Snook and Western Australian Planning Commission - [2012] WASAT 38

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: DEVELOPMENT & RESOURCES

ACT: PLANNING AND DEVELOPMENT ACT 2005 (WA)

CITATION: SNOOK and WESTERN AUSTRALIAN PLANNING COMMISSION [2012] WASAT 38

MEMBER: JUDGE D R PARRY (DEPUTY PRESIDENT)

HEARD: 3 FEBRUARY 2012

DELIVERED : 3 FEBRUARY 2012

FILE NO/S: DR 361 of 2011

BETWEEN: RITA SNOOK
Applicant
AND
WESTERN AUSTRALIAN PLANNING COMMISSION
Respondent

Catchwords:

Practice and procedure Facilitative dispute resolution Mediation Issues in dispute substantially resolved through mediation Order made at mediation noting that the parties had agreed that a single issue remained in dispute and stating the agreed terms of that issue Application for leave to expand issues in the proceeding to raise issues resolved through mediation Identification of issues in Tribunal orders and statements of issues, facts and contentions Role of mediation in achieving Tribunal's objectives

Legislation:

Planning and Development Act 2005 (WA), s 251(1)
State Administrative Tribunal Act 2004 (WA), s 9, s 9(c), s 27(2), s 27(3), s 31, s 32(1), s 32 (5), s 54, s 54(8), s 54(9)

Result:

Application for leave to expand issues in the proceeding refused

Category: B

Representation:

Counsel:

Applicant: Mr AJ Marsh (Acting as agent)
Respondent: Mr D Stevens and Ms C Meaghan (Public sector employees)

Solicitors:

Applicant: N/A
Respondent: N/A

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

Canal Rocks Pty Ltd and Western Australian Planning Commission [2010] WASAT 176
Jacobs & Anor and City of Subiaco [2007] WASAT 84

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

Mrs Rita Snook lodged a Class 1 planning application with the Tribunal to review the refusal of a subdivision application by the respondent, the Western Australian Planning Commission, in Muchea, within the Shire of Chittering.
At the initial directions hearing, the matter was listed for a mediation and relevant officers from the Shire of Chittering and the Department of Health were invited to attend. The subsequent mediation on 23 November 2011, and a further session on 8 December 2011, were conducted by two senior sessional members of the Tribunal, and were attended by the parties' representatives and representatives of the relevant third party authorities. Through this mediation process, the parties were able to reach settlement on all of the issues that had been given by the respondent as the reasons for refusal of the original subdivision application, except for one. Accordingly, the Tribunal made programming orders for the matter to proceed to hearing on that single issue.
At a further mediation session, requested by the parties, on 17 January 2012, the respondent indicated that it had changed its position and would like to expand the issues in the proceeding. The respondent subsequently wrote to the Tribunal indicating that it believed there were a number of issues, including broader strategic planning issues, beyond the single issue that had remained after the partial settlement at mediation, that would be necessary for the Tribunal to consider in order to reach the correct and preferable decision. At a directions hearing convened to deal with the application for leave to expand the issues, the respondent also submitted that the officers who represented the Western Australian Planning Commission at the earlier mediation sessions did not have the authority to limit the issues under consideration.
The applicant opposed the application. Mrs Snook's agent submitted that it would be unjust to reopen the issues that had already been agreed between the parties, with the assistance of officers from relevant authorities, and that to do so would undermine public confidence in the Tribunal's processes.
Following the directions hearing, the Tribunal gave an oral decision in which it refused the respondent's application for leave to expand the issues for consideration beyond the single issue that remained after partial settlement in mediation. In considering whether to grant leave to expand the issues in the exercise of its discretion, the Tribunal referred to and discussed its main objectives set out in s 9 of the State Administrative Tribunal Act 2004 (WA), as well as the provisions of s 27(2), s 27(3), s 32(1) and s 54(8) of the State Administrative Tribunal Act 2004.
The Tribunal also discussed the process by which the issues properly before the Tribunal are identified in orders and statements of issues, facts and contentions, and the importance of facilitative dispute resolution, particularly mediation, in achieving the Tribunal's objectives.
The Tribunal considered that, as the respondent had not given any indication otherwise, the officers of the Department of Planning who attended the mediation sessions had apparent authority to effect the agreement on the issues in dispute. The Tribunal also considered that, were it to grant leave to expand the issues in this case, public confidence in the Tribunal's processes would be undermined, particularly the important role of mediation in achieving appropriate resolutions acceptable to the parties speedily and with minimal costs, consistently with the Tribunal's objectives.
The Tribunal's reasons, taken from the transcript and edited in minor respects, were as follows.

Introduction

This proceeding involves an application that was commenced on 24 October 2011 by Mrs Rita Snook, pursuant to s 251(1) of the Planning and Development Act 2005 (WA), for review of the decision of the Western Australian Planning Commission (Commission) made on 29 September 2011 to refuse a two lot subdivision of land at Fewster Street, Muchea (site) in the Shire of Chittering (Shire).

Facilitative dispute resolution processes

When the matter was commenced, it was listed for an initial directions hearing before Member Jordan on 9 November 2011. At that directions hearing, the member referred the matter for mediation at 10 am on 23 November 2011 before Senior Sessional Member Richard Affleck and Senior Sessional Member Brian Hunt for half a day. Member Jordan also invited relevant officers of the Shire and of the Department of Health to attend the mediation. That invitation reflected the scope of issues in the Commission's reasons for refusal, dated 29 September 2011, which were as follows:
(1)[T]he proposed subdivision is located within an area that lacks essential infrastructure appropriate for the intended residential use of the lots, including drainage, reticulated water and sewer. Approval of the subdivision prior to the provision of such essential services would be contrary to the Western Australian Planning Commission's development control policy DC 1.1: 'Subdivision of Land: General Principles' and draft Country Sewerage Policy.
(2)[T]he proposed subdivision is inconsistent with orderly and proper planning.
(3)[T]he subdivision is inconsistent with [S]hire of Chittering's Local Planning Strategy 20012015 (endorsed by the WAPC 29 June 2004) which seeks to restrict subdivision in the Muchea townsite until a reticulated water and deep sewerage system is made available.
(4)[T]he proposed subdivision would create lot(s) in an area where the Commission has been advised that on-site effluent disposal would not be satisfactory in the long[-]term and which is not serviced by reticulated sewerage.
(5)[A]pproval to the subdivision would set an undesirable precedent for the further subdivision of surrounding lots.
The mediation took place as scheduled on 23 November 2011 before Senior Sessional Members Affleck and Hunt. Senior Sessional Member Affleck is an engineer by profession, and Senior Sessional Member Hunt is a town planner. Following the mediation on that day, the matter was adjourned to a further mediation to commence at 10 am on 8 December 2011 for a duration of two hours. Relevant officers of the Shire and of the Department of Health were again invited to attend the mediation. The applicant was also required to provide to the respondent, by 1 December 2011, a plan showing 'the revised subdivision arrangement, the position of Water Corporation test bores, prospective building envelopes and contours'.
In addition, the applicant was required, by orders made at the conclusion of the mediation on 23 November 2011, 'to facilitate a meeting with the respondent and relevant officers of the Department of Health and the Water Corporation officer responsible for test bores in the area, to consider historical and area wide data on water table levels'. The Shire was ordered to provide to the parties 'any information regarding drainage management plans in the area that may affect water table levels'. Mr Alan Marsh, Mrs Snook's agent, has indicated that the meeting that the applicant was to facilitate with officers of the Department of Health and the Water Corporation subsequently took place.
On 8 December 2011, the parties again attended mediation before Senior Sessional Members Affleck and Hunt. At the conclusion of the mediation on that day, the Tribunal made 13 orders. The first two of those orders were as follows:
(1)The Tribunal notes that the parties have agreed that the issue for review is the hydrology of the subject land, and in particular whether a minimum 500 mm clearance can be provided between the maximum ground water level and the natural service level within the proposed 2000 square metre building envelopes.
(2)The parties have further agreed, and the Tribunal notes, that the field investigations of Mr Tom Long of the Water Corporation, as shown on the applicant's amended subdivision plan, and the field investigations of officers of the Department of Health (to be confirmed by letter to the parties) and the advice of the Shire of Chittering regarding groundwater management in the area, are to be accepted as evidence of fact such that those officers will not be required by the Tribunal.
The Tribunal then made orders programming the matter in relation to the 'single issue for review' identified in order 1 for final hearing on 17 February 2012, including orders for the filing of evidence and for the expert witnesses in the field of hydrology to confer with one another at a compulsory conference, to be conducted with the parties' agreement by Senior Sessional Member Hunt on 10 February 2012, for the preparation of a joint statement in relation to the matters upon which the experts agree, the matters upon which they disagree, and the reasons for any disagreement.
Officers of the Department of Planning (Department) attended the directions hearing on 9 November 2011, and the mediations on 23 November 2011 and 8 December 2011, on behalf of the Commission. In particular, Mr Jason Bouwhuis, a Senior Planning Officer of the Department attended, in addition to representatives or officers from the Shire and the Department of Health.
On 13 December 2011, Ms Sally Grebe of the Department wrote to the Tribunal, and copied to Mr Marsh, as follows:
I refer to the above matter and to mediation held at SAT on 8 December 2011.
The parties have agreed that a further mediation on the matter would be beneficial, prior to preparing for the compulsory conference and final hearing which I understand have been listed by the Tribunal, though orders stating such have not yet been received at the Department.
It is therefore requested that the Tribunal list the matter for mediation after 16 January 2012 when both parties will be available. The Department of Health will be on standby if needed.
The applicant wishes to retain the hearing date that has been set by the Tribunal and I have no objection to that, however I note that if the hearing is needed, the time frames for preparation will be extremely tight and perhaps the Tribunal might consider relisting the hearing date a few weeks later.
As requested by Ms Grebe, the Tribunal then listed the matter for further mediation at 2 pm on 17 January 2012 for two hours. That mediation session occurred. However, the matter was then referred by Senior Sessional Member Hunt to the Deputy President's list on 20 January 2012.
At that directions hearing, the Tribunal was informed by the parties that the Commission had changed its position at the mediation on 17 January 2012 and wished to raise a broad suite of issues in opposition to the proposed subdivision. An issue arose at that directions hearing as to whether the Tribunal had, in fact, made orders 1 and 2, set out earlier in these reasons, on 8 December 2011. The Tribunal made orders requiring Senior Sessional Member Hunt to provide to the Tribunal and the parties a mediator's report pursuant to s 54(9) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The Tribunal adjourned the matter for further directions today and required all persons who attended the mediation on 8 December 2011 to give evidence today as to whether orders 1 and 2 were, in fact, in substance made at the mediation on that date, unless agreed beforehand.
On 24 January 2012, the Department wrote to the Tribunal agreeing that orders 1 and 2, as set out earlier, were, in fact, in substance made at the mediation on 8 December 2011. On 25 January 2012, the Tribunal and the parties received a mediator's report from Senior Sessional Member Hunt confirming the same.

Application to expand the issues in the proceeding

On 30 January 2012, the Department wrote to the Tribunal expressing the position that:
… there are a number of issues that are relevant to the Tribunal's review of the Applicant's subdivision proposal in addition to the hydrology of the subject land, including broader strategic planning issues. The Respondent intends to seek the leave of the Tribunal to expand the issues for review in this case at the Directions Hearing on 3 February 2012.
The letter expressed the view of the Department that the expansion of the issues for review, as foreshadowed in the letter:
[i]s necessary to achieve the purpose of the review, namely, 'to produce the correct and preferable decision at the time of the decision upon the review' (section 27(2) of the State Administrative Tribunal Act 2004).
In particular, the letter from the Department identified five issues that the Commission seeks leave to raise. The issues are broadly consistent with the reasons for refusal dated 29 September 2011, although they contain further particulars not set out in the reasons for refusal. Essentially, the Commission wishes to return to the reasons for refusal dated 29 September 2011, notwithstanding the mediation process and the agreement reached and recorded in order 1 made on 8 December 2011.
The Commission's application is strongly opposed by Mr Marsh on behalf of Mrs Snook. Mr Marsh submitted that to reopen issues that have already been agreed between the parties is unjust and would undermine public confidence in the Tribunal's processes. Mr Daniel Stevens, Planning Manager, Wheatbelt Region for the Department, submitted that leave should be granted to expand the issues before the Tribunal in this matter on essentially two bases:
1)that the further issues are necessary in order for the Tribunal to be able to produce the correct and preferable decision at the time of the decision upon the review; and
2)that the officers of the Department who attended the mediation on 8 December 2011 did not have authority to limit the issues under consideration in the proceeding to the one issue that was identified in order 1.

Consideration of application to expand the issues in the proceeding

Section 32(5) of the SAT Act states that, to the extent that the practice or procedure of the Tribunal is not prescribed under the SAT Act or the enabling Act, 'it is to be as the Tribunal determines'. Section 54(8) of the SAT Act states:
If the mediator is a Tribunal member and a settlement appears to be reached at the mediation, the mediator may reduce the terms of settlement to writing and make any orders necessary to give effect to the settlement.
In this case, although the mediation did not result in a complete settlement of the proceeding, it did result in a substantial settlement resolving four of the five issues that had been identified as reasons for refusal and leaving only one issue between the parties, as noted in order 1. That order was made in accordance with s 54(8) of the SAT Act.
In addition to s 32(5) and s 54(8) of the SAT Act, it is important, when considering the application by the Commission to expand the issues before the Tribunal, to also bear in mind the provisions of s 9, s 27(2) and s 27(3), and s 32(1) of the SAT Act.
Section 9 of the SAT Act sets out the Tribunal's main objectives in dealing with matters within its jurisdiction. The main objectives of the Tribunal are:
(a)to achieve the resolution of questions, complaints or disputes, and make or review decisions, fairly and according to the substantial merits of the case; and
(b)to act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties; and
(c)to make appropriate use of the knowledge and experience of Tribunal members.
Section 27(2) of the SAT Act states:
The purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review.
Section 27(3) of the SAT Act states:
The reasons for decision provided by the decisionmaker, or any grounds for review set out in the application, do not limit the Tribunal in conducting a proceeding for the review of a decision.
The effect of s 27(3) of the SAT Act is that the Tribunal is able to consider issues beyond the reasons for refusal by an original decisionmaker. However, the Tribunal routinely makes orders identifying the scope of issues in a proceeding, whether following a determination by the Tribunal as to the scope of the issues or, as in this case, recording the settlement between the parties in relation to the scope of the issues. If the Tribunal makes an order limiting the scope of the issues in the proceeding, a further order is required in order for the issues to be expanded.
Section 32(1) of the SAT Act states that:
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 rules of natural justice, or procedural fairness as they are often called, require each party in court or tribunal proceedings to have the opportunity to both know the case that it is required to meet, and to properly and fully present its case. The making of orders identifying issues in proceedings, or the making of orders requiring parties to identify the issues they wish to raise in a proceeding, by means of a statement of issues, facts and contentions, achieves the objective of procedural fairness, both to ensure that parties are aware of the case they have to meet and that they can fully present the case that they wish to.
The Tribunal has a discretion as to whether or not to allow an expansion of the issues as sought by the Commission. In exercising this discretion the Tribunal must have regard to each of the sections of the SAT Act to which I have referred. Of particular significance are the Tribunal's main objectives, which, as I have said, include to achieve the resolution of disputes and to make or review decisions fairly, and according to the substantial merits of the case; and to act as speedily and with as little formality and technicality as is practicable; to minimise the costs to the parties; and to make appropriate use of the knowledge and experience of Tribunal members.
In my view, it would be contrary to the objectives of the Tribunal to allow an expansion of the issues in the circumstances of this particular case. The order that was made on 8 December 2011 limiting the issues, which otherwise were the issues set out in the Commission's reasons for refusal dated 29 September 2011, were made following a directions hearing and two mediation sessions at which the applicant's representatives, the Commission's representatives and the relevant third parties attended and participated.

In the development and resources stream of the Tribunal, as stated in annual reports of the Tribunal over a number of years, approximately threequarters of applications are resolved by facilitative dispute resolution, a principal element of which is mediation. In the most recent annual report for the year 2010 2011, it was reported that mediation was fully successful in some 82% of cases in the stream, and partially successful in resolving at least some aspects of a matter, as in this case, in a further 3% of cases. As the President observed, when he was Deputy President, in Jacobs & Anor and City of Subiaco [2007] WASAT 84 at [10]:
Achievement of the objectives set out in s 9 of the SAT Act is greatly assisted by the efficacy of the mediation process. The protection of the process, and of the important elements of it, serves the public interest in the Tribunal meeting the s 9 objectives and achieving reliable outcomes acceptable to the parties to the dispute. This is particularly so in the planning area, where constructive discussion through the mediation process often gives rise to preferable planning outcomes than might be achieved by either approval or refusal of an original application. …
Similarly, as I said in Canal Rocks Pty Ltd and Western Australian Planning Commission [2010] WASAT 176 at [26]:
Mediation is, in itself, an important means by which the Tribunal is able to achieve its objectives under s 9 of the SAT Act and, in particular, achieve appropriate resolutions acceptable to the parties speedily and with minimal costs.
In this case, both of the parties and the Tribunal and, indeed, two other authorities, invested considerable time and resources in the mediation process. The Tribunal in particular allocated two senior sessional members with relevant expertise, consistently with s 9(c) of the SAT Act, to assist the parties to facilitate an outcome and, indeed, as is apparent from order 1 of the orders made on 8 December 2011, the Tribunal substantially succeeded in achieving that outcome. That was also consistent with paragraph (a) of the Tribunal's objectives of achieving the resolution of disputes fairly and according to the substantial merits of the case, and with paragraph (b) of its objectives to act as speedily as practicable, and to minimise the costs to the parties.
As noted earlier, under s 27(2) of the SAT Act, the purpose of the review in review proceedings is to produce the correct and preferable decision at the time of the decision upon the review. However, s 27(2) forms part of the SAT Act, which also contains the objectives of the Tribunal, s 27(3), s 32(5) and the provisions in s 54 of the Act regulating and providing for mediation. The correct and preferable decision in a proceedings is in respect of the issues that are properly before the Tribunal, as is apparent from s 27(3) of the SAT Act. While it is the case, as stated in that subsection, that the reasons for decision provided by the decisionmaker or any grounds for review set out in the application do not limit the Tribunal in conducting a proceeding for the review of a decision, in order to ensure fairness to parties and efficiency in the work of the Tribunal, issues are limited in the manner that that occurred in this case, and generally occur through orders and statements of issues, facts and contentions. Once issues have been defined or identified by an order, such as that made in this case, or in a statement of issues, facts and contentions, it is necessary for leave to be obtained to expand those issues. The decision of whether to grant leave is to be exercised having regard to all of the provisions to which I have referred.
To my mind, it is significant that the Commission, represented by the Department, not only participated in a series of mediations culminating in the settlement of fourfifths of the dispute, but that, even after the mediation at which order 1 was made, the Department sought further mediation in relation to the sole remaining issue. It appears from the letter from the Department dated 13 December 2011 that there was an anticipation that the final hearing might not even be required if there was further mediation. As noted earlier, the letter said:
I note that if the hearing is needed, the time frame for preparation will be extremely tight and perhaps the Tribunal might consider relisting the hearing date a few weeks later. (Emphasis in bold added)
This letter from the Department of 13 December 2011 indicates that the position set out in order 1 of 8 December 2011 was maintained and, indeed, it was considered that the mediation process which had already substantially resolved the proceeding may well resolve the remainder of the proceeding. It was not, then, until 17 January 2012, it appears some six weeks after the mediation of 8 December 2011 that the applicant and the Tribunal were informed of a proposed change of position by the respondent.
Finally, the Tribunal notes the argument presented by the Commission that the officers who represented the Commission did not have authority to limit the issues under consideration. It is incumbent on a party to indicate to the Tribunal and to the other parties if a settlement or agreement is reached in a Tribunal process that further approval from some other person is required in order to effect the agreement. It is often the case in mediations in review proceedings that an agreement is not recorded under s 54(8) of the SAT Act at the conclusion, even where the participants appear to be in substantial agreement, because of a lack of authority to settle, due to the need for the decision to be made by the original decisionmaker. For this reason, matters are routinely referred for reconsideration under s 31 of the SAT Act following mediation.
However, in this case, although the Commission was represented at three directions hearings or mediations before the Tribunal, it appears that no such indication was given. Indeed, at the mediation on 8 December 2011, a very detailed order was made by the senior sessional members of the Tribunal, in the presence of representatives of both parties, recording the precise terms of the sole remaining issue in the proceeding.
Clearly, the representatives of the Commission who attended that mediation had apparent authority and, as I say, it was incumbent on the Commission to indicate any limits to that authority. When considering the exercise of discretion to expand the scope of issues some two months after they were limited at a mediation, it is not good enough to advise the Tribunal that, by the way, the people who attended three sessions of the Tribunal did not have authority they appeared to have.
As Mr Marsh quite correctly submitted, if leave were granted to expand the issues in this case, public confidence in the Tribunal's processes, and, in particular, confidence in the Tribunal's achievement of its core objectives set out in s 9 of the SAT Act through mediation, would be significantly undermined.
For all of the foregone reasons, I refuse leave to expand the issues.
The matter is now to proceed to hearing in relation to the issue as defined in order 1 of the Tribunal's orders of 8 December 2011.

I certify that this and the preceding [46] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
JUDGE D R PARRY, DEPUTY PRESIDENT