UDIA STATE CONFERENCE OCTOBER 25 TH -27 TH 2011 Quay West Resort Bunker Bay The SAT Factor – “All Roads Lead to Rome”

1. UDIA STATE CONFERENCEOCTOBER 25TH-27TH 2011Quay West Resort Bunker BayThe SAT Factor – “All Roads Lead to Rome”

2. INDEX • Part 1: Introduction to the SAT • Part 2: Planning Review Cases • Part 3: Facilitative dispute resolution (FDR) • Part 4: Types of cases and relevant statistics in 2010/2011 • Part 5: Points to note re decision making and expert evidence • Part 6: Factors affecting SAT decision making

3. Part 1: Introduction to the SAT • SAT was established on 1 January 2005 as a comprehensive administrative review and civil tribunal for the State • SAT is required to decide cases under approximately 150 Acts of the WA Parliament and under region and local planning schemes, regulations and local laws • SAT – • – reviewsmost administrative decisions made by State and local government authorities and officials

4. – exercises original jurisdiction in relation to civil, commercial, strata titles, land compensation, guardianship and administration, equal opportunity and other types of matters • – determines review and disciplinary proceedings in relation to approximately 40 professions, occupations and trades

5. Four “streams”– • – commercial and civil; • – development and resources; • – human rights; and • – vocational regulation • Town planning and other land and water related administrative review and original proceedings are allocated to the development and resources stream • 20 full-time members (3 judicial members, 5 senior members, 12 ordinary members) + about 80 sessional members – lawyers, planners, architects, engineers, etc

6. SAT’s main objectives (s 9 SAT Act) – • “(a) to achieve the resolution of questions, complaints or disputes, and to make or review decisions, fairly and according to the substantial merits of the case; • (b) to act as speedily and with as little formality and technicality as is practicable, and to minimise the costs to the parties; and • (c) to make appropriate use of the knowledge and experience of Tribunal members.”

7. Part 2: Planning review cases • In review (including planning review) cases, SAT’s function is to carry out a fresh consideration of the matters in issue (“a hearing de novo”) • The purpose of the review “is to produce the correct and preferable decisionatthe time of the decision upon the review” (SAT Act s 27(2)) • SAThas the “functions and discretions corresponding to those exercisable by the [original] decision-maker in making the reviewable decision” (SAT Act s 29(1)) – SAT “stands in the shoes” of the original decision-maker, applies its laws (including the planning scheme and policies) and exercises its discretionary powers

8. SAT may– • –affirm the decision; • –vary the decision; • –set aside the decision and substitute its own decision; or • –require the original decision-maker to reconsider the decision (SAT Act s 29(3)) • SAT may invite the original decision-makerto reconsider its decision at any time during a proceeding under SAT Act s 31 • SAT’s decision “is to be regarded as, and given effect as, a decision of the [original] decision-maker” (SAT Act s 29(5))

9. The original decision-maker is required to provide SAT with– • –a statement of the reasons for the decision; and • –all other documents and material relevant to the review (“s 24 documents”), • once SAT makes this order – not generally before mediation • The original decision-maker is required to exercise its “best endeavours” to assist the SAT to make its decision on the review (SAT Act s 30) • Councils and officers must comply with SAT orders or must apply to varyordersbefore any non-compliance

10. All planning review cases are listed for first directions hearingwithintwotothreeweeks • Parties generally don’t need to file any documents beforehand • Respondent’s usually represented by– • –council officer • – agent, eg. consultant town planner • – lawyer, except where the applicant’s development application is for a value of less than $250,000 or $500,000 for single house or a 1-3 lot subdivision (class 1 planning application) and he elects that no party is to be represented by a lawyer

11. Part 3: Facilitative dispute resolution (FDR) • Mediation – “to achieve the resolution of matters by settlement between the parties” (SAT Act s 54(4)) • Compulsory conference – “to identify and clarify the issues in the proceeding and promote the resolution of the matters by settlement between the parties” (SAT Act s 52(3)) • Similar processes – generally listed as mediation • All full-time and many sessional members are trained mediators • Mediations and compulsory conferences are confidential and private – evidence of anything said or done in a mediation or compulsory conference is not admissible in any later stage of the proceeding (SAT Act s 55)

12. Mediations are often held on site or at council offices • Where it may assist the process, the Mayoror President of a council may be invited to attend and/or nominate one or more councillors and/or the Chief Executive Officer to attend the mediation or compulsory conference – may assist discussion, particularly where decision was against officer recommendation, and communication back to full Council • Where it may assist the process, resident objectors or officers of another authority, such as the WAPC or the Water Corporation, may be invited to attend the mediation or compulsory conference

13. Section 31 reconsideration • SAT may invite the original decision-maker to reconsider its decision at any stage of a proceeding and will usually make this invitation following mediation at which plans are amended or further information or clarification is provided – • “[W]here circumstances have changed through mediation by discussion and the provision of information … it is appropriate for the original decision­maker to have the opportunity to address the changed circumstances and make a fresh decision, having regard to the changed circumstances.” (Canal Rocks Pty Ltd and WAPC [2010] WASAT 176 at [28])

14. If the original decision-maker varies the decisionor sets the decision aside and substitutes a new decision, then – • – if the applicant is content with the varied or substituted decision, andwithdraws the proceeding, the varied or substituted decision has legal effect • – if the applicant is not content with the varied or substituted decision, the proceeding is deemed to be for the review of the decision as variedorthesubstituted decision (SAT Act s 31(3))

15. Part 4: Types of cases and relevant statistics in 2010/2011

36. Part 5: Points to note re expert evidence and final decisions • Expert witnesses in the same field of expertise often required to confer with one another, in the absence of the parties or their representatives, and prepare and sign a joint statement of • – the issues arising in the proceeding which are within their expertise • – the matters upon which they agree in relation to those issues • – the matters upon which they disagree in relation to those issues • – the reasons for any disagreement • Tribunal may require conferral to take place before a member (usually member who mediated) in a compulsory conference

37. Expert witnesses in the same field of expertise usually required to give concurrent evidence– • –sit together in the witness box • –asked questions by the member generally on the basis of the joint statement • – given opportunity to ask each other any questions they think might assist SAT • –encouraged to respond directly to each other’s evidence • –asked questions by parties or representatives • Member leads “a structured professional discussion between peers in the relevant field” (NSWLRC Report 109 at [6.56])

38. SAT final decision only required in about 20% of cases • Oral hearings (over 80%) or decision on documents sometimes with a view • Written witness statements filed and exchanged in advance • Draft, “without prejudice” conditions required in advance– conditions that should be imposed if SAT decides to grant approval – not a concession that approval should be granted – • “The purpose of this practice is to enable issues that are capable of resolution by way of condition to be addressed in that way and to facilitate a one­stop hearing in relation to all aspects of a proposal.” (Disan Pty Ltd and City of South Perth [2010] WASAT 184 at [11])

39. Part 6: Factors affecting SAT decision making • “[C]onsistency of decision­making must be a fundamental objective of those who make administrative decisions … that objective is assisted by the adoption of [planning policies] and the making of decisions in individual cases which are consistent with them” (Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472; (2004) 136 LGERA 254 at [88]) • Properly developed and adopted planning policies are “a fundamental element in or a focal point of the decision­making process” (Adbooth Pty Ltd and City of Perth [2007] WASAT 76 at [208])

40. “[A] ‘policy’ is not intended to replace the discretion of the [decision­maker] in the sense that it is to be inflexibly applied regardless of the merits of the particular case. [However,] the relevant consideration in many applications will be why the ‘policy’ should not be applied; why the planning principles that find expression in the ‘policy’ are not relevant to the particular application” (Clive Elliott Jennings & Co Pty Ltd v WAPC [2002] WASCA 276; (2002) 122 LGERA 433 at [24]) • “[A]n adopted policy is expected to guide the exercise of discretion not replace discretion. Policy is not to be inflexibly applied. The relevant consideration is why the policyshould notbeapplied” (Mitchell and City of Subiaco [2008] WASAT 230)

41. “The principles [in relation to planning policy] can be summarised in the following three propositions: • 1) planning policy has to be considered as a fundamentalelement in or a focalpoint of the decision­making process; • 2) the existence of a policy cannotreplace the discretion of the decision­maker in the sense that it is to be inflexibly applied regardless of the merits of the particular case; and • 3) there must generally be a cogent reason to depart from a sound planning policy that has been regularly applied.” (Cassidy and City of Subiaco [2011] WASAT 63 at [41])

42. “In circumstances where the planning framework is the same and the circumstances have not changed in any substantial way, it is in the interests of orderly and proper planning that planning decisions in relation to a site are made in a consistentway.” (Hanson Construction Materials Pty Ltd and Town of Vincent [2008] WASAT 71 at [54])

43. “[I]t is important for the process of orderly public sector decision­making that original decision­makers pay careful attention to consistency in that decision-making process; that they also pay regard to the advice of their professional officers; and that they avoid the need for the rearguing of cases where there are in fact no material changes to the circumstances where an earlier identical planning approval had been given.” (Tran and Town of Vincent [2009] WASAT 123 (S) at [36])

44. Original decision-maker must genuinely attempt to make a decision on the merits of the application – failure to do so may result in a costs order in favour of applicant (SAT Act s 87(4)) • Original decision-maker’s position in SAT cases must be based on genuine planning issues supported by necessary evidence – “Community opposition cannot of itself be a determinative matter… To elevate this consideration to the sole criterion is an error.” (J&P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 at [50])

45. Questions • Thank you for your kind invitation to speak today.