Mediation in the Queensland Planning and Environment Court

Overview Many components to ADR Mediation is the focus of this presentation Background Context – in the development application process and the appeal process Planning Act 2016

The Development Application Preparation of the development application (and strategy) is critical, from the outset Changes to the development application are usually necessary – and should be made before the decision is made On appeal, changes are limited to “minor changes”

Dispute Resolution Plan Without prejudice meeting Mediation Joint experts meetings Case management conference Chaired by the ADR Registrar Flexibility in the steps in the plan Updating the plan and updating Orders

One pathway Notice of Appeal Directions Hearing - File Entry of Appearance - File Entry of Appeal - File Application for Directions - File Affidavits of public notification and service Issues fixed List of Documents Inspect Documents Alternative Dispute Resolution Prepare Expert Reports and other evidence Prepare for Hearing Hearing

Alternative pathway

Preparation for the mediation Early in the process Obtain an Order with a Dispute Resolution Plan Strategy Experts – who will attend? Amended plans Brief for the ADRR and the other parties Draft mediation agreement (on USB)

Practicalities Place, date and time Attendees – must have authority On-line calendar (google “qld adr registrar calendar”) Copies of documents Take a computer with internet access Attend in person (not by telephone)

What happens at a mediation Developer usually outlines the case, and then the other parties respond Avoid lecturing about the law, or the history of the application Experts have their say May split up Mediations may be in stages Timing - flexible

What happens at a mediation The “without prejudice” privilege Confidentiality

Mediation Outcomes Written mediation agreement or consent order Steps to be taken, timing Confidentiality Make the mediation agreement certain Binding agreement – say so

After the mediation Update the plan and proceed Enforcing the mediation agreement Take care if abandoning a development after mediation (Hoffie v. BCC & Anor) Costs implications – (Hydrox Nominees) – expert advice and recommendations to Council to settle

Costs Section 457(4) of the Sustainable Planning Act 2009: Despite subsection (1), if— (a) early in a proceeding the parties to the proceeding participate in a dispute resolution process under the ADR provisions or the Planning and Environment Court Rules 2010; and (b) the proceeding is resolved during the dispute resolution process or soon after it has been finalised; each party to the proceeding must bear the party’s own costs for the proceeding unless the court orders otherwise.

Planning Act 2016 3 July 2017 Similar – but check the detail Appeals under the current Act will transition to be appeals under the new Act Costs

References Articles: Frisby S, The Rochedale Landfill – Mediating an Environmental Dispute, Proctor, January/February 1999, pp 23-24. Johnston M, Between a Rock and a Hard Place: Enforcing Settlement Agreements in the Planning and Environment Court (Paper delivered at Queensland Environmental Law Association Seminar “Mediation in the Planning and Environment Appeal process” 19 November 2007). McDermott M, Effective environmental dispute resolution in Queensland: Commentary and critiques from the Planning and Environment Court (2013) 30 EPLJ 150. Stilgoe P OAM, Opportunities, Procedures and Mechanisms Involved in the use of ADR in the Planning and Environment Court (Paper delivered at Queensland Environmental Law Association Seminar “Mediation in the Planning and Environment Appeal process” 19 November 2007). Cases: Hoffie v Brisbane City Council & Anor [2013] QPEC 41 Hydrox Nominees Pty Ltd v Noosa Shire Council (No 2) [2014] QPEC 60