AN EARLY CHANCE TO BE HEARD
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WHY IS EARLY INTERVENTION IMPORTANT? INDEPENDENT
HEARING & ASSESSMENT PANELS (IHAP)
IN NEW SOUTH WALESOR AN EARLY CHANCE TO BE HEARD.
Strategic Project Management
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Early intervention is important so that disputes do not escalate. In fact, some disputes can be avoided by adopting an early intervention strategy with a third party neutral.
The earlier the intervention, the more chance there is to save costs and time.
The NSW Land and Environment Court Working Party Report:
…recommends that Councils should consider establishing Independent Hearing & Assessment Panels, modelled on that of Liverpool and Fairfield City Councils, to provide a forum in which objectors and applicants may be heard in person, development applications may be independently assessed, and recommendations made as to how they should be determined. Further, it said that Councils should also consider establishing Facilitation Committee Programs, similar to that of Gosford City Council, to provide facilitation services to objectors and applicants.
In Gosford City, the Council assesses about 4,500 development applications each year. The Council is aware there is an increase of local concerns and issues including: long delays in the determination of applications brought to Council, and inefficient resolution of conflict, particularly between applicants and objectors. A process formally known as a Facilitation Conference was established in May 1994. This process is in addition to the opportunity which already exists for residents to appear before Council or its Committees to make personal representations.
The process allows for the Council to facilitate an understanding of the issues between the parties. The Facilitator does not resolve the issues, but leads and advises parties towards an understanding, compromise and resolution of the issues. It has proven beneficial, and is conducted in a friendly environment with both parties acknowledging that they seek a solution to the issues raised.
Issues suitable for facilitation include, but are not confined to:
· Environmental issues
· Impact on view
· Access to sunlight
· Drainage to or from the site
· Pollution arising from the proposal
· Noise generation
· Bulk, height and scale of the development
· Visual and aural privacy or
· Other matters of a physical nature.
The confidential facilitation process is a form of assisted negotiation. The Facilitator is a specially trained senior officer of Council who works with the parties to reduce adversities, clarify issues, explore alternatives and search for solutions with a view to resolving the issues. The Facilitator is impartial, does not impose a decision on the parties, and is not involved in the assessment of the particular application. The parties may request the appointment of an independent external Mediator.
Gosford Council also advocates and participates in a formal Mediation process. The Council has a register of external Mediators.
The Mediation/Facilitation Model is an adopted policy of Gosford Council, and forms part of the Gosford Local Approvals Policy. The objectives of the policy are:
· To establish an effective and equitable process for the resolution of objections relating to development and building applications and related matters.
· To define procedures that enable the parties to identify and resolve issues of contention on a mutually acceptable basis.
· To enable building and development proposals to be assessed and determined by Council without unnecessary delay.
· To ensure consistency and fairness in the manner in which Council deals with and resolves conflicts.
The policy applies to the following matters:
· Development applications
· Subdivision applications
· Application to erect a building
· Draft local environmental plans
· Draft development control plans
· Draft plans of management for community land
· Proposed leases or licences for community land for a period exceeding five years
· Other matters for which public notification applies.
The Gosford City Council has recognised that Mediation, Facilitation and other forms of dispute resolution have some clear benefits, including:
· Disputing parties can meet on a face-to-face basis and resolve their differences in a conducive atmosphere
· Greater responsiveness to local concerns and issues
· Disputing parties are empowered to resolve their differences among themselves
· There is greater potential for earlier resolution of conflicts
· Avoidance of litigation in the Land and Environment Court
· Reduced community conflict and improved public confidence in the assessment process
· Savings for the development industry and the Council because of faster assessment of applications.
IHAP is a New South Wales innovation. The Land and Environment Court Working Party Report recommended other Councils in New South Wales use the IHAP process.
The Independent Hearing and Assessment Panel (IHAP) in Fairfield was established in July 1999 and processed 64 applications from October 1999 to August 2000. The applications varied from dwelling additions to commercial and industrial developments. On the applications considered by the IHAP, 39 have been determined (approved or refused) and 25 deferred prior to final determination. The IHAP recommended amendment to the recommendation of the Responsible Officer for approximately one-third of the applications. The Council supported the recommendation of the Panel on most occasions. Deferrals usually related to the seeking of more information.
In Fairfield, up to November 2000, no applications considered by the IHAP had been referred to the Land & Environment Court for appeal. In the court, the Council's costs then averaged between $10,000 and $20,000 per case. The Land and Environment Court has hearings before Judges or Commissioners. As from October 1999 to August 2000, Council spent $21,530 on the IHAP process, representing an average of $1,957 per month. While the prevention of matters going to the court cannot be directly attributed to the IHAP, if it prevents only one court appeal per year, it has justified itself in terms of Council's costs.
The Independent Hearing and Assessment Panels and Mediation Program of the Liverpool City Council were established in March 1997 and in October 1997 respectively.
Liverpool City Council has recognised that there is a need to implement formal processes to deal with the resolution of conflict in connection with Council’s operations. Informal processes which have been utilised in the recent past have been partially effective in dealing with some issues, highlighting the need for a consistent approach to the resolution of conflict in the community. Mediation will ensure that all parties can be confident in the impartiality, fairness and honesty of the process. It will have a degree of integrity which will promote the achievement of mutually agreed outcomes and document these to ensure their implementation.
The objectives of the Mediation Program policy are to:
· Establish an effective and equitable process for the resolution of conflict between Council and members of the community, and between members of the community themselves.
· Define procedures that enable disputing parties to identify and resolve issues of contention on a mutually acceptable basis.
· Ensure consistency and fairness in the manner in which the Council deals with and resolves disputes.
The Mediation Program policy applies to the following matters:
· Planning Matters (all development applications that attract objections )
· Draft LEP and DCPs
· Draft plans of management for community Land
· Proposed leases or licences for community land for a period exceeding five years
· Matters at the discretion of Council, the Mayor or the General Manager.
The primary functions of the IHAP are to:
· Independently assess building applications and development applications referred to it and make recommendations to Council;
· Provide an independent forum for open discussion with objectors and applicants;
· Consider applications made by Council and make recommendations, with supporting reasons, for approval/refusal to Council.
Examples of matters considered by the Panel include:
· Assessment report of the application prepared by the Council Officer.
· Independent mediation report if the application has unresolved public objections.
· Representations made to the Panel at time of the hearing.
· Relevant statutory planning instruments and /or Council policies
· The provisions of the Local Government Act 1993.
· The provisions of the Environmental Planning and Assessment Act 1979 and in particular to Section 90 Heads of Consideration.
The four members of the IHAP include a community representative, and specialists in the areas of law, environment and urban design. The independent specialists must have eminent qualifications and experience within the designated specialist area. The members are, as far as possible, to have no conflict of interest within the Liverpool Local Government Area.
The Charter of the IHAP is to:
· Provide greater transparency and accountability of the assessment process in an independent forum.
· Provide increased knowledge and access to the assessment process for both objectors and applicants; and
· Refer all development applications with outstanding or unresolved objections to the Panel for consideration (review).
To improve the process and the function of the Panel, a questionnaire is provided to attendees to obtain feedback on its operation. While the Panel hears many highly contentious and complex matters, those participating have generally agreed that the Panel gave them a fair hearing and fulfilled their expectations. Where particularly contentious issues have been brought to IHAP, 74% of those surveyed have said that they considered the Panel’s attitude to objectors and applicants to be satisfactory.
Twenty-eight cases were randomly chosen for analysis regarding Council action on IHAP recommendations. Council adopted 22 recommendations. It has reported that since the introduction of the IHAP process, the number of appeals going to the Land and Environment Court has plummeted. The balance of six recommendations were deferred by the Council, subject to further information or the submission of an amended proposal. Once the deferrals were completed or matters resubmitted, Council endorsed the recommendations made by IHAP. The Panel has also encouraged the Council to expand and improve its mediation service. A review has shown that of 105 referred to the mediation program, 43 cases have reached agreement either during pre-mediation or formal mediation and therefore did not require referral to the Panel.
The recognition of an early chance to be heard will lead to IHAP or similar processes being out into place. They are best supported by a policy so that all stakeholders know what is expected.
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Strategic Project Management
This is a limited form project management.
It is specifically targeted at projects/activities that are likely to be contentious or end up in a Court. John Haydon has practised as an early intervention environmental lawyer for some years now and there is a growing client acceptance of the benefits of that intervention.
From the early intervention experiences has developed the Strategic Project Management concept being promoted by EcoDirections International Pty Ltd. It looks at the big picture.
EcoDirections International Pty Ltd does not give legal advice but can identify whether or not legal advice is required and when. John Haydon, Barrister at Law, is available to give the planning and environment legal advice.
The strategic project management is scoped to fit the particular problem. It may include looking at the lawfulness of a particular activity or assist in handling a proposed prosecution by a Council or the Environmental Protection Agency. It also looks at new projects and the preparation of detailed development applications to assist in the approval process. We recommend the timely use of Assisted Dispute Resolution (ADR).
We seek to sort through the issues before they become too problematic and the parties become entrenched in their positions. The earlier the intervention the better.
Strategic project management for new projects often involves facilitation skills to ensure that the project research (by a range of specialist Consultants) is done in such a way that if the matter does end up in a Court then much of the case has been prepared, does not need to be redone, requires short reports for the Court and means that the case can be presented more efficiently and more quickly. These mechanisms lead to reducing the risk that the project may not be approved. Whilst keeping in mind that the matter may well go to a Court the object of the strategic project management is to maximise the opportunity of obtaining an approval without having to go Court.
The strategic element of this specialised form of project management means that even before the development application is made the possibility of going to Court is being planned.
The early intervention techniques have two aims. Firstly, to keep you out of Court and obtain an approval on satisfactory terms. Secondly, if you (the client) have to go to Court then you are well prepared for that event.
This process is using negotiations skills blended with some aspect of facilitation to produce a well researched development application. Critical reviews are undertaken in respect of draft reports. The Information Request and the Submission processes identify potential or real problems. If extra research is required then that should be subject to critical review. All the time we are trying to narrow the scope for a dispute to arise. As disputes narrow they get resolved. If not, you have a few days in Court rather than a few weeks. Shorter reports for Court result because it is not necessary to repeat what is in the impact assessment report process except by cross referencing.
If you want to see if strategic project management will assist you please email details of your concerns/project to johnhaydon@ecodirections.com or (07) 3236 1633 and we can develop how we can help from there.
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