Urban Planning and Real Estate Development

By John Ratcliffe; Michael Stubbs et al. | Go to book overview
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5

The future for dispute resolution in planning

Two distinct areas will be considered, namely those of Alternative Dispute Resolution (mediation) in planning, and human rights legislation and its consequences. Both challenge current thinking and provide innovative solutions to some existing problems in the appeal system. Over the next few years both planning practitioners and casual spectators of the system are well advised to monitor developments in these two areas.


Introduction to alternative dispute resolution

Alternative Dispute Resolution (ADR) is a convenient, if imprecise, expression by which a whole raft of dispute resolution procedures may be classified. Mediation is one of the best known methods of ADR. The methods covered are considered to fall outside traditional litigation and arbitration (including planning appeals). Brown and Marriot (1993) provided a good definition: 'ADR may be defined as a range of procedures which serve as alternatives to the adjudication procedures of litigation and arbitration for the resolution of disputes'.

Mediation, therefore, represents but one method of resolving dispute within the broader spectrum of ADR. ADR has been viewed as an umbrella term (Bevan, 1992) to cover a variety of dispute resolution systems that share a common aim of seeking to act as alternatives to traditional methods in which disputes are resolved by the imposition of a decision upon the parties. Such traditional methods (i.e. litigation or arbitration, mostly in courts) have been criticized, for the high cost imposed on parties, the delay in getting a case heard and the formality and adversarial nature of the proceedings (Rogers, 1990). ADR mechanisms have been credited with many advantages, perhaps the most frequently cited ones being that they seek a consensual outcome that is acceptable to both parties, in which each party enjoys ownership of the decision (thus increasing the likelihood of improved user satisfaction) and that it is administratively expedient because it may save time and expense to the disputing parties.

The Land and Environment Court of New South Wales introduced town planning mediations in 1991, representing one of the first such innovations to be used in environmental disputes world-wide. This was introduced for a number of reasons. First, there was a recognition of a growing awareness and promotion within Australia of the benefits of ADR in general to solve disputes (Astor and Chinkin, 1992). Second, there was an increasing

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