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Land and Environment Court - Minority Report
10. Cumulative impact The Court considers matters on a case by case basis and does not appear to consider the cumulative impact of development or of its own decisions. It is the community which must suffer the consequences of a decision by the Court, which allows a deviation from the council’s policies. Furthermore, such deviations set a precedent and increase the impact of such development applications by virtue of the question of cumulative impact being disregarded or not properly considered. A particular concern was expressed by councils regarding the cumulative impact of the proliferation of telecommunications facilities within local government areas and the Court’s disregard for councils’ policies. Councils are further frustrated in their efforts to ensure the co-location of telecommunications facilities by the carriers due to the inability of the Court to ensure that the carriers do co-locate their telecommunications facilities so that the impact on the community is reduced as much as possible. Recommendation:
11. SEPP 5 The Associations have pursued concerns regarding SEPP 5 Housing for Older People and People with a Disability directly with the Department of Urban Affairs and Planning as part of the SEPP 5 review but it is prudent to mention some unacceptable decisions from the Court regarding SEPP 5. Two SEPP 5 applications were made and subsequently refused by council for a number of reasons, one important factor being that on both occasions, the land in question was located in a floodway. Evidence was given by an eminent expert who attested that housing for older people and people with a disability should not be located in floodways. However, the Commissioner approved the development and people are to be located in an area which is inaccessible and unsafe at critical times. The landfill required for these two developments places surrounding residents at risk and raises the potential for flooding of their properties. To highlight the inconsistency between decisions handed down by the Court, on another occasion, an appeal to the Court was made after council refused a SEPP 5 application located in a floodway. Two Commissioners heard the case and the appeal was dismissed. The Associations are concerned at the inconsistency but are also concerned such decisions may place lives and property at risk. Councils have suggested that Commissioners and Judges should be required to demonstrate that each of the matters for consideration as per section 79C of the EP&A Act have been specifically assessed in reaching their determination. This would ensure more quality determinations and better outcomes for communities who stand to be affected by the decisions of the Court. Recommendation:
12. Compulsory site visits by Judges and Commissioners The Associations believe that great benefit would be gained by the Court if the Commissioners and Judges visited the site which is the subject of a hearing, before the hearing. This would facilitate quicker proceedings and a better understanding of the evidence presented. On a related matter, it is felt that it would be worthwhile for Commissioners and Judges to conduct random visits to sites which they have made a determination on, in order for them to gain a better appreciation in situ of their decision. Anecdotally, the Associations have received examples from councils whereby Judges or Commissioners have visited sites which they have previously made a decision on. One particular case in the Pittwater Council local government area, where the Senior Commissioner approved a SEPP 5 development in a floodway, the Senior Commissioner expressed that the site conditions were not as he had thought. Recommendation:
13. Poor understanding by the Court of the concepts of ESD and TCM Councils have expressed serious concerns that some Judges and Commissioners do not readily understand the concept of ecologically sustainable development (ESD) and total catchment management (TCM). Many councils suggested that some training of the Judges and Commissioners in TCM, ESD and the field of environmental science, would be an appropriate way of ensuring that decisions of the Court have full regard to ecological sustainability, just as councils are required to, in accordance with the provisions of the Local Government Act. Recommendation:
14. Time frustrations Councils have become increasingly frustrated at the extensive time delays experienced when a matter proceeds to the Land and Environment Court, particularly in non metropolitan NSW. Developments which will have major implications on regional areas have been caught in limbo. Development consent has been previously granted, in some cases, longer than one year ago but the matter is still being held in abeyance awaiting the decision of the Court. Such practices whereby developments, which contribute to long term growth and prosperity are jeopardised must cease and decisions by the Court must be expedited accordingly. Councils have expressed frustration at the unreasonably short time frame afforded to them when drafting the list of issues and deciding upon the witnesses to be called. Further, it is considered unreasonable that councils must set down in specific detail at the call over stage, every single point that council will raise. Recommendations:
15. Streamlining the process of development applications In the planning system, greater emphasis should be placed on pre-development application discussions and analysis. The incorporation of a formal pre-development application process may assist in the processing of development consents. The integrated development assessment legislation of July 1998 went part of the way to achieving this but further reinforcement is required. Such opportunities provide the applicant and the council with the opportunity to clarify issues and to come to a greater understanding, hopefully eliminating the need for an appeal to the Land and Environment Court. In the instance of integrated development applications, many councils expressed the view that the current process is inadequate and timeframes blow out significantly while councils await information from the State Agencies. A way of streamlining the manner in which development applications are processed by councils, DUAP and other concurrent approvals bodies would be for DUAP to have the role of co-ordinating the State Agency concurrence bodies responses for integrated development and then the council would have 40 working days on receipt of the information, to fully assess the application. DUAP currently undertake this role when they or the Minister are the consent authority for integrated/designated development. A number of councils suggested that the streamlining of the development application process could be improved if guidelines were issued on the information required to be submitted with an application. Recommendations:
16. Practicality of Terms of Settlement The Associations have received representations from councils regarding the practicality of some Terms of Settlement. A council furnished an example whereby the Terms of Settlement of a case perpetuates the statutory planning controls of an area and, in strict accordance with the terms of settlement, the council is to specifically notify the applicant in the case and a resident action group of any proposals to change a development policy for an area and also, to advertise the agenda, time, date and place of the council‘s development control unit meetings. However with the recent amendments to the Environmental Planning and Assessment Act 1979 and introduction of ‘Exempt and Complying’ development, it is virtually impossible for the council to comply with the specifics of the order, thus forcing council to break the law. Essentially, the Court has made a decision which will bind council forever, notwithstanding the circumstances of the area and the community will change. For any council to be in a similar predicament is impractical and somewhat ridiculous given that councils must in fact respond to changes within their local government area but if the terms of settlement of a particular case restrict council’s ability to do so, the outcome is unsatisfactory. Recommendation:
17. Court Orders concerning illegal uses Currently, orders served by the Court are served on the current operator/owner of the illegal use. Consequently, if the business changes hands, council is required to recommence legal proceedings to again have the illegal use cease. To overcome this situation, it would be appropriate that Orders for prohibited or illegal uses be attached to the premises so that any future operator will inherit the Order served. Further, when the Order is breached, council should have the power to issue on the spot fines in accordance with the Self Enforcing Infringement Notice System. Currently when an Order is not complied with, councils incur significant Court and solicitor costs in trying to take additional action to have the Order complied with. Councils are not able to recover their costs and have no ability to ensure that the illegal use ceases to operate. Recommendations:
18. Stamping of approved development application plans The Associations received numerous representations from councils regarding the stamping of approved plans. It has been a long standing practice for Consent Authorities to stamp plans of development applications when they are approved. Given the role of the private certifier in the planning system, it is imperative that both council and certifier are able to easily ascertain Court approved plans. It is felt that the practice of stamping plans by the Court would prevent dishonest applicants from producing another set of plans and provide a further safeguard to the system. Recommendation:
19. Alternative dispute resolution The Associations have been working actively with the Law Society of NSW’s Planning and Development Sub-Committee of the Dispute Resolution Committee to promote alternative dispute resolution (ADR) its benefits to Local Government. Currently a best practice guideline on dispute resolution and management is being prepared for Local Government. There was considerable support of ADR from member councils but many councils and the Associations acknowledge that such techniques have their limitations and are best employed only in appropriate situations. Recommendations:
Conclusion The Associations welcome the review into the State’s planning laws and the role of the Land and Environment Court in reviewing development applications. There is concern amongst councils regarding the transparency of the review process, given the haste in which submissions were called for. It would therefore be appropriate that a report be published and be made publicly available, which provides a summary of all the submissions which have been received. Such feedback provides the stakeholders with the assurance that their submissions have been considered. The Associations also suggest that the Working Party consider holding a public forum to provide both the Working Party and Reference Group with a better understanding of the stakeholder’s issues. However it is encouraging to see the first stage of the review process under way. It is imperative that Local Government is appropriately notified of the future stages of the review to ensure continued involvement as the review process continues. |
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