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Land and Environment Court - Minority Report
5. Role of commissioners (Recommendation 19)
The Working Party has recommended that commissioners should continue to decide planning appeals, including both minor and major matters.
Comment
I am of the firm view that the constitution of the Court should include both Judges and Commissioners in the hearing of planning appeals, and not solely Commissioners. Appeals to the Court are becoming increasingly complex and cover a range of issues requiring specific expertise and knowledge on the part of those hearing the appeal. While Commissioners are appointed pursuant to section 12 of the Land and Environment Court Act 1979 based on their technical skills and experience, there will be circumstances when the legal experience and qualifications of a Judge is more appropriate. In this regard, the opportunity should be available for councils to request planning appeals be heard by a Judge.
6. Integrated development (Recommendation 5)
The Working Party has recommended there is a need for appropriate training of approval body staff in the processes associated with the assessment of applications for integrated development. Lack of knowledge appears to be contributing to delays.
Comment
This recommendation is intended to address the problems in relation to the timing of approval bodies for integrated development applications. However, in the Associations’ submission to this review, it was recommended that the Working Party consider the benefits to the development assessment system if DUAP, in the case of integrated development, act in the role of coordinating the State agency responses to integrated development proposals. Councils should then have 40 working days on receipt of the information to fully assess the application. I am subsequently very disappointed that the Working Party has dismissed this proposal and one that could see the Department being backed by the authority of the Premier’s Office, in lieu of a recommendation for training of State agencies.
Many councils expressed the view during the course of the review that the current process in respect of integrated development is inadequate and timeframes blow out significantly while awaiting information from State agencies. This is unacceptable. While I concede that training of agency staff will go part of the way to addressing these problems, clearly something more has to be done. The suggestion has been made in the report that a more effective way for councils to encourage timely responses would be to join such bodies as a respondent in an appeal and therefore, potentially making the agencies liable to an adverse costs order. While this would go some of the way to address this issue, approval bodies should be made more accountable for their conduct. The Working Party has given no reasons in the Report why it is not practical for DUAP to implement the Associations’ recommendation. I believe that the Working Party should provide these reasons, and, if DUAP is not the appropriate body, then an alternative must be found.
7. Part time Local Government Commissioners (Recommendation 16)
The majority of the members of the Working Party consider that a representative of local government should not be appointed to the Court to act in an advisory capacity. The majority of the members of the Working Party consider that the Court is already well equipped in relation to experience in the administration of local government and town planning.
The following recommendations of the Working Party are also relevant to this issue:
Recommendation 15
- Section 12 of the Land and Environment Court Act 1979 should be amended to provide that special knowledge of and experience in heritage matters or urban design can qualify a person for appointment as a commissioner.
Recommendation 18
- The Court should have the power to appoint part time commissioners. However, part time commissioners should not act as expert witnesses or advocates before the Court during their period of part time tenure.
Comment
I am extremely disappointed that the majority of the Working Party did not support the option of part time commissioners with expertise in Local Government, given that it supports commissioners with experience in heritage matters or urban design and the appointment of part time commissioners. I believe the Court would have gained great benefit from having commissioners from a broader range of disciplines in the hearing of appeals.
As indicated earlier in this report, I do not support the continuance of merit planning appeals in the Court. However, if the review did not see fit to remove this form of “appeal” from the Court system, then I considered that the option of part time Local Government commissioners would have been an outcome to meet these ends to a degree.
Local Government commissioners would lead to greater transparency and provide for specialists with an understanding of local politics. They would also go a long way to help convince councils that the Court is not a developer’s Court or functioning under the pretence of being a “Court” rather then carrying out largely an administrative function.
The Associations have suggested previously that this representative should not be an elected representative from a council area in which a development is proposed, but rather a representative at large that would provide general input from a local government perspective. In contrast, the Council of the City of Sydney have proposed that the representative should be drawn from the respondent council. Contrary to the views of the majority of the members of the Working Party, I am of the view generally that Local Government commissioners would ensure any merit decision made by the Court considers Local Government processes and concerns, and therefore lead to a more credible result.
8 . Site visits for major matters (Recommendation 28)
The Working Party has recommended that if a site visit is to be taken in relation to a major matter, it should ordinarily be taken after the parties have made their submissions in chief and before any orders are made or requests for leave to cross examine witnesses are considered.
Comment
In the Associations’ submission to this review, it was recommended that Judges and Commissioners be required to conduct site visits before a hearing commences. I remain strongly of the view that the Court would gain great benefit if Judges and Commissioners visited the site that is the subject of an appeal and that this will facilitate quicker proceedings and a better understanding of the evidence presented.
There have been many debates amongst members of the Working Party in relation to this issue, particularly focussed on when a site visit should be undertaken during the course of a hearing. While site visits in relation to “minor matters” will more or less be assured as they will be held on site, visits will still be at the discretion of the Court for “major matters”. This is of great concern as these types of development are more likely to raise complex issues and have higher levels of public interest. I cannot understand the Court’s reluctance to conduct site visits as a matter of course during the hearing of an appeal. |
