Frequently Asked Questions about the Court process
If you cannot find an answer to your question here, please contact the Court.
Am I entitled to appear at the Land and Environment Court without a solicitor?
A person who is entitled to appear before the Court may appear in person, or by a barrister or solicitor, or (except in proceedings in Class 5, 6, or 7 of the Court’s jurisdiction) by an agent authorised by the person in writing (Section 63 Land and Environment Court Act 1979). Decided cases require that unrepresented litigants must be treated with courtesy and compassion, and must be advised of the whole range of their rights and of the appropriate alternative courses of action open to them. Balanced with this is the duty for the tribunal to act judicially and be conscious of the fact that undue interference in the manner in which a party conducts his case may be counter-productive. The neutrality of the judicial role in the adversarial system restricts the assistance, which the judge can properly give to the litigant in person.
What can the Court registry office staff help me with?
We will be happy to help you if we can, however there are some things, which we cannot help you with, as we are required to be fair to everyone and not take sides.
This is a list of some things the court’s staff can and cannot do for you.
We can:
- provide you with the telephone number of the NSW Law Society lawyer referral service
- explain and answer questions about how the court works
- give you general information about court rules, procedures and practices
- provide court lists and information about how to get a case listed
- give you information about your case file
- give you some samples of court forms that are available
- answer questions about where to access court decisions
We cannot:
- tell you whether or not you should bring your case to court
- tell you what words to use in your court papers, however we will check your papers for completeness, for example, we check for signatures, correct case number, hearing details and parties
- tell you what to say in court
- give you an opinion about what will happen if you bring your case to court
- talk to the Judge or Commissioner for you
- let you talk to the Judge or Commissioner outside of court
- change an order signed by a Judge or Commissioner
Does the Court offer assistance to persons with a disability?
If you have any questions about disability services available at the Court, please contact the Court Registry office on (02) 9228 8388 or by TTY on (02) 9228 8588. For those persons who may require assistance with hearing devices in the court rooms, please read the information made available by the Attorney General's Department via this Disability Services link.
Can I get the assistance of an interpreter to help me with my matter?
Yes, select the following link for more information on how the Court may assist you if you speak a community language other than English.
What sort of disputes does the Land and Environment Court deal with?
About the Court's jurisdiction………..
The Land and Environment Court Act 1979 (the Act) gives the Land and Environment Court (the Court) the power to determine environmental, development, building and planning disputes. It has the same status as the Supreme Court of New South Wales.
The Court has six judges who have the same status as judges of the Supreme Court. It also has nine (9) full-time commissioners and a number of Acting Commissioners who have relevant expertise and / or qualifications in planning and development (such as engineering, architecture, town planning and valuation) as set out in the Act.
The Court hears three general categories of proceedings. Proceedings can be:
1. A merits review of an administrative decision. These matters do not involve a breach of law. The Court stands in the shoes of the original decision maker and re-hears the merits of the decision. Re-hearing the merits of a decision involves looking at whether a decision was right or wrong. Issues in dispute can be about an application to council for a development, a council order, a compensation for acquisition of land by state agencies, valuation of land, and land claims.
2. Proceedings to enforce civil rights, whether from a breach or threatened breach of the law. Issues in dispute can be about compliance with the conditions of consent on a development application, a declaration and / or an order to restrain a breach of environmental law.
3. Criminal proceedings involving environmental offence(s), which may result in a penalty such as a fine or imprisonment.
In disputes about the merits of a decision - usually a decision made by local council - the Court hears the dispute afresh and reconsiders the merits of the decision that was originally made. In these proceedings parties may choose to give new evidence if they wish. The Court has all the powers, functions, and discretions of the original decision maker, and its decision replaces the original decision. Parties pay their own cost of the proceedings, but in fair and reasonable circumstances the Court may choose to order one party to pay the legal costs incurred by the other party. These types of disputes are usually heard by Commissioners of the Court, and make up the majority of disputes lodged with the Court (65% of the matters filed with the Court in 2005).
The Court also conducts judicial review of decisions. These decisions are usually made by council, but also can be made by the Court. Generally these proceedings do not look at whether the original decision was good or bad. Instead, the Court will examine whether the correct legal process was followed in making the decision, or whether the decision maker had the legal power to make the decision in the first place. In a judicial review, the Court will not substitute its decision for the original decision. Where the Court decides that the original decision maker had no power to make the decision, the original decision will be declared invalid and there it will end. However if the Court concludes that the decision maker had the power but did not follow the correct procedures, there is still the opportunity for the original decision maker to decide the matter again – this time following the right procedures.
The Court has power to hear disputes about environmental crimes. Civil enforcement of these crimes can be sought by individuals, and can be obtained where the Court decides to issue an order to prevent or stop a breach of legislation. However criminal enforcement of environmental crimes is usually by the Environment Protection Authority, who is usually the prosecutor of environmental offences. Criminal enforcement may also result in a penalty being imposed, such as a fine or imprisonment.
Disputes requiring review of an administrative decision can be heard by commissioners or judges. Disputes involving either judicial review, civil or criminal enforcement can only be heard by a Judge of the Court.
For all disputes, parties may use expert or other witnesses when presenting their case. There are guidelines issued by the Court in the form of practice notes and directions that guide parties on specific aspects of Court practice and procedure.
What ‘class of matter’ is my dispute?
In the event of you receiving a determination letter from your local Council, the advice will normally include at the bottom of the letter information on your appeal rights. From this advice you may then need to determine the class of your matter from the Court’s jurisdiction. If you are still unsure as to the class of the Court’s jurisdiction for your matter after reading the information below, you may obtain limited assistance from the Court’s registry office staff or you will need to consider obtaining your own independent legal advice.
There are 7 classes of jurisdiction in the Court as follows:
- Class 1: environmental planning and protection appeals. These matters are mostly in relation to development application refusals, but they may also be appeals against Council orders.
- Class 2: local government and miscellaneous appeals. This class deals with appeals against Council enforcement or compliance notices such as fire safety orders or the keeping of animals on the premises. Disputes in relation to trees are also included in this class of jurisdiction (from February 2007).
- Class 3: valuation, land tenure and compensation matters. These are mostly appeals against land valuation assessments and applications for compensation for the resumption of land
- Class 4: environmental planning and protection, and civil enforcement. These are heard by judges of the Court and involve issues of law. For this reason you are strongly advised to seek independent legal advice on the legal strength of your case before proceeding. In addition, costs are normally a factor in these appeals, with an unsuccessful action resulting in a party paying their own costs and those of the other side as well. A typical enquiry about how somebody can challenge the decision of a Council to approve a neighbour’s DA falls into this class. The other typical scenario is Council taking action against unauthorised activity e.g. a business operation that has not obtained Council consent, or is alleged to be operating outside of the terms of the Council consent. This may often follow a complaint registered by a neighbour and the Council has the power to seek injunctions in this type of action to seek to halt any alleged unauthorised works or operations.
- Class 5: criminal enforcement – the criminal jurisdiction for the prosecution of pollution offences and various breaches of environmental and planning laws. Normally these matters are brought by agencies such as the EPA (Environment Protection Authority). Any person named as a defendant in a criminal prosecution is strongly advised to seek immediate independent legal advice.
- Class 6 & 7: The Court hears appeals from convictions for environmental offences in the Local Court. These are not common appeals and any person wishing to lodge such an appeal is advised to seek independent legal advice before doing so.
What if somebody else e.g. my local council, takes me to Court (under class 4 of the Court's jurisdiction)?
You are strongly advised to seek your own independent legal advice (see the question below) as this type of proceedings will involve issues of law and will normally involve costs being awarded against the unsuccessful party. You might consider obtaining advice from your lawyer that establishes the strength of your legal position. Your lawyer may then outline the legal options that you face and the possible costs implications.
If I want to obtain free legal advice with my matter, who can I contact? And are there solicitors I can contact if I need to?
The Court has prepared a Referral Guide for persons seeking free legal advice. In general, though some limited free legal advice may be available (particularly for large public interest cases), you may find free legal advice for non-criminal disputes difficult to secure.
If I decide to go ahead with an action in the Court, what will it cost me?
1. To lodge an appeal or action at the Court, you will firstly need to pay a Filing Fee. Please consult the Schedule of Court Fees to determine what this figure will be. You are advised to seek clarification via the Registry office of the Court if you are unsure of the fee to be paid. Once you have commenced your action, there may be additional costs associated with the conduct of your matter e.g. the issuing of a subpoena. These charges are also described in the Schedule of Court Fees.
2. In terms of ‘costs’ beyond the Filing Fee, it will depend on what class of matter that you are involved in as to the potential for costs to be an issue:
- Classes 1, 2 & 3: The practice of the Court is an order for costs will only be made for these matters if it is ‘fair and reasonable’ to do so. What is ‘fair and reasonable’ (it is a legal term) depends very much on the circumstances of each individual case. You should obtain your own independent legal advice if you wish to determine if costs will apply in your particular situation.
- Class 4: The usual presumption is that the successful party is entitled to their costs. With this in mind, un-represented litigants considering lodging a class 4 action should give serious consideration to obtaining independent legal advice beforehand. Class 4 matters are heard by a Judge of the Court and involve issues of law. Your lawyer should be able to advise you on the likelihood of success in your matter, and therefore the likely scenario with respect to the question of costs.
- Class 5: If you are convicted of a criminal offence in a class 5 matter you will usually be ordered by a Judge to pay the prosecutor’s costs. Similarly if a Judge dismisses the charge, the defendant will usually be entitled to their costs.
What forms will I need to fill out if I go ahead with an action, and where can I get them from?
The Court has put together a number of Appeal information forms on this website that contain information regarding application forms, fees and procedures pertinent to that type of appeal. If you unable to determine the relevant Court information form to your situation, you can contact the Court registry office for assistance.
Can I look at other cases like mine, that have already been decided by the Court?
Yes. The Court publishes all of it’s decisions on the internet via this website. Select this link for access to Court judgments.
Important: Decisions of the commissioners of the Court are not used as legal precedents as they are findings on fact only. Rather, the availability of these decisions via the internet provides open access to judgments that often involve matters of significant debate within the local community. The community can then develop a greater understanding of the assessment process and the principles which are considered and applied by the Court in determining development applications.
Can I come in and have a look at a typical hearing at the Court?
Yes. All Land and Environment Court sittings are open to members of the public. It is a good idea if your are going to run your own case without a lawyer, to come in and have a look at a typical hearing. This will give you a 'feel' for the court room environment and help you to better understand Court processes. You should consult the daily court list on the afternoon prior to your visit to determine what matters are on and their start times. You can also contact the Listing section via the main switchboard on (02) 9228 8388 to find out about up-coming matters in the Court's list.
Where will my hearing take place?
For hearings in classes 1 to 3 of the Court's jurisdiction, typically an appeal will be heard as either an 'on-site hearing' or a hearing held in an actual court room. The decision on the format the hearing will take is governed by sections in the Court Act. The Court has prepared an FAQ sheet entitled Frequently Asked Questions about On-site hearings that may assist your further understanding of this issue. Hearings in other classes of the Court's jurisdiction (classes 4-7) are generally held in actual court rooms in the Court's premises in Sydney.
Where can I get information about Court procedures?
The Land and Environment Court Rules set out the procedures that need to be followed in the Court. They also direct you to the appropriate forms to be used when preparing documents for use in the Court. The forms can be found at the end of the Rules in Schedule 1. Copies of these forms can also be obtained from the Court’s website.
A copy of the Rules can be inspected without charge:
• at the Court Registry;
• at some public libraries;
• online at www.legislation.nsw.gov.au
As well as the Court’s Rules, you should also be familiar with the latest Practice Directions and Practice Notes. The Practice Notes set out case management procedures for the just, cheap and quick resolution of appeals.
Are there other resources available to me to do my own research and preparation?
Yes……… here are a few useful links to consider:
- “A Practitioner’s Guide……” (To view a PDF document, you will need a copy of Adobe Acrobat on your computer. If you do not have a copy of Adobe Acrobat, you can download a copy for free from the Adobe site) this publication put out by the NSW Young Lawyers is a very handy guide for persons considering an action in the Land and Environment Court. It provides a neat summary of Court practices and procedures not covered elsewhere in this Guide. Topics covered include: Preparing for Court, Call overs, Alternative dispute resolution (e.g. mediation),The Hearing, Appealing a Court decision, Judgments and transcripts.
- Court's Annual Review - Publication issued by the Court every year.
- Speeches & Papers – Not strictly speaking a publication, but this link will take you to a very useful resource where you can view speeches delivered by judges and commissioners of the Court on various aspects of Court practice and procedure.
- Practice Notes and Practice Directions – This link takes you to the section on the website where you can access a range of written material concerning the Court’s administrative practices. These official documents are very important for you to be familiar with if you are undertaking an action at the Court.
- Latest news – This link is useful for getting the latest information on the Court’s activities. It may include such items as the latest press release or speech from the Chief Judge, or an update on Court contact details or initiatives.
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