Adversarial nature of the planning system
Planning decisions are often complex and require a delicate balancing of competing interests. This means that conflict is a common occurrence in the planning system. Typically, conflict is resolved by one position winning over another and with Council making the final decision. This makes the system adversarial in nature with winners and losers. For example, when a development application is approved despite strong community objection, the developer may be seen as the “winner” and the community the “loser”.
This culture was reflected in the recent Review of the Governance in the NSW Planning System by Nick Kladis APM which stated:
“Despite the reforms in recent years, many stakeholders report that the current planning system is overly adversarial and does not have a ‘positive planning culture’ and is not appropriately engaging the community in planning decisions.”
At the heart of changing this culture is improving communication between decision makers and those that interact with the system. This includes enhancing the capacity and the ability of planners to resolve conflict in a positive and meaningful way. You can read more about how to create a conflict resolution mindset in our earlier article. It also means using different tools to help resolve conflict. For example, informal or formal mediation.
The cost of conflict in the planning system
The reality is that conflict can arise at any stage of the planning process. It could be at the policy making or strategic planning phase of a project. Or it can happen as the planning process continues. For example, during the consideration of a specific development proposal. Conflict can then continue during the life of a development. This includes during construction and the enforcement of development consent conditions.
In some cases, this conflict can turn into expensive formal legal proceedings. In other cases, it can cause delays in decision making or create distrust in the community about the outcome. Ongoing conflict can also take a toll on those in the front line. That is the planners or Council staff who are tasked with balancing the range of competing interests or dealing with stakeholders in engagement activities, plus managing workload with often tight time frames. Unresolved conflict can also result in stakeholders feeling aggrieved or disappointed with the outcome. Some may even feel bewildered with the system. This does not help create a positive planning culture.
Creating a positive planning culture
The good news is that there are alternatives available to help effectively resolve conflict in a way which supports a positive planning culture and moves away from the adversarial nature of decision of making. Much can be learned from alternative dispute resolution approaches such as mediation. These alternatives can help planners, local councils and stakeholders manage the increasingly combative planning process using a robust and independent process.
There a number of good reasons to think about mediation (either formal or informal) next time you are in a situation of conflict:
1. Timing is flexible
First, you can use tools like mediation at any point in the planning process. In the context of the planning system, you could use the techniques during the policy or plan making stage or when making a decision about a development application. It also not too late to consider mediation when a dispute has evolved into formal legal proceedings.
2. Independence of process builds trust
Second, having an objective person step into a dispute can help persuade people to talk and listen to each other. There is something to be said about having a neutral person in the room. This role can often be difficult for Council staff, as they will be seen to have vested interests in the outcome (even if this untrue!)
3. Buy-in to the outcome
Third, when parties have a hand in the solution, the outcomes are more robust. This is no different for disputes in the planning system. Indeed, a criticism of the current approach is that stakeholders often feel unheard. As noted in the Kladis Review, communities can feel that feedback is received only for “superficial window dressing”. Tools like mediation can often an alternative space where people feel genuinely heard and are involved in creating the outcomes.
4. Tailored to the dispute
Fourth, mediation can be tailored to accommodate any need for transparency in decision making and to fit within the legislative framework. This may include, for example, making it clear at the outset that the outcome needs to be reported to the elected Council for a final decision.
There any many ways in which alternative dispute resolution approaches, such as mediation, can be incorporated into the planning system to create a positive planning culture. This includes providing planners and communities with the right resources and skills to resolve conflict, and where necessary, engaging the expertise of an independent person (like a mediator) to assist in those difficult conversations.
If you require assistance from an accredited mediator, please get in touch with our Director- Legal, Governance & Mediation.