Dispute Resolution: Learning From the Experience of Disputes at Shell Harbour City Council

8/4/2019 Dispute Resolution: Learning From the Experience of Disputes at Shell Harbour City Council

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DISPUTE RESOLUTION IN COMMERCE ASSIGNMENT : Dianne Allen ... p. 1LEARNING FROM THE EXPERIENCE OF DISPUTES AT SHELLHARBOUR CITY COUNCIL

LEARNING FROM THE EXPERIENCE OF DISPUTES AT

SHELLHARBOUR CITY COUNCIL

Dianne Allen, 1996

Contents

LEARNING FROM THE EXPERIENCE OF DISPUTES AT SHELLHARBOUR CITYCOUNCIL ........................................................................................................................... 1

ABSTRACT .................................................................................................................................... 31. INTRODUCTORY REMARKS ................................................................................................. 3

1.1 GENERAL CONTEXT OF LOCAL GOVERNMENT ................................................ 31.2 THE SITUATION AT SHELLHARBOUR COUNCIL ................................................ 51.3 CURRENT THEMES FOR ENHANCING ORGANISATIONAL LEARNING ......... 6 1.4 APPLICATION OF THESE THEMES IN THE LOCAL GOVERNMENT

CONTEXT .............................................................................................................. 71.5 THE CURRENT CONTEXT FOR ORGANISATIONAL LEARNING AT

SHELLHARBOUR COUNCIL ............................................................................... 72. SPECIFIC CONTEXT FOR SHELLHARBOUR COUNCIL ..................................................... 8

2.1 THE LOCAL GOVERNMENT AREA - HISTORIC OVERVIEW ............................. 82.2 NATURE OF DISPUTES EXPERIENCED BY SHELLHARBOUR COUNCIL ........ 92.3 DISPUTE RESOLUTION OPTIONS EXERCISED BY SHELLHARBOUR

COUNCIL................................................................................................................ 92.3.1 DIRECT NEGOTIATION .............................................................................. 92.3.2 INDIRECT NEGOTIATION/ FACILITATED NEGOTIATION ................ 102.3.3 MEDIATION ................................................................................................ 102.3.4 EXPERT APPRAISAL ................................................................................. 112.3.5 CONCILIATION .......................................................................................... 112.3.6 EXPERT DETERMINATION ..................................................................... 112.3.7 ARBITRATION ........................................................................................... 112.3.8 LITIGATION ................................................................................................ 122.3.9 PARTNERSHIP ........................................................................................... 12

3. LEARNING FROM THE EXPERIENCE OF DISPUTES ....................................................... 123.1 GENERAL REMARKS: ............................................................................................. 123.2 EXPERIENCE OF DISPUTE IN THE RANKS OF ELECTED REPRESENTATIVES

............................................................................................................................... 14LESSONS/ ILLUSTRATIONS ............................................................................. 16

3.3 AN EXAMPLE OF AN INDUSTRIAL DISPUTE: .................................................... 17 LESSONS/ ILLUSTRATIONS ............................................................................. 18

3.4 THE SHELLCOVE PROJECT ................................................................................... 18LESSONS/ ILLUSTRATIONS ............................................................................. 20

3.5 PROSECUTING BREACHES OF REGULATIONS AND THE DELEGATION TOINSTITUTE LEGAL PROCEEDINGS ................................................................. 20LESSONS/ ILLUSTRATIONS ............................................................................. 22

3.6 SECTION 94 CONTRIBUTIONS AND CHALLENGES TO COUNCIL POLICY .. 22

LESSONS/ ILLUSTRATIONS ............................................................................. 25


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3.7 PUBLIC PARTICIPATION AND PREPARATIONS FOR WIDER PUBLICCONSULTATIONS .............................................................................................. 26LESSONS/ ILLUSTRATIONS ............................................................................. 31

BIBLIOGRAPHY .......................................................................................................................... 32

Section 1........................................................................................................................................ 32Section 1.1 ......................................................................................................................... 32Section 1.3 ......................................................................................................................... 32Section 1.4 ......................................................................................................................... 32Section 1.5 ......................................................................................................................... 33Section 2 ............................................................................................................................ 33Section 2.1 ......................................................................................................................... 33Section 3 ............................................................................................................................ 34Section 3.1 ......................................................................................................................... 34Section 3.6 ......................................................................................................................... 34

ATTACHMENTS ......................................................................................................................... 36ATTACHMENT 1: INTRODUCTORY REMARKS: ...................................................... 36

EQUIPPING STAFF TO HANDLE DISPUTES EFFECTIVELY IN LOCALGOVERNMENTABSTRACT .......................................................................................... 36

ISSUES IN TRAINING IN NEGOTIATION SKILLS FOR AN ORGANISATIONAL SETTING

ABSTRACT ...................................................................................................................... 36FACILITATION: THE USE OF MEDIATION TECHNIQUES & PROCESSES IN

RESOLVING DIFFERENCES IN GROUP DECISION-MAKING ABSTRACT ........... 37ATTACHMENT 2 EXTRACT FROM "EQUIPPING STAFF TO HANDLE DISPUTES

EFFECTIVELY IN LOCAL GOVERNMENT" Section 1 .................................... 39ATTACHMENT 3: EXTRACT FROM "EQUIPPING STAFF TO HANDLE DISPUTES

EFFECTIVELY IN LOCAL GOVERNMENT Section 2 ................................... 45ATTACHMENT 4: EXTRACT FROM "EQUIPPING STAFF TO HANDLE DISPUTES



EFFECTIVELY IN LOCAL GOVERNMENT" Recommendations for

Shellharbour Council............................................................................................. 61ATTACHMENT 7: EXTRACT FROM "ISSUES IN TRAINING IN NEGOTIATION

SKILLS FOR AN ORGANISATIONAL SETTING" ............................................ 62ATTACHMENT 8: EXTRACT FROM "FACILITATION: THE USE OF MEDIATION

TECHNIQUES & PROCESSES IN RESOLVING DIFFERENCES IN GROUP

DECISION-MAKING" .......................................................................................... 64ATTACHMENT 9 :TABLES TO INDICATE THE LEVEL OF DISPUTATION

REACHING COUNCIL REPORT LEVEL........................................................... 67PRESENTATION OVERHEADS: ............................................................................................... 72


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ABSTRACT

This paper looks at a number of experiences that Shellharbour Council has had with disputesover the period 1974-1996. These experiences are generally illustrative of the context of

disputes in local government.

From a review of this experience it is apparent that Shellharbour Council, since 1974/5, is an

organisation which has generally been open to different ways of dealing with disputes.

The organisational learning process, derived from these experiences, over this period, has tendedto set a relatively progressive culture for handling disputes.

Nevertheless, given the context of change in local government, and continued growth andcomplexity of issues that Shellharbour Council can anticipate facing in the future, there is room

for a more strategic effort to improve its present performance. The "case studies"/ experience

then form a resource from which the organisation can continue to learn for such improvedperformance.

1. INTRODUCTORY REMARKS

1.1 GENERAL CONTEXT OF LOCAL GOVERNMENT

A more comprehensive analysis of the general context of Local Government has been provided

in a previous assignment.

SEE ATTACHMENT 2

Suffice it to say, at this point, that in the context of local government, there is the "opportunity"

to experience almost the whole gamut of difference/ dispute, and a necessity to be able to handleany/ all of it, as well as possible.

For a local community, local government can be a focus /a microcosm of the nature and form ofdisputes experienced in the wider Australian context. Where the particular council is part of the

identity of a local community, it will, of necessity, give the model to its community, on how tobehave in such disputes. And that model will be for better or worse.

There are a variety of sources of pressure/ expectation on local government to perform. These

can be summarised as:

1. Federal Government


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2. State Government3. Ordinary people, residents - ratepayer - value for money

4. Lobbyists: environmental; business; etc

5. Elected representatives6. Political parties

7. Staff - professional satisfaction

8. Staff - employment security and pay for performance9. Local Government & Shires Association

10. Staff associations - industrially advantageous conditions for employees11. Businesses - permission to develop within (minimum) economically viable

constraints

12. The Fourth Estate: press, radio & TV

The regular operations of a council involve a number of basic interactions where there is thepotential for differences to lead to breakdown of communications, negotiations, relationships.

These can be summarised as:

1 Customer Service:

2 Regulatory responsibilities:3 Staff interactions: peers; superior/ subordinates; industrial

4 Involvement in Community development:5 New legislation: transparency, accountability, interactive processes

Again, a more detailed analysis of these aspects, and the implications for organisational

effectiveness, namely in the area of staff training, have been dealt with elsewhere.

SEE ATTACHMENTS 3, 4 & 5 FOR THESE DETAILS

In dealing with these differences, a council has access to the whole range of dispute resolution

options.

Some indications of typical applications of the range of dispute resolutions in local government,

and areas where they are applied, are as follows:

DISPUTERESOLUTIONPROCESS:

EXAMPLES OF WHERE THE PROCESS ISTYPICALLY APPLIED:

Direct Negotiation Employee & Immediate Supervisor


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DISPUTERESOLUTIONPROCESS:

EXAMPLES OF WHERE THE PROCESS ISTYPICALLY APPLIED:

Employee with delegated authority & Developer - working

through application to reach position of conformity with

policy, therefore approval (with or without conditions)

Employee with delegated authority & Contractor - dealingwith contract variations

Indirect

Negotiation/FacilitatedNegotiation

Union Representative (staff) /Management;

Union Organiser/ Management;

Union Organiser/Local Government & Shires AssociationIndustrial Division (peak employers' representative)

Indirect Negotiation/

Professionally represented

parties

Council's solicitor to appellant solicitor

Mediation - voluntary

bipartisan initiative

ADB approach

Mediation - voluntary,

bipartisan, but pre-requisite of arbitration

Land & Environment Court

Expert Appraisal Commission of Inquiry EP&A Act

Conciliation Industrial Court

Expert Determination Commission of Inquiry EP&A Act

Arbitration Industrial Court

Litigation Court of Appeal

Partnership

1.2 THE SITUATION AT SHELLHARBOUR COUNCIL

Over time, Shellharbour Council has gained an awareness of

1. the importance of dispute resolution at source (ie with little or no formal legalintervention); and

2. the variety of options in dispute resolution;

and it has elected to access different processes to deal with particular kinds of disputes.


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It would be my thesis that Shellharbour Council's organisational knowledge in this regard has

been formed by

1. the interaction of individuals with particular issues; and

2. the sharing of this experience from individual to individual.

(In this process there has been leadership in recognising different approaches and the necessity

to change the approach, appropriate to the circumstances, from the elected personnel as well asthe staff/ professional support area).

This knowledge now resides with individuals in the range of levels in the organisation, butcannot yet be described as being organisation-wide.

The level of skill in applying any, or all, of the dispute resolution options available is variablefrom individual to individual.

This process of organisational knowledge and skill formation has happened in a relatively ad hoc

way in the past.

As issues have arisen, the personnel involved have sought to resolve them, and in the process

have honed dispute resolution skills.

But there has not been any obviously explicit organisation-led process to ensure this.

At this point, some of the key players have recently retired/ been retired from the arena.

Consequently, there is a risk that the results of this past learning may be lost, unless some

program is consciously engaged to focus on this growth of knowledge and development of skills

from past experience, and the handing on of that knowledge to and the development of thoseskills amongst the next generation of participants.

As the Council seeks to handle its various responsibilities, in the ongoing context of change, and

severely constrained resources, there is a continuing necessity to consciously improve

operational performance, and that includes performance in the area of dispute resolution. (ie nomore resources than are necessary are deployed on dispute resolution).

For this, Council needs a mechanism to communicate that knowledge, develop the relevant skills

in a range of personnel, and to continue to support and articulate the desired corporate culture of

dispute management.

1.3 CURRENT THEMES FOR ENHANCING ORGANISATIONAL LEARNING

The work of Senge (1992), the impetus being given by TQM to continuous improvement, andmany others, advocate the process of double-loop learning for organisations. This involves the


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DISPUTE RESOLUTION IN COMMERCE ASSIGNMENT : Dianne Allen ... p. 7LEARNING FROM THE EXPERIENCE OF DISPUTES AT SHELLHARBOUR CITY COUNCILdevelopment of the capacity to review experience, to think about it, talk openly about it togetherand to learn from it, projecting improvements for the second time round. Then the process is

repeated, for each cycle, with the application of the improvement determined from one cycle to

the subsequent cycle.

These processes help clarify the objectives of the group or the organisation, the techniques used

in various operations and build a common understanding of what is going on and why, and howand why some techniques are more effective than others.

1.4 APPLICATION OF THESE THEMES IN THE LOCAL GOVERNMENT

CONTEXT

It has been noted elsewhere, that for Local Government, as an industry, personnel resources arein much need of development. The provision of training and the recognition of appropriate ways

to develop organisational learning are, for the most part, significantly underdeveloped at thisstage.

This provides a context, for the local government industry, or individual local governmentbodies, to take a "quantum leap" in this regard, providing the current directions, raised in section

1.3 above, are understood and applied.

SEE ATTACHMENT 2, 5 FOR FURTHER DETAILS

1.5 THE CURRENT CONTEXT FOR ORGANISATIONAL LEARNING AT

SHELLHARBOUR COUNCIL

A review of the current position of organisational learning, and development of dispute

resolution skills and knowledge, for the staff of Shellharbour Council, has been dealt with indetail in previous assignments.

SEE ATTACHMENTS 5, 6, 7 AND 8 FOR DETAILS

There is the potential, at this stage, to use the lessons available from past experience of handling

disputes, to enhance present levels of staff skills, and so develop an organisation more adept atdealing with the inevitable differences that arise in dealing with local government.


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2. SPECIFIC CONTEXT FOR SHELLHARBOUR COUNCIL

2.1 THE LOCAL GOVERNMENT AREA - HISTORIC OVERVIEW

Prior to the Second World War, the Shellharbour local government area, on the coast, south ofWollongong, had been primarily rural (dairy farming the major component) with some "ribbon"

residential/tourist areas around Lake Illawarra.

During the period 1960-70 this basic demography began to change dramatically as residential

development (including a significant proportion which was public housing) occurred. Thisdevelopment was designed to provide "dormitory" facilities for the large semi-skilled workforce

attracted to the growing steel industry at Port Kembla.

Population 1954 = 5,523

1961 = 13,394

1971 = 31,1371981 = 41,790

1991 = 46,295

In 1954, the composition of the population was 13.4% under 4, 6.3% over 65, 36.4% employed,

16.4% born overseas, 8.0% from UK & Ireland, and 9.8% resident in Australia less than fiveyears.

In 1971, the composition of the population was 11.7% under 4, 3.1% over 65, 34.4% employed,31.9% born overseas, 18.5% from UK & Ireland, and 8.2% resident in Australia less than five

years.

In 1981, the composition of the population was 9.4% under 4, 4.2% over 65, 40.3% employed,

28.7% born overseas, 13.9% from UK & Ireland, and 1.7% resident in Australia less than fiveyears.

In 1991, the composition of the population was 8.2% under 4, 7.4% over 65, 38.5% employed,24.7% born overseas, 11.5% from UK & Ireland, and 1.1% resident in Australia less than five

years.

So, within the basic community structure, there is an ongoing emphasis on:

1. "young families" (compared to the NSW average);2. a more even balance across the ages (in 1991 compared to say 1971);

3. a significant proportion coming from overseas without English as their firstlanguage;

4. and the vast majority are relatively recent settlers with very little in the way of the

internal social support provided by extended families in close proximity.

In 1996, the Shellharbour area is in the midst of yet further urbanisation, and what was arelatively homogeneous socio-economic mix in 1971, is destined to become yet more diverse.


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2.2 NATURE OF DISPUTES EXPERIENCED BY SHELLHARBOUR COUNCIL

As is often the case with the "negatives", as distinct from the "positives", there is not a

particularly thorough, or reliable, "register" for disputes, etc, at Shellharbour Council.

Most of the knowledge of the range, quantum, and level of disputes tends to be held individually,

with some corporate sharing, especially anecdotal, of key events/issues.

The most clearly documented disputes are those that escalate to the level of a report to Council:for decision, to reaffirm present policy, or where a determination is required to institute legal

proceedings.

For the documented disputes, the main items are:

1. industrial - working conditions, overaward claims, etc2. non-acceptance of Council decision/s regulating development

SEE ATTACHMENT 9 FOR DETAILS

2.3 DISPUTE RESOLUTION OPTIONS EXERCISED BY SHELLHARBOUR

COUNCIL

2.3.1 DIRECT NEGOTIATION

It is projected that the Direct Negotiation method of dispute resolution is used most frequently,

and part of the success of this process is reflected in the fact that a dispute, or a difference raisedbetween parties, is settled, without reference to another level of management, or without theneed to draw in any other party outside of the organisation.

To the extent it is successful, it means that the scope (number, nature, etc) of this level of

dispute resolution is essentially unknown.

Direct negotiation is used to settle differences between staff and management, especially in the

areas of meeting staff needs by flexible/ creative exercise of discretion and agreement to (usuallyshort-term) change.

The direct negotiation may need to progress to negotiation facilitated by technical

representatives when the independent exercise of discretion (by management) is seen to be


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DISPUTE RESOLUTION IN COMMERCE ASSIGNMENT : Dianne Allen ... p. 10LEARNING FROM THE EXPERIENCE OF DISPUTES AT SHELLHARBOUR CITY COUNCIL"arbitrary" and/or "partial". Then "class" representation calls for a formal enunciation of"policy" so that common rules are established which can then be applied to all.

Direct negotiation is also a significant component of Council's commercial relationship with itscontractors. The basic negotiation typically occurs between Council (represented by its

professional staff overseeing the contract performance) and contractors, concerning the terms of

contract and service delivery - eg additional works required outside of contract, and undertakenfor agreed sums not covered by the original contract.

Direct negotiation is also a natural part of the development application/approval process. There

can be considerable consultation between Council officers and applicants before an application

is refused, or concerning the conditions that are to apply to the approval. The availability ofstaff for this kind of negotiation is particularly appreciated by the "regular" developers, and the

general rapport developed has been seen to benefit both parties.

Since the instigation of public participation, the applicants (who are dissatisfied with theofficer's recommendation) have had access to the councillors, to present their case. This

ensures "internal solution" wherever possible.

Public participation has also provided "objectors" - adjacent owners, primarily, and "third party"

eg the "conservation lobby", secondarily, with access to councillors prior to the formulation of adecision.

In some instances, the formal council meeting has been adjourned while the elected leadershipsought to facilitate a negotiated settlement between the applicant and objectors, within Council's

development policy construct.

2.3.2 INDIRECT NEGOTIATION/ FACILITATED NEGOTIATION

Indirect negotiations between parties, represented by their own professional advisers, normally

occurs in matters of contract - eg land sale/acquisition; lease formulation; pre-contractnegotiations, etc.

2.3.3 MEDIATION

The Anti-Discrimination Board's initial approach to a claim of discrimination is to mediatebetween the employer and employee, to explore the issue, and determine whether the matter at

issue can be resolved at the "internal" level.

Shellharbour Council has had one such experience, early in the life of the ADB.

The reform of the Local Government Act in 1993 introduced a statutory obligation on councilsto formulate an EEO plan, and to manage EEO in the workplace.


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I am not aware, at this stage, of any dispute situation where Shellharbour Council has sought to

apply a formal mediation to a matter within its own discretion.

There have been a number of occasions, when matters brought before Council, have led Council

to recommend to the parties involved, that they seek to deal with their concerns in the mediated

forum of community justice.

Mediation, offered in the context of the final option of adjudication of an appeal, by the Landand Environment Court, is another process Council has accessed, in dealing with disputes arising

out of development applications.

2.3.4 EXPERT APPRAISAL

Expert appraisal can be seen to be a formalised part of the "normal" process of dispute resolution

in matters of development where an Environmental Impact Statement is required, and Council

seeks independent advice from specifically contracted consultants to assist with its statutoryobligations when assessing the environmental impact of the proposal.

Shellharbour Council's most recent experience of an expert appraisal/ expert determination hasbeen with the Commission of Enquiry into the proposal to develop a harbour as part of a coastal

resort/ residential complex - the Shellcove project. The Enquiry was conducted by two

commissioners between December 1995 and March 1996. The Commission has recommendedapproval subject to certain environmental protection conditions being met. The Minister for

Planning is yet (7 November 1996) to declare his final determination of the matter.

2.3.5 CONCILIATION

Council has been involved in very few Conciliation Hearings of the Industrial Court, when

Council has been perceived to be in breach of industrial law/ award conditions.

2.3.6 EXPERT DETERMINATION

Expert determination is a part of the process of any Commission of Enquiry established under

the EPA Act, 1979, for the consideration of any designated development.

2.3.7 ARBITRATION

Council has been involved in the arbitration of disputes with individual staff, and/or the staff as a

whole, at the Industrial Commission. The number of these has been small and the greatest


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DISPUTE RESOLUTION IN COMMERCE ASSIGNMENT : Dianne Allen ... p. 12LEARNING FROM THE EXPERIENCE OF DISPUTES AT SHELLHARBOUR CITY COUNCILproportion of such disputes at this stage tend to be individual matters, representing a breach ofperformance, resulting in disciplinary action which is then challenged (almost de rigeur).

2.3.8 LITIGATION

As a plaintiff, Council has litigation as its last resort in dealing with debt defaulters, andregulation infringers. Such action is sparingly used.

As a defendant, Council can be embroiled in litigation. The most frequent occurrence here isdefending decisions in the Land and Environment Court. For reasons noted elsewhere, these are

relatively few in number, with Council having a relatively high success rate.

2.3.9 PARTNERSHIP

There are three examples of a partnership process, with non-litigious forms of early dispute

resolution, for Council at present:

1. The Management Agreement with the Walker Corporation for dealing with

disputes arising from the engagement of the Walker Corporation to finance andundertake the residential development of Precinct 1 of the Shellcove Project

2. The General Manager's employment contract

3. The dealing with staff concerns via reaching consensus at the AwardRestructuring Consultative Committee

3. LEARNING FROM THE EXPERIENCE OF DISPUTES

3.1 GENERAL REMARKS:

From the current study of disputes and dispute resolution it can be seen that a number of

principles and issues need to be addressed in any training context seeking to equip participants tohandle disputes which they may become embroiled in as a natural component of their work

obligations.

The principles and issues are:

1. communication techniques1.1 active listening

1.2 effective questioning


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1.3 perceiving emotions

2. negotiation techniques

2.1 positional bargaining2.2 interest-based negotiation

3. the range of procedures available to undertake dispute resolution, and theirfundamental components:

3.1 fair process - all parties being heard3.2 role of any third party - neutral

3.3 determination of the matter on the basis of accepted (known and

explainable) objective criteria3.4 selection of process appropriate to the nature of the dispute

3.5 the timing of the dispute resolution intervention - ripeness of dispute

4. components that lead to escalation:

4.1 faulty process - perception of bias4.2 poor or bad timing - unreasonable delay

4.3 initial response - not respecting legitimacy of complaint, right of

complainant to raise the matter

5. strategic interventions:5.1 questioning for clarification

5.2 rephrasing or reframing for perception development

5.3 private caucus5.4 instruction on process

5.5 option generation - hypothesising5.6 maintenance of self-esteem - mutualising, normalising

5.7 reality testing

6. the third party role:

6.1 mediator6.2 facilitator

6.3 conciliator

6.4 arbitrator6.5 adjudicator

7. the role of power and its use in dispute resolution

8. the role of "rights" and the use of "rights" in dispute resolution

9. the nature of differences arising from gender, language, ethnicity, subculture,different value systems, etc

As mentioned previously, the current literature on organisation learning, highlights the need touse, and the advantage of using, these experiences as a learning resource. (See Section 1.3 and

the associated bibliography.)


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Any program developed around a more deliberate use of this experience delivers the following

outcomes:

1. it gives recognition to past actions, past successes2. it opens up past actions to scrutiny/ review of effectiveness

3. it provides a context and framework for double-loop learning

When such a learning process is undertaken for one area of an organisation's operations, and

found to be effective, the organisation may also learn to use the same process and apply it toother areas of the organisation's learning.

Whether or not the experiences are tapped in such a way, they do form part of the organisation's"group memory". They form part of the "accepted culture" - the way we do things around here.

Tapped as a learning resource, the experiences become more deliberately embedded into theorganisational culture. This means that the handling of the experiences, to expose the learning

opportunities, needs to be itself carefully analysed and planned, and presented in the context ofappropriate supportive skill building to enable more effective approaches to be considered and

then explored in other dispute situations.

The following instances give a brief overview of key disputes within Shellharbour Council's

experience, together with an identification of the lessons which may be learned from/ illustratedby them.

3.2 EXPERIENCE OF DISPUTE IN THE RANKS OF ELECTED

REPRESENTATIVES

As noted earlier, the demographic change which commenced about 1960 for Shellharbour, hadan impact on the personnel elected to local government, and the issues raised in that forum.

The change of State Government in 1966 led to a change in electoral practice in the 1968 local

government elections (from compulsory elections to non-compulsory elections). The growingALP representation stalled at a point where the "numbers" were close to, or equal to, the non-

labor independents. This "balance" continued in 1971-74-77 period. Compulsory elections werere-introduced in 1976 for the 1977-80 council term. The ALP group now secured a majority and

was able to dictate the mayoral position. For the 1980-83 term and since, the mayor has beenelected by popular vote from the whole plebiscite.

The closeness of numbers in representation through 1971-74-77 led to some serious dysfunctionin the elected council forum. There were extended debates arising out of reports (particularly in

the area of town planning). These debates tended to deal with issues of policy principle. There

was a basic difference in the approaches of the two groups - general support of development

from the business/ conservative side; and challenge of development, especially the question ofthe "control" of it, from the ALP side. The debates were lengthy, but mostly proved to be"window-dressing" - "for the gallery". The ALP group's position was put: extensively and


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DISPUTE RESOLUTION IN COMMERCE ASSIGNMENT : Dianne Allen ... p. 15LEARNING FROM THE EXPERIENCE OF DISPUTES AT SHELLHARBOUR CITY COUNCILcogently , their arguments were rarely effectively countered, but the vote went the other way.The power of the numbers, especially the Mayor's casting vote, was used time and again, to "win

the day".

This was also the period during which there was the beginning of concerns about environment

(the Clutha coal mining debate had flared in the Illawarra), and growing discontent with

residential flat development, and "third party" rights in determining elements of urban quality oflife. (The shift of "grass-roots" involvement: from "Ratepayers' Association" to "Coalition of

Resident Action Groups", was one such indicator).

The annual mayoral election at Shellharbour was characterised by a draw from a hat, and in

1974 the draw selected RJ Harrison. (At one stage the heat and distrust generated by such"closeness" meant that the local sergeant of police was called in to supervise the conduct of the

draw.)

The position of mayor, apart from community status, etc, determined the decision-making power

for the year. The person who was the mayor had a right to cast one deliberative vote because ofhis position as an elected ward representative. Then, in the event of a tied vote, the mayor had a

casting vote to break an even deadlock. This casting vote was used to support the partisan

position. (Such a casting vote can be used in another way - to hold the status quo until amajority is persuaded to one or other of the views extant.)

During his first brief term, the leader of the ALP group, Harrison, instituted a number of

significant changes:

1. the rights of councillors to access to information, access to Council files, was

extended2. the Council appointed a Chief Town Planner, and severed this "dependency" link

with Wollongong City Council

3. the Council established a "public participation" policy and practice(this public participation policy was modelled on the practice operating at the

time at Leichhardt Council)

When the next mayoral ballot saw the "opposition" drawn from the hat, there wasn't sufficient

policy clarity, or deliberated effort, to unwind any of these changes.

In 1977, with the ALP numbers now dominating the political forum, and Harrison secure as

Mayor, another significant change was instituted:

4. Council's legal adviser was engaged on a retainer basis, with a regular one day a

week spent out on site at the Council Chambers where the advice was now "on-tap" for the Mayor and for senior and professional staff. The firm's staff included

a senior, experienced practising solicitor (N Lamerton) with longstanding linkswith the Shellharbour community (Albion Park was the place of his commencing

practice in the 1950's) .

Throughout the period of 1977-1991, during Harrison's mayoralty, an endeavour was made to

"mend" the level of disputation at the elected forum: the independent councillors were included


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DISPUTE RESOLUTION IN COMMERCE ASSIGNMENT : Dianne Allen ... p. 16LEARNING FROM THE EXPERIENCE OF DISPUTES AT SHELLHARBOUR CITY COUNCILin the committees of council, on the basis of their support at the ballot box (but not in sufficientnumbers to represent a real power block).

In 1991, when Harrison retired, the ALP still held the numbers, and the independent oppositionhad almost withered on the vine. The new regime did not endeavour to include the independents

in the "committee" deliberations.

In 1993 the Local Government Act changed. The number of elected personnel was now limited:to a maximum of 15. For Shellharbour Council this required a change. There had been a long-

established three elected persons per ward structure pre-1931- 1993. The number of wards had

grown from 4 to 5 in 1980, to reflect population growth. The mayoral position has beenestablished as elected by popular vote from 1980 on. That meant, in 1991, a total of 16 elected

persons. Despite vigorous representations to the State Government in 1993-4 to maintain the

status quo, the figure of 15 was set. There then needed to be a review of ward boundaries, with aloss of positions available to aspiring candidates. The matter was for the incumbent Council to

determine - with some provision for draft -> exhibition -> submission -> and consideration todetermine. The wash up was a ward structure of six wards of two elected representatives each,

with proportional representation. This compared with the previous five wards of three elected

representatives each. To my mind the decision amounted to a gerrymander. (In practice itmeant the substantial demise of the capacity of the independent (non-labor) position to be

represented, especially in some wards).

For the 1995 election there was fall-out in one of the ward ALP tickets when seniority was

displaced by raw ambition. In another of the wards, the strength of numbers (of the "left"faction) now put in place ALP members who are antithetical to the "ruling right".

In 1996, there has been a return to a sense of instability at the elected level. Now, the

uncertainty arises from tensions within the ALP caucus. In caucus there are three, clear

(distrusted) "lefties" out of the nine. In the council forum there is the potential for those three tocombine with the one disaffected senior ex-ALP member and the two independents to force the

exercise of a mayoral determining vote. There is even the potential to win the day if more than

one of the "right" faction of the ALP is away. The only "safety" measure is when the caucus isalert to the prospect and has bound the three (not yet completely disaffected) members to

"caucus solidarity" on a "policy" matter.

LESSONS/ ILLUSTRATIONS

1. Power - of numbers in the decision-making process; its legitimacy; its failure to

completely satisfy parties' interests and needs

2. Polarisation - abuse of the raw numbers power to separate, followed by frustration

and a hardening of lines of difference

3. Good and bad communication: Talking at, not talking with, particularly in the

formalised context


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4. Use of the third party neutral to legitimise process at a critical decision

5. Impact of unsatisfactorily resolved disputes: locking participants into poorcommunication habits; poor decision-making processes - loss of trust; escalation

of dispute; organisational dysfunction

6. Use of objective criteria - proportional representation

7. The value of recognising opposition as legitimate and working at including it in

the decision-making counsels

8. The benefits of working at differences to construct improved options to be

considered in decision-making

3.3 AN EXAMPLE OF AN INDUSTRIAL DISPUTE:

Direct negotiation is used to settle differences between staff and management, especially in the

areas of meeting staff needs by flexible/ creative exercise of discretion and agreement to (usuallyshort-term) change.

The direct negotiation may need to progress to negotiation facilitated by technicalrepresentatives when the independent exercise of discretion (by management) is seen to be

"arbitrary" and/or "partial". The technical representatives can assist by first distancing theparties and secondly by generalising the issue: so that it becomes a "class" matter, calling for aformal enunciation of "policy". When the matter has then been agreed by the parties, common

rules are available to be applied similarly to all requests.

For example, when an individual needs to change starting & finishing times to meet personal

obligations, that can be arranged at the first line by the mutual agreement of the staff memberand their supervisor.

The regular change of starting times and finishing times to accrue "time in lieu" and to pool

enough leave for a roster day, which then becomes part of Council's normal operating pattern,and available to all staff, required the process of:1. presentation of a general staff claim;

2. initial considerations, by management of the request;

3. a decision by the council to reject the claim4. a strike, and

5. further negotiations at this same level, when agreement was reached.

The claim commenced as a claim for "flexitime" for "salaried" staff, and a shorter working week

for "wages" staff.

The claim was made in the context of a growing penetration of more flexible workingarrangements in the public service, and a spill over of these conditions to some local governmentbodies. (There may have been some agitation from the Union representatives to approach the


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DISPUTE RESOLUTION IN COMMERCE ASSIGNMENT : Dianne Allen ... p. 18LEARNING FROM THE EXPERIENCE OF DISPUTES AT SHELLHARBOUR CITY COUNCILCouncil on the matter. The fact that other councils had agreed to such arrangements tended tostrengthen the local pressure/ position.)

The claim was firstly put by way of a formal written submission from the respective staff unionrepresentative to the Council. The Council sought the response of management which was not

particularly clear on its position. The Council refused the request. The Indoor Staff held a

lightning stop work meeting and resolved on a half-day strike. This was an almost unheard ofevent for Shellharbour Council. Negotiations were re-opened, and an agreement reached.

At the time the Council and staff settled at a level of "roster day" (19 day month, compared with

some other Councils where agreement was reached at a 9 day fortnight) that was mutuallyagreeable, and the matter did not become a greater dispute requiring either Conciliation or

Arbitration in the NSW Industrial Court with the formulation of minimum conditions as part of

an industry award.

In 1992, following national developments in industrial relations, the Local Government (State)Award provided for the formation of a Consultative Committee at the local level.

This committee, with representatives from the parties to the award, and management, is aconsultative forum for raising general staff matters. Its deliberations have been encouraged to

be determined on the basis of consensus.


1. Poorly informed negotiations with the parties having/ taking a position leading to

escalation

2. Use of power of numbers sparingly, tactically

3. Value of moving from antagonistic approach to partnership approach and

consensus decision-making involving all stakeholders

4. Exercising the capacity to cycle back to less formalised forms of dispute

resolution at any stage - not being locked into progress by escalation

3.4 THE SHELLCOVE PROJECT

Shellharbour Council's most recent experience of an expert appraisal/determination has beenwith the Commission of Enquiry into the proposal to develop a harbour as part of a coastal

resort/ residential complex - the Shellcove project. The Enquiry was conducted by two

commissioners between December 1995 and March 1996. The Commission has recommendedapproval under certain environmental protection conditions. The Minister for Planning is yet (7

November 1996) to declare his final determination.


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The project was first mooted in 1984/5 when the NSW Department of Public Works (L Brereton

Minister) was responding to the need for more pleasure craft berths on the NSW coast; and the

Steel Cities Program (Federal) was looking to diversify employment/ economic development inthe Illawarra.

Shellharbour Council owns the bulk of the land adjacent to the proposed harbour site. It waspurchased in the late 1970's when the Council (with community support - South Coast

Conservation Society) refused the then owners (ICI) from developing a chemical processingplant on the site.

Over the period Council has negotiated with the Illawarra County Council for further land, andwith the NSW Government on land exchange in conjunction with the development site and

crown land (Bass Point Reserve and Killalea State Recreational Park), to obtain contingent land

and provide appropriate land stock for the financial viability of the project.

Council has been involved with negotiations with two major development companies whichhave sought to mount the project: Delfin 1986-1992; Walker Corporation 1992-1996.

The process, from the first presentation of the proposal, to the eventual commissioning of theharbour, is not yet complete. The failure of the first "commercial" partners to activate any firm

project proposal has not helped - but is evidence of the reality of the impact of the interaction ofcurrent economic uncertainties within a large and complex project.

Over this protracted period, there have been a number of "objectors" mobilised to take exceptionto the proposal. (A study of the waxing and waning of these "hot" spots in the process would be

an interesting exercise within its own right but is beyond the scope of this report.) Theseobjections have taken the following form:

1. the initial formalised objection came from surf board riders seeking to retain theShallows area

2. this group spilled over to residents with beachfronts; one of whom was a retired

labor state politician from the left wing - this "activation" has led, finally, in 1993- almost ten years after the start - to left wing ALP members on Council, in

caucus, disaffected on this issue

3. the golf club adjacent - affected by a proposal to relocate and deliver enhanced

facilities in a different location within the total project4. an aboriginal land title claim

The dispute between officials of the Shellharbour Golf Club and Council concerning therelocation of the golf course has gone through a number of stages: opposition - support -

opposition. The present golf course is located on land leased to the club from ShellharbourCouncil. The proposal is to relocate the course, and substantially upgrade the course and its

support facilities. At one stage Golf Club personnel worked with Council and the developer in

selecting the golf course design specialists, and determining design objectives for the newcourse. There has been change of elected personnel on the Golf Club Board of Directors, and a

shifting in policy/ approach to the proposal.


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Presuming the Minister for Planning's concurrence with the Commission of Enquiry's findings,

the harbour component of the project still has to run the gauntlet of an Aboriginal land title

claim.


1. The difficulty of sustaining support over a long period of time

2. The question of the actual substance of the present and previous objectors/objections

3. The question of the validity of the ballot box as a gauge of public support

4. The public relations/ communications strategies to build and hold communitysupport; to mobilise opposition; etc

5. Interest-based negotiations with various parties: Illawarra County Council,adjacent landowner; NSW State Government adjacent land trustee; Pioneer

Quarry adjacent landowner with right of way for land based transport of quarry

products

3.5 PROSECUTING BREACHES OF REGULATIONS AND THE DELEGATION TO

INSTITUTE LEGAL PROCEEDINGS

As noted briefly, earlier, Council is both a plaintiff and a defendant in litigation.

One of the statutory requirements of local government is to regulate certain activities:1. compliance with building approvals

2. compliance with development approvals3. compliance with public health regulations

4. control of stock and dogs5. legal use of public placesetc

To do this, councils have Ordinance Officers and professional inspectors who patrol the area,

follow up complaints, and endeavour to deal with any breaches. There are a number of options

open to them:1. education: in the form of "did you know .. ", "you will have to ..", followed up

with2. notices to comply

3. issuing of penalties for infringement

4. eventually taking an unresponsive offender to court.

Further, Council, as a revenue collector, often has long term debtors, where there is recourse to


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DISPUTE RESOLUTION IN COMMERCE ASSIGNMENT : Dianne Allen ... p. 21LEARNING FROM THE EXPERIENCE OF DISPUTES AT SHELLHARBOUR CITY COUNCILthe courts to retrieve debts.

In 1987, the Administrative staff sought to document and clarify the role of staff in exercising

Council discretions by having certain matters formally delegated to them. This process involvedthe review of delegation/s to date, and sought to bring the process under some systematic and

structural principles.

In the course of the debate between the Council and the staff advising on this matter, it became

clear that the Council did not want to delegate the power to staff to initiate any legal proceedingon their own cognisance. (This was the Council's stance, even though Council could well have

established procedural rules, with a variety of levels, for different instances, to ensure that such

action was appropriate and the last resort: only to be taken in extreme circumstances.)

The advantages/ disadvantages of the delegation of this responsibility to staff was enunciated at

the time as follows:

D. There are advantages and disadvantages in delegating the power to decide toprosecute or take legal action, in individual cases, to staff members of Council.

The advantages are:

a. Aldermen are not subject to undue pressure from individuals affected.b. The decision to prosecute or take legal action may be made more

consistently by staff regularly involved in the investigating and

consideration of the situation that needs some form of redress. Councilcan still frame policies which define the situations when a prosecution orother legal action is considered necessary.

The disadvantages are:

a. Aldermen could be "caught unawares" - not knowing that a certainprosecution has been set in-train.

b. Aldermen have no opportunity to exercise their prerogative of mercy.c. An officious staff member could become involved in vexatious litigations

(prosecuting petty offences for the sake of it).

While the non-delegation of the power to initiate legal action is generally acceptable, since legal

proceedings are not necessary streamlined by staff having such a power, there are occasions

when Council staff do need to act expeditiously to restrain others from illegal actions.

In this situation, there is a high level of consultation between technical staff and the GeneralManager and Council's legal adviser; and then between the General Manager and the Mayor (and

in some cases key Councillors). When all parties are satisfied that this is what is required the

restraining order is obtained (subject to the Court being satisfied that it is required, of course).The whole matter is then reported to the Council at its regular meeting (a once every three week

event), where the actions of the staff are now formally endorsed. If there was any dissatisfactionamongst the Councillors with the action taken, it would be at this point they would raise such amatter.


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1. Role of litigation: when it is most appropriate; least necessary

2. Litigation as a last resort

3. Council review of process - capacity to intervene

4. Encouragement of dealing with matters at the least disputatious level

5. Persuasion before coercion

3.6 SECTION 94 CONTRIBUTIONS AND CHALLENGES TO COUNCIL POLICY

In 1979 the Environmental Planning and Assessment Act provided, in Section 94, for Councils

to be able to levy developers on the basis of the need to deliver infrastructure to adequately

service any increase of population and/or activity arising from such new developments.

This was a generalising and expanding of an earlier power to require developers to provide land

and/or contributions for "recreational open space" in residential subdivisions, and "car parking"for business developments.

Change to the legislation in 1985, and case law since, established the principle of requiring that

there be a "nexus" between the demand for the contribution, and the proposals for infrastructure

development to be financed by the contribution. This has been further enhanced by therequirement, since 1991, to formulate a Section 94 Contributions Management Plan,

documenting and regulating such levying and the subsequent deployment of funds so raised.

The Section 94 Contributions Management Plan represents a very significant aspect of

Shellharbour Council's operations and obligations. The present high level of urban developmentrequires appropriate, concurrent infrastructure, and the current rate of urban development is

projected to continue for at least another 10-20 years.

Shellharbour Council commenced levying contributions under Section 94 in 1984.

In 1991 Shellharbour Council adopted Development Control Plan No.6/90 which incorporated,within one document, its objectives and management arrangements for the levying and

utilisation of Section 94 funds.

The Development Control Plan No.6/90 has been replaced by the Section 94 Contributions

Management Plan, finalised in June 1993. The third review has been approved in July 1996.

The current Section 94 Contributions Management Plan (Third Review 17 July 1996) estimates


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DISPUTE RESOLUTION IN COMMERCE ASSIGNMENT : Dianne Allen ... p. 23LEARNING FROM THE EXPERIENCE OF DISPUTES AT SHELLHARBOUR CITY COUNCILraising $18.6 million for "Precinct Infrastructure" and $21 million for "City Facilities &Services" to cater for a population increase projected at 26,000 over the next 20 years (an

increase of almost 50%). [This compares with an annual Council expenditure of $27 million, for

ongoing operations, with a limited capacity (about $1.2 million) for any real capital investment.]

As noted earlier, Shellharbour was substantially a rural area in 1956.

By 1966, its character had undergone a significant change as urban/ residential developmentstarted to convert paddocks to suburban housing.

In 1972, a significant parcel of land, 1200 acres, came into the ownership of the NSW

Government, and in 1974 plans were announced to undertake further urban development to bring

the population to 80,000 by 1984.

The urbanisation, accelerated by the activity of the NSW Housing Commission, whichcommenced in 1965, had highlighted the need for infrastructure development to occur

concurrently, or at least not far behind, the construction of houses and their subsequent

occupation.

Council's first attempt (1966-69) to gain some "concessional" treatment with respect to obtainingState Government contribution towards infrastructure was in the area of the capital works

required to provide sewerage.

What was achieved was an agreement to construct a sewerage treatment works, etc on the basis

of an equal commitment from Council and the Sydney Metropolitan Water Sewerage &Drainage Board for the capital works - a contribution of $4.5 million dollars to be raised over 9

years, through Council's normal loan borrowings.

This was quite different from the requirements laid on other local government areas in the Water

Board area, at the time; and quite different from the Water Board's dealings with the Kiama area

in the later 1970's.

Council was "sold a pup", and committed to a high level of loan borrowings (and so was then

limited in what else could be raised for other infrastructure). When the project got underway,additional funds were required to keep the project within an economic timeframe and so Council

was obliged to borrow on a bridging finance basis, their total commitment. This further limitedCouncil's capacity to find funds for other infrastructure work.

Indeed, for some ten years, Council's total, and maximum borrowing capacity (of $1million perannum) was committed to sewerage and main roads augmenting construction works.

Then in 1975 Shellharbour Council commenced what has since become an ongoing series of

negotiations with the NSW Government, either the Housing Commission, or the Land

Commission, or the appropriate bureaucratic arm associated with the development of this land.

These negotiations have sought to extract appropriate commitments from the NSW Government


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DISPUTE RESOLUTION IN COMMERCE ASSIGNMENT : Dianne Allen ... p. 24LEARNING FROM THE EXPERIENCE OF DISPUTES AT SHELLHARBOUR CITY COUNCILfor the development of other infrastructure.

These negotiations were firstly in the face of "crown privilege": where the NSW Government is

at liberty to do what it likes, when it likes, how it likes.

However, a significant groundswell of public opinion, had been building. It arose from the

consequences experienced by communities established in similarly "green fields" in the farWestern Suburbs of Sydney. These "instantaneous communities" are able to be developed at the

rate of 1250 people a year.

(During the 1960-70 period the Housing Commission's normal construction rate in an area wherethere was subdivided land was of the order 250 houses per annum. Each house could be

expected to accommodate 5 people at the least - given the "disadvantage" rules applying to

"getting on the waiting list". At Warilla there were two "bumper" years - 1966 & 1968 when 453and 526 houses were presented for occupation.)

These instant communities were dissociated from their normal social networks. The new sites

were located in the place of old paddocks and did not have ready access to any other established

social facilities - giving rise to social "deserts". As a result, social issues developed, exacerbatedby the eligibility criteria which were linked to access to public housing, building a community

homogeneous in its level of disadvantage.

In Council's negotiations in 1975-1979 this public groundswell of concern resulted in the State

Government providing some concessions concerning infrastructure development. Examplesincluded the allocation of land which had not been cleared of its original trees for a natural

reserve; the provision of land for a Child Care Centre.

Then when the 1979 EPA Act provided a mechanism to levy private developers, there was a

benchmark for the "moral" pressure to seek to achieve a similar outcome for the public housingareas. This saw the State Government formalise an agreement with Council, which, if not quite

as good as the private contributions, was at least of a similar order.

In 1993, when Council published its first Section 94 plan it required a significant increase in the

contributions from developers to recoup some of the previous investment in infrastructure and toprovide resources for associated infrastructure development. By this stage, the Local

Government Act, 1993, had provided for a draft -> public submission/ objection -> reviewprocess for the plan before it was finalised.

One of the major land developers at the time, queried the levy and the plan. This developer andthe backers were essentially "local" people, with a long term interest in local development.

Following the formal submission and discussions arising (held at a staff level), they accepted theproposal in principle. Since then they have sought to ameliorate its impact on their operations

by dealing with their obligations through the "in kind" option. By this process they develop the

land set aside for recreation including the construction of supportive recreation facilities - activeand passive and landscaping etc. This gives them both more control over development activities

throughout the project, and cash flows, and because the facilities are "in place" this has given a


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DISPUTE RESOLUTION IN COMMERCE ASSIGNMENT : Dianne Allen ... p. 25LEARNING FROM THE EXPERIENCE OF DISPUTES AT SHELLHARBOUR CITY COUNCILmore immediate return on their investment in higher land value sales.

In 1994/5, another developer commenced a large scale urban development in the Albion Parkarea. This developer was an "out of town" organisation. It came from developments in other

areas, and section 94 contribution levy levels in other local government areas. It was an

organisation of some substance. It has proceeded to challenge Shellharbour Council's plan andlevy. This challenge has been dealt with by negotiations where there have been concessions

made on both sides. But there have also been stages where the negotiators have agreed todisagree and sought the court, an external party, to arbitrate the position. This has been on areas

of "principle"/ "precedent". The arbitration of these matters has been seen to be in a wider

public interest. The context of the negotiations has been such that these matters were able to bedealt with in such a way and in such a forum without breaching the ongoing working

relationship between the Council and the developer.


1. Power and use of objective criteria - changing community standards andexpectations

2. Learning from experience and practice - negotiations over time with the StateGovernment

3. Appropriateness of forum for dispute resolution: the court for the matter ofprecedent/ independent confirmation of the legitimacy of local policy


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3.7 PUBLIC PARTICIPATION AND PREPARATIONS FOR WIDER PUBLIC

CONSULTATIONS

One of the "initiatives" in dealing with "council" disputes, instituted at Shellharbour Council, is"Public Participation".

The procedure is as follows:

For any item on Council's meeting Business Paper, any person interested inmaking a public presentation to Council about that item may apply to engage in

"Public Participation". Then, at the meeting, when the item is dealt with, the

applicant is invited to speak to the Council, to present their case. After the

applicant is heard, the applicant may be questioned by the Councillors - forclarification if necessary. The Council itself then debates and determines the

matter. The opportunity for public participation has been used, almostexclusively, by parties involved in, or projected to be affected by, development

applications or by building applications.

Since the instigation of public participation, the applicants (who are dissatisfied with the

officer's recommendation) have had public and open access to the councillors, to present theircase. This process delivers an "internal solution" wherever possible.

Public participation has also provided "objectors" - adjacent owners, primarily, and "third party"

interests (eg the "conservation lobby") secondarily, with access to councillors prior to thedetermining of the decision.

(Public participation can be for some their "day in court". The access is not dependent on any

prior relationship, any favour to repay, etc. and therefore is not as open to the risk of improperinfluence. The "public" forum brings its own constraints on participants for reasonableness,

courtesy, etc.)

The operation of public participation has been such that over the period:

1. the applicant's position has been heard, and the Council has settled on a lessonerous approval than that recommended by the professional officers

2. the objector's position has been heard, and refusal, or more stringent conditionshave been applied

3. in hearing either applicant or objector, Council has deferred decision making toallow for further discussions, deliberations, on-site inspections, further

professional consideration of concerns raised.

4. in hearing either applicant or objector the Council has adjourned its meeting toallow for informal discussions, exploration of "compromise position", etc, then

reconvened to formalise the compromise position as the Council decision

5. there has been a change with its policy/ practice to encourage "lay" participation(and discourage any professional legal takeover of the "public participation"process). If an applicant or objector seeks to have legal representation in


27/92


presenting their case, that is permitted, providing notice has been given to allowCouncil to have an equitable position. (Council's legal advisor is able to be

present, and participates if necessary).

It has not been unknown, at such proceedings, for informal advice to be given to parties to take

their dispute to the Community Justice Centre.

This mechanism was fairly radical in 1974. My understanding is that the "model" was

Leichhardt Council. The mechanism has since spread to a number of other Councils.

[The agitator, at Shellharbour Council, for its implementation, was the mayor at the time,

Alderman RJ Harrison. His experience, prior to winning the mayoralty by a draw from a hat(administered by the local constabulary), included a number of years fretting on the sidelines as

a member of the minority "opposition" in the Council.]

A recent development, initially modelled, as far as I understand, by North Sydney Council, for

more pro-active community participation in Council decision-making, is the PrecinctCommittee.

This is a Council authorised forum for deliberations relating to localdevelopments. Developers and objectors can deal with their differences in

Precinct Committees. Precinct Committees can also be more pro-active, beingused as the regularised consultative forum for providing input to the more

"general" local environmental plan process.

An even more recent development is the "charrette".

This mechanism, of pre-application consultation, is convened for the larger scale

development proposal.

Here the stakeholders convene for a fixed period, in a structured and facilitated

context, to:

1. consider the principle of the proposal,

2. raise the principles (constraining conditions, etc., which must apply

before approval will be granted) controlling the development, and3. undertake the relevant negotiations associated with gaining

approval, in principle, to proceed with the preferred proposal.

Stakeholders include:

1. developer/s

2. landowner/s with a vested interest in the development proceeding

3. adjacent landowner/s likely to be affected by the development, in

some cases, adversely4. Council representatives with the responsibility of development

control


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5. Community representatives6. the relevant government department representatives which have

regulatory obligations in the normal process

Over the years, Public Participation has provided Shellharbour Council with a necessary safety

valve, in areas where it needs to manage dispute.

The parties affected by Council's decision-making powers have been able "to be heard", and

before the decision is made.

It is difficult to know to what extent this has meant that:

1. affected parties have been satisfied with the "fairness" of the decision - given thecircumstances, the nature/ concerns of objectors, interests of the developer etc

2. affected parties, though not satisfied with the decision, have determined to leave

it there - "being heard" for them, was enough3. the quality of decisions made has been improved

Certainly, the question of inaccessibility, and/or wheeling dealing behind closed doors, is less

able to be used as a challenge of Council's decision-making in the areas where there are different

expressed interests and the use of public participation makes those interests known and open.

There hasn't been a tendency amongst developers to approach litigation as a first resort.(Although it needs to be said that there are other constraints operating here: many developments

are small scale - funds don't necessarily run to litigation or the timeframe involved.)

SEE ATTACHMENT 9 FOR AN INDICATION OF THE LEVEL

OF LITIGATION IN THIS AREA FOR SHELLHARBOUR

COUNCIL.

There have been times when Council has had to review the effectiveness of the process and its

impact on Council's processes.

In the first instance, public participation was placed on the council meeting agenda at thebeginning of the open meeting. The affected parties had to give notice of their interest in the

matter and their wish to "participate". These agenda items were then "taken out" of the normalsequence and promoted to this early position in the business of the council meeting of the night.

Once the affected parties' matter had been heard and the decision made, they would leave the

Council meeting. This meant "a public gallery" for the public participation part of council, anda very empty gallery for the remainder of the Council business. This began to pall. (There being

an element of the play-actor performing for the gallery in every public council meeting.) The

Council changed procedure so that the public participation matter came on when it wasscheduled in the ordinary course of the business. This means the gallery is around for a lot

longer and needs to sit through the earlier business items. As such it can be seen to be an


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DISPUTE RESOLUTION IN COMMERCE ASSIGNMENT : Dianne Allen ... p. 29LEARNING FROM THE EXPERIENCE OF DISPUTES AT SHELLHARBOUR CITY COUNCIL"educative" process. However, to date, I haven't seen any evidence of it having that wideroutcome - that folk who have become embroiled in a dispute where they have a personal interest

(a "hot" issue for them) have moved into having a more general "active" interest in the activity of

local government.

The second development came when participants, especially from the "developer" side have

sought to bring technical and/or legal professionals to present their case.

In this instance, council was quick to limit public participation to "lay" participation.

Not only did the councillors feel intimidated by the participation of the legal advocates, that

their balance of power had been changed, they were also appreciative of the concern of officersthat the kind of focus and preparations that such a legal advocate would make would be far in

advance of the level of their own preparations, especially focussed on that one matter compared

to a number (say 12 or so other items to be dealt with on the same night in the same agenda) thatthe decision-making could be distorted.

The Council rules are now such that should an applicant wish to have a legal adviser represent

them they need to be permitted to do so, and Council needs to have notice so that it might be

arranged so that Council's legal adviser might also be in attendance to respond if necessary, andso to ensure that the power of expertise is balanced.

A third development has arisen when the matter raises a significant level of local public interest,

and more than three "objectors" are listed for public participation. To minimise repetition, the

amount of time spent on the item, (and so not let the impact of the information lose its power)the council asks the group of objectors to nominate one or two to represent their case.

A fourth development has come from instances where, following representations via public

participation, a matter has been deferred for further consideration, and then returned to a later

meeting. In these instances those engaged in public participation have endeavoured to have a"second bite of the cherry" - working over the same ground, seeking this time to persuade, when

a previous effort was not fully successful. This occurs most often in a case when the developer/

applicant is appealing against an officer's advice to reject an application, or where the applicantis not happy with certain constraining conditions. Because of the approach, and the fixed

position of the appellant, Council has lost some patience with these types of participation and

has now instituted a rule limiting participation, on the one matter, at different meetings, tointroducing new material.

Most recently, council has sought to have an indication, prior to the debate, of the nature of the

participation before the event: is the participant in favour of the proposal or is the participant anobjector?

As noted, this process in 1974 was fairly innovative. It cannot be said, though, in this area, that

Shellharbour Council has sought to break any further new ground. When Precinct Committees

were established in other areas, Shellharbour Council has not sought to follow. There is still avery strong sense of possessiveness, in the decision-making, with the need to have the "power"

to make the decision.


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As noted elsewhere, the Local Government Act, 1993, has sought to challenge councils to be

more pro-active in consulting their communities.

In 1995, Council, using funds raised under Section 94, arranged for the conduct of a community

survey on the use of recreational facilities.

In the last year Shellharbour Council has been encouraged to participate in the "charrette"

process for its rezoning/ structure plan deliberations for broad acre developments. From thatexperience it has developed a number of "focus groups" (working parties) to discuss issues

involved in the preparation of a draft policy document for the use of rural land.

At this point Shellharbour Council is about to consider undertaking the review of its corporate

strategic plan for the future of the area.

It has undertaken this task on two previous occasions: 1989 and 1991. On those occasions the

process developed initially at a staff level, where a review of current trends indicated thatCouncil needed to consider making a change in its policy direction in order to have a sense of

leading instead of only reacting to pressures around it.

The 1989 approach started with discussions amongst senior staff - endeavouring to develop a

recognition of key concerns. Then a small committee of General Manager and a representativeselection of ward councillors was formed which was guided through the thinking by another

staff member. After some introductory consideration of issues, the senior representatives of

each section of the Council briefed the committee on how they saw the present situation and theconcerns they had, especially as they sought to respond to current needs through their division.

At the end of these briefings, the committee recommended that the whole Council be presentedwith the same material. This was duly delivered at a full day session, held away from the

Council Chamber, and orchestrated as a series of presentations from each of the departments.

In 1991 the process was repeated. This time additional technical staff were involved in the joint

planning for the preparations - a sort of dry run of the presentation, together with the

development of further awareness of the matters at issue, and a discussion of ways to progressthe previous deliberations. The briefings were now given directly to the whole Council, and

held over a couple of nights. The structure of these briefings was similar to the previous - after

the general overview, each section was free to make its specific representations.

As the staff move into the preparations this time, it is apparent that what else is needed is inputfrom the community: what are their aspirations for the future?, what concerns they might have,

what priorities they might have which have not/ are not necessarily reflected in the "policy" of

their current political representatives.

Council's experience with public participation, and the way in which one small minority viewcan capture a "public" process and distort perceptions of community opinion, means that Council

is seeking to structure any such consultation process in a way that will allow it to deal with these

kinds of distortions, and to gauge a sound response. It is considering: focus groups, informationgathering and response measuring by survey.


31/92

DISPUTE RESOLUTION IN COMMERCE ASSIGNMENT : Dianne Allen ... p. 31LEARNING FROM THE EXPERIENCE OF DISPUTES AT SHELLHARBOUR CITY COUNCILThere will be occasions where the open public meeting will be needed: to set the scene for theprocess, to extend an opening to interested parties to participate; to report back findings. It is

anticipated that these occasions will be fairly tightly controlled.


1. Providing a forum for the exercise of the right of parties affected by the decisionto be heard before a decision is finalised

2. Equity in power of representations

3. Procedure to control process for effectiveness

4. Variety of process, and choice of process most appropriate to the dispute and/or

the stage the dispute has reached


32/92


BIBLIOGRAPHY

LEARNING FROM THE EXPERIENCE OF DISPUTES ATSHELLHARBOUR CITY COUNCIL

Section 1

Section 1.1

Allen, DEquipping Staff to Handle Disputes Effectively in Local Government. [Unpublished]

Research Assignment for course work on Dispute Resolution for the UTS MDR, May, 1996.

Australian Bureau of Statistics, Local Government Finance: New South Wales, 1986, Australian

Bureau of Statistics, [1989?]

NSW Department of Local Government, Comparative Information on NSW Local Government

Councils 1993, NSW DLG, 1995

Section 1.3

Senge, PM The Fifth Discipline: The Art & Practice of the Learning Organisation. Sydney:

Random House, 1992.

Field, L with Ford, BManaging Organisational Learning: From Rhetoric to Reality. Melbourne:

Longman Australia, 1995.

Lumsden, G Communicating in Groups and Teams: sharing leadership. Belmont, Calif.:Wadsworth Pub. Co., 1993

Whetten, DA & Cameron KSDeveloping Management Skills. NY: HarperCollins, 1995, 3rd ed.

Gunzburg, D Identifying and Developing Management Skills. Canberra, AGPS: 1991.

Section 1.4

NSW Department of Local Government, Comparative Information on NSW Local Government

Councils 1993, NSW DLG, 1995

Aulich, Chris, "Reforms in Human Resource Management in Australian Local Government"


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DISPUTE RESOLUTION IN COMMERCE ASSIGNMENT : Dianne Allen ... p. 33LEARNING FROM THE EXPERIENCE OF DISPUTES AT SHELLHARBOUR CITY COUNCIL[1995]Asia Pacific Journal of Human Resources, 33 (3), 92-104

National Review of Local Government Labour Markets, 1989

Discussion Paper No.1: Improving flexibility in Local Government EmploymentDiscussion Paper No.2: Portability of Superannuation

Discussion Paper No.3: Reciprocity of Qualifications across States

Discussion Paper No.4: Improving Access to Skills Upgrading and Retraining forLocal Government Employees

Discussion Paper No.5: Recruitment and Personnel Development of Staff - Local

Government

Discussion Paper No.6: Equal Employment Opportunities and Local Government inAustralia: An Overview

Discussion Paper No.7: The Impact of Change upon the Local Government

Workforce in the Medium TermDiscussion Paper No.8: Funding Options for Increased Investment in Education and

Training for the Local Government WorkforceDiscussion Paper No.9: Occupational Regulation: Statutory Positions in Local

Government

Research Paper No.1: Labour Availability Survey: Rural and Isolated MunicipalitiesResearch Paper No.2: Local Government for a Changing Environment

Research Paper No.3: Equal Employment Opportunity Legislation and Local Government

in AustraliaResearch Paper No.4: Results of the Local Government Labour Market Shortages Survey

Section 1.5

Allen, DEquipping Staff to Handle Disputes Effectively in Local Government. [Unpublished]

Research Assignment for course work on Dispute Resolution for the UTS MDR, May, 1996.

Allen, DIssues in Training in Negotiation Skills for an Organisational Setting. [Unpublished]Assignment for course work on Negotiation for the UTS MDR, June, 1996

Allen, D Facilitation: The Use of Mediation techniq

Documents

Dispute Resolution: Learning From the Experience of Disputes at Shell Harbour City Council