Avoiding “A winner who might tend to crow with disdain”: Mediation In Planning

HSG Attorneys Mediation and PlanningMediation is ideally suited to dealing with objections within the process of a planning application. It has the potential to vastly reduce delays and costs which have become synonymous with planning decisions. To realise these benefits requires a genuine will to adopt, educate on and normalise mediation in planning application processes. Furthermore, it is imperative that a mediation is conducted by a qualified, accredited mediator (preferably knowledgeable in planning and/or property law) and implemented at the correct stage in the application.
The bureaucracy surrounding planning decisions and emotive connections with one’s property often leads to a fight. This fight starts with the lodging of objections during the public participation stage and may be followed by expensive and lengthy planning appeals and could end in litigious administrative reviews in the high court … this is even more expensive and lengthy.

The decision in Van Zyl v Minister of Local Government, Enviro Affairs & Development Planning and Others, which dealt with the removal of restrictive conditions through the relevant planning laws, illustrated such a scenario. Insightfully, the court stated at paragraph 132: “Disputes of this sort are not ideally suited to litigation because, in such circumstance, there will always be a winner who might tend to crow with disdain. Neighbourly disputes are best suited to alternative dispute resolution and it is hoped that the parties may yet pursue such option.”
There are different forms of alternative dispute resolution. Primarily, the “alternative” in the dispute resolution is an alternative to litigation. The purpose of this article is not to provide a comprehensive summary of the various forms of alternative dispute resolution which may be appropriate under certain circumstances. The purpose is to focus on the particular benefit of mediation in avoiding, at an early stage in the planning application process, a situation such as the one that arose in the Van Zyl matter.

Mediation involves the facilitative role of a trained, neutral third party who assists participants to come to and manage the settlement of a dispute. A mediator helps to clarify and prioritise issues and assist parties in the search for solutions. A mediator is a facilitator who guides and manages the parties through a process of controlled negotiations to avoid escalation of conflict. A successful mediation will generally be finalised with the participants concluding a Settlement Agreement detailing their agreed outcomes. For these reasons, a mediator is perfectly suited to intervene and be involved in the public participation within a planning application process.

Mediation could be used in a matter where it is clear that objections received will likely lead to a contested application and planning decision. A Settlement Agreement would be a vital document for inclusion in the application papers submitted to an Authorised Officer (AO) or Municipal Planning Tribunal (MPT) for consideration. The agreement will have the
effect of resolving the objections which, in certain instances, would avoid the necessity of an AO referring the matter to an MPT for consideration. In instances where an application must go to an MPT, a mediation may avoid the necessity of a prolonged contentious hearing. Finally, it will certainly reduce the potential for decisions to be taken on appeal and possibly

As alluded to at the outset, the benefits of this approach are vast. International trends have shown that mediation is being adopted and practised more frequently. There has been a sharp increase in matters being referred to mediation in the United Kingdom jurisdiction which may be an indication to expect a similar trend in South Africa. This data showed a 78% settlement rate. It is predicted that mediations would last approximately half a day in order to sort out issues raised in the objections. The timeframes for dealing with a contested application including
scheduling time for an MPT, Appeal Authority (AA) and review may take approximately three to five years. In the interests of promoting development, shortening these timeframes is crucial. Therefore, the mediation intervention may prove pivotal in achieving the investment and development goals of a municipality.

Mediation would fit seamlessly into the already existing public participation process in planning applications. In terms of the standard SPLUMA bylaw, a version of which is being implemented by the majority of municipalities in KZN, it is submitted that a mediation could be read into the provisions of the public hearing process in both initial applications and appeals. In initial
applications, this process may be followed in instances where there are objections and responses exchanged between applicants and the public. In planning appeals, a hearing is the norm. A mediator may be appointed in both circumstances under the provision for the appointment of an Expert Technical Advisor. The mediator would then submit a report to the
MPT/AO/AA on the success or failure of the mediation. Where the mediation was successful (potentially 78% of the time), the mediator would also submit a signed Settlement Agreement which would form part of the information considered by the MPT/AO/AA.

The downsides to mediation are minimal. A failed mediation does not prejudice any party from proceeding along the ordinary course with the application process. A municipality that can avoid the convening of a hearing (which may run over a number of days), an appeal hearing, and possibly legal costs for participation in a review application in the High court, will see vast reductions in administrative costs. This potential saving far outweighs the relatively low costs of remunerating a mediator as an Expert Technical Advisor, even in circumstances where a mediation is unsuccessful. The additional time allocation of half a day for mediation pales in comparison to the potential saving of time in a contested hearing and appeal.
An MPT or an AO will always retain a discretion to refer a matter in dispute to mediation. It will not serve any purpose to refer a matter to mediation where the objections received are plainly incorrect or where an application has no chance of success. In these circumstances, the terms of any potential settlement agreement will likely have little affect on the overall
decision. Mediation should be used where there is a bona fide dispute which has the potential to drag on for an inordinate amount of time. Should the mediation approach be followed, it emphasises the importance of educating decision-makers on the mediation process to allow them to exercise their discretion correctly.

Going back to the statement in Van Zyl, “neighbourly disputes are best suited to alternative dispute resolution”. At the end of the day, objections to planning applications predominantly come from neighbours or owners/occupiers of properties in close proximity to a subject property. It is prudent then, where possible, to resolve potential planning disputes as soon as they become apparent. Clearly after the exchange of objections and responses, potential disputes will become apparent. Mediation provides a solution which has the potential to reduce timeframes, promote
investment and enhance harmony within a community. Finally, mediation in the planning application process will provide an opportunity for community members who have reservations about a particular development to actually feel heard, regardless of the outcome.