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SUMMARY OF RECOMMENDATIONS
1. Matters of law only to appear before the Court
Recommendations:
- Only appeals on a point of law should permitted to the Land and Environment Court.
Appeals on a point of law must be heard before a Judge.
2. Constitution of the Court
Recommendations:
- In complex appeals before the Court, a multi-member panel consisting of both Judges and Commissioners should be engaged to hear the appeal.
- Judges and Commissioners should have experience in non metropolitan planning and development issues.
3. Inconsistency between development applications and LEPs and DCPs
Recommendation:
- There should be no right of appeal to the Land and Environment Court by a developer when a development application is refused by council because it is inconsistent with the provisions of a DCP or LEP.
4. Amending plans
Recommendation:
- If an applicant seeks to rely on amending plans in a hearing, the application should be returned to council for full reconsideration of the application in light of the amendments made.
5. Complexities associated with such an adversarial system
Recommendations:
- That the Working Party and Reference Group examine the processes in Class 1,2 and 3 and consider changes to practice to allow these processes to be handled in a less formal manner.
- That the Court promote the option of having appeals determined based on written submissions.
6. Exploration of alternatives to a Court based appeals system
Recommendation:
- That both the Working Party and Reference Group examine interstate and international examples of alternative systems to a Court based appeals process.
7. Incidence of review of development applications, appropriateness of the timeframe for assessment and deemed refusals
Recommendations:
- That the current assessment time of development applicants be amended to provide for 40 working days.
- That in the case of deemed refusals there should be no automatic right of appeal.
- That a non adversarial process be established, consisting of an independent panel for when an applicant wishes to appeal after the deemed refusal period has expired. The applicant must demonstrate sufficient grounds for an appeal to that panel, who would then decide if the applicant can proceed to the Court with their appeal.
8. Inappropriate comments by Judges and Commissioners during hearings
Recommendation:
- That Judges and Commissioners should be prevented from expressing personal opinion, suggestions, design amendments or alterations during a hearing, other than in relation to conditions of development consent.
9. SEPP 1
Recommendations:
- The Court should return to a conservative application of SEPP 1 which is consistent with the original intent of the Policy.
- There should be no right of appeal to the Court on development application which rely on SEPP 1 variations.
10. Cumulative impact
Recommendation:
- The Court must be required to consider the cumulative impact of a proposed development on a community and the cumulative impact of its own decisions.
11. SEPP 5
Recommendation:
- That Commissioners and Judges 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.
12. Compulsory site visits by Judges and Commissioners
Recommendation:
- That Judges and Commissioners be required to visit sites the subject of appeals before the hearing commences.
13. Poor understanding by the Court of the concepts of ESD and TCM
Recommendation:
- That the Judges and Commissioners of the Court undergo training in the concepts of ESD and TCM.
14. Time frustrations
Recommendations:
- That the time standard for the disposal of matters be amended so that all class 1, 2 and 3 applications are disposed of in four months of filing and all of class 4, 5 and 6 applications are disposed of within 6 months of filing.
- That the time standard for handing down reserved judgements be amended so that all judgements are handed down within 40 working days of the hearing.
- That the Pre-Hearing Practice Direction be amended to provide the respondent with 40 working days to file their statement of issues.
15. Streamlining the process of development applications
Recommendations:
- That the Working Party and Reference Group give consideration to a compulsory pre-development application process between the applicant and the consent authority.
- That the Working Party and Reference Group consider the benefits to the development approvals system if DUAP, in the case of integrated development, is given the role of co-ordinating the State Agency concurrence bodies responses. Councils should then have 40 working days on receipt of the information, to fully assess the application.
- That the Working Party and Reference Group give consideration to the preparation of guidelines which would detail the information required to be submitted with a development application.
16. Practicality of Terms of Settlement
Recommendation:
- That the Court realistically consider the implications of Terms of Settlements on all parties.
17. Court Orders concerning illegal uses
Recommendations:
- Orders for prohibited or illegal uses be attached to the premises/land so that any future operator will inherit the Order served
- Councils should have the power to issue on the spot fines for breaches of Court Orders though the Self Enforcing Infringement Notice System.
18. Stamping of approved development application plans
Recommendation:
- That as a matter of practice the Court stamp the plans of a development application when the Court approves the application.
19. Alternative dispute resolution
Recommendations:
- That the Working Party and Reference Group examine the greater use of ADR techniques in relation to development applications.
- That the Working Party and Reference Group consider ways in which to promote the use of ADR in relation to development applications.
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