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Land and Environment Court - Working Party
4.7 Alternative dispute resolution
The Working Party is of the view that, generally speaking, disputes may be more easily resolved at the earliest stage - that is, as soon as possible after they are identified (see also the discussion in chapter 3, Pre-Lodgement Processes). The longer a dispute is left unresolved, the more entrenched the parties’ positions are likely to become.
The Working Party therefore considers that alternative dispute resolution is likely to be most effective in relation to development applications well before an appeal is brought to the Court and, ideally, before the local council has made a determination. Successful use of alternative dispute resolution would not only reduce the number of appeals being brought to the Court, but also the number of issues in dispute in any particular appeal.
A number of councils reported that they have adopted various forms of alternative dispute resolution to improve their decision-making processes and minimise conflict in relation to development applications, and to reduce the number of planning appeals to which they are a party. Mechanisms include mediation, facilitation and neutral evaluation.
The Working Party was particularly impressed by the work of the Independent Hearing and Assessment Panels established by Fairfield and Liverpool City Councils, which appear to have contributed to a significant reduction in the number of planning appeals in which those councils are involved.
The Working Party was also impressed by Gosford City Council’s Facilitation Committee program, as well as the mediation services provided by the Community Justice Centres and the Australian Commercial Disputes Centre (see Appendix B).
4.7.1 Independent Hearing and Assessment Panel
In March 1997, the Liverpool City Council resolved to establish an Independent Hearing and Assessment Panel (‘IHAP’) with the following main functions:
- to independently assess development applications referred to it and make recommendations with supporting reasons to the Council;
- to provide an independent forum in which objectors and applicants may be heard in person; and
- to consider applications made by the Council and make recommendations with supporting reasons.
Two objectives of this initiative were:
- to ensure that development applications which are complex and/or significant are submitted to a rigorous and transparent process; and
- to allow councillors to focus on the formalisation and development of policies to provide a framework and guidelines for decision-making.
Development applications are referred to the IHAP in the following circumstances:
- where there are unresolved objections to the proposal, except where it relates to a dwelling house or dual occupancy;
- where the Council is the applicant; and
- where the application seeks a variation of Council policy.
The IHAP consists of four members. Three are specialists in the fields of law, environment and urban design and the fourth is a community representative. In order to ensure that there are no conflicts of interest, members are chosen from outside the local government area and there is facility for the appointment of alternates.
Meetings of the IHAP are held monthly and are open to the public. Where necessary, site inspections are carried out prior to the meeting. Meetings are relatively informal. Anyone who wishes to speak is ordinarily given the opportunity to do so.
Once the parties have expressed their views, meetings move into closed session and members formulate their recommendations in relation to each development application, taking into consideration:
- the assessment report on the application prepared by Council staff;
- the mediation report, where mediation has taken place;
- representations made to the panel at the hearing;
- relevant environmental planning instruments and/or Council policies;
- the provisions of relevant legislation.
The IHAP then presents a report to the Council, giving reasons for its recommendations as to how the application should be determined.
It is important to note that the IHAP does not have the authority to determine development applications. It is for the Council to decide whether to adopt the IHAP’s recommendations.
There is a cost associated with the IHAP, since the members are remunerated for their services. However, the cost of a meeting is reported to be negligible in comparison with the potential cost of defending an appeal to the Court.
The Liverpool City Council reported that, in 2000, its IHAP dealt with 71 applications. In relation to those applications, there were six appeals to the Court. Of those six, four were appeals against the Council’s refusal to grant development consent, consistent with the recommendations of the IHAP. None of those four appeals were successful.
The Chair of the Liverpool City Council IHAP reported that the majority of the IHAP’s recommendations are adopted by the Council, and that the Council has been involved in fewer planning appeals since its establishment.
The Liverpool City Council has also surveyed participants’ views, with the general response being that the IHAP gave them a fair hearing and fulfilled their expectations. 74% of those surveyed considered that, in dealing with particularly contentious issues, the IHAP’s attitude to objectors and applicants is satisfactory.
In October 1999, the Fairfield City Council established an IHAP with similar functions and objectives to that of Liverpool City Council.
The Fairfield City Council reported that, from its establishment in October 1999 to August 2000, its IHAP dealt with 64 applications. The Council granted development consent to 94% of those applications which the IHAP recommended for approval. None of the applications dealt with by the IHAP were the subject of an appeal.
The Working Party considers that the IHAP model provides a valuable means of reducing the number of planning appeals in which councils are involved, and therefore of reducing legal costs. In addition, members of the public are likely to find speaking before an IHAP to be a less forbidding prospect than addressing a council meeting, which may take place in a highly charged atmosphere or according to strict rules of procedure. The Working Party therefore considers that the IHAP model is an initiative which promotes and facilitates public participation in the development assessment process.
The Working Party would strongly encourage councils to consider establishing IHAPs, modelled on those of Fairfield and Liverpool City Councils.
Appendix C reproduces a flow chart showing how the Fairfield City Council’s IHAP fits into the assessment process.
4.7.2 Facilitation Committee
The Gosford City Council operates a Facilitation Committee program, which is offered where there are three or four objectors to a development application and the assessing officer forms the view that their objections can be resolved through facilitation. It is the Council’s policy to deal with as many development application-related disputes as possible in this way.
The program is offered during the assessment of the application, before the assessing officer reports to the Council.
A Council officer who has received training from the Australian Commercial Disputes Centre conducts the facilitation. This officer (the facilitator) has no other involvement in the assessment of the subject application.
The facilitation is attended by the facilitator, the applicant and the objectors. The facilitator’s role is to encourage the parties to reach an agreed resolution through discussion and negotiation. He or she does not represent the Council’s views, and does not attempt to persuade any of the participants to change their views.
Where an agreement is reached, the facilitator submits a report to the assessing officer, and this is taken into consideration in his or her report. Where no agreement is reached, the assessment process simply continues as usual.
The Gosford City Council reports that there is no cost involved in offering this program. Although facilitation may delay the assessment process by one or two weeks, the Council considers that the delay is justified by the time and cost savings flowing from the reduced number of disputes which remain to be dealt with at Council meetings.
The program has a high success rate, with 78% of the 75 facilitations conducted in 1999 and 2000 leading to either partial or complete agreements.
The Working Party considers that the Gosford City Council’s Facilitation Committee program is a good mechanism for dealing with objections to development applications, and would encourage councils to establish similar programs to provide facilitation services to objectors and applicants.
4.7.3 Conclusion
Clearly, alternative dispute resolution offers significant social benefits in that it has the potential to reduce conflict in relation development applications.
It is also a far less expensive means of resolving disputes than Court proceedings. Even where alternative dispute resolution does not prevent litigation, it may serve to reduce the number of issues in dispute, and therefore the time required for hearing and both parties’ costs. This is not only beneficial to councils, but also to ratepayers, in that a local council which spends less money defending planning appeals has more money to spend on other matters such as improving public amenities.
The success of most forms of alternative dispute resolution depends to a large extent on the cooperation of the parties and, for this reason, the Working Party does not consider that the adoption of alternative dispute resolution by councils should be mandatory. It is also important to bear in mind that the need for alternative dispute resolution mechanisms will vary from council to council. This is because the nature and extent of development varies enormously across the State (as does the size and wealth of local councils). In the 1998/99 financial year, for example, Windouran Shire Council reportedly determined only eight development applications, while Blacktown City Council determined 4,714.
At the same time, there is clear evidence to suggest that alternative dispute resolution can provide positive results for councils, applicants and third parties. The Working Party therefore strongly encourages councils to consider how they can make greater use of alternative dispute resolution.
Recommendation 9: Alternative dispute resolution
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.
See also Recommendation 3, which refers to mediation and conflict management services offered by organisations such as the Community Justice Centres and the Australian Commercial Disputes Centre. Recommendation 32 also relates to alternative dispute resolution.
4.8 Councils’ power to review their determinations
Section 82A of the Environmental Planning and Assessment Act 1979 empowers a council, on application by an applicant made within 28 days of the determination, to review that determination. If a council is deemed to have refused an application it may determine it at any time and the determination does not prejudice the continuation of an appeal.
The Working Party can see no reason in principle why section 82A should not be available to councils for the period within which a dissatisfied applicant may appeal to the Court (one year) or, if an appeal has been lodged, until the appeal is disposed of. The Working Party recommends the review period be extended.
Section 82A was inserted, presumably, to meet the objection that the council had completed its duty oncebecame functus officio when it had decided an application. As the law now stands the council’s decision is not final for a period of 28 days (because it can be reviewed). To extend the review period as recommended would not, in the Working Party’s opinion, be other than beneficial. The legislation recognises that councils are the primary decision-makers and the evident purpose of the appeal system is that the Court determine disputes between applicants and councils. There have been complaints by councils that the Court has on occasion usurped certain functions of councils by granting development consents to applications that have never been considered by the council. This allegation is dealt with elsewhere in this Report (See 2.2.1 Extent to which development applications can be amended on appeal). For present purposes, however, it is to be noted that the proposed amendment to section 82A would address this perceived problem as well.
Because the appeal to the Court is a de novo hearing on the merits, information may come to the council after it has refused the development application and before the appeal is heard persuading it that the decision it had taken earlier should be reversed or changed. The Working Party believes that, on review, the council should be able to consider alterations so long as the development application remains substantially the same as the one for which consent was originally sought. As will be seen, the Working Party recommends that the Court discontinue its practice of making consent orders in planning appeals (see 9.5 Consent orders). The proposed amendment to section 82A would have the effect, if implemented, of giving to the councils the power to grant the consent they are granting in the Court.
Other than one submission by the Council of the City of Sydney no other person has submitted that section 82A should not be extended. The Council of the City of Sydney recommends that section 82A be abolished. This is because, if its submission were accepted, each council would have established a local assessment panel which would exercise the power councils now have under section 82A. For reasons provided later in this report, the Working Party does not recommend the Council of the City of Sydney’s model be adopted.
The Local Government and Shires Associations have, as noted, submitted that all merit appeals to the Land and Environment Court should no longer be allowed. However, if merit appeals are to be continued it supports the recommendation to extend the period of time for review under section 82A of the Environmental Planning and Assessment Act.
Recommendation 10: Councils’ power to review their determinations
Section 82A of the Environmental Planning and 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).
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