Land and Environment Court - Working Party


2.2 Common misconceptions and the need for education


It was evident from some of the submissions received by the Working Party that there is a lack of knowledge and understanding about various aspects of the planning system. There were also a number of the criticisms made about the Court which were found by the Working Party to have no clear factual basis.

The Working Party considers that there is a need for education within the community, and the remainder of this chapter is devoted to addressing common misconceptions and areas in which there appears to be a need for education.

2.2.1 Extent to which development applications may be amended on appeal

One criticism was that the Court sometimes consents to a development which has been so radically altered in the course of the appeal that, in substance, it is a different proposal altogether from the development that was the subject of the application submitted to the local council. By allowing developments that councils have never been given the opportunity to consider, the Court is said to be usurping their role in the planning system.

This criticism overlooks the fact that the Court has no jurisdiction to determine a development application which has not been submitted to the local council. In the course of the assessment process, the council is allowed to consider minor alterations to the proposed development, and the Court may do the same on appeal. If the proposed development does not remain substantially the same, then a new development application is required to be submitted.

In law, major alterations to a proposed development in the course of a planning appeal render the development application under consideration a different application from the one which is the subject of the appeal. The Court therefore has no power to consider such alterations.

The Court would be acting outside its jurisdiction if it were to grant development consent to an application substantially different from the one which was submitted to the council. If a commissioner were to entertain major alterations to a proposed development the subject of an appeal, it would be open to the respondent council to ask for the question whether this course of conduct was lawful to be referred to a judge of the Court. If consent were granted to the altered proposal, the council could appeal the commissioner’s decision to a judge of the Court, seeking an order that the consent had no effect in law.

It should also be noted that the Land and Environment Court Rules 1996 were recently amended by the addition of the following provision:

“except with the consent of the respondent, or by leave of the Court, the applicant at the hearing shall not be entitled to rely upon any amended plans of the development proposal which the applicant initiates”

2.2.2 Perception of bias

It has been suggested that the Court should be renamed the “Land and Developers Court”, because it routinely favours developers’ interests over the concerns of local councils and objectors.

Some submissions claimed that determinations of commissioners reflect their particular leanings rather than the merits of the development applications under consideration. Other submissions claimed that there is a systemic bias, inherent in the appeals process or in the planning system as a whole, in favour of applicants.

Whilst these two claims may easily be confused, in substance they are very different.

With respect to the first claim, if it could be established in any given case that the presiding commissioner was biased or failed to determine the development application on its merits, then an aggrieved party could appeal on the grounds of error of law.

The second claim of systemic bias is more difficult to address. If all that is meant is that developers have a more extensive right of appeal against councils’ decisions than objectors, then in this limited respect the claim is correct (objectors’ rights of appeal are discussed further below, see 5.5 Third party rights of appeal).

However, it often appears that the claim is intended to be more sweeping. For example, it has been suggested that most planning appeals decided by the Court are decided in the applicant’s (that is, the developer’s) favour.

In a number of publications, the Council of the City of Sydney has claimed that the Land and Environment Court is biased in favour of developers and against councils. The Council of the City of Sydney was asked to substantiate occasions when it could be said that a person deciding a matter in the Land and Environment Court was either biased or gave a reasonable apprehension of being biased (that is, of not determining the matter impartially and according to law) and where, if it happened, there had been no proper redress. No illustrations were given.

The Working Party accepts the statement made by the Lord Mayor that there was no intention on the part of the Council of the City of Sydney to cast a slur on the integrity of any individual member of the Land and Environment Court. However, a reading of the Council of the City of Sydney’s publications would probably lead the average person to the view that Court statistics demonstrate that the Court is, in fact, biased in favour of developers and against councils.

The Court’s records indicate that 3,292 appeals brought under section 97 of the Environmental Planning and Assessment Act 1979 were disposed of between 1996 and October 2000, inclusive. Of these, 52% were either discontinued or upheld or dismissed by consent. Of the remaining 48% which were actually adjudicated, 56% were upheld and 44% were dismissed.

The Working Party recognises problems inherent in attempting to draw inferences from statistics. Appeals to the Land and Environment Court range from a very small to a very large, and some orders are made with the consent of both parties.. Often the only ground of appeal is the imposition of a condition. Sometimes it is not the condition itself but the extent of an obligation imposed by the condition. Not infrequently an appeal is brought to the Court concerning a financial contribution for amenities and services the demand for which is likely to be created by the development, when the only issue is how much the contribution should be.

There are a range of factors which may affect the statistics, and the Working Party does not consider it fruitful to discuss those factors at length. An example serves to illustrate the point. In the ordinary course of events, an applicant seeks legal advice before lodging an appeal, and the council seeks legal advice before deciding to defend it. Both parties would ordinarily continue to receive advice as the appeal progresses. It is unlikely that either party would continue to proceed if they were advised at any stage that their prospects of success were poor. The Court’s role then is to determine applications where either the opposing arguments are fairly evenly balanced, or where the quality of advice provided to one party is superior to that provided to the other.

To say that the Court is biased in favour of developers because, for example, 60 per cent of the appeals brought to the Court are, in some way or another, successful is in the opinion of the Working Party, wholly unconvincing. Unless one adopts the view that any success rate is evidence of “systemic” bias, these statistics do not support the Council of the City of Sydney’s claim.

The Working Party is of the view that no reasonable inference of “systemic bias” can be drawn from the statistics.

2.2.3 Site visits

Another criticism was that the Court does not visit sites of proposed development as frequently as it should.

The Working Party was unable to identify any specific case where a party’s request that the Court make a site visit was refused without good reason, and nor was it directed to any such case.

The Working Party is of the view that, where either party requests that the Court visit the site of a proposed development, the Court should ordinarily accede to that request.

The Working Party is satisfied that this conforms with the Court’s current practice.

2.2.4 “Stop the clock” provisions of the Environmental Planning and Assessment Regulation 2000

A number of submissions from local councils suggested that some developers submit applications that cannot reasonably be dealt with in the 40 or 60 day assessment period, and promptly appeal against the deemed refusal on the forty-first or sixty-first day.

When this matter was investigated, it came to the Working Party’s attention that the “stop the clock” provisions of the Environmental Planning and Assessment Regulation 2000 (that is, clauses 54, 109 and 112) were not widely known. The effect of these provisions is to extend the assessment period to give the applicant time to provide additional information relevant to the assessment of the application, and to give the council time to consider that information on receipt.

Clause 54 provides that the council may request the applicant to provide such additional information about the proposed development as it considers necessary to its proper consideration of the application, and may specify a reasonable period within which the information must be provided. Instead of providing the information requested, the applicant may notify the council that the information will not be provided. If any of the information has not been provided by the end of the period specified in the council’s request (or such further period as it may allow), then the applicant is taken to have notified the council that the information will not be provided.

Clause 109 provides that, so long as the council’s request was made within 25 days after the date on which the development application was submitted, the days occurring between the date of the request and the date on which the information is provided or the applicant notifies the council that it will not be provided are not counted in calculating the number of days in the assessment period.

In other words, the “clock” (which is counting down the days until deemed refusal) is stopped between the time when a request for additional information is made and the time when the applicant responds.

Clause 112 requires the council, on making a request for additional information, to notify the applicant of the effect of the request on the assessment period.

The information available to the Working Party indicates that many councils do not use the “stop the clock” provisions, although the Environment Protection Authority (which is an approval body for integrated development under the Environmental Planning and Assessment Act 1979) uses them whenever necessary, and consequently has a very good record of responding to applications for integrated development within the prescribed period. Statistics provided by the Environment Protection Authority indicate that, in the 1999/2000 financial year, it was able to issue General Terms of Approval to councils within the prescribed period in over 90% of cases.

Further information on these provisions is found in Appendix A, which reproduces a note on the legislation issued by the Department of Urban Affairs and Planning.

The Working Party considers that appropriate use of the “stop the clock” provisions of the Environmental Planning and Assessment Regulation 2000 will extend, where necessary, the time that councils have to consider development applications. This should reduce the number of appeals against deemed refusals.

Proposals to extend the duration of the assessment periods, and related submissions, are considered later in this report (see 4.3 Delays in the assessment process).

2.2.5 Misleading representations

A number of criticisms made about the Court were quite misleading, and the Working Party considers it important to draw attention to this issue, in order to help to re-balance the debate on the role of the Land and Environment Court.

To take one of the more extreme examples, in the City of Sydney’s publication “Unwanted Legacies of the Land & Environment Court of NSW”, criticism is levelled at a major retail, commercial and residential development on the shores of the Parramatta River at Birkenhead Point. A photograph of this development features on the front cover of the publication. The text relating to the development states “Date approved by court 29 March 1996” and goes on to describes it as “Arguably one of the worst urban design outcomes flowing from the Land and Environment Court in the past decade”.

In fact, the development which appears in the photograph was not the development that was approved by the Court. The Court had approved a different development, several storeys lower in height, stepping up and back from the water’s edge, with view corridors between the buildings and the buildings themselves of differing design and textures. The constructed development as shown in the photograph shows none of these components, but rather takes its maximum height to the waterfrontage. Neither are there view corridors maintained. The buildings themselves, rather than of differing design and textures, are now all the same. The development shown was in fact subsequently approved by the council and it abandons the features which the Court thought were important.

Other illustrations in that publication are similarly misleading.