Mediation matters

Last week the Landowners Coalition participated in a mediation involving a District Plan Change initiated by the Whangarei District Council regarding Papakainga developments. While the mediation remains confidential until ratified by the Environment Court, there are some general comments about mediations that are worth sharing. But first, let’s recap on where mediation fits into the plan change process.

When a local authority proposes a change to the planning rules, it goes through a formal plan change process. In simplified terms, it prepares a draft of the proposal and notifies the public of the proposal. That notification is in the form of public notices in the newspaper, and in some cases it writes directly to landowners who may be affected by the change. In the case of the Papakainga proposal for example, the WDC says it wrote to adjoining landowners to draw their attention to the plan change proposal (which gives Papakainga land development rights that do not apply to land generally).

Those who wish to comment on a plan change have a specified time frame to make a written submission. Council planning staff then review those submissions and amend the plan change as they believe appropriate. A hearings panel is then appointed (by council staff and ratified by councillors) to consider the submissions and hear those who wish to present their submission in person.

Following the hearing the decision of the panel is put before councillors to rubber stamp (which they invariably do). If those who submitted on the plan change disagree with panel’s decision they have a right of appeal to the Environment Court (they become the Appellant). The filing fee for an appeal is $511.11, but if a matter has been appealed, a submitter will be notified and given an opportunity to take part in the appeal proceedings as an interested party (section 274 of the RMA). There is no cost to become an interested party, but proceedings are limited to the matters raised by the Appellant.

Before the matter is set down for a hearing date, the parties to the appeal are required to engage in mediation. The Environment Court appoints a mediator to facilitate that meeting and try to bring the parties together to an agreement on some or all aspects of the appeal. If there are unresolved issues then the matter would be referred to the Environment Court for a hearing. All Section 274 parties may take part in the mediation.

It’s at mediation where most of the contentious planning issues are usually resolved. Often the parties to a mediation have a particular interest, like utility companies or environmental activists wanting greater regulation.

If a matter is agreed or conceded at mediation, there is no requirement for the local authority to go back to the original submitters to the plan change, or to councillors, so the plan change that is actually implemented could be quite different from the one that was advised to the public and presented to councillors.

That’s why it’s important for those who may be affected by a plan change to get involved as a submitter and see their submission through to mediation. The reality is that few do. Most individuals either have no understanding of the plan change process, or think it’s too hard, or believe the process is futile and a waste of their time. As a result, many planning laws go unchallenged.

What is quite evident from the mediations I have been involved with is that local authorities make an assumption that if someone is not part of the mediation process, then they accept the plan change as determined by the hearings panel – it’s a case of silence is taken as acceptance.