Mediation is used often in planning to resolve or narrow issues between parties. The usefulness of mediation should not be underestimated where a face-to-face meeting or a telephone call might result in a much smoother process and mutually beneficial outcomes.
Councils often call mediation meetings where a certain number of objections are received to a planning permit application. The meetings are often chaired by elected Councillors and held before Council makes a decision. While they may not resolve all issues, the permit applicant is often in a position to offer changes which can be formed into conditions to garner Council support.
Where a matter is progressing to appeal, the relevant application for review form to the Victorian Civil and Administrative Tribunal (the Tribunal) will ask whether the matter is suitable for mediation. The Tribunal will often hold a mediation session weeks prior to a hearing, particularly where the number of parties is small and the matters in contention are few. Should the mediation be successful the Tribunal can then order a permit issue, and there is no need for a full hearing. If the mediation is not successful, nothing offered or discussed in the mediation can be raised at the subsequent full hearing, as mediation is carried out in good faith and without prejudice. Should you be undertaking mediation on your own initiative it is advisable to preface any written correspondence with the words “Without Prejudice”, which means without detriment to any existing right or claim.
A planning permit applicant or objector need not wait for Council or the Tribunal to initiate mediation. Mediation may be as simple as the applicant approaching a neighbour who has objected to a proposal and talking through options which may then be achieved by relodging amended plan (Section 57a application) or suggesting to Council that certain conditions are attached to a Notice of Decision, in order to avoid objector-initiated appeals.
Clause 1 advocates mediation as a method of moving forward on an application. We have found that:
- There is nothing to be lost in mediation if not successful. For mediation initiated by the Tribunal, Sections 85 and 92 of the Victorian Civil and Administrative Tribunal Act 1998 make evidence of communications in the mediation processes inadmissible at a hearing;
- There are often straight-forward solutions to points of difference between parties;
- There is certainty in a mediated outcome and more control of the outcome compared to a full VCAT hearing;
- Often if people are approached directly (rather than by letter or by Council notice) they are much more receptive and open to discussion;
- Additional costs and stress associated with a hearing can be avoided if mediation is successful.
The Tribunal has developed a practice note for Alternative Dispute Resolution which can be found on the Tribunal website at www.vic.api.org.au/assets/media_library as Practice Note PNVCAT4.