Land and Environment Court - Working Party
6 Options for Review of Council Decisions
This chapter looks at the key issue of merit appeals and provides an historical context of the current situation in New South Wales. In response to issues raised in submissions, this chapter also examines options for the review of council decisions, specifically, whether merit appeals to the Court should continue, whether such appeals should be handled by the Court or a new tribunal, and whether there should be limits to such appeals.
6.2 The difference between merits and judicial review
Before discussing the options for reform, it is useful to describe the difference, in administrative law, between “merits review” and “judicial review”.
Merits review involves a complete rehearing of the subject application, in which matters of fact, as well as questions of law, may be considered. The review body is often said to “stand in the shoes” of the original decision-maker. That is, for the purposes of the review, the review body takes on the original decision-maker’s powers and responsibilities.
As the outline in chapter 5 indicates, in relation to planning appeals, the Court undertakes a merits review, considering the subject development application de novo, or afresh. It is required to determine whether or not development consent should be granted, and if so on what conditions. In deciding a planning appeal, the Court is not bound by the determination made by the council or other consent authority, and is not required to decide whether that determination was right or wrong - in law or otherwise. However, this should not be taken to mean that the Court has no interest in the council’s reasons for decision. The council’s reasons for decision are clearly relevant, and may carry considerable weight.
Judicial review is not concerned with the merits of the application. It is concerned with procedural impropriety, legal error and what some have called irrationality. Procedural impropriety is ordinarily associated with denial of natural justice, as that term is generally understood. Legal error or illegality occurs when the body the subject of the appeal has misunderstood its legal obligations by, for example, taking into account matters it should have ignored or ignoring matters it should have take into account. “Irrationality” is a legal description of a decision that is so devoid of rational justification that it could not have been open to the decision-maker, acting reasonably and understanding its functions, to have made.
Bearing in mind the wide discretion inherent in most planning decisions, “irrationality” is rarely alleged although, occasionally, that ground has been made out. In recent years the Court has rejected “lack of proportionality” as justifying the judicial review remedy. “Proportionality” is not part of the law of New South Wales. Thus a decision which is “out of proportion”, i.e. one that is, in the eyes of the Court, skewed in favour of one party or another, but which does not meet the description of “irrational” in the legal sense, will be not set aside on judicial review grounds. As the Working Party notes, a de novo merit appeal, on the other hand, allows the Court or tribunal to substitute its decision for that of the body appealed from. The review body cannot, of course, make a decision that is attended by procedural impropriety, errors of law or irrationality and if it did it would be corrected by a higher court.
Although the majority of submissions favoured retention of the present merit review system, some submissions advocated its abandonment and its replacement with
It is important to note that judicial review is part of the common law and it exists whether or not there are merit rights of appeal. Hence any proposal that merit appeals should be abandoned and replaced with judicial review only would, if implemented, remove existing appeal rights without substituting other rights in their place.
6.3 The historical context
Full merit appeals from decisions of local councils on applications for permission to develop (whether they are characterised as building applications, subdivisions applications, land use applications, etc) have been a feature of the New South Wales planning system for at least 70 years. They are a feature of the planning systems of all other Australian States and New Zealand.
Over the years planning appeals in New South Wales went to Locals Boards, the District Court, the Supreme Court (exercising jurisdiction as the Land and Valuation Court), the Local Government Appeals Tribunals and finally the Land and Environment Court. All appeals had one feature in common - the body hearing the appeal was directed to exercise all the functions and discretions of the body appealed from and enjoined to make the correct or preferable decision. That is, it was a full de novo merit decision. A little over 40 years ago the District Court, in the course of hearing building appeals, toyed with the notion that an appeal should not be upheld unless the Court is satisfied that the original decision was wrong in law, but that never became the law and the present system of regulating the way appeals are heard by the Land and Environment Court is a continuation of the way planning appeals were heard by the predecessors of the Court.
It is true that, in the United Kingdom, the Parliament for some time rejected the notion that a court should hear planning appeals but that had nothing to do with a supposed doctrine that it was inimical to notions of liberal democracy to allow a person to substitute his or her views for that of an elected local government decision-maker. It was because the Parliament had some misgivings as to whether a court (as opposed to an appointed inspector) should be called upon to discharge what it understood to be essentially an administrative function.
To the knowledge of the Working Party, the system adopted in the United Kingdom accepts that decisions of elected local councils should be subject to full merits review. That merits review is, generally speaking, undertaken by inspectors who then make recommendations to the Minister which are, for all practical purposes, the final decision subject only to a modified form of review in certain circumstances. At the present time, as the Working Party understands it, there are moves underway in the United Kingdom to adopt a system similar to that of New South Wales, having a specialist tribunal to deal with planning matters. It is unnecessary for the Working Party to enter into what is proposed for the United Kingdom beyond observing that there has been no move in that country, to the knowledge of the Working Party, to restrict merit rights of appeal from the decisions of local councils. To the knowledge of the Working Party, no other State in Australia or New Zealand has seriously considered abolishing merit appeals.