Land and Environment Court - Minority Report


PART 1 - KEY RECOMMENDATIONS NOT SUPPORTED BY THE ASSOCIATIONS


1. Judicial review not merits review (Recommendation 14)

The majority of the members of the Working Party consider that the Court’s jurisdiction to determine development applications on the merits should be retained.

Comment

I am extremely disappointed that merit planning appeals are not being removed from the power of the Court and are not being replaced by a form of judicial review. As I have stated time and time again to the Working Party, I remain of the view that the Court should only be allowed to conduct a judicial review of a council’s decision and not substitute a decision of its own without having gone through the full processes. Councils, in association with their citizens, should be the sole determinants of merit in relation to development applications, as they are democratically accountable to local communities for the decisions they make.

The Land and Environment Court Act 1979 bestows upon the Court the power to make a decision on a development application in the same manner as a council makes that decision. In other words, the Court has all the functions and discretion that the council had when it made its original decision. When the Court conducts a merit review of a development application, it is a de novo merit appeal. In other words, it is a fresh hearing of the application and one that allows the Court to substitute its own decision for that of the council. I would strongly argue that if the Court is going to continue hearing de novo merit appeals, then it should be required to carry out the same processes as a council does in determining an application. These processes include site visits, public notification, public meetings, referrals, assessment reports and transparent decision making. I believe that the present system of merit appeals are not really de novo at all as the Court does not go through the same processes as a council does when making a decision on a development application even though it has the powers to do so.

I believe that the current system of merit appeals in the Land and Environment Court is undemocratic. This is not ‘perception’, rather it is a reality. The people of NSW elect councils to represent their views and to act in their best interests – the people do not elect Judges and Commissioners. While I acknowledge that the system is far from perfect, at least there is some form of accountability built in. It is totally inappropriate that an unelected body, being the Court, can overturn a decision made by an elected body, being the council. Furthermore, I am disappointed that the views of the Associations were not included in the Working Party’s report, given they are the peak bodies representing Local Government in NSW.

In relation to the issue of “deemed refusals”, I believe there should not be an automatic right of appeal given that there are no merit or legal issues in dispute. Rather, an applicant who wants to appeal to the Court after the 40 days should be made to show cause and demonstrate neglect and delay of their application to an independent panel, in a non-adversarial process without legal representation. The panel would then decide if the applicant could proceed to the Court in their appeal. This ensures that the primary consent authority is retained with the local council and that the Court’s time is not unnecessarily wasted in hearing appeals from developers who wish to bypass the council’s decision making processes and planning policies.

In relation to the costs of an appeal, there is an assertion in the report that submissions have deflated or inflated the costs and time of an appeal depending on whether the author of the submission supported merit appeals or wished to have them abolished. This is nothing more than a ludicrous and totally inappropriate statement. We all recognise that appeals to the Court cost far too much and take too long. In the course of the review, the Associations provided examples of costs incurred by a selection of councils to the Working Party, which indicated that a two (2) day hearing could cost upwards of $20,000. If a judicial review by its nature is concerned with examining adherence to due process and legislative requirements and not the merits of the decision, then I fail to see how an appeal of this nature could incur higher legal costs. In any case, one could argue that a judicial review model would result in fewer appeals reaching the Court and overall savings in cost and time.

To conclude on this very important issue to Local Government, I am of the firm view that only matters of law should appear before the Court. Merit judgements should only be made before council. Councils should be the sole determinants of merit and the Court’s role should be confined to examining the council’s adherence to due process and legislative requirements, not the merits of the decision.

2 State Environmental Planning Policy No. 1 – Development Standards (Recommendation 33 )

The majority of the members of the Working Party consider that the Court should retain the ability to apply SEPP 1, just as the original consent authority may do so.

Comment

The Associations’ submission to the review (attached as an appendix to this report) recommended that the Court return to a conservative application of State Environmental Planning Policy No. 1 – Development Standards (SEPP 1) consistent with the original intent of the SEPP. It was further recommended that there should be no right of appeal to the Court on a development application that relied on SEPP 1. Whilst I acknowledge that the Department of Urban Affairs and Planning (DUAP) is currently undertaking a review of SEPP 1, I am disappointed that the Working Party has made no recommendations in relation to the overuse of this Policy by the Court. The practical interpretation of SEPP 1 by the Court has been both confusing and resulted in conflicting outcomes and there has been much debate as to what constitutes a development standard as opposed to a prohibition. Increasingly, Judges and Commissioners have taken to questioning whether a council’s development standard is appropriate, as opposed to exploring why a development should not comply with that standard in the first place. It is quite clear to me that it is not the role of the Court to rewrite a council’s planning policies and in doing so, sanction a planning outcome which is opposed to these policies that have been created by democratically elected representatives in association with their citizens.

3 Court’s departure from council planning policies (Recommendation 34)

The Working Party has recommended the Court should retain the ability to depart from the provisions of a DCP or other council policy, just as the council may do so.

Comment

There has been strong opposition from councils including the City of Sydney, and the wider community, to the Court overturning the planning policies of democratically elected councils. Local Government has 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 and are accountable to local communities. Planning policies, namely development control plans (DCPs), are prepared with extensive community consultation and when a decision of the Court disregards the standards contained within these plans, the Court marginalises the views of the community and totally disregard their aspirations for the neighbourhood. Changes must be made to the Court’s practice so that it has regard to councils’ planning policies (including draft policies) in the hearing of an appeal.
The report suggests that if standards are so important they should not be in DCPs and that the appropriate course of action under the present planning system is to include them in local environmental plans (LEPs), where they must be complied with and can only be varied through the application of SEPP 1. This contradicts advice that has been given by DUAP to councils in recent years and one of the recommendations in the review of SEPP 1. The Department has over some time, encouraged councils to place many of their standards in DCPs rather than LEPs in order to provide flexibility in the assessment of development applications. While I am supportive of a level of flexibility in the application of development standards, I believe that it should be at the discretion of the council to determine the approach to this issue, having regard to the local conditions.

4 Amended development applications (Recommendation 13, 29)

The Working Party has made a number of recommendations in relation to amended development applications as follows:

Recommendation 13
In deciding planning appeals, the council should not be prevented from raising issues that were not included in the reasons for decision and the developer should not be confined to the material presented to the Council. It is in the public interest that all relevant matters, whether or not raised previously with the council, are taken into account in the determination of development applications.

Recommendation 29
The majority of the members of the Working Party do not support the proposal that amendments of a development application made in the course of an appeal should automatically trigger a referral back to the local council for reconsideration.

Recommendation 10 which relates to section 82A of the Environmental Planning and Assessment Act 1979 would, if adopted, allow the council to review the application at any time before the appeal is decided.

Rule 16(1b) of Part 13 of the Land and Environment Court Rules 1996 should be amended by omitting item (b1) and replacing its with the following:

“except with the consent of the respondent, or by leave of the Court, the applicant shall not be entitled to rely at the hearing upon any amended plans of the development proposal unless and until the respondent has had a reasonable opportunity to consider the amended plans;”