|
Land and Environment Court - Working Party
7. Composition of the Court
7.1 Judges and Commissioners
7.1.1 Introduction
The Land and Environment Court comprises six judges and nine commissioners. The legislation allows the Minister to appoint commissioners from a broad range of disciplines. These are listed in section 12 of the Land and Environment Court Act 1979 and include people with:
- special knowledge of and experience in the administration of local government or town planning;
- suitable qualifications and experience in town or country planning or environmental planning;
- special knowledge of and experience in environmental science or matters relating to the protection of the environment and environmental assessment;
- special knowledge of and experience in the law and practice of land valuation;
- suitable qualifications and experience in architecture, engineering, surveying or building construction;
- special knowledge of and experience in the management of natural resources or the administration and management of Crown lands, lands acquired under the Closer Settlement Acts and other lands of the Crown; or
- suitable knowledge of matters concerning land rights for Aborigines and qualifications and experience suitable for the determination of disputes involving Aborigines.
7.1.2 Qualifications or expertise of commissioners
A number of submissions suggested that the Court would benefit from having commissioners drawn from a broader range of disciplines such as commissioners from environmental or heritage backgrounds. For example, the Nature Conservation Council thought that the Court should:
“increase the numbers of Commissioners with a range of specific expertise, such as ecology, flora, geomorphology and fauna.”
In relation to heritage matters, the National Trust submitted that:
“commissioners with backgrounds in heritage conservation should be appointed to sit on appeals where heritage significance is a key issue in the proceedings. The Land and Environment Court Act does not currently provide for people with such a background to be commissioners and the importance of such qualifications is totally overlooked.”
The Working Party acknowledges that the range of matters for consideration has broadened enormously since 1979. For example, principles of ecologically sustainable development and total catchment management were unknown 20 years ago. They are now required to be taken into account by planning decision-makers. Furthermore the introduction of integrated development means that matters coming to the council and, more importantly for this purpose the Court, will require an assessment of the impact of the development of such matters as water and air quality.
The Working Party considers that section 12 of the Land and Environment Court Act 1979 is broad enough to permit appointment of commissioners from all relevant disciplines, with the exception of heritage and perhaps urban design. However, in order to emphasise the importance of these matters it is recommended that special knowledge of urban design and heritage be included in the list.
Recommendation 15: Qualifications for appointment
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.
7.1.3 Local government representation
On behalf of the Local Government and Shires Associations it was submitted that a representative of local government should be appointed as a commissioner to participate in appeals but not vote. It was suggested that a local government representative would be able to contribute to the assessment of the development application and present a “socio-political perspective”. It was also submitted that such an appointment would help to persuadeconvince local councils that the Court was not a “developers’ court”. Although the Council of the City of Sydney in its model was of the view that this person should be drawn from the respondent council and should be able to vote, the Local Government and Shires Associations’ representative on the Working Party thought it would be better if the person sitting on the panel were to be drawn from local government, but not associated with the council involved in the appeal.
Section 12 of the Land and Environment Court Act 1979 already allows people to be appointed as commissioners if they have “special knowledge of and experience in the administration of local government”. The majority of the members of the Working Party are not convinced that any greater representation of local government interests on the Court is warranted. Moreover, having a representative of local government on the panel but not a representative of a developer’s industry would seriously diminish confidence in the impartiality of the panel.
Recommendation 16: Local government representation
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.
7.1.4 Use of panels
A number of submissions stated that decision-making would be improved if a panel of commissioners, or judges and commissioners, decided more complex matters.
This was suggested for a variety of reasons. For example Holroyd City Council suggested a panel of commissioners should be:
“constituted by individuals each having different backgrounds and qualifications in the development industry, to preside over appeals as opposed to a single Commissioner. The need for such diversification is in response to the tendency for some Commissioners placing greater importance on issues of a development proposal that reflects their background/qualifications.”
Other submissions suggested that many appeals:
“are complex and cover a range of differing issues requiring specific expertise and knowledge on the part of those hearing the appeal.”
Many submissions addressed current perceptions of the Court and thought that panels would assist to remove negative perceptions. For example it was said that:
“concern about the arbitrariness of decisions could be allayed by the review being undertaken not by a single person but by a panel of three.”
Arguments against the use of panels appeared to be based upon the view that judges or commissioners:
“do not need to act as experts as decisions should be reached on the evidence put before the Court by experts on both sides.”
Parramatta City Council submitted that:
“There should be consistency in the qualifications and ability of the technical commissioners and judges. Selection should be on a non-political basis with emphasis on skills and performance and commissioners should undergo ongoing quality control assessment to ensure decisions are consistent.
Provided such a selection process is in place, it is not considered necessary for more than one commissioner to determine an appeal”
The Working Party agrees that panels may be valuable in relation to more complex matters. It recognises that this could have significant resource implications for the Court but is of the view that the expedited treatment of more minor matters could permit this to occur without the need for the appointment of additional commissioners. The Working Party would therefore recommend that panels comprising commissioners, or a judge and commissioner(s), of various relevant expertise be used in relation to more complex matters.
Recommendation 17: Use of panels
Where appropriate, and subject to the availability of resources, major matters should be decided by panels comprised of commissioners, or a judge and commissioner(s), with relevant expertise. Recommendation 27 describes what matters are “major matters”.
7.1.5 Part-time commissioners
It was suggested in a number of submissions that the appointment of part-time commissioners would be a good strategy to broaden the base of the Court’s expertise. The Working Party is supportive of this proposal and notes that, since the passage of the Local Courts Amendment (Part Time Magistrates) Act 1999, it has been possible for part-time appointments to be made to the Local Court bench. The availability of part-time appointments widens the pool of available candidates and enhances opportunities for suitably qualified women and men who wish to work part-time. The Working Party therefore agrees that the Court should appoint part-time commissioners.
The Bar Association raised the question of potential conflicts of interest because part-time commissioners may also be working in a profession where they could appear before the Court during their tenure. The Working Party therefore recommends that where part-time commissioners are appointed, they should not also be expert witnesses or advocates before the Court during their period of part-time tenure.
Recommendation 18: Part-time commissioners
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.
7.1.6 Judges or commissioners?
Some have submitted that commissioners are less able than judges to determine planning appeals. Mostly this is a view advanced by lawyers claiming the parties have more confidence in a decision of a judge than a decision of a commissioner. It is difficult for the Working Party to assess the reasonableness of this perception. (It should be noted that others have submitted that it is commissioners and not judges who are more able to determine merit planning appeals).
Commissioners have more extensive planning qualifications than judges. It may be that that lawyers feel more comfortable with other lawyers. It may be that judges are seen to be more in control of proceedings and better able to deal with lawyers than commissioners. If the Working Party’s recommendations are adopted they should go some distance towards removing some of the less desirable practices of lawyers such as excessive cross-examination. But assuming appropriate procedures are in place, there is no logical reason why it is preferable for a judge to hear a planning appeal than a commissioner. It is to be noted that the Working Party is recommending that development that might be described as “minor” would be determined on site by commissioners. It is also proposed that “major” development applications will be determined by a panel including commissioners. But the Working Party rejects the suggestion that judges are better qualified to make planning decisions than commissioners. Whether the panel should be presided over by a judge or a commissioner must be left to the Chief Judge to determine.
Recommendation 19: Role of commissioners
Commissioners should continue to decide planning appeals, including both minor and major matters. Recommendation 25 describes what matters are “minor matters”. Recommendation 27 describes what matters are “major matters”.
|
