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Land and Environment Court - Working Party
5. Appeals to the Court
5.1 Introduction
The Land and Environment Court Act 1979 establishes the Court’s jurisdiction to decide planning appeals, and sets out the powers and procedures for dealing with them.
Planning appeals include:
1. appeals brought by dissatisfied applicants:
(a) under section 97 of the Environmental Planning and Assessment Act 1979, against a refusal to grant development consent, whether deemed or actual, or the conditions of a consent; and
(b) under section 96 of the Environmental Planning and Assessment Act 1979, against a refusal to modify a development consent, whether deemed or actual; and
2. appeals brought by dissatisfied objectors under section 98 of the Environmental Planning and Assessment Act 1979, against a council’s decision to grant development consent to an application for designated development.
In deciding planning appeals, the Court has all the functions and discretions of the original decision-maker.
The entitlements of people participating in planning appeals are set out in this chapter. This section is concerned with the fundamental question whether merit planning appeals should continues and if so, whether they should continue to be heard by the Land and Environment Court. It should be made clear at the outset that judicial review is always available whether or not an applicant has a right to a full merit appeal. Those who have urged that merit appeals be replaced by judicial review are, in facttruth, urging that merit appeals be abolished.. However in order to understand these submissions the Working Party will deal with the entitlements of people participating in a full merit appeal and their entitlements to judicial review.
Specific processes associated with the conduct of planning appeals, and specific powers of the Court in deciding them, are dealt with in chapters 8,7 Court Processes, and 98, Powers of the Court.
5.2 How planning appeals are currently decided
Section 38(1) of the Land and Environment Court Act 1979 provides that planning appeals:
“shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and of every other relevant enactment and as the proper consideration of the matters before the Court permit.”
Section 38(2) provides that the Court is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks appropriate.
At the direction of the Chief Judge, planning appeals may be heard and disposed of by one or more commissioners, instead of by a judge, and when this occurs the commissioners exercise the powers of the Court and their decisions are deemed to be those of the Court.
The Court’s powers in the conduct of planning appeals are set out in section 39 of the Land and Environment Court Act 1979. Section 39(2) provides that:
“In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.”
Section 39(3) provides that planning appeals:
“shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.”
Section 39(4) requires the Court, in making its decision, to have regard to:
“this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.”
Section 39(5) provides that:
“The decision of the Court upon an appeal shall, for the purposes of this or any other Act or instrument, be deemed, where appropriate, to be the final decision of the person or body whose decision is the subject of the appeal and shall be given effect to accordingly.”
The effect of these provisions is to require the Court, so far as the proper consideration of the matters before the Court permits, to determine development applications in the same way as local councils and other consent authorities determine them.
5.3 Who has the right to a merit appeal?
Most rights of appeal to the Court are confined to the dissatisfied applicant for development consent. The legislation makes provision for limited third party (that is, objector’s) rights of appeal. These rights are confined to designated development (that is, the type of development listed in Schedule 3 of the Environmental Planning and Assessment Regulation 2000). Applications for designated developments must be accompanied by environmental impact statements, prepared and exhibited according to the regulation, and public submissions must be considered before decisions are made.
Full merit planning appeals are heard by judges and commissioners of the Land and Environment Court. Most development applications before the Court are brought forward by dissatisfied applicants for development, and most appeals are against local councils as consent authorities. Sometimes the consent authority is the Minister. If the Minister “calls in” the development application there is an appeal by a dissatisfied applicant to the Land and Environment Court from a decision of the Minister unless the decision has been preceded by a Commission of Inquiry. If no Commission of Inquiry is held a dissatisfied applicant (and in the case of designated development a dissatisfied third party objector) may appeal to the Land and Environment Court for a de novo hearing on the merits.
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