Land and Environment Court - Working Party


5.4 Criteria for the assessment of development applications

Many submissions argued that the principles of ecologically sustainable development and total catchment management are not adequately applied by the Court. For example it was suggested that:

“Although it is an object of the Environmental Planning and Assessment Act to encourage ecologically sustainable development, the Court does not appear to have embraced the challenge of interpreting and applying this concept, and has failed to develop a jurisprudence as fully as it could have.”

“ecologically sustainable development is not a simple factor to be considered but an objective which decision makers should strive to achieve.”

“Councils have expressed serious concerns that some Judges and Commissioners do not readily understand the concept of ecologically sustainable development (ESD) and total catchment management (TCM).”

5.5 Third party rights of appeal

A number of submissions were made to the Working Party that third party rights of appeal should be extended to developments beyond those set out as designated development in Schedule 3 of the Environmental Planning and Assessment Regulation 2000. The Schedule comprises a list of industrial activities and the like but very little development that is found in urban, commercial and residential parts of the State (marinas beyond a certain size being a notable exception).

Where there is an application for designated development third parties who made submissions in accordance with section 79(5) of the Environmental Planning and Assessment Act 1979 by way of objection to the application (objectors) are required to be notified of the council’s determination. If a determination is made to grant development consent they may appeal within 28 days to the Land and Environment Court. If the developer appeals against a decision of the council they may be made parties to the appeal.

Many individuals and community groups felt that the current rights of appeal were too restrictive and failed to allow them to take action against developments they oppose. It must be clearly understood that many of those submissions were made by people claiming a right to appeal against the decisions made by councils otherwise than with respect to designated development. Members of the public are encouraged to participate in the process by making submissions but once decisions have been made they have no further entitlement to an independent and impartial decision-maker. Most have no objection to developers having rights of appeal but claim third parties should have the same sort of rights. Anyone familiar with the planning system knows that many development consents are made in the face of great opposition from residents and local residents action groups. Sometimes that is appropriate – sometimes not.

Some have submitted that if, as asserted by councils, primacy should be attached to the “community’s view” about inappropriate development, then the more effective way of achieving that result is not to abandon appeal rights altogether but to extend third party rights of appeal and to allow objectors to appeal against decisions by councils allowing developments beyond those presently designated in the Schedule. It is to be remembered that a number of people have labelled the Land and Environment Court as “developers court” not because developers can appeal but because they cannot.

Over the years there has been a great deal of debate concerning the entitlement to and extent of third party rights of appeal. The Environmental Defenders Office would seek to have them extended to any development that is “likely to significantly affect the environment”.

The Court has developed a practice of permitting objectors to address the Court in planning appeals even though they are not parties to the proceedings, in special circumstances. However, that only gives third parties the right to be before the Court when the developer has appealed.

It is clear that third party rights of appeal is an important issue in the community. However, the relative costs and benefits to the community, councils and the Court would need to be very carefully evaluated before any policy decisions are made about enhancing such rights. There would need to be a full appreciation of a number of significant issues, for example, who should be allowed to appeal; what effect third party rights of appeal would have on the economic development of the State; the extent to which public participation prior to decision-making should regulate the entitlement; whether there should be more environmental impact statements, and so on.

As the enhancement of third party appeal rights is beyond the Working Party’s terms of reference, the Working Party makes no recommendation in relation to this issue.

5.6 Time limits for lodgement of appeals

A dissatisfied applicant currently has one year in which to appeal against a local council’s refusal to grant development consent, whether deemed or actual, measured from the date of receipt of the notice of determination or from the date on which the application was deemed to be refused.

As mentioned, third parties have a right to appeal against a decision of councils with respect to designated development and have 28 days within which to appeal if the determination is to grant development consent.

Submissions were made on behalf of third party objectors that third parties should have the same period within which to appeal to the Court as developers:

“A 3rd party (ie the community) is only given 28 days to lodge an appeal, in contrast with the developer who has 12 months! All parties should have the same time to lodge an appeal which should be longer than 28 days.”

“for complex developments, this timeframe is often too short for third parties to review the necessary evidence and determine whether to commence proceedings. We consider that the time limit should be increased to 2 months from the date of notification of grant of consent.”