Baywillow Holdings Pty Ltd and Presiding Member of the Metropolitan East Joint Development Assessment Panel - [2016] WASAT 18

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: BAYWILLOW HOLDINGS PTY LTD and PRESIDING MEMBER OF THE METROPOLITAN EAST JOINT DEVELOPMENT ASSESSMENT PANEL [2016] WASAT 18

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD: 5 FEBRUARY 2016

DELIVERED : 5 FEBRUARY 2016

PUBLISHED : 1 MARCH 2016

FILE NO/S: DR 460 of 2015

BETWEEN: BAYWILLOW HOLDINGS PTY LTD
Applicant
AND
PRESIDING MEMBER OF THE METROPOLITAN EAST JOINT DEVELOPMENT ASSESSMENT PANEL
Respondent
COLES GROUP PROPERTY DEVELOPMENTS
First Interested Party
LWP BYFORD SYNDICATE PTY LTD
Second Interested Party

Catchwords:

Practice and procedure Third parties' applications for leave to attend mediation Strong objection by applicant Whether discretion should be exercised to grant leave to third parties to attend mediation Purpose of mediation No third party right of review No power to join third parties as parties to proceeding

Legislation:

Planning and Development Act 2005 (WA), s 243, Pt 14
State Administrative Tribunal Act 2004 (WA), s 9, s 31, s 37(3), s 38, s 54(1), s 54(3), s 54(4)

Result:

Leave for third parties to attend mediation refused

Summary of Tribunal's decision:

Third parties applied for leave to attend a mediation in a planning review proceeding concerning the refusal of a development application. The applicant strongly objected to the involvement of the third parties, arguing that their interests were primarily commercial, rather than involving planning considerations. The respondent neither consented to, nor opposed, the application.
The Tribunal refused to grant leave to the third parties to attend the mediation, because:
·the third parties had no right of review and could not be joined as parties to the proceeding;
·the applicant expressed strong objection to their involvement;
·mediation involves a structured negotiation between parties intended to achieve the resolution of the matters by settlement between the parties;
·the involvement of the third parties was not necessary to enable the Tribunal to effectively conduct a mediation between the parties; and
·if, as is usually the case where positions change through mediation, the Tribunal were to invite the original decisionmaker to reconsider its decision, then the third parties could make submissions to the original decisionmaker.

Category: B

Representation:

Counsel:

Applicant:     Mr N Hidding (Acting as Agent)
Respondent:     Ms C Ide
First Interested Party      :     Mr C Wallace
Second Interested Party :     Mr M Flint

Solicitors:

Applicant:     N/A
Respondent:     State Solicitor's Office
First Interested Party      :     Lavan Legal
Second Interested Party :     Flint Legal

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

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

Third parties' applications for leave to attend mediation

This proceeding involves an application for review by Baywillow Holdings Pty Ltd (applicant) of a decision of the Metropolitan East Joint Development Assessment Panel (DAP) to refuse a development application for, what appears from the plans to be, a largely retail development in the Byford area.
The development application was refused by the DAP notwithstanding a recommendation by the officers of the Shire of SerpentineJarrahdale (Shire), which is otherwise the responsible authority, for development of the site.
The matter was the subject of an initial directions hearing on 8 January 2016 and at the directions hearing the matter was referred for mediation at 2 pm on 9 February 2016 for a duration of three hours with relevant officers of the Shire invited to attend. The applicant was also required to provide additional information to the respondent by 15 January 2016 which the solicitor for the respondent has indicated has occurred.
The Tribunal received correspondence from Lavan Legal, acting on behalf of companies within Coles Group Property Developments (Coles), earlier this week. That correspondence, and further submissions made by Mr Craig Wallace on behalf of Coles this morning, indicates that Coles owns, and is currently developing, in accordance with development approval, a large property to the north of the property the subject of this application for review, including for a Coles supermarket. Although not expressly stated, at least in the material that I have seen of the subject development application, there is a large area, presumably retail space, within the proposed development, which may well be conducive to supermarket use.
Coles has expressed a concern, both to the DAP and in its correspondence and submissions to the Tribunal, about the development of a supermarket on the site the subject of this application. Clearly, Coles has a commercial interest in relation to that matter. In addition, Mr Wallace has raised planning concerns about the proposed development in terms of whether the proposed development is capable of approval in light of the current local structure plan, the consequences of the development in terms of drainage and, in particular, a broad drainage strategy that has been developed it appears as part of the structure planning of the locality, and traffic implications, as it would affect both Coles' land and the wider structure planned area. In the correspondence to the Tribunal, Mr Wallace foreshadowed an application for leave to intervene pursuant to s 37(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and, in the immediate term, wishes Coles to be invited, and has applied for Coles to be invited, to attend any mediation or conferral between the parties, including the mediation listed on 9 February 2016.
In his submissions this morning, Mr Wallace contends that the involvement of Coles would be of assistance to the Tribunal and to the parties because of the significant work done by its consultants in relation to drainage and traffic, in particular. Further, Mr Wallace has raised a concern about the permissibility of the proposal, although I note that that was also an issue raised in the reasons for refusal by the DAP.
Mr Martin Flint appeared this morning on behalf of LWP Byford Syndicate Pty Ltd (LWP Byford Syndicate), having only received instructions from the Syndicate yesterday. Mr Flint does not presently have instructions to seek leave to intervene in the proceeding, but seeks a similar involvement in relation to the mediation process to Coles, that is, that LWP Byford Syndicate should be invited by the Tribunal to attend the mediation and participate in it.
LWP Byford Syndicate is the developer of the wider area which includes the area of the site. Mr Flint indicated that that wider development is broadly a planned residential community with commercial components, including a commercial component of which the proposed development would form part. The particular concern expressed by Mr Flint in relation to the proposal relates to the interests, not directly of his client, but of a fourth party which has agreed to purchase, or has purchased, a property in a different neighbourhood centre within the overall planned development area, some one and a half kilometres to the west.
That purchaser has indicated some difficulty to Mr Flint's client in securing a supermarket to occupy either proposed or anticipated development on the land that it has acquired. I will assume for the purposes of these reasons that that is in part because of the proposed development in this case, although there is no direct evidence at this stage of that.

Determination of applications for leave to attend mediation

I am satisfied that Coles would, arguably, have a sufficient interest to seek leave to intervene, given that it owns land proximate to the proposed development and that concerns have been raised about the relationship of the proposed development and the Coles land in terms of drainage and traffic management. Of course, if we were addressing the question of intervention now, that would not be sufficient. There would need to be some demonstrated utility in the involvement of Coles as far as the planning process and the Tribunal is concerned. It would be necessary to show, in particular, that the involvement of Coles would be necessary to enable the Tribunal to meet the objectives of the SAT Act and of the relevant enabling Act, in this case the Planning and Development Act 2005 (WA) (PD Act).
However, we are not at the stage of listing the matter for final hearing. The question at this stage of the proceeding is whether the Tribunal should exercise a discretion to invite Coles and LWP Byford Syndicate to a mediation. Section 54(1) of the SAT Act states:
At an initial directions hearing or at any other stage of a proceeding, the Tribunal may refer the matter, or any aspect of it, for mediation by a person specified as a mediator by the Tribunal.
Section 54(3) of the SAT Act provides that the Tribunal may refer a matter for mediation 'with or without the consent of the parties'. And s 54(4) of the SAT Act importantly provides as follows:
The purpose of a mediation is to achieve the resolution of the matters by a settlement between the parties.
In this case, the Tribunal has referred the matter for mediation and, as is the Tribunal's invariable practice, the matter has been listed before a Tribunal member. Nevertheless, the matter is a mediation. A mediation is a form of structured negotiation between parties, whether it is in the context of a mediation referred under s 54 of the SAT Act or a private mediation. As s 54(4) of the SAT Act explicitly states, the purpose of the structured negotiation (facilitated by a Tribunal member) is 'to achieve the resolution of the matters by a settlement between the parties' (emphasis added).
Although the Tribunal can compel mediation and certainly could override the wishes of either or both of the parties in terms of who should be invited to mediation, nevertheless, the Tribunal would take into account the expressed views of the parties in the exercise of its discretion. In this case, the applicant strongly objects to the involvement of Coles and of LWP Byford Syndicate. In particular, the applicant represented by Mr Nik Hidding, a town planner, stressed that it appears that the interests of Coles and LWP Byford Syndicate are primarily commercial interests and that seems to be the case. Mr Hidding also emphasised that the proceeding in the Tribunal is not a commercial one and it is not one about the relations between commercial entities but, rather, one of planning and, in the context of this application, one involving a particular development application.
The respondent neither consents to nor opposes allowing Coles to attend the mediation, but has raised a question about whether LWP Byford Syndicate in fact has a sufficient interest in this matter.
I am not satisfied that at this stage the Tribunal should make an order in effect overriding the wishes of the applicant granting leave to Coles or LWP Byford Syndicate to attend the mediation.
This matter was commenced on an application for review by the applicant. The applicant has a right of review of the decision of the DAP. No other person or entity has a right of review. Indeed, the Tribunal does not even have the power to join any third party in a proceeding such as this, because s 243 of the PD Act states that s 38 of the SAT Act (which confers power on the Tribunal to join a person as a party to a proceeding) 'does not apply to a proceeding for a review' under Pt 14 of the PD Act.
In the context of only the applicant having a right of review, and there being no power to join a third party, and the applicant expressing a strong objection to the involvement of third parties in the mediation which, as stated earlier, is a structured negotiation between parties intended to achieve the resolution of the matters by a settlement between the parties, I am not persuaded that I should invite third parties to participate.
A further factor leading to this conclusion is that although I am satisfied that arguably Coles has a sufficient interest in the matter, I am not persuaded at this stage that the involvement of Coles is necessary to enable the Tribunal to effectively conduct a mediation between the parties. In relation to the question of the permissibility of the proposed development, that is an issue that the respondent has clearly raised. In relation to drainage and traffic matters, at this stage, it does not appear that those are issues that the respondent is incapable of addressing.
In relation to LWP Byford Syndicate, the sufficiency of its interest in the matter, being a planning application, is not readily apparent to me at this stage. Furthermore, it is not readily apparent to me at this stage what utility, in terms of the mediation process, the involvement of LWP Byford Syndicate would have.
The final matter that I take into account in exercising this discretion is that, of course, the mediation does not, in itself, result in the resolution of the matter, even if the parties to the mediation are in broad agreement at the mediation. It would be necessary for there to be a reversal of the refusal of the DAP in order for development approval to be granted. Now, that could be achieved by the Tribunal making consent orders or which is more usually the case it could be achieved by the DAP being invited to reconsider its decision under s 31 of the SAT Act. That process is applied or adopted almost invariably in a case where there is a mediation in which positions change through the mediation process. If that does occur, then no doubt Coles and LWP Byford Syndicate could make submissions to the DAP. Therefore, their interests will be able to be protected through that process.
If the matter proceeds further in the Tribunal, and it becomes apparent through evidence and submissions that the involvement of either or both of Coles and LWP Byford Syndicate is demonstrated to be necessary to enable the Tribunal to effectively conduct the mediation process, and/or if the Tribunal is ultimately called upon to adjudicate this matter, to meet its objectives in s 9 of the SAT Act and the objectives of the enabling Act at a hearing, then the potential involvement of the third parties in the proceeding can be reviewed.

Conclusion

For these reasons, I am not persuaded that I should make an order inviting Coles or LWP Byford Syndicate to attend the mediation between the parties, which is next Tuesday, 9 February 2016. I will, however, direct that a copy of all orders of the Tribunal in this matter be provided to Mr Flint and to Mr Wallace on behalf of their clients, so that they are kept aware of the processes within the Tribunal and so that they will be able to obtain instructions as to any further applications in the matter.
Finally, I note that Mr Wallace also sought in his correspondence the provision to his client of information that has been filed in the Tribunal by the parties. That is something that Mr Wallace can discuss with the parties. Certainly, if the matter proceeds to require an adjudication of the Tribunal, the Tribunal's practice is that it will order the provision of statements of issues, facts and contentions to third parties who are proposed intervenors or proposed submitters in the matter and there is no reason why that would not occur in this case.

Orders

I make the following orders:
1.The application by Coles Group Property Developments and the application by LWP Byford Syndicate Pty Ltd to be invited to attend the mediation on 9 February 2016 are dismissed.
2.The mediation scheduled for 2 pm on 9 February 2016 is confirmed.
3.A copy of these orders and of subsequent orders of the Tribunal is to be provided to the solicitors for Coles Group Property Developments and LWP Byford Syndicate Pty Ltd until further order.

I certify that this and the preceding [25] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT