recommendation to the Minister made under s 246(2)(b) of the PD Act. Alcoa relied on the decision of Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. ‘Decision’, when used in the context of judicial or administrative proceedings, refers to a determination that effectively disposes of a matter in hand, that is, has an operative effect.  Accordingly, Alcoa submitted that a recommendation under s 246(2)(b) of the PD Act, which is merely advisory, is not a decision.

A Proceeding before the SAT commences when an application under s 42(1) of the SAT Act is accepted by the Executive officer of the SAT. The SAT Act makes provision for the enforcement of decisions of the SAT in s 85 and s 36. The term ‘decision’ is defined in s 3(1) as including an order, direction, or determination of the Tribunal.

The SAT Act is not generally the source of the SAT’s jurisdiction to review particular decisions. That jurisdiction comes from enabling Acts, such as the PD Act, which specify the particular reviewable decisions to which the SAT’s general functions and powers will apply.

The appellant’s subdivision application was made under pt 10 of the PD Act, which prohibits subdividing any lot without the approval of the WAPC.  Section 251 of the PD Act enables an applicant to apply to the SAT for a review of a decision by the WAPC. The reviewable decision in this case was the deemed refusal by the WAPC to approve Wattleup’s plan of subdivision.

Section 246 and 247 of the PD Act deal with the ‘call in’ system, which applies to an application made to the SAT if the Minister considerers that the application raises issues of such State or regional importance that it would be appropriate for the application to be determined by the Minister. The Minister may direct the SAT to hear the application but without determining it, to refer it with recommendations to the Minister for determination.

But for s 246(2)(b) of the PD Act the SAT would not have jurisdiction or power to make recommendations of the type in issue in this case. An enabling Act may nominate any conduct of a decision maker. The direction of the Minister under s 246(2) of the PD Act takes what was a reviewable decision outside the scope of the SAT’s final review powers.

The PD Act empowers the SAT to perform an advisory function that is otherwise outside the scope of its functions and powers under the SAT Act and does not make express provision for an appeal from the exercise of that advisory function.

The outcome of this case is governed by the meaning of the expression ‘decision of the Tribunal in the proceeding’ from s 105(1) of the SAT Act. The terms defined in s 3 of the SAT Act are wide enough to capture most of the outcomes of the exercise of the decision making powers conferred on the SAT. The definition would extend to rulings and other similar adjudications made by the SAT. However, a recommendation is not an order, direction, determination or other similar outcome.  In McLure P’s view the definition is not wide enough to include a recommendation.

The decision confirms that a recommendation to the Minister following a ‘call in’ is not reviewable by the Supreme Court for the purposes of s 105 of the SAT Act. The Minister is yet to make a decision regarding the recommendation.