Land and Environment Court - Working Party


3. Pre-Lodgement Processes

3.1 Introduction

The first stage in the development assessment process is when a prospective applicant makes contact with the local council to determine:


• what type of development is (and is not) permitted on the proposed site (that is, what development controls apply to the site);
• whether a development application needs to be submitted for the proposed development; and, if so
• what information needs to be included in the application.

The processes involved may include:


• the provision of information by the council
• discussions between the prospective applicant and a council representative, and/or between the prospective applicant and neighbours and other local residents
• alternative dispute resolution




3.2 Provision of information by local councils


It has been suggested that one simple way of streamlining the development assessment process and preventing unnecessary disputes would be to better educate prospective applicants about what the process involves, and what it requires of them. To this end, the Local Government and Shires Associations suggested that the Working Party should consider: Local Government and Shires Associations of NSW, submission 177, p 12.



“the preparation of guidelines which would detail the information required to be submitted with a development application.”


The Environment and Planning Law Association (NSW) made a similar suggestion.

The Environmental Planning and Assessment Regulation 2000 has come into force since the beginning of this review. Part 1 of Schedule 1 of the new regulation provides a list of the information that should be included in a development application and the documents that should accompany it. The Working Party approves of the new regulation, and believes it will assist prospective applicants.

However, the Working Party is also of the view that councils should be encouraged to provide information to prospective applicants in addition to that contained in the new regulation.

Where councils provide advice or written material to prospective applicants, the Working Party would encourage them to provide the information in plain English and, so far as practicable, in relevant community languages.


Recommendation 1: Provision of information

Councils should be encouraged to provide additional information to prospective applicants. Information should be provided in plain English and, so far as practicable, in relevant community languages.





3.3 Discussions


A number of submissions suggested that pre-lodgement discussions between a prospective applicant and a council representative, and/or between a prospective applicant and neighbours and other local residents, could greatly reduce the potential for disputes. It was thought that such discussions could be invaluable in promoting early communication of design concepts, and could help to prevent large amounts of money being spent on the development of proposals which are not permissible or will very likely be rejected by the council. It was suggested that:



“Consideration should be given to making it a legislative requirement for applicants to consult with neighbours and Council planning staff prior to lodgement of applications.”


The Working Party is of the view that in many cases it would be in everyone’s interest for pre-lodgement discussions to be held. However, such discussions should not be mandatory. This is because discussions not entered into voluntarily and in good faith may frustrate or even aggravate participants and ultimately slow the development assessment process. It should also be noted that Privacy NSW has received a number of complaints from objectors to proposed development, alleging harassment or intimidation by the developer., Discussions between a proponent of development and neighbours and other local residents should not take place if all the parties do not participate voluntarily.

However, where a council facilitates pre-lodgement discussions it should make sure that the process and any associated requirements are communicated accurately and that prospective applicants are not subsequently disadvantaged or councils improperly compromised. At least one submission complained aboutthat lack of commitment at the pre-lodgement development application stage andof the ultimate outcome of the application. It was suggesteds that people who enter into pre lodgement discussion should be somehow rewarded by a speedier development application decision.


It is, of course, to be hoped that discussions entered into between a prospective applicant and the local council prior to lodgement of a development application will lead to a speedier assessment and determination of the application. However, the Working Party is of the view that pre-lodgement discussions should not automatically lead to favoured treatment. Moreover it must be understood that council staff at pre-lodgement stage are not in a position to give any firm indication about the likely outcome and cannot pre-empt the formal decision that is to be made if a development application is lodged.

While the Working Party wishes to encourage appropriate pre-lodgement discussions, it is unwilling to prescribe how they should be facilitated or conducted. These matters are properly left for individual councils to decide. However, it is important that any pre-lodgement discussions are conducted with appropriate transparency, to avoid any suggestion of compromise or corruption.


Recommendation 2: Pre-lodgement discussions

Where appropriate, councils should encourage pre-lodgement discussions between prospective applicants and their neighbours and other local residents, and between prospective applicants and representatives of the council. However, participation in such discussions should not be mandatory.

Where a council facilitates pre-lodgement discussions it should make sure that the process and any associated requirements are communicated accurately.

Councils should ensure that pre-lodgement discussions facilitated by them, or in which their representatives participate, are transparent.





3.4 Alternative dispute resolution


The existence of a dispute will not usually become apparent until later in the development assessment process. However, where a dispute is identified at the pre-lodgement stage, there would appear to be some scope for alternative dispute resolution and, in particular, mediation.

Mediation is essentially an assisted negotiation. It is a voluntary process in which a neutral third party (the mediator) helps to facilitate the parties’ negotiation of solutions to their dispute, assisting them to identify disputed issues, develop options, consider alternatives and endeavour to reach agreement. The mediator does not promote a personal position, provide technical or legal advice as to the content of the dispute, or impose a decision. The negotiations are usually confidential. A number of organisations offer mediation services, including two which receive government funding: the Community Justice Centres (‘the CJC’) and the Australian Commercial Disputes Centre (‘the ACDC’). Services offered by the CJC and the ACDC are described in more detail in Appendix B.

The CJC and ACDC indicated to the Working Party that mediation is most successful when it is conducted at the earliest possible stage of the dispute.

The CJC reported that it has made formal and informal agreements with several local councils to provide mediation and related conflict management services. For example, in 1998, the Northern Region CJC entered into a memorandum of understanding with the Newcastle City Council to provide conflict management and mediation services. More than 50 mediations specifically relating to planning matters have since been conducted under the agreement, and 78% of these resulted in settlement.

The Working Party is of the view that wider use should be made of alternative dispute resolution techniques such as mediation at all stages of the development assessment process, including the pre-lodgement stage.

Alternative dispute resolution is also discussed at 4.7 Alternative dispute resolution and 98.1 Mediation by the Court.


Recommendation 3: Alternative dispute resolution

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.

Recommendations 9 and 32 also relate to alternative dispute resolution.