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Land and Environment Court - Minority Report
Introduction
The Local Government and Shires Associations of NSW are the peak organisations for Local Government, representing all 172 councils in NSW.
The review into the role of the Land and Environment Court in reviewing the decisions of councils on development applications commenced in April 2000. I represented the Local Government and Shires Associations of NSW (LGSA) on the Attorney General’s Land and Environment Court Working Party, which was chaired by Jerrold Cripps QC. In July 2000, the Associations made a submission to the review that contained more than 20 recommendations. This submission is attached as an appendix to this report.
This Minority Report has been prepared because while agreeing with much of the content, I do not agree with some of the key recommendations of the Working Party’s report and am generally disappointed with the outcomes of the review process for Local Government in NSW, which I saw as a great opportunity for serious reform of the system. Importantly, this Minority Report forms part of the report of the Land and Environment Court Working Party, which will be presented to the NSW Government.
It is important to note that this report does not provide comment on all recommendation made by the Working Party. The purpose of this report is to outline the key recommendations of the Working Party that are not supported by the Associations, the key recommendations that are supported and to identify issues that the Associations regard as important and have not been addressed by the Working Party.
Please note that reference in this report to the words “Working Party” is taken to mean the Attorney General’s Land and Environment Court Working Party.
Policy Positions
This Minority Report is based on the following broad policy positions:
- Local Government should retain autonomy in the making of local planning decisions and accordingly be the primary consent authority.
- Appeals to the Land and Environment Court should be restricted to appeals on questions of law and judicial review on process, not merits review. Councils, in consultation with their communities, should be the sole determinants of merit.
- Local Government should have a lead role in planning for local communities with other spheres of government because councils are:
- best placed to inform the planning process of the needs and expectations of local communities
- democratically accountable to local communities and
- advocates for their communities to other spheres of government.
- The Associations encourage the development of increased opportunities for dispute resolution, for use when appropriate through the employment of alternative dispute resolution techniques.
General Comments
The former Attorney General, the Hon J Shaw QC MLC, following strong representation from the Associations and the community, announced a review into the role of the Land in Environment Court in reviewing the decisions of councils on development applications in April 2000. The review of the Court was welcomed not only by the Associations and Local Government, but also by the development industry, legal practitioners and the wider community. Given that both the Environmental Planning and Assessment Act 1979 and the Land and Environment Court Act 1979 have been in operation for more than 20 years, a review of the operation and functions of the Court was timely.
While I commend the Working Party for its recommendations in relation to a number of issues, in particular the use of panels in major matters (where appropriate), the streamlined process for minor matters and the modification of Court imposed conditions of development consent, I am genuinely very disappointed with the outcomes of the review. It would seem that the Working Party has interpreted the Terms of Reference narrowly which in turn, has led to issues that have arisen in the course of the review not being addressed. This is disappointing because the review represented a prime opportunity to review the operation and functions of the Land and Environment Court, an opportunity that has now passed us by, perhaps for another 20 years.
The key recommendations of the Working Party that I do not support are:
- The Court will retain the jurisdiction to determine development applications on the merits (Recommendation 14).
- The Court will retain the ability to apply SEPP 1, just as the original consent authority may do so (Recommendation 33).
- The Court will retain the ability to depart from the provisions of a development control plan or other council policy (Recommendation 34).
- Development applications which are amended during the course of an appeal will not be referred back to council for consideration (Recommendations 13, 29).
- That commissioners will continue to decide planning appeals, including both minor and major matters (Recommendation 19).
- That appropriate training of State agencies is required to address problems, in particular delays, currently being experienced in relation to applications for integrated development (Recommendation 5).
- That a representative of Local Government will not be appointed to the Court, as it is stated that the Court is already well equipped in relation to experience in the administration of local government and town planning (Recommendation 16).
- Site visits in relation to the hearing of major matters will not be compulsory and will be at the discretion of the Court (Recommendation 28).
These issues will be discussed in further detail in the body of this report.
I would also like to make my position clear on the matter of severing conditions of consent, particularly section 94 conditions, for the purposes of an appeal, without the consent becoming de novo. While I acknowledge the Working Party has not made a specific recommendation in relation to this issue, I remain vehemently opposed to the idea. These conditions of development consent are integral to the consent and developers should not be able to appeal to the Court on section 94 conditions alone while the remainder of the consent continues to operate. The severing of section 94 conditions undermines contribution plans and ignores the fact that section 94 contributions are an integral part of the broader planning and development assessment process.
I also find the report to be overly defensive of the Land and Environment Court. Criticisms made to the Court during the course of the review have been deflected towards the planning system and councils. In particular, the reference to criticisms as “Common misconceptions and the need for education” infers by its very nature, that concerns are not legitimate. I believe that the criticisms of the Court are supported by the public and that the report has failed to adequately address these concerns. The continued defence of the Court will only lead to greater criticism upon the release of the Working Party’s report.
Generally speaking, the recommendations made by the Working Party for the reform of the current appeals system are procedural and do not substantially alter the way that decisions of councils in relation to development applications are reviewed by the Court. The current problems with the system, namely that proceedings are adversarial, take too long and cost too much, will be perpetuated. |
