Mediation of Limited Benefit in Planning Disputes
By Kim Lovegrove, Lovegrove Solicitors
“Dispute Resolution – Comparative Analyses on the Different Theatres of Dispute Resolution”
There are some jurisdictions where mediation proves to be impotent some jurisdictions are not well suited to mediation. The planning jurisdiction is one such jurisdiction where mediation has its limitations.
Tribunal or court planning divisions often provide that before a matter is set down for hearing it must be referred to mediation. Ordinarily the disputants will comprise a developer or property owner who is content on getting a planning permit through the system. On the other side may be a council planner who having had regard to the constituent’s objectives proposes the planning permit application. Objectors also tend to attend mediations. So the typical cast of attendees at a planning mediation will comprise the property owner and his or her legal counsel and planning advocates, a municipal officer and the objectors.
In most planning jurisdictions costs can only be visited upon objectors who lodge objections that are prima facie misconceived or vexatious. Save for these circumstances it is very rare for costs to be visited upon an objector, regardless of whether the objection succeeds or fails.
The above being the case there is very little pressure on the objector to resolve a rejection at mediation. The property owner on the other hand is very interested in the earliest possible resolution on account of the significant holding costs that are associated with delayed outcome.
As objectors do not in the main have to fear any or financial prejudice that will flow from a failed mediation there is no powerful incentive for them to compromise. In many instances they are better advised to “change their arm” and have their day in court.
In the authors experience he has found very little mileage in attending mediations in a planning jurisdiction because the parties to the dispute are motivated by different drivers. On the one side the drivers are more often than not commercial. On the other side the drivers are more often or not to do with the compromising of ascetics or amenity. For a matter to resolve itself at mediation invariably the property owner/applicant must be prepared to make a significant compromise to a planning proposal, the net effect of which will be the sustaining of financial prejudice.