Disputes & mediation
Planning and development matters have been a catalyst in Council’s adoption of mediation and other alternative dispute resolution techniques.
Dispute Resolution Principles
Council's Dispute Resolution Policy outlines the adopted principles and process in relation to dispute resolution and mediation. Participation in these processes is voluntary and can only be undertaken if both parties agree to participate.
Open consultation between affected persons or stakeholders can help prevent the initiation of disputes. This is particularly important in the case of planning and development matters. For example, major development proposals should be discussed with the affected community in a formal manner before design finalisation and the lodgement of a development application. Parties are not obligated to participate in discussions with potentially affected parties, however participation often assists in clear communication, identification and resolution of any issues and assists in reducing application processing times.
Dispute resolution procedures should be initiated as early as possible. This will help avoid parties becoming locked into inflexible positions of conflict.
Parties should be able to meet each other on a face-to-face basis. Meetings should allow parties to explain details, express points of view, confine issues and resolve differences in an atmosphere conducive to conciliation.
Self-resolution of differences
The parties should be encouraged to resolve differences by direct negotiation amongst themselves.
Outcome of mediation
Any agreement arising from a mediation should be documented in a Mediation Agreement signed by all of the parties. A Mediation Agreement is not legally binding, but is made in good faith.
Dispute Resolution Procedures
Step 1: Early consultation
Many matters of contention can be satisfactorily resolved or avoided by early consultation. For example, by talking to other parties and responding to their concerns, it may be possible to prevent a contentious matter developing into a full dispute. This will generate goodwill and obviate the need to activate the procedures under this Policy.
It is recommended that persons who have concerns should clearly outline these to the responsible Council officer. Where appropriate, suggested possible solutions should be identified.
The responsible Council officer, in consultation with their reporting officer, should consider this response, and as far as is reasonable, undertake measures that would address the identified concerns and avoid the need for a formal dispute resolution procedure to be initiated under this policy.
The development and building industry is encouraged to consult with nearby residents and the local community prior to
- preparing detailed designs and
- lodging development applications or rezoning proposals with Council.
Reasonable assistance in arranging meetings can be provided by the Council upon request. A facilitator can also be provided at the developer’s expense.
Prospective objectors to development proposals are encouraged to consult with Council officers before notifying a dispute.
Persons who have significant concerns with a publicly notified development application should outline these in a written submission lodged with the Council prior to the close of the submission period. Where appropriate, suggested possible solutions should be identified.
As far as is reasonable, both the applicant and objectors are to seek mutually acceptable solutions that address the identified concerns and avoid the need for a formal dispute resolution procedure to be initiated under this policy.
Step 2: Notice of dispute
Where consultations have failed to resolve a contentious matter, the affected party or parties may give notice that they wish to have the dispute resolved in accordance with this Policy.
Notice of the dispute must
- be lodged either with the Dispute Resolution Coordinator or the Council’s current mediation provider* and
- contain a statement explaining the matters and issues that are the subject of the dispute.
*NOTE: Currently the Northern Region Community Justice Centre.
Applications to lodge a dispute relating to a development application or other planning matter must be lodged with the Dispute Resolution Coordinator prior to the end of the applicable submission period (as specified by Development Control Plan No. 49 - Public Notification). Notice must be given on the approved application form.
If both parties agree to participate in mediation Step 3 will be initiated. If either party is not willing to participate, comments lodged during the notification period will be taken into consideration in the assessment of the application.
Step 3 Pre-mediation
After a dispute has been notified, the mediation provider (or the Dispute Resolution Coordinator in the case of planning and development matters) is to prepare each of the parties for mediation by
- undertaking explanatory meetings (if required)
- referring parties to other agencies (for example, to obtain legal advice)
- identifying and meeting special needs, such as access, interpreting services and support persons and
- arranging the date, time and venue for the mediation.
Explanatory meetings are an important component of pre-mediation. They provide an opportunity to
- explain the dispute resolution process
- clarify the matters and issues that are the subject of the dispute and
- determine whether any additional information or clarification needs to be provided to the parties prior to mediation.
Documents relating to the dispute may be made available to all parties at the discretion of the mediation provider (or Dispute Resolution Coordinator in the case of planning and development matters), and with the agreement of the parties concerned.
Pre-mediation is to be arranged by the Dispute Resolution Coordinator.
Explanatory meetings are to be attended by the Dispute Resolution Coordinator (or the Coordinator’s nominee) and the Council assessment officer dealing with the matter.
Following the explanatory meetings, the Dispute Resolution Coordinator is to provide each party with the following information
- the names of the persons who will attend the mediation as spokespersons and as observers
- the date, time and venue for the mediation
- a statement outlining each of the issues the subject of the dispute, as clarified at the explanatory meetings
- any additional technical or other information agreed to be provided to parties prior to mediation.
This information is to be conveyed to the parties as soon as practicable, whether by letter, facsimile or electronic mail. In order to reduce delays, the date, time and place for the mediation may be arranged by telephone at relatively short notice.
Step 4: Mediation
The mediation is to be conducted by the Council’s current mediation provider, generally in accordance with the guidelines outlined in clause 9 of this Policy.
Mediation is to be conducted until one of the following occurs
- the parties execute a settlement
- the mediator makes a written or oral declaration to the effect that further efforts at mediation are unlikely to be fruitful and
- one or more of the parties makes a written or oral declaration to end the proceedings.
Before commencing mediation, each party must sign a written agreement to abide by the mediation guidelines outlined in clause 9 of this Policy.
A 14 day time limit applies for the conclusion of mediation procedures relating to development applications. This period may be extended by the Dispute Resolution Coordinator if this is satisfactory to all parties.
In the event that mediation procedures remain incomplete or unworkable at the end of the time limit, the matter is to proceed directly for assessment and determination.
Step 5: Outcome of mediation
Mediation may result in any of the following outcomes
- full settlement
- partial settlement and
- no settlement.
Where a full or partial settlement has been reached, it is recommended that the parties enter into a written Mediation Agreement. Such an agreement must be signed by all of the parties, and should clearly define the terms of the settlement, including details of any action to be taken by the parties and relevant performance standards. The agreement may be conditional on the checking or validation of matters referred to in the agreement. The parties may alternatively make an oral agreement.
Where no or partial settlement is reached, it is recommended that the parties jointly prepare and sign a Statement of Unresolved Issues. This should clearly document all matters remaining unresolved at the conclusion of mediation.
The mediation provider is to inform the Dispute Resolution Coordinator as to the general outcome of the mediation, that is
- whether or not the parties have reached a settlement
- details of any aspect of the settlement that the parties have consented to be conveyed to the Council and
- details of any statement of unresolved issues.
The Dispute Resolution Coordinator will pass this information on to relevant Council officers.
If no settlement has been reached, each of the parties may apply for an address to the Council in accordance with the Council’s Public Voice policy.
A mediation agreement is to indicate whether
- details of the mediation agreement are to be conveyed to the Council for consideration in its determination of the matter and
- objections lodged during the submission period have been withdrawn.
Where no or partial agreement is reached, the parties should generally outline those issues considered critical to the Council’s determination of the matter in a Statement of Unresolved Issues.
Where details of the contents of a mediation agreement have been conveyed to the Dispute Resolution Coordinator, this information is to be referred to the assessment officer dealing with the matter. The assessment officer will contact the parties in relation to any problems or ambiguities in the agreement and any proposed conditions of development consent prior to the matter being determined. If the assessment officer considers that the mediation agreement is unclear, the agreement may be referred to a further explanatory session with the parties.
A mediation agreement or statement of unresolved issues will be taken into consideration during the determination of the matter. In the case of a development application, this consideration will be undertaken as part of the Council’s consideration of the public interest under section 79C(1)(e) of the Environmental Planning and Assessment Act 1979.
If any of the parties intend to apply for an address to the Council following the inconclusive termination of mediation, an application must be lodged with the Dispute Resolution Coordinator by the next working day following the termination of mediation.
Step 6: Review of mediation agreements
Where outcomes depart from the substance or intent of a mediation agreement, either party may request the mediation provider (or the Dispute Resolution Coordinator in the case of planning and development matters) to convene a suitable explanatory meeting.
The purpose of this meeting is to
- clarify issues concerning the implementation of the mediation agreement
- establish procedures to ensure that the principles of the agreement are adequately fulfilled
- determine whether any modifications to the agreement are necessary or would be satisfactory to both parties and
- determine whether any further mediation is required.
Where aspects of a mediation agreement have been incorporated in the conditions of a development consent, procedures should be implemented by the Council to
- monitor outcomes
- ensure that the principles of the agreement are adequately fulfilled at the construction and operation stages and
- advise relevant persons of any variation or modification which departs from the intent of the agreement.