Land and Environment Court - Minority Report


7. Alternative Dispute Resolution (Recommendations 3, 9, 32)


The Working Party has made a number of recommendations in relation to alternative dispute resolution (ADR) as follows:

Recommendation 3
Wider use should be made of alternative dispute resolution at all stages of the development assessment process, including the pre-lodgement stage.

Councils should consider making use of mediation and conflict management services offered by government-funded organisations such as the Community Justice Centres and the Australian Commercial Disputes Centre, or similar services offered by reputable private organisations

Recommendation 9
Councils should make greater use of alternative dispute resolution in dealing with development applications, but its adoption should not be mandatory.

Councils should consider establishing Independent Hearing and Assessment Panels, modelled on those of Fairfield and Liverpool City Councils, to provide a forum in which objectors and applicants may be heard in person, independently assess development applications and make recommendations as to how they should be determined.

Councils should also consider establishing Facilitation Committee Programs, similar to that of Gosford City Council, to provide facilitation services to objectors and applicants.

Recommendation 32
Councils are encouraged to make appropriate delegations, including the power to negotiate and settle matters, so as to enable their representatives to participate effectively in alternative dispute resolution facilitated by the Court (that is, preliminary conferences and mediation).

Comment

I generally support these recommendation and agree with the sentiment of the Working Party that is, “the success of most forms of ADR depends to a large extent upon the cooperation of the parties and for this reason, the Working Party does not consider that the adoption of ADR by councils should be compulsory”. I remain vehemently opposed to any notion of compulsory mediation, as it has been ill advisedly introduced into the Supreme Court. Compulsory mediation is a contradiction in terms whilst voluntary mediation should be encouraged.

Generally speaking, I agree there is scope for the greater use of ADR by Local Government in dealing with development applications, which has been demonstrated by the establishment of Independent Hearing and Assessment Panels by Liverpool and Fairfield councils and the Facilitation Committee program operated by Gosford Council. It is the policy of the Associations to encourage the development of increased opportunities for dispute resolution in Local Government, for use when appropriate through the employment of ADR techniques. However, the need for and the form of ADR mechanisms are for the council to determine as the nature and extent of development varies enormously across the State.



8. Section 82A of the Environmental Planning and Assessment Act (Recommendation 10)

The Working Party has recommended that section 82A of the Environmental Planning & Assessment Act 1979 should be amended to allow councils to review their decisions in relation to development applications at any time until the expiration of the period within which an applicant may appeal or the application is determined by the Court (whichever occurs later).

Comment

I commend the Working Party for this recommendation as currently a council has only 28 days to review a decision to refuse a development application. This amendment will negate the need for consent orders and potentially reduce the number of appeals to the Court and the associated financial and resource costs for councils.



9. Stamping of plans (Recommendation 31)

The Working Party has recommended that the Court should stamp plans which are the subject of a development consent granted by it with the date of the determination and an indication that the stamped plans accurately reflect the Court’s determination before being sent back to the council.

Comment

I commend the Working Party for this recommendation as the Associations received numerous representations from councils regarding this issue. The importance of reforming this aspect of the Court’s operation was also supported in the submission made by the City of Sydney.