|
|
|
|
|
|
|
Land and Environment Court - Minority Report
2. Constitution of the Court It is felt that in the case of determining complex appeals before the Court, a multi-member panel with appropriate knowledge and expertise should be engaged. An increasing number of appeals being considered by the Court are complex and cover a range of different issues requiring specific expertise and knowledge on the part of those hearing the appeal. A change to the Court's procedures would mean that a panel of three with professional expertise relevant to the matters listed in the Statement of Issues would be able to hear evidence. This panel would be in a position to fully understand and comprehend the evidence presented as a result of their own professional expertise, rather than weighing up which party's experts presented the most convincing argument. The constitution of the Court should include Commissioners and Judges with experience in non-metropolitan planning issues. Representations have been received which suggest that there is a perception that the Court is unfamiliar with the contexts of non-metropolitan councils. Recommendations:
3. Inconsistency between development applications and LEPs and DCPs When a development application is refused by council because it is inconsistent with the provisions of a development control plan (DCP) or a local environmental plan (LEP), there should be no right of appeal to the Land and Environment Court. Significant resources are consumed during the preparation of such plans, not only by the council but also by Department of Urban Affairs and Planning (DUAP) in approving LEPs. Such plans are prepared with extensive community consultation and when a decision of the Court disregards the provisions contained within DCPs and LEPs, the Court marginalises the views of the community and totally disregarding their aspirations for their neighbourhood. Significant concern has been expressed regarding the Land and Environment Court’s predisposition to overturning locally derived planning controls and community standards. The Court should clearly not have the power to override a local community’s standards when this would be contrary to the local area’s aspirations as reflected in those standards. The departure from local standards undermines the planning system and encourages the development industry to have scant regard to community values as expressed in council’s policies. Many councils for example, commented on the Court’s decisions regarding telecommunications towers as being very far removed from what the communities wishes were. The Environmental Planning and Assessment Act 1979 (EP&A Act) requires councils to widely consult with the community in the stages of plan preparation and development application assessment so as to acknowledge the local community’s desires. When such plans and decisions of councils based on those plans are overruled by the Court, the Court is operating in a fashion which directly contradicts the aims, objectives and legislative requirements of the EP&A Act. Recommendation:
4. Amending plans The Associations strongly believe that it is the council’s role as the original consent authority, not the Court’s to reconsider a development application which has been amended. Council’s determination of an application is made in relation to plans submitted at a point in time. Any amendments made may change the substance of, and merits in respect to, an application. When the Court decides on amended applications, the community feels they have been marginalised and the onus is then on the council to explain the Court’s determination, which has excluded the community and prevented the local democratic process from operating. In this respect, it is imperative that the integrity of the local democratic process is maintained. Councils have incurred significant costs in defending unnecessary appeals as a result of the current practice by developers who submit amending plans just before or at the hearing of appeal, often addressing the features of the development which gave rise to councils refusal of the initial application. The instigation of an unnecessary appeal process could have been averted and the matter then settled out of Court by various means. Contrary to the Court’s assertion that the submission of amended plans is not a widespread practice, the Associations have received many examples from councils where this has consistently happened. Further, the Court maintains that is confined to entertaining only minor amendments which do not substantially or significantly change the development proposed by the development application. There has been some conjecture in regards to what constitutes a minor amendment. Member councils have provided the Associations with examples where two extra floors have been added and other significant amendments have been made, which clearly move beyond the scope of what could be considered ‘minor amendments’. The Associations were pleased with the initiative of the Court in preparing the draft Practice Direction and Rule Amendment concerning amending plans but are disappointed that the Court did not strengthen the Draft Practice Direction and Rule Amendment to bring about a change in practice whereby amending plans are returned to council for reconsideration in the light of the amending plans. The Associations are of the fundamental view that the local council should retain the role of the primary consent authority throughout the local consent process. As it stands, Part 13 Rule 16 affords the Court discretion to allow amending plans to be relied upon even if the respondent council does not consent to the applicant relying upon the amending plans. The Associations strongly believe that unless the respondent council consents to the amending plans being relied upon, any amending plans should be returned to the council for full reconsideration of the application in light of the amendments made. The Associations acknowledge that the Rule Amendment goes some of the way to providing redress to councils, who have incurred significant costs in defending unnecessary appeals as a result of the current practice by developers who submit amending plans just before or at the hearing of appeal. Recommendation:
5. Complexities and costs associated with such an adversarial system The Associations have received numerous representations from councils, criticising the processes of class 1, 2 and 3 appeals as being far too adversarial and complex. Due to the adversarial nature of the system, parties feel compelled to expend significant resources on legal representation. The irony is of course that the Land and Environment Court was meant to be a non-legalistic venue for the review of development applications. Many cases do not involve a question of law. The instant that an appeal is lodged, a phalanx of lawyers and expert consultants are unleashed, at considerable expense, to generate and consider more information than was available to either party when the application was first considered by council. Costs incurred by both parties associated with appeals and the hearing time taken on some cases would appear to go beyond what is reasonable and what is necessary in order for the Court to determine the matter. Considerable time is spent in the preparation of evidence and attendance at the Court as a result of the emphasis on legal procedures. Councils have no choice but to spend significant resources, particularly when Commissioners have said that competent expert evidence is the most important element in mounting a successful case. It has been suggested that these processes could be handled in a less formal manner. The Associations acknowledge that currently, an appeal can be determined without a hearing or requiring appearances but this option is rarely used, possibly as it is not widely understood that this option is available. The Court should be encouraged to publicise this option as a means of reducing the complexity and streamlining the processing of appeals through the Court. Recommendations:
6. Exploration of alternatives to a Court based appeals system The Terms of Reference suggest that the Land and Environment Court system will continue to provide an appeals mechanism. There is no indication that alternative systems will be examined for their potential to deliver a better service to all stakeholders than a court system. Many councils have expressed concern regarding the Working Group’s ability to be independent in fully examining alternative systems to court based appeal systems, given the presence and vested interests of the many legal professionals represented on the Working Party. It is felt that it would be most constructive for the Working Party to undertake a comparative assessment of the legislative basis of the NSW system against many other non court based systems such as Victoria, Tasmania and New Zealand. Further, the concept of independent panels for review, similar to the systems in operation at Fairfield City and Liverpool City Councils should be fully canvassed. Recommendation:
7. Incidence of review of development applications and appropriateness of timeframe for assessment and Deemed Refusals Any genuine effort which attempts to reduce the incidence of reviewing development applications must consider an appropriate timeframe for the assessment of development applications. The Associations strongly assert that the incidence of deemed refusals is directly related to the appropriateness of the timeframe (40 days) afforded to councils to assess and determine a development application. When examining whether 40 days is appropriate, it must be noted that weekends, advertising periods (usually 21 days) and requests for extra information from applicants diminish the 40 day period. The current 40 day period for assessment often means that councils are treated as a stop en route to the Court. The current time period is not genuine in providing sufficient time for the proper assessment of applications. A legislative amendment to allow councils 40 working days for assessing development applications would enable sufficient time for a full assessment and would significantly reduce the number of deemed refusal applications to the Court. Similarly in the Court, where judgements are not extempore, a significant period of time is taken before reserved judgements are made. If councils were afforded a period of up to three months, as provided for Judges and Commissioners by the time standard for handing down reserved judgements, the frequency of deemed refusal applications would be considerably reduced. It is felt that it in the case of deemed refusals there should be no automatic right of appeal given that there are no merit or legal issues at stake. Rather, the applicant, if wishing to make an appeal to the Court after the 40 working day assessment period, must show cause and demonstrate neglect and delay of their application to a panel, in a non-adversarial process without legal representation. The panel would then decide if the applicant could proceed in their appeal. This process ensures that the primary consent authority is retained with the local council and that the Court’s time is not unnecessarily wasted in hearing cases from developers who merely wish to bypass the council and its environmental planning instruments. Recommendations:
8. Inappropriate comments by Judges and Commissioners during hearings The Associations received numerous representations from councils concerning inappropriate comments by Judges and Commissioners during a hearing. The increasing practice whereby Judges and Commissioners effectively redraft planning controls in the process of assessing an appeal is unsatisfactory. Examples have been provided whereby a Judge or Commissioner refuses the appeal but in the course of the proceedings, they specifically instruct the applicant on how to circumvent the council planning controls in their next application. There have been instances where during the course of a hearing before all the evidence has been presented, a Commissioner has made comments which clearly indicates to the parties of the appeal what his decision is likely to be. In one particular case furnished by Manly Council, the Commissioner adjourned the case, indicating his preference to approve the application and put the objectors on notice that they either allow the applicant to use their private access road or he would approve the application as submitted. This was seen by the objectors and councils as being totally inappropriate conduct by the Commissioner and beyond the role of the Court. In another example from Manly Council, the council was defending an appeal from an applicant against an Order seeking compliance with Council's planning controls. The Commissioner, who supported the Council in its Order, granted an extension of time to enable the applicant to comply and further advised the applicant to submit to Council an application for a Building Certificate as a way of having Council approve the illegal works. It is clearly not the role of a Judge or a Commissioner to assist an applicant or respondent during the hearing. Commissioners have taken to creating design solutions for applicants during the hearing and our assertion is that this is not appropriate. Recommendation:
|
|
|
|