1. Mediation in the Queensland Planning and Environment Court

2. 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

3. 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”

4. 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

5. 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

6. Alternative pathway

7. 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)

8. 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)

9. 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

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

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

12. 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

13. 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.

14. 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

15. References
Articles:
Frisby S, The Rochedale Landfill – Mediating an Environmental Dispute, Proctor, January/February 1999, pp
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