Applicant consultants will inevitably have disagreements with their Council officer counterparts on aspects of development applications.
Unfortunately some of the disagreements morph into an appeal before the Planning and Environment Court.
But whether the dispute happens during IDAS, or in an appeal, the basic rules about the best way to achieve consensus are the same.
What I am about to share with you has nothing to do with planning, or even the law – but it might help you to solve planning disagreements.
It is mostly psychology, and some of you will already know what I am about talk about.
I hope this helps.
So, here goes….
I define a dispute as the difference in expectations.
If we all expected the same thing to happen, there would never be any disputes.
I’ll write a separate paper another time on how applicants and Councils can try to achieve having the same expectations as early as possible.
But the key point is that full agreement is only achieved by the applicant, the Council, or both, conceding their expectations.
Conceding can be embarrassing. And embarrassment can be a big hurdle standing in the way of conceding.
So, you want to put the applicants and the Council officers in the best environment you can so that the least embarrassment is caused.
How do you do that?
I recommend you observe 6 rules along the way to getting a resolution:
- avoid the written word
- one-on-one only
- keep the client away
- face-to-face preferable
- take the time to be clear about what you are agreeing, including process
Avoid the written word
It is a huge mistake to debate in writing.
First, when it is in writing, it is there forever. Someone else can read it, causing embarrassment to your opponent. When receiving your contentious letter, your opponent is likely to feel they are under attack. They will get defensive. Defensive is bad.
Second, it can sometimes be hard to gauge the ‘tone’ of the author with a letter. Readers of your letter are more likely to interpret your correspondence as hostile than as friendly, rather than the other way around.
Third, your opponent feels as though they have to respond in writing. The response is more likely to defend the position than concede it. That only entrenches your opponent, making it harder for them to concede later. You don’t want that. And anyway, who has ever received a letter saying “You’re right – I’m wrong”? No one.
The spoken word disappears the moment it is uttered. This is what makes folks feel more relaxed.
If you must put something in writing, don’t write prose i.e. sentences and paragraphs. Sure, put together a list of bullet-points and provide it your opponent so they know what you want to talk about. But don’t argue the case in writing.
‘It’s your word against mine’.
Such is the nature of a one-to-one meeting. There are no third-party witnesses. It is wonderful.
The absence of the third-party witness is the number 1 attribute that helps you and your opponent to feel more relaxed, and to talk with each other more openly about the contentious issue.
Thoughts and concerns are more readily expressed. Rationales for the taking of certain positions become clearer. If there is a debate, it is more likely to be friendly.
No one else is there to watch, to witness a back-down i.e. to witness any embarrassment.
Your opponent will respect what you have to say more if you know as much as they do.
So, on different types of contentious issues, have planners meet planners, architects meet architects, engineers meet engineers, and so on.
Don’t mix disciplines. Silo the discussions into separate one-on-one meetings.
Keep the client away
‘Good cop bad cop’
Your client will always be the bad cop, and that makes you the good cop.
Your client usually ends up getting angry if their development application is not going the way they want it to go. It’s their development – their money – and it is no wonder.
Some clients want to demand a meeting with the Council, and the client wants to attend, to give the Council officers a piece of their mind!
You know what I am talking about.
Don’t do it.
Think about it. In a meeting with the Council, your client would be the person in the room who knows the least about how development assessment is done. So, why are they there?
Unless you are dealing with a particular matter the client is an expert on (like a development application for a particular specialised industry), the client is less likely to be a useful positive contributor toward solving the problem.
Even if your client promises to say nothing, the mere presence of your client is likely to be a negative contributor. First, your client is a third-party witness (see One-on-one only, above). Second, your client is the most likely person to complain to a politician; to complain to the media; to complain to a more senior Council officer; to complain to an industry group, and so on.
The bottom line is that clients can make Council officers nervous, and I don’t blame the Council officers for getting nervous either. Nervous people clam up.
You must do your best to persuade your client to not go to any meetings involving contentious issues.
When reporting back to your client after your meeting, you can filter out the negative stuff (that would otherwise provoke an unhelpful emotional response from them). You don’t want them getting unnecessarily angry. The filtering role is very useful to protect them and to keep them on track.
Face-to-face is preferable
On a telephone call, you can’t see the other person’s body language, their facial expressions, and so on.
It is much harder to read how your opponent is responding to what you are saying if you are on the telephone.
In a face-to-face meeting, you can literally adjust what you are saying, your tone, your facial expression, and so on, every micro-second as you watch the reaction of your opponent.
So, if you can arrange it, book a meeting and have a face-to-face discussion. A coffee, a cup of tea, a piece of cake, are all helpful things to enjoy together to remind us that we are human beings despite the matter of disagreement – and sharing these things in the meeting can go a long way toward breaking the ice.
If face-to-face is not possible, never use the speaker phone.
Before you finish, what you are agreeing including process
When you have covered the issues, ask your opponent about the best way forward.
“Should I write a letter now, or do you want to talk to someone else first to make sure we have an agreement?”
“This is what I intend to write to you. Do you agree? Will this cause any problems for you if I write that?”
If it helps, write a draft piece of correspondence together, before you leave. This builds trust.
You don’t want to undo all of the good work in the meeting, by writing a follow-up communication that causes embarrassment.
Don’t conclude your meeting in a rush, with the premature joy that you have solved everything. You haven’t – yet.
Take the time to achieve absolute clarity about what is the agreed way forward to avoid any embarrassment to anyone after the meeting has finished.