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Planning approvals are important, so it is imperative to know whether, once a decision is made, it can be amended, and if so, in what circumstances and to what extent.

It is a well-established principle of administrative law that a power can be exercised again where reconsideration of a statutory decision is open given the construction of a particular statute”.[1]

In an earlier post I explored whether, on the proper construction of the Planning and Development Act 2005 (WA) (PD Act) read with a local planning scheme:

1. a local government (or a development assessment panel as its surrogate) is empowered to vary or set aside its decision on a development application and make yet another decision.
2. the Western Australian Planning Commission (WAPC) is empowered to vary or set aside its decision on a subdivision application and make yet another decision.

These re-considerations could be at the request of an applicant, or at the instigation of the planning decision-maker.

What further reconsideration powers exist?

In this post, I argue that:

• some ‘slip rule’ type powers are exercisable by planning authorities; and
• the WAPC has the power to amend subdivision approvals made in reliance upon information that it subsequently discovers to be materially inaccurate, incomplete or misleading.

Question not answered by functus officio

At first glance the doctrine of functus officio suggests that after a decision-maker has made a decision the decision-maker then has no jurisdiction and is therefore precluded from re-exercising the power.  However, the general proposition must yield to the legislation under which a decision-maker is acting.  In any event, the doctrine of functus officio is nowhere near as confining as it is often characterised: Minister for Immigration  & Multicultural Affairs v Bhardwaj.[2]

 The relevant sections of the Interpretation Act 1984

Section 3(1) of the Interpretation Act 1984 (WA) applies the provisions of that Act to every written statute unless in relation to a particular written law:

• express provision is made to the contrary; or
• the intent and object of the Act or something in the context of the Act is inconsistent with such application; or
• in the case of subsidiary legislation, the intent and object of the Act under which that subsidiary legislation is made is inconsistent with such application.

Section 48 of the Interpretation Act provides that statutory powers may be exercised from time to time as the occasion requires.  Section 5 defines ‘power’ to include any privilege, authority or discretion.

Section 50(2)(c) of the Interpretation Act provides that where a written law confers power to grant an approval, such power includes power to withdraw that approval.  Section 50(3) provides that this applies, subject to section 3(3), to laws passed after the commencement of the Interpretation Act.

Section 55 of the Interpretation Act provides that where a written law confers a power to do any thing of an administrative or executive nature, the power or duty may be exercised or performed as often as is necessary to correct any error or omission in any previous purported exercise or performance of the power or duty, notwithstanding that the power or duty is not in general capable of being exercised or performed from time to time.  For example, as the act of issuing a warrant was administrative, a court can rely on s 55 to re-issue a warrant to correct an error.[3]  One limitation of s 55 is that it does not apply where the power is spent (and thus can no longer be exercised).[4]  Most critically though, this provision cannot be invoked when all relevant facts and circumstances are before the decision-maker and he or she simply changes his mind.[5]

Inconsistency

Express provisions

There is no provision of the PD Act which is expressly inconsistent with the applicability and operation of sections 50(2) (read with section 48) and 55 of the Interpretation Act.

Other inconsistency

Local planning schemes are made pursuant to the PD Act.  Therefore, the critical question of ‘other inconsistency’ is whether the intent and object, subject matter or context of the PD Act are inconsistent with the applicability and operation of sections 50(2) (read with section 48) and 55 of the Interpretation Act.

Section 55 of the Interpretation Act

This section enables the correction of errors or omissions.  The interesting question in its application to planning approvals is what constitutes an error or omission.  I contend that the scope of this power should be consistent with the statutory ‘slip rule’ power given to the State Administrative Tribunal (SAT) in section 83 of the State Administrative Tribunal Act 2004 (WA) to rectify a clerical mistake, an error arising from an accidental slip or omission, a material miscalculation or a defect in form.[6]  That is to say:

• the WAPC ought to be taken to have the power to amend subdivision approvals so as to correct clerical mistakes (including omissions), miscalculations or defects in form; and
• local governments (including development assessments panels as surrogates) ought to be taken to have the power to amend development approvals to correct clerical mistakes (including omissions), miscalculations or defects in form.

In my view, this power should be considered to be discretionary (non-compellable), and must be exercised consistently with good administrative practice.  However, this power should only be able to be exercised within a reasonable (presumably short) time from the making of the decision.[7]  While the Rules of the Supreme Court in WA require applications for judicial review to be made within 6 months,[8] a longer period is justified in that case as it is necessary for legal advice to be obtained and evidence to be prepared.[9]  This error-correction power should only be exercisable within a shorter period.

Section 50(2)(c) (read with section 48) of the Interpretation Act

Section 50(2)(c), read with section 48, of the Interpretation Act appears to give planning approval bodies the power to withdraw an approval from time to time as the occasion requires.

The starting point for planning approvals must be that once an approval or refusal is given that the decision is final.[10]  Powerful arguments for finality, certainty and likely reliance by third parties can be derived from:

• the PD Act’s stated purposes of providing for an efficient and effective land use planning system in the State and promoting the sustainable use and development of land in the State;[11] and
• the subject matter and context of the PD Act.

Further, without a limit, some applicants may generate continual requests for reconsideration creating an additional administrative burden.[12]

A change of heart will not be sufficient – planning decisions cannot be revoked simply because the decision-maker decides it has changed its mind.[13]  However, the general need for finality in planning decisions need not completely exclude the operation of section 50(2).  What is determinative I suggest, is the fact that there are now express powers allowing local governments and Development Assessment Panels (DAPs) to amend development approvals.  Thus, in my view there is now little scope to find an additional amendment power based on the application of section 50(2) of the Interpretation Act.[14]

Subdivision approval is different.  I contend that there is scope for section 50(2)(c) of the Interpretation Act to allow the WAPC to revoke a subdivision approval and substitute a new decision if the WAPC becomes aware that its original decision was made in reliance upon information that it now knows to be materially inaccurate, incomplete or misleading.  The inaccurate, incomplete or misleading information could be from the applicant, but it could also come from a referral authority.[15]  However, as with applications for fresh evidence in appeals, the starting point ought to be that if the facts were available earlier but the omission is not attributable to the fault or neglect of the party, the planning authority should be hesitant to exercise its power.[16]

What further reconsideration powers exist?

I therefore conclude that, in addition to those discussed in my earlier post, there are two further species of reconsideration powers.  They are:

• ‘slip rule’ type powers of error-correction exercisable by the WAPC, local governments and DAPs; and
• the power for the WAPC to amend subdivision approvals made in reliance upon information that it subsequently discovers to be materially inaccurate, incomplete or misleading.

 

[1] Falkiner v Director-General of Planning NSW [2002] NSWLEC 159; (2002) 125 LGERA 138, 151 [60] (Pain J, after referring to section 65 of the Interpretation Act 1987 (NSW)).

[2] Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [5] to [8].  See also the observations of the Full Court in Mount Lawley Pty Ltd v Planning Commission (WA) [2004] WASCA 149; (2004) 29 WAR 273 at [58].

[3] De Alwis v State of Western Australia [2014] WASC 161 at [79]-[80].

[4] Mount Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 at [58] (The Court).

[5] Venture Management Ltd v Commissioner of State Taxation (WA) (1991) 4 WAR 283, 295 (Franklyn J).

[6] This possibility was left open by the Full Court of the South Australian Supreme Court in Remove all Rubbish Co Pty Ltd v City of Munno Para (Minister for Environment and Planning intervening) (1991) 56 SASR 254, 259 (Cox J, with whom King CJ agreed).

[7] For discussion of a reasonable time to exercise a power of revoke a registration see Donovan v City of Sale [1979] VR 461.

[8] Rules of the Supreme Court 1971 (WA), Order 56 rule 1, definition of “limitation period”.

[9] Strict time limits on judicial review have long been accepted as necessary to protect the interests of those relying upon the validity of the approval: see for eg. R v Secretary of State for the Environment, ex parte Ostler [1977] QB 122.

[10] Sloane v Minister for Immigration, Local Government and Ethnic Affairs (1992) 37 FCR 429 at 443 [30] (French J); The Queen v Berri District Council; Ex parte H L Clark (Berri) PtyLtd (1984) 36 SASR 404, 406-7.  As to the finality being critical to good administration generally see Minister for Immigration & Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [8].

[11] Planning and Development Act 2005 (WA), section 3(1)(b) and (c).  In Hamersley v Bartle Chaney J observes that a provision which enables amendment to an existing approval is clearly capable of assisting efficient and effective land use planning: [2013] WASC 191, [86].

[12] Sloane v Minister for Immigration (1992) 37 FCR 429 at 443 [30] (French J referred to the potential for endless requests for reconsideration);

[13] While the statutory context differs, the discussion of the Victorian Civil and Administrative Tribunal is instructive on this question – see Malvestuto Pty Ltd v Shire of Yarra Ranges [2001] VCAT 1788 at [5].

[14] Subsection 50(3) of the Interpretation Act applies section 50 to written laws, which includes regulations.  It would be nonsensical to infer the existence of a second review process alongside that created by the respective regulations.

[15] Agencies and bodies with a relevant interest who are invited to comment on applications such as utilities (water, power, telecommunications) or the Department of Health (such as for sewerage proposals).

[16] As to new evidence in appeals, see Mickelberg v The Queen [2004] WASCA 145; (2004) 29 WAR 13, [411] – [416].

Introduction

1. As there are many types of public inquiries,[1] my aim is modest: to summarise some general principles based upon my experience appearing in coronial inquests.
2. The topics I will cover are:
   1. The treatment of evidence
   2. Privileged information in the inquiry context
   3. Tailoring your approach

Treatment of evidence
Non-publicaion and other protections

3. Coroners and other inquirers usually have the power to make non-publication orders to protect certain information. For instance, to protect the identity of undercover officers, police methodology, or national security information.[2]
4. If you have a concern don’t be afraid to ask for a non-publication order. It is often prudent to first sound out counsel assisting.
5. In the case of inquests, orders can be made under section 49 of the Coroner’s Act 1996 (WA) if the Coroner reasonably believes that publication would be likely to prejudice the fair trial of a person, or be contrary to the public interest.
6. Non-publication orders are not necessarily inconsistent with open justice. They can be tailored, focusing upon specific evidence, and / or lasting for a specific duration or until an event occurs.
7. A little time can allow your client the opportunity to explain a point so the media have the full perspective before reporting. I’ve succeeded in obtaining non-publication orders in many contexts, including inquests.  Occasions when I have failed to obtain the protection I sought include when I sought orders for:
   1. an extended time period, or
   2. a breadth or scope that could not be sufficiently justified.
8. On the question of time – don’t forget to consider how your client might want to use the material itself. I once obtained a suppression order that was so broad, and lasted for so long, that it prevented my client from using the particular issue as in its internal training program!
9. Sensitive witnesses, including children or those recalling traumatic events, may be allowed to give evidence in special ways – similar to allowances made in the Evidence Act 1906 (WA) for criminal proceedings.

Selecting the evidence and running the case

10. Australian lawyers are used to the idea that the parties define the issues. In public inquiries, the inquirer decides the issues.  This is usually done in consultation with counsel assisting, and sometimes also with the principal investigator.
11. Counsel assisting does not advocate a particular case – there are no sides.
12. Coroners can direct investigators to continue investigating a matter even after an inquest has commenced. In this respect coronial work is similar to the work of investigating Magistrates in civil jurisdictions.[3]
13. As the coroner decides the issues and the evidence to be led, it follows that the coroner can decide which witnesses will be called. The necessary corollary of this is that the coroner can also decide which documents (including witness statements) should simply be tendered without a witness.
14. Counsel assisting will conduct the primary examination of witnesses. This bears some of the hallmarks of an examination-in-chief in eliciting the primary evidence of the witness.  However, it can also look very much like cross-examination as counsel assisting then tests the evidence of the witness.  Warn your witnesses: counsel assisting can progress to probing cross-examination on contentious evidence.
15. Some counsel assisting will tender witness statements as read, especially for non-contentious witnesses. Even for contentious witnesses, counsel assisting will frequently ask the witness to confirm the accuracy of non-contentious parts of statements rather than leading that evidence.
16. The tendering of documents is often done by counsel assisting instead of counsel for interested parties.[4] However, if an issue arises part way through the hearing, a document relevant to the issue can be provided to counsel assisting – and it is prudent to do so as soon as possible.
17. If in preparation you conclude that your witness has additional relevant evidence that is not part of the coronial brief it is usually prudent to prepare a witness proof. As in any litigation, the process of preparing the proof can settle your witness, and knowing your clients’ evidence usually aids your preparation.
18. However, in an inquiry context, you should consider converting the proof to a witness statement and providing it to counsel assisting. This can sometimes be critical as unless the coroner has advance warning, the evidence may not be allowed in at all.  Secondly though, it is possible that the statement will be judged non-contentious and simply tendered.  Even if it is not tendered, the statement gives a predictable framework for the examination and so should make the time on the witness stand less stressful for your witness.
19. Remember too the old maxim: “He who writes the first draft wins”. The application in this case being, it is easier for most people to give simple, clear and coherent evidence to their own lawyer in proofing than it is doing so on the witness stand.

 Rules of evidence

20. Relevance bears an unfamiliar meaning in public inquiries. Counsel assisting can examine a witness on any matter that the inquiry considers both proper and relevant in relation to matters within the terms of reference.[5]  For coronial inquests section 25 of the Coroners Act 1996 (WA) sets the statutory parameters.
21. Section 44(4) Coroners Act explicitly provides that the coroner may disallow any question which in the coroner’s opinion is not relevant or not a proper question. The approach of different coroners can vary markedly – so watch the treatment of counsel who go before you.
22. Coroners may make findings based on evidence that would not be admissible, or would hold little weight, in ordinary court proceedings. To be clear: the rules of evidence do not apply: section 41 Coroner’s Act 1996 (WA).
23. Further, the standard of proof applicable to the findings is the balance of probabilities as explained in Briginshaw v Briginshaw.[6]
24. While the absence of the rules of evidence can be freeing for the advocate, remember that it can also mean that your client’s witnesses may face questions that are speculative, and they may be asked to give (or comment upon) hearsay evidence, or give opinions with seemingly little basis.[7]
25. The corollary of the inquisitorial nature of the proceeding is that persons who appear at an inquest are not bound as between themselves by the coroner’s findings.[8]

Cross-examining as counsel for a witness

26. A key implication of the low threshold for admissibility is that it is very difficult to exclude evidence.[9]
27. Cross-examine with the intention of eliciting the material needed to make the closing submissions that you desire to make.
28. The sage words of Chester Porter put the point better than I could:[10]

As in all advocacy it is necessary for the advocate to decide beforehand the objectives sought to be achieved.  Every question asked carries a risk, and should only be asked if the likely advantage will exceed the risk.  Sometimes, of course, risks have to be taken.  Sometimes it may well be in the interests of the party represented to know the truth as early as possible.

Appearing before the coroner therefore carries the usual risks where too many questions are asked.  There is a natural desire to impress the client, but it is unwise to sacrifice good advocacy in the interest of simply impressing one’s clients.  In particular, having obtained the right answer, many experienced advocates make the mistake of asking the question again in order to emphasis the point made, and finish up with the witness changing the answer.  The advocate must decide before he or she asks questions, where the questions may lead.

Privileged information in the inquiry context

29. Legal professional privilege is said to be so fundamental to the proper functioning of a legal system that it is not abrogated in inquiries except by express statutory provision.[11]
30. The privilege against self-incrimination is abrogated by many inquiry statutes. The statutory abrogation is usually accompanied by an expression of immunity, either a use immunity, a derivative immunity or both.
31. For corruption and crime investigations this is an evolving area of law that has been the subject of several recent High Court decisions. As my focus is on inquests, I simply reference the decisions.[12]
32. In Western Australia when a witness declines to answer a question in a coronial inquest on the ground that his answer may tend to incriminate him or her, the witness may be offered a certificate and ordered to answer.[13] Any evidence given by a person with a certificate is inadmissible in evidence in criminal proceedings against that person (ie. it provides ‘use immunity’).
33. I have already referred to non-publication orders. These are certainly useful to protect sensitive evidence (including material covered by public interest privilege (immunity)).  However, if you think the inquiry could be progressed without the sensitive information, one strategy you shouldn’t overlook is being honest with counsel assisting and explaining:
    1. its sensitivity; and
    2. how you say the inquiry can progress without it.
34. If you can avoid production this will give better protection than non-publication orders.

Tailoring the cloth to fit the cloak of counsel assisting in various inquiries

35. An interested person may appear, or be represented by a legal practitioner, at an inquest: section 44(1) Coroners Act 1996 (WA). In order to grant leave for a person to be represented by counsel, a coroner must be satisfied that the person has a “sufficient interest”.  This is akin to a test of standing.  This is a question of fact based upon the circumstances of the death.[14]
36. A person will be an “interested person” if there is a reasonable prospect that the coroner may make a finding adverse the interests of the person, so section 44(2) of the Coroners Act 1996 (WA) mandates that such a person must be given the opportunity to present submissions against the making of such a finding. The class of persons who may be granted leave will be wider than those who may potentially be the subject of an adverse finding.[15]
37. Leave to appear may be conditional, restricting the practitioner’s rights to those relevant to the interest person’s interests.
38. There is scope for counsel assisting to operate in a variety of ways. This flexibility, together with the usual variability in temperament and personality, means that counsel assisting vary greatly.  Consequently, it is prudent to talk to practitioners who regularly appear in inquests to get a sense of what to expect.
39. Counsel assisting are entitled to confer with the coroner / inquirer. Thus, it is prudent to assume that when you hold discussions and correspond with counsel assisting your communications may be disclosed to the coroner.
40. Remember always that most inquiries, and all coroners, are resource constrained. This is relevant in that if there is an aspect of the investigation that your client can assist with, it may be worth your client volunteering to assist.  This can give your client early notice of the issues and the ability to respond in anticipation of recommendations.
41. It is sometimes said that as inquiries are inquisitorial that they are not adversarial. This may be so, but I caution that it is often a flawed analysis.  Just because the selection of the evidence is dictated by the inquirer / coroner, this does not mean that the meaning of the evidence is also dictated.  Everything is open to interpretation.

[1] Some are convened by parliaments, some by the executive government.  Some investigative officials, committees or agencies have a standing function whereas others are ad hoc.

[2] Note too that the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) may apply to some civil proceedings, but usually only after the giving of notice by the federal Attorney-General: section 6A.

[3] Dillon, Hugh and Marie Hadley, The Australasian Coroner’s Manual (2015), p84.

[4] Dillon, above note 3, p173.

[5] Renton, Darren, Role of Counsel Assisting (Law Society of WA, CPD presentation).

[6] Re State Coroner; Ex Parte Minister for Health (2009) 38 WAR 553, 561 [21].

[7] Brown, Liam, Representing witnesses called before inquiries into the conduct of the executive government (2015, Legalwise CPD Seminar).

[8] Re State Coroner; Ex Parte Minister for Health (2009) 38 WAR 553, 561 [21].

[9] Dillon, above note 3, p172.

[10] Dillon, above note 3, p172, quoting Chester Porter, ‘Appearing at a coronial inquest: The function of an advocate’ in Coronial Law and Practice: Seminar Papers, College of Law, Sydney, 1993.

[11] Dillon, above note 3, at p85; Streit, Jens, Legal Issues Affecting Public Inquiries, (2015, Legalwise CPD Seminar), paragraph 44, citing Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543, [9] and [11].

[12] X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92; Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 251 CLR 196; Lee v The Queen [2014] HCA 20; (2014) 88 ALJR 656.  See the case note by Edward Greaves at (2014) 41(7) Brief 14.

[13] Coroners Act 1996 (WA), section 47.

[14] Barci v Heffey (unreported, Vic Sup Court, 10 February 1995, Beach J).

[15] Annetts v McCann (1990) 170 CLR 596 at 608-609.