Practice and procedure ­ Application to substitute new plans for development ­ No change to essential character of development ­ New plans prepared as a result of mediation ­ Whether amended plans are evidence of things said or done in mediation

State Administrative Tribunal Act 2004 (WA), s 9(a), s 27(2), s 55

Toadolla Company Pty Ltd v Dumaresq Shire Council [1992] NSWLEC 129; (1992) 78 LGERA 261

United Body Works (Qld) and Anor v City of Perth [2004] WATPAT 90

1 Ridgecity Holdings applied to the City of Albany (the City) for development approval for the construction of multi-level residential apartments on Earl Street Albany. The application was rejected, and Ridgecity Holdings applied to the State Administrative Tribunal (Tribunal) for a review of that refusal.

2 The Tribunal referred the matter to mediation, following which an amended proposal was prepared and presented to the respondent for its consideration. The changes to the application were apparently a result of discussions during the mediation. The amended plans having been rejected, the mediation process was completed, and the matter referred back to the Tribunal for directions in relation to the hearing of the application.

3 At the directions hearing, the applicant sought to amend the application by substituting the plans which had been produced following mediation in lieu of the plans submitted with the original application. The City opposed that application on the basis that the proposed amended plans were evidence of things said or done in the course of a mediation, and thus not admissible at a later hearing by reason of the provisions of s 55 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act).

4 The Tribunal concluded that the application to amend the plans for which approval was sought was a step in the proceedings independent of the mediation process. The fact that the plans had been prepared following the mediation, and for the purposes of catering for issues identified in the mediation, was not a reason to decline the application to amend.

5 Following mediation conducted by the State Administrative Tribunal (Tribunal), the applicant prepared amended plans for its proposed development. The amended plans were not acceptable to the respondent and the applicant now seeks to amend its application to substitute the amended plans for those originally considered and refused by the City of Albany (the City). The amended plans have not been tendered to the Tribunal in light of the respondent's objection, but it is common ground that they are intended to ameliorate some of the concerns expressed by the City's representatives during the mediation process.

6 The respondent does not contend that the amended plans are so different from the original plans that they change the essential character of the proposed development. Putting aside the question of mediation, therefore, there is no reason why the application to amend the proposal would not, in the usual course, be given.

7 The respondent relies upon s 55 of the State Administrative Tribunal Act 2004 (WA) (the SAT Act) which provides:

"Evidence of anything said or done in the course of a compulsory conference or mediation is not admissible at any later stage of the proceeding unless -

(a) all parties agree to the admission of the evidence;

(b) it is evidence of directions given or orders made at a compulsory conference or mediation or the reasons for those directions or orders; or

(i) a proceeding for an offence in relation to the giving of false or misleading information;

(iii) a proceeding in relation to an order made under section 53(b)(i)."

8 It is common ground that none of the three exceptions to the general rule in s 55 applies in this case. The respondent contends that admission of the amended plans would infringe s 55 for two reasons namely:

a) insofar as they reflect the parties' discussions and comments made by the City's officers at the mediation conference, they evidence things said in the course of mediation; and

b) although the plans were prepared after the mediation conference, they constitute something done in the course of the mediation. The respondent observes that the amended plans were the subject of a report by the City's officers to the council.

Are the plans evidence of things said or done in mediation?

9 It is common ground that the plans which now form the subject of this application were prepared as a result of the mediation process. The Tribunal accepts that the privilege attached by s 55 to communications in the course of a mediation is capable of extending to things said or done in the subsequent pursuit of a possible resolution which emerges in the actual mediation hearing. As an example, comments made in a report to counsel as to the outcome of the mediation and observations about any proposed settlement could not be adduced in evidence at the subsequent hearing without the consent of all parties.

10 In our view, however, the applicant's proposal to amend its application by substituting new plans is a step quite independent of the mediation. That is so even if the amended plans were inspired by information obtained during the course of the mediation. The application to amend the proposal should be determined by reference to the ordinary principles which apply. They were discussed by the President of the Town Planning Appeal Tribunal in United Body Works (Qld) and Anor v City of Perth [2004] WATPAT 90. The President cited with approval the passage in Toadolla Company Pty Ltd v Dumaresq Shire Council [1992] NSWLEC 129; (1992) 78 LGERA 261 at 263 where it was said

"The Court has jurisdiction to determine the Appeal and to permit amendment of the plans submitted with the initial application, unless the substituted plan converts what is before the Court into a fresh application by so changing the content of the application that it deprives the application of its character as the subject of an appeal."

11 The discussion in United Body Works also arose in the light of amended plans produced following mediation. In that context, the President, Mr McGowan, said:

"(a) The practice of the Tribunal is to positively encourage participation in mediation. It is not uncommon that participation in mediation will produce a compromise without resolution which involves the preparation of amended plans. To contend that the Tribunal had no power to then further entertain the appeal would be to both undermine the general procedure and to defeat the basis upon which mediation proceeds.

(b) It is also not uncommon that the parties may by consent produce orders for the disposition of the appeal which of themselves involve amended plans. Again it would be an odd and unsatisfactory outcome if it were to be suggested that such an outcome could only be achieved by the presentation of a fresh application with attendant time, cost and delay before the matter could be resolved rather than the Tribunal being satisfied on the basis of a minute of consent orders that the appeal could thereby be dealt with.

(c) There are often circumstances where by error or omission issues with the lodged plans require further attention. Again it would seem to make a mockery of the process and again involve undue time, cost and delay to suggest that such matters could only be addressed by either starting again or resubmitting a new application when in the context of an appeal the parties have fully and actively addressed such issues and are in a position, subject to the approval of the Tribunal, to dispose of the matters in final form.

(d) Such a broad approach accords with the approach in other jurisdictions, see for example Ervin Mahrer and Partners v Strathfield Council (No. 2) [2001] NSWLEC 140; (2001) 115 LGERA 259 and Rose Bay Afloat Pty Ltd v Woollahra Council [2002] NSWLEC 208; (2002) 126 LGERA 36."

12 I agree with the comments of the learned President. The concern of the applicant appears to be that the propounding of the amended plans at the hearing might enable the applicant to take advantage of statements made by representatives of the respondent in the course of the mediation; for example, in the course of cross-examination. There are two reasons why that concern is misplaced. The first is that it is clearly impermissible to cross-examine a witness by reference to statements that the witness may have made in the course of mediation. The second is that it is not unfair or prejudicial to a party that particular views held by a witness are known to the other party, regardless of how that knowledge may be obtained. The task of the Tribunal on a review matter is to reach the correct and preferable decision (SAT Act s 27(2)). The objectives of the Tribunal are to achieve resolution of questions fairly and according to the substantial merits of the case (SAT Act s 9(a)). If a witness called by the respondent has a particular view as to the acceptability of a proposal by an applicant, it does not work an unfairness on the respondent to have that view exposed. To suggest otherwise assumes an adversarial approach to the proceedings which is misplaced. If a witness is called to express expert opinions, then witnesses are obliged to express those opinions objectively and honestly. If an opinion does not assist the case of the party calling the witness, then it is not unfair to that party that the opinion be exposed. Of course, if a witness expresses an opinion thought to be inconsistent with an opinion previously expressed in the context of a mediation, it is not open to a cross-examiner to question the witness on the basis of an inconsistent statement or opinion expressed in the mediation.

13 The application to amend the plans stands to be determined in accordance with the usual principles. The fact that the application is made for the underlying reason of attempting to limit or reduce the issues between the parties makes it desirable that the application succeed. It does not matter that the applicant's capacity to comprehend how the issues might be limited or reduced results from a mediation process. That is the very result that mediation is designed to achieve.

14 The application to substitute the processed amended plans as the plans the subject of the review should be granted.

15 The applicant has leave to amend the application by substituting amended plans for the proposed development.

I certify that this and the preceding [15] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

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JUDGE J CHANEY, DEPUTY PRESIDENT