Lawlink NSW: 4. Pre-lodgement processes (Recommendations 1, 2, 3)

Land and Environment Court - Minority Report

4. Pre-lodgement processes (Recommendations 1, 2, 3)

The Working Party has made a number of recommendations in relation to pre-lodgement processes as follows:

Recommendation 1
Councils should be encouraged to provide additional information to prospective applicants. Information should be provided in plain English and, so far as practicable, in relevant community languages.

Recommendation 2
Where appropriate, councils should encourage pre-lodgement discussions between prospective applicants and their neighbours and other local residents, and between prospective applicants and representatives of the council. However, participation in such discussions should not be mandatory.

Where a council facilitates pre-lodgement discussions it should make sure that the process and any associated requirements are communicated accurately.

Councils should ensure that pre-lodgement discussions facilitated by them, or in which their representatives participate, are transparent.

Recommendation 3
Wider use should be made of alternative dispute resolution at all stages of the development assessment process, including the pre-lodgement stage.

Councils should consider making use of mediation and conflict management services offered by government funded organisations such as the Community Justice Centres and the Australian Commercial Disputes Centre, or similar services offered by reputable private organisations.

Comment

I generally support these recommendations. I note that the Associations initially recommended that the Working Party give consideration to the preparation of guidelines to detail the information to be submitted with a development application and a compulsory pre lodgement process. However, since the commencement of the review, the Environmental Planning and Assessment Regulation 2000 came into force and now goes into some detail as to what information should accompany an application. Notwithstanding, the manner in which additional information is communicated to prospective applicants is for the council to determine, having regard to the local circumstances.

However, I am concerned as to how pre-lodgement processes facilitated by councils can remain transparent in all the circumstances. The approach taken by councils to pre-lodgement discussions varies and in many councils, discussions consist of an informal meeting between the applicant and council staff to discuss a development proposal. Often the details of a proposal have not been fine-tuned by an applicant and will be subject to change, having regard to the issues and concerns raised by the council. Notwithstanding, I acknowledge there are movements toward formalising this process, with some councils already providing formal pre-lodgement services to prospective applicants and charging fees accordingly.

5. Education and Training (Recommendations 6, 11)

The Working Party has made a number of recommendations in relation to education and training as follows:

Recommendation 6

Local councillors should continue to be offered training in relation to the planning system and how to discharge their responsibilities within it. More training opportunities should be provided. This could be arranged by the Department of Urban Affairs and Planning and the Local Government and Shires Associations.

Recommendation 11

Judges and commissioners presently receive ongoing training in matters including the principles of ecologically sustainable development and total catchment management. Such training should continue.

Comment

I generally support these recommendations. Despite assertions from the Court to the Working Party that ongoing training of Judges and Commissioners takes place, often their performance would question whether this training is adequate, as decisions do not reflect this knowledge. Not only should this training continue, the Court must review it as a matter of priority and identify areas where training may be improved. Councils have expressed serious concerns that some Judges and Commissioners do not readily understand the concepts of ecologically sustainable development (ESD) and total catchment management (TCM).

In relation to further training of Councillors, the Associations, through LGSA Learning, coordinates a Councillor Professional Development Program. This consists of programs designed to meet the individual learning needs of councillors. While modules are conducted in the planning system, it appears to me that there are opportunities to build on the level of training.

In my view, there is also another area where there is a need for education and training and that is in relation to the “stop the clock” provisions of the Environmental Planning and Assessment Regulation 2000. While the Associations initially recommended that the current assessment time for development applications be amended to provide for 40 working days, I now agree that these provisions go a long way to addressing this concern. These provisions, if utilised correctly, allow councils to “stop the clock” when making requests for additional information within the first 25 days of receiving a development application and then restart it once again when this information is received. I would agree that these provisions appear to have been underutilised by councils and clearly, there is a role for DUAP and the Associations to play in any future education and training program in relation to this issue.

6. Modification of development consents (Recommendation 8)

The Working Party has recommended that Section 96 of the Environmental Planning and Assessment Act 1979, and the Environmental Planning and Assessment Regulation 2000, should be amended to give councils the power to modify development consents granted by the Court.

When an application for the modification of a Court-granted consent is submitted, the council (in addition to fulfilling any other notification or advertising requirements) should be required to notify in writing any person who objected to the original development application. Such persons should then be given a reasonable amount of time to lodge an objection to the proposed modification.

When it determines whether to modify the consent, the council should be required to send a notice of determination to any person who objected to the modification and, if it determined to modify the consent, those persons should be able to appeal to the Court against the determination within 28 days of receipt of the notice. Such appeals should only proceed with leave of the Court.

Comment

I commend the Working Party for this recommendation as it has the potential to reduce the legal costs and delays to councils and the Court’s workload. The safeguards proposed are not onerous and in fact, many councils have already adopted this approach in determining applications to modify development consents granted by the council. The importance of reforming this aspect of the Court’s operation was also supported in the submission made by the City of Sydney.

| Previous Page | Back to LAP | Top of Page |

The information contained on this page is not legal advice. If you have a legal problem you should talk to a lawyer before making a decision about what to do. The information on this page is written for people resident in , or affected by, the laws of New South Wales, Australia only.

most recently updated 20 September 2001