DATE:5 September, 2002
LOCATION: A rural part of a South East Queensland
Local Government Area
MEDIATOR: Martin Daubney SC
OUTCOMES: ADR Resolves
Planning and Environmental
Court Appeal Dispute
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Issue A dispute had arisen between
adjoining neighbours after an unlawful outdoor recreation use commenced. John
Haydon represented one of the neighbours at the mediation.
Subsequently, an application for a material change of use with respect to the
outdoor recreation was made to the Local Government and the neighbour became the
adverse submitter.
After the Council issued a Development Permit, the Submitters appealed to the
Planning and Environment Court. The Council listed the matter for a directions
hearing in July, 2002. The matter was set down for hearing in October, 2002 with
a timetable for interlocutory steps. No mediation order was included.
Referred to mediation Subsequent to the order being made on the directions
hearing the parties agreed to refer the matter to mediation. A Mediation
Agreement was signed between the parties and the mediation proceeded on 5
September, 2002. The parties agreed to suspend the timetable under the
directions hearing order while the mediation proceeded. The appeal was due to be
mentioned at a callover on 27 September, 2002.
After a one day mediation the parties resolve the appeal by amending the
conditions. A three day hearing in the Planning and Environment Court was not
required.
Because the parties had suspended timetable disclosure did not take place so
substantial costs were saved with respect to advancing the appeal towards a
hearing. All three parties cooperated positively during the mediation
process.
Outcome A realignment of the boundaries and a change to easement arrangements
including the surrender of one easement and the creation of a new easement were
part of the Heads of Agreement signed at the end of the mediation. The Planning
Scheme of the Council was respected in the realignment of the boundaries so that
the minimum subdivision area was maintained with respect to the two allotments
of land.
As a result of the Heads of Agreement a Consent Judgment was drawn up so that
the conditions of the approval were amended by the Court without a contested
hearing. Secondly, the Heads of Agreement allowed for the parties to resolve
other matters between themselves especially in relation to the realignment of
the boundaries and the easement arrangements. The adjustment to the easement is
something that the Planning and Environment Court could not order as part of the
appeal if there was no agreement. However, because the successors in title to
the Grantor and Grantee of the existing easement agreed to its surrender the
parties were able to reach a compromise outside the scope of the types of orders
that the Planning and Environment Court could have made on a contested hearing
of the Submitter Appeal.
Because of the timing and the speed at which the mediation moved to resolve the
dispute the parties saved considerable legal and expert witness costs.
Of Note The negotiation process was assisted by the Solicitors for each of the
three parties agreeing to meet on site with a contractor to look at developing
options prior to the mediation. There were five options on the table before the
mediation commenced. Because of a legal issue the matter may well have
ended up in the Court of Appeal before it was finally resolved. That had been
saved in addition to the 3 day hearing in the Planning and Environment Court
because of the settlement achieved at the mediation. The parties secured
certainty within a reasonably short time frame.
