Robertson and City Of Albany - [2018] WASAT 138

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)
CITATION:   ROBERTSON and CITY OF ALBANY [2018] WASAT 138
MEMBER:   DEPUTY PRESIDENT, JUDGE PARRY
HEARD:   13 SEPTEMBER 2018
DELIVERED          :   13 SEPTEMBER 2018
PUBLISHED           :   10 JANUARY 2019
FILE NO/S:   DR 354 of 2017
BETWEEN:   GRAEME ROBERTSON
Applicant
AND
CITY OF ALBANY
Respondent
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Submitter

Catchwords:

Town planning Development application Extractive industry Practice & procedure Open justice Natural justice Draft amendment to local planning scheme which, if approved by Minister for Planning and gazetted, would prohibit proposed development Tribunal ordered Western Australian Planning Commission to produce minutes of Commission's recommendation to Minister for Planning concerning draft amendment to local planning scheme Commission sought order restricting viewing of document to Tribunal and precluding document from being provided to parties, legal representatives and witnesses Whether 'exempt matter' and therefore 'protected matter' Whether disclosure would, on balance, be contrary to the public interest Whether confidentiality order should be made restricting access to document to parties' legal representatives and town planning witnesses Whether private hearing order should be made restricted to parties' legal representatives and town planning witnesses

Legislation:

Freedom of Information Act 1992 (WA), Sch 1, cl 6, cl 6(1), cl 6(1)(b)
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), cl 53, cl 55
Planning and Development Act 2005 (WA), s 87, s 87(1), s 87(2), s 87(4)
State Administrative Tribunal Act 2004 (WA), s 3, s 3(1), s 27(2), s 32(1), s 35, s 35(1), s 35(3), s 61, s 61(1), s 61(2), s 61(3), s 61(4)(g), s 62, s 160

Result:

Recommendation concerning draft amendment is not 'protected matter'

Confidentiality order made restricting access to recommendation concerning draft amendment to parties' legal representatives and town planning witnesses

Private hearing order made in relation to recommendation concerning draft amendment restricted to parties' legal representatives and town planning witnesses

Summary of Tribunal's decision:

In a planning review proceeding concerning a proposed extractive industry the Tribunal made an order requiring the Western Australian Planning Commission to produce to the Tribunal the minutes of the recommendation of the Commission's Statutory Planning Committee to the Minister for Planning concerning a draft amendment to the applicable local planning scheme, which, if approved by the Minister and gazetted, would prohibit the proposed development.
The Commission produced the Committee's recommendation to the Tribunal, but sought a variation to the Tribunal's order restricting viewing the document to the Tribunal and precluding the document from being provided to the parties, their legal representatives and expert witnesses, on the basis that the document is 'exempt matter' and hence 'protected matter' under the State Administrative Tribunal Act 2004 (WA).
The Tribunal determined that the recommendation is not 'exempt matter', because its disclosure (to the Tribunal and to the parties' legal representatives and expert town planning witnesses) would not be contrary to the public interest. However, the Tribunal made a confidentiality order restricting access to the recommendation to the parties' legal representatives and town planning witnesses and precluding them from disclosing its contents. In order to avoid the publication of confidential information and information the publication of which would be contrary to the public interest, the Tribunal also ordered that the hearing and submissions concerning the recommendation is to be held in private with only the parties' legal representatives and town planning expert witnesses to attend.

Category: B

Representation:

Counsel:

Applicant	:	Mr K de Kerloy and Mr P Keeves
Respondent	:	Mr D F Nicholson
Submitter	:	Dr S J Willey

Solicitors:

Applicant	:	Herbert Smith Freehills
Respondent	:	McLeods
Submitter	:	State Solicitor's Office

Case(s) referred to in decision(s):

Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151
Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117
Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This proceeding involves an application for review by Mr Graeme Robertson (applicant) of the decision of the City of Albany (City or Council) to refuse development approval for an extractive industry, in particular a limestone quarry, at Lot 9055 Rock Cliff Circle and Eden Road, Nullaki. The application for review was listed for final hearing and is now part heard before the Tribunal.
One of the issues in this proceeding is whether the proposed development is consistent with orderly and proper planning. Under that issue, the respondent Council contends that it is contrary to orderly and proper planning to approve the proposed development, because it is inconsistent with an aspect of draft Amendment No. 29 (Amendment 29) to the City of Albany Local Planning Scheme No. 1 (LPS 1 or Scheme).

Draft Amendment 29 to the Scheme

Amendment 29 to LPS 1 is an omnibus amendment and includes a number of proposed changes to the Scheme. One of the proposed changes is to amend Sch 12 of the Scheme in relation to the subject CZ1 Conservation zone to delete cl 3.3 and replace it with the following text:
All other land uses, other than those listed in clause 3.1 and clause 3.2 above are 'X' not permitted within CZ1.
If approved by the Minister for Planning (Minister) and gazetted, this proposed change to LPS 1 would relevantly prohibit the proposed development.
The Council of the City resolved to prepare and advertise Amendment 29, including this proposed change, on 31 October 2017. Amendment 29 was advertised from 12 January 2018 until 1 March 2018, and was then adopted by the Council of the City at its meeting on 27 March 2018. It was then submitted to the Western Australian Planning Commission (Commission) for approval by the Minister under s 87(1) of the Planning and Development Act 2005 (WA) (PD Act). Section 87 of the PD Act states, in part, as follows:
(1)Subject to section 83, after advertisement under section 84 and compliance with sections 85 and 86, a local planning scheme prepared or adopted, or an amendment to a local planning scheme prepared or adopted, by a local government is to be submitted to the Minister for the approval of the Minister.
(2)The Minister may, in relation to a local planning scheme or amendment submitted to the Minister under subsection (1)
(a)approve of that local planning scheme or amendment; or
(b)require the local government concerned to modify that local planning scheme or amendment in such manner as the Minister specifies before the local planning scheme or amendment is resubmitted for the Minister's approval under this subsection; or
(c)refuse to approve of that local planning scheme or amendment.
(3)When the Minister notifies the Commission that the Minister has approved a local planning scheme or an amendment to a local planning scheme, the Commission is to cause the scheme or amendment to be published in the Gazette.
…
(4)A local planning scheme or amendment to a local planning scheme, when approved by the Minister and published in the Gazette, has full force and effect as if it were enacted by this Act.
…
The Tribunal ordered that there be evidence from an officer of the Commission in relation to the status of Amendment 29. In accordance with that order, the City filed a witness statement of Ms Cate Gustavsson who is an officer of the Department of Planning, Lands and Heritage (DPLH). In her witness statement, Ms Gustavsson states that she holds the position of Senior Planning Officer in the Great Southern Regional Land Use Planning team of DPLH, and is based in Albany. She also states that she is the reporting officer for Amendment 29 in that role.
Further, Ms Gustavsson gives evidence that Amendment 29 was scheduled to be considered by the Statutory Planning Committee of the Commission at its meeting to be held on 14 August 2018. Ms Gustavsson then states:
The [Statutory Planning Committee] will consider the amendment documents and make any recommendations to the Minister for Planning in respect of the amendment that the Commission considers appropriate; and then submit the documents and the recommendations to the Minister for Planning.
The hearing of this matter commenced on 14 August 2018 and proceeded for three days. The matter was then adjourned to a view on 4 September 2018, and for the conclusion of the evidence and final submissions on 12 and 13 September 2018.
At the commencement of the reconvened hearing on 12 September 2018, the Tribunal asked Mr D F Nicholson, the City's counsel, whether there was any further information available in relation to Amendment 29 and in particular whether the recommendation of the Statutory Planning Committee, referred to in Ms Gustavsson's witness statement, was available.

Order for production of documents by Commission and application by Commission for variation of order

Mr Nicholson indicated to the Tribunal that the City's officers had been 'informally' advised that the Statutory Planning Committee had considered Amendment 29 at its meeting on 14 August 2018 and had made a recommendation in relation to it to the Minister, but 'because it was dealt with as a confidential matter … they didn't publish minutes of the recommendation that was made'. Mr Nicholson applied to the Tribunal to make an order, under s 35 of the State Administrative Tribunal Act2004 (WA) (SAT Act), requiring the Commission to provide to the Tribunal the minutes of the recommendation of the Statutory Planning Committee to the Minister in relation to Amendment 29. That application was joined in by Mr K de Kerloy, counsel with Mr P Keeves on behalf of the applicant, who also made an application for an order, under s 35 of the SAT Act, for any letter to the Minister concerning such recommendation to also be provided by the Commission to the Tribunal.
On 12 September 2018, the Tribunal made the following orders:
(1)Pursuant to s 35(1) of the State Administrative Tribunal Act2004 (WA) the Western Australian Planning Commission is to file with the Tribunal by 10 am on 13 September 2018 the following documents marked for the urgent attention of Judge Parry's Associate:
(a)Minutes of the recommendation of the Statutory Planning Committee to the Minister for Planning in relation to Amendment 29 to the City of Albany Local Planning Scheme No. 1;
(b)any letter to the Minister for Planning concerning such recommendation; and
(c)if known, the date by or on which the Minister is expected to consider any such recommendation.
(2)The Western Australian Planning Commission has leave to seek any variation to the preceding order at the commencement of the hearing of this matter at 10 am on 13 September 2018.
At 10.00 am this morning, Dr S J Willey, counsel for the Commission, attended the Tribunal and produced the document required by par (a) of order 1 made on 12 September 2018. Dr Willey indicated that there is no document sought by par (b) of the order in existence. Dr Willey submitted that the information sought by par (c) of the order does not 'fall within the scope of section 35, and in any event, we have no instructions when the Minister is likely to consider the matter in terms of for final approval or otherwise'.
Dr Willey also, in effect, made application for order 1 to be varied so that the document produced in accordance with that order under par (a) may be viewed by the Tribunal only and is not to be provided to the parties, their representatives or witnesses. This application was made on the basis that the minutes of the recommendation of the Statutory Planning Committee to the Minister, the subject of paragraph (a) of the order, is 'exempt matter' for the purposes of s 3 of the SAT Act and the document is also 'exempt document' for the purposes of s 3 of the SAT Act and that consequently, because the document relates to an 'exempt matter', it is to be regarded as 'protected matter' for the purposes of s 3 of the SAT Act.
Dr Willey submits that the effect of s 35(3) of the SAT Act, read together with s 160 of the SAT Act, is that the information that has been requested cannot be shown to the parties in this matter. The Commission accepts that the recommendation or the minutes of the recommendation is required to be provided to the Tribunal in accordance with par (a) of order 1, but submits that it should be provided to the Tribunal in an envelope and only viewed by the members of the Tribunal. In particular it should not be provided to the parties, their representatives, or witnesses.

Relevant legislative provisions

Section 35 of the SAT Act states as follows:
(1)On the application of a party to a proceeding, the Tribunal may order that a person
(a)who is not a party to the proceeding; and
(b)who has, or is likely to have, in the person's possession or under the person's control a document or other material that is relevant to the proceeding,
produce the document or material to the Tribunal or the party within the time specified in the order.
(2)The Tribunal may order a person to produce a document or other material despite any rule of law relating to privilege (other than legal professional privilege) or the public interest in relation to the production of documents.
(3)However if the Tribunal considers that any document is or contains protected matter, the Tribunal cannot order a person to produce it to a party.
Section 160 of the SAT Act states as follows:
(1)The Tribunal is to ensure that matter provided to the Tribunal that the Tribunal considers to be protected matter is returned to the person by whom it was provided when no longer required by the Tribunal.
(2)The Tribunal is to ensure that matter provided to the Tribunal that the Tribunal considers to be protected matter is not disclosed in any way other than to
(a)a sitting member of the Tribunal; or
(b)a person to whom disclosure is allowed under subsection (3).
(3)The Tribunal, with the consent of the President, may allow a party, or a representative of a party, to have access to information, or inspect a document, to which a certificate under section 159(2) applies on any conditions the Tribunal thinks fit except that a person cannot be given access to matter that the Tribunal considers to be exempt matter, or allowed to inspect a document that the Tribunal considers to be an exempt document.
The terms 'protected matter', 'exempt matter' and 'exempt document' are defined in s 3(1) of the SAT Act as follows:
protected matter means: -
(a)any information or document to which a certificate under section 159(2) applies, except to the extent that an order of the Tribunal under section 159(4) that its disclosure would not be contrary to the public interest has effect; or
(b)exempt matter or an exempt document[.]
exempt matter means matter that is exempt under Schedule 1 to the Freedom of Information Act 1992[.]
exempt document means a document that contains exempt matter[.]
The Commission submits that the recommendation in the minutes of the Statutory Planning Committee to the Minister is 'exempt matter', because it is exempt matter for the purposes of Sch 1 to the Freedom of Information Act 1992 (WA) (FOI Act), and in particular the recommendation or recommendations:
… are part of the deliberative processes of Government (item 6 of [Sch] 1) because they involve the receipt of advice and the making of decisions under Part 5 of the [PD Act] by the Minister.
Clause 6 of Sch 1 to the FOI Act states as follows:
(1)Matter is exempt matter if its disclosure
(a)would reveal
(i)any opinion, advice or recommendation that has been obtained, prepared or recorded; or
(ii)any consultation or deliberation that has taken place,
in the course of, or for the purpose of, the deliberative processes of the Government, a Minister or an agency; and
(b)would, on balance, be contrary to the public interest.
(2)Matter that appears in an internal manual of an agency is not exempt matter under subclause (1).
(3)Matter that is merely factual or statistical is not exempt matter under subclause (1).
(4)Matter is not exempt matter under subclause (1) if at least 10 years have passed since the matter came into existence.
Subclauses (2), (3), and (4) of cl 6 of Sch 12 are not relevant.

Parties' submissions

Mr Nicholson submits, on behalf of the Council, that the recommendation in the minutes of the Statutory Planning Committee to the Minister is not in fact 'exempt matter', because (under cl 6(1)(b) of Sch 1 to the FOI Act) disclosure would not 'on balance, be contrary to the public interest'. He submits that it is in the public interest in the context of the proper determination of this proceeding and for the Tribunal to come to the 'correct and preferable decision' in this proceeding (under s 27(2) of the SAT Act) for the document to be disclosed not only to the Tribunal, but also to the parties.
In effect, Mr Nicholson submits that the public interest in disclosure of the document for the purposes of the proper determination of the correct and preferable decision in this proceeding outweighs the public interest in keeping, in this case, the deliberative process of the Minister in relation to Amendment 29 not disclosed. Alternatively, Mr Nicholson submits that the document should be taken by the Tribunal as a protected matter exhibit, taken into account by the Tribunal in its determination of this proceeding, but not disclosed to the parties.
Mr de Kerloy submits, on behalf of Mr Robertson, that the document should be disclosed to the parties, or at least should be disclosed to the parties' legal representatives and expert witnesses. Mr de Kerloy strongly opposes the document only being produced to the Tribunal and not also being made available to the parties, or at least their legal representatives and expert town planning witnesses, on the basis that it would be inconsistent with both natural justice and the principles of open justice.

Is the recommendation of the Commission to the Minister 'protected matter'?

The Tribunal is required to afford natural justice, subject to any enabling Act. Section 32(1) of the SAT Act states as follows:
The Tribunal is bound by the rules of natural justice except to the extent that this Act or the enabling Act authorises, whether expressly or by implication, a departure from those rules.
As I will discuss later, s 61 of the SAT Act prescribes the circumstances in which the Tribunal may order that a hearing, or any part of a hearing, may be held in private, contrary to the general expectation in s 61(1) of the SAT Act that 'hearings of the Tribunal are to be held in public'. As the Court of Appeal held in Medical Board of Western Australia v A Medical Practitioner [2011] WASCA 151 at [78], with reference to these provisions of the SAT Act:
While there is an obvious analogy between those provisions and the common law principles of open justice applying to courts, in that s 61 of the Act requires the Tribunal to conduct its hearings in public unless it orders otherwise in one or other of the circumstances prescribed by the section, the source of the powers conferred and the obligations imposed upon the Tribunal is the Act, not the common law. While it may be appropriate to construe the relevant statutory provisions by reference to analogous common law principles, ultimately, the scope of the powers and obligations created by the Act is to be found in the language used by the legislature, not in common law principle. That is why these reasons commenced with a review of the relevant provisions of the Act.

The question for determination by the Tribunal is whether, on balance, disclosure of the recommendation to the Tribunal and to the parties or to their representatives, and town planning witnesses, would not be contrary to the public interest. That is because, under cl 6(1) of Sch 1 to the FOI Act, and therefore for the purposes of the SAT Act, matter is relevantly 'exempt matter' if its disclosure would reveal 'any opinion, advice or recommendation that has been obtained, prepared or recorded … in the course of, or for the purpose of, the deliberative processes of … a Minister' and 'would, on balance, be contrary to the public interest'.
There is no question that the disclosure of the minutes of the Statutory Planning Committee would reveal a recommendation that has been obtained, prepared or recorded for the purposes of the deliberative processes of the Minister in the course of considering whether to approve, require modification of or refuse to approve Amendment 29 under s 87(2) of the PD Act. However, as counsel for both the City and Mr Robertson submit, and counsel for the Commission does not dispute, the document is not 'exempt matter' under cl 6(1) of Sch 1 to the FOI Act, and therefore for the purposes of the SAT Act, if the Tribunal determines that its disclosure would not, on balance, be contrary to the public interest.
I accept that it is generally contrary to the public interest for a recommendation by the Commission to the Minister in relation to a draft local planning scheme amendment to be publicly disclosed, both because it is confidential and because it may affect planning and development processes and decisions and land values in the area to which it applies.
However, in the circumstances of this case, the Tribunal is required, by s 27(2) of the SAT Act, 'to produce the correct and preferable decision at the time of the decision upon the review'. Furthermore, under s 32(1) of the SAT Act, the Tribunal is 'bound by the rules of natural justice except to the extent that this Act or the enabling Act authorises, whether expressly or by implication, a departure from those rules'. The enabling Act in this case is the PD Act and it does not authorise, expressly or by implication, a departure from the rules of natural justice in the conduct of this review proceeding.
I consider that in order for the Tribunal to be able to come to the correct and preferable decision under s 27(2) of the SAT Act, and in order for the Tribunal to conduct this review proceeding in a manner that is consistent with the rules of natural justice under s 32(1) of the SAT Act, it is necessary for the Tribunal and the legal representatives of the parties and the town planning expert witnesses to have access to the recommendation of the Statutory Planning Committee. This is because the Tribunal will be required to give appropriate weight to Amendment 29 by applying the 'Coty principle': see Nicholls and Western Australian Planning Commission [2005] WASAT 40; (2005) 149 LGERA 117 at [39][59] and Terra Spei Pty Ltd and Shire of Kalamunda [2015] WASAT 134 at [198]-[206].
In giving appropriate weight to Amendment 29, the Tribunal will be required to have regard to, in accordance with established principle, whether the making of Amendment 29 in a form which prohibits the proposed development is relatively certain and imminent. In order to come to the correct and preferable decision in relation to that issue, it is necessary for the Tribunal to have access to the recommendation of the Statutory Planning Committee. In order for the Tribunal to do so in a manner which affords procedural fairness to the parties and enables them to present evidence and make submissions in relation to that issue, it is necessary for the document to be provided and disclosed to the parties' legal representatives and town planning expert witnesses.
For these reasons, in the circumstances of this case, I determine that the minutes of the recommendation of the Statutory Planning Committee to the Minister is not 'exempt matter' for the purposes of cl 6 of Sch 1 to the FOI Act, and therefore for the purposes of the SAT Act, because its disclosure would, on balance, not be contrary to the public interest. Indeed, in my view, its disclosure is in the public interest in the circumstances of this case, provided that its confidentiality, which is unquestioned, is respected by appropriate orders of the Tribunal.
The Tribunal has, in the past, made confidentiality orders in relation to draft planning policies of the Commission and draft State planning policies requiring such documents to only be disclosed to the parties' legal representatives and expert planning witnesses. In my view, that is the appropriate course in this case.
Section 61(1) of the SAT Act provides as follows:
Unless another provision of this Act provides otherwise, hearings of the Tribunal are to be held in public.
However, s 61(2) of the SAT Act provides as follows:
On the application of a party or on its own initiative the Tribunal may, in the circumstances described in subsection (4), order that a hearing or any part of it be held in private and that only specified persons may be present.
Under s 61(3) of the SAT Act, such an order can only be made by a legally qualified member or the presiding member if the Tribunal as constituted for a hearing that does not include a legally qualified member.
Section 61(4) of the SAT Act relevantly states:
The Tribunal may make an order under subsection (2) if the Tribunal considers it is necessary to do so –
…
(g)to avoid the publication of confidential information or information the publication of which would be contrary to the public interest[.]
I consider that the Tribunal should make an order under s 61(2) of the SAT Act that part of the hearing in this proceeding, namely the part of the hearing concerning the recommendation of the Statutory Planning Committee to the Minister, is to be held in private with only the parties' legal representatives and town planning expert witnesses to attend, in order to avoid the publication of confidential information and information the publication of which would be contrary to the public interest.
In my view, the publication of the recommendation of the Statutory Planning Committee to the Minister is not only confidential information, but is also information the publication of which would be contrary to the public interest.
For these reasons, I propose to make the following orders:
1.Pursuant to s 61(2) and s 61(4)(g) of the State Administrative Tribunal Act 2004 (WA), the part of the final hearing concerning any recommendation by the Western Australian Planning Commission to the Minister for Planning, concerning Amendment No. 29 to the City of Albany Local Planning Scheme No. 1 is to be held in private and only the parties' legal representatives and town planning expert witnesses may be present.
2.Paragraphs (b) and (c) of order 1 of the orders made by the Tribunal on 12 September 2018 are discharged.
3.The parties' legal representatives and the town planning expert witnesses giving evidence in this proceeding may view the document produced by the Western Australian Planning Commission pursuant to order 1(a) of the orders made by the Tribunal on 12 September 2018 and are not to disclose its contents to anyone other than the Tribunal in this proceeding.
Following the conclusion of my reasons set out above, Dr Willey informed the Tribunal that while I was giving my reasons he obtained formal instructions from or on behalf of the Minister and the Chairperson of the Commission opposing the disclosure of minutes of the recommendation of the Committee. I was obviously not aware of those instructions at the time I gave my reasons. However, taking that into account does not change my conclusion for the reasons I gave earlier.

Further applications

There are two further matters that have been raised by counsel. The first is an application by Mr Nicholson on behalf of the City that the order that the Tribunal foreshadowed earlier should be extended to enable the recommendation of the Statutory Planning Committee to be provided to his instructing officer of the Council. Mr de Kerloy did not make a corresponding application on behalf of Mr Robertson, unless the application is granted for the City, in which case Mr de Kerloy would seek the same access for Mr Robertson.
I have determined that the order should not be in any different terms from the order that I foreshadowed, for the following three reasons.
Firstly, it is not required in order to afford procedural fairness to the parties. The parties are represented by experienced counsel and it is not novel to make an order restricting access to counsel and to relevant experts. I am satisfied that procedural fairness is fully afforded with limited disclosure.
Secondly, the applicant does not make a similar primary submission.
Thirdly, if the application is allowed, that is to say if disclosure is extended to the instructing officer of the Council, as a matter of fairness we would have to do the same, as Mr de Kerloy says in the alternative, and provide access also to the document and to the hearing to Mr Robertson. Although I would make an order that the document not be used for any other purpose other than this proceeding, it would place Mr Robertson into an invidious and, in fact, impossible position to discount from his mind for other purposes of his life and business, the information that he would gain.
For those reasons, I decline the application for Council.
The last matter is an application by Mr de Kerloy for an order that the Commission disclose all of the information that would be put to the Minister in relation to Amendment 29. That application is made on the basis that it is submitted that, in order to be fully informed as to issues of certainty and imminence in relation to the amendment, the Tribunal and the parties, through their counsel, should have access to any planning report or other reports to be provided to the Minister, so that the parties and the Tribunal are fully informed as to the information for the Minister's decision.
Mr Nicholson, on behalf of the City, does not join in that application, at least as his primary position. He submits that the most relevant document is the recommendation itself, as disclosed in the minutes of the meeting of the Committee, and that is the document that should be provided.
Dr Willey opposes the application on behalf of the Commission, noting that only certain documents are required to be provided to the Minister and that although a planning report or other report may well be provided to the Minister, that is outside the scope of the order made on 12 September 2018.
I decline to order the production of either all of the documents to be provided to the Minister or, in particular, any planning report to be provided to the Minister, for the following reasons.
Firstly, the Tribunal did not intend, by order 1, made on 12 September 2018, to require any report to the Minister to be provided to the Tribunal, but only the recommendation of the Commission through the Committee to the Minister, and any letter accompanying the recommendation. In particular in relation to the letter, I note Mr de Kerloy's submission that he intended, by seeking the addition of paragraph (b) to the order, to include any report. However, the order is expressed relevantly as requiring any letter accompanying the recommendation, and not a report. As indicated earlier, the Tribunal was informed by counsel for the Commission that there is no such letter.
Secondly, the only documents which are required, that is to say mandated, by legislation, to be provided to the Minister in relation to a scheme amendment, as set out in cl 55 of the Planning Development (Local Planning Schemes) Regulations 2015 (WA) (LPS Regs) and s 87(1) of the PD Act, are the documents submitted by the local government under cl 53 of the LPS Regs to the Commission and the recommendation of the Commission to the Minister.
Thirdly, in accordance with well-established principles applied by this Tribunal in multiple cases over the 13 or so years since the publication of the decision in Nicholls and Western Australian Planning Commission, it is the recommendation by the Commission to the Minister that is material and properly informs the determination of the Tribunal as to whether the making of the amendment, in this case relevantly prohibiting the proposed development, is relatively certain and imminent. For those reasons we decline the further application.

Conclusion

For these reasons, the Tribunal will make the orders in the terms foreshadowed earlier, subject to a further point made by Dr Willey, which was not contested by either party. Dr Willey submits that the order that the part of the proceeding be held in private should extend not only to the hearing but also to any final submissions made. That certainly was the intention. In order 1, after the words 'final hearing', I will add the words 'and submissions'.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MF
Associate
11 JANUARY 2019