Lawlink NSW: 8.6 Formality of proceedings

8.6 Formality of proceedings

The Working Party accepts the need to de-judicialise planning appeals and to eliminate aspects of the adversarial mode of trial that are not conducive to the fair determination of an administrative appeal. If the Working Party’s recommendations with respect to “minor” matters, and its recommendations with respect to cross-examination and expert witnesses are implemented they would go some distance towards eliminating the formality and hostility complained about.

In recent times judges of the Land and Environment Court have adopted the practice of wearing gowns when hearing matters in Classes 4 and 5 of the Court’s jurisdiction., and barristers appear wearing Barristers appearing wear wigs and gowns. This has led to at least one submission that the Court has ceased to be user-friendly and become a forum dominated by “judges and gowned counsel”. The Working Party is aware of different views concerning robing in the Land and Environment Court. However it should be made clear that although gowns, bar jackets and vests (and wigs as well) have returned to the Court they are not worn when the Court is determining planning appeals. Hence barristers are not robed or “bewigged” when appearing before judges or commissioners in planning appeals. Because the Working Party is concerned with the hearing of planning appeals it expresses no view as to whether the Land and Environment Court’s return to traditional Court garb when discharging its civil and criminal enforcement jurisdiction is good or bad.

The Working Party acknowledges that it may be difficult for lawyers to discontinue habits such as bowing to presiding members and expecting proceedings to be conducted in the way they are generally dealt with in courts., it is the opinion of tHowever, some effort should be made to accommodate the criticism thatof what may appear to be quite normal and unthreatening conduct to a lawyer, is sometimes intimidating to a person who is not familiar with legal practices.

Recommendation 22: Formality of proceedings

In accordance with section 38(1) of the Land and Environment Court Act 1979, the Court should discourage legal formality and technicality in dealing with development applications.

If adopted, the Working Party’s recommendations in relation to minor matters should dispense with much of the formality currently associated with planning appeals: see Recommendations 25 and 26.

8.7 Case names

It has been suggested that it is anomalous for the council to be named as respondent in a planning appeal, and merely contributes to the overly-adversarial quality of proceedings. For example, it was commented in a recent journal article:

“The Court ‘stands in the shoe of the Council’ and remakes the Council’s decision. It is not a challenge to the Council’s decision. What and how the Council decided is not really relevant to the Courts’ decision.

The Council is not therefore the ‘defendant’.

Instead of an appeal being called ‘Fred the Applicant v The X Council’, it should be called ‘Regarding the appeal of Fred in the area of X Council’.”

The Working Party considers that this suggestion has some merit. A change to the form of case name would emphasise the point that a planning appeal should not be seen as a contest between the applicant and the council. It is a fresh hearing on the merits of the development application, and involves consideration of not only the interests of the parties, but also of the public interest.

Recommendation 23: Case names

Planning appeals should no longer be referred to as, “[applicant] v [council]”, but instead as, “In the application of [applicant]; ex parte [council]”.

8.8 Role of the legal profession

There were a number of calls for exclusion of the legal profession. The Australian Consumers Association noted that:

“consumers’ access to justice in market matters has been significantly advanced by the establishment of such structures as the Consumer/Fair Trade Tribunals. It is not by chance that these Tribunals do not allow the legal profession to represent either consumer or trader, since the point of the Tribunals is quick justice in a more informal and less legally structured environment. Reviews of these Tribunals have found them to be widely respected and seen as effective by both businesses and consumers. Ensuring that lawyers are not present in these systems has enabled them to achieve their high rates of through put while maintaining the respect of consumers and traders in a much more user friendly environment.”

The planning laws of New South Wales are legally very complex. While the Working Party agrees that there is scope for less formality and streamlined procedures in minor matters, it also recognises that lawyers play an important role, especially in difficult cases. For this reason, the Working Party considers that lawyers should not be excluded from participating,

Recommendation 24: Role of lawyers

Lawyers should not be excluded from participating in the conduct of planning appeals.

8.9 Identifying minor matters

It has been suggested in a number of submissions that minor matters should be treated differently by the Court. For instance it has been suggested that:

“much of the Court’s list is made up of small matters which have escalated to the point of major appeals lasting up to three days. This is a waste of the community’s resources and alternative methods must be provided to eliminate such appeals.”

The Working Party supports the view that minor matters, where the development may only impact upon immediate neighbours, should be dealt with differently from more major matters where there is a genuine public interest in the outcome.

While the Working Party recognises that small matters should be dealt with differently from larger matters it has had some difficulty in coming up with a simple definition to distinguish major matters from minor ones. One obvious distinction would be to use the value of the development. However, property values vary markedly across the State. For example Sydney City Council suggested minor developments would be all developments under $10 million. If this figure were to be used it would, in all probability, mean that many suburban and rural councils would vary rarely have a development that they could claim had a public rather than a private interest.

A more modest figure has been estimated by the Environmental Planning Law Association which suggested that $200,000 would be a figure that separated minor from more significant developments. While this seems to be a reasonable starting point, any set monetary amount would need to be adjusted on a regular basis to take into account any shifts in the economy. For this reason, it may be more practical to set the figure at around 50% of the median house price in a given local government area.

The Working Party only suggests this figure as a starting point and believes it should be fine-tuned by the Court to ensure that the underlying aim, of separating neighbour disputes from other disputes, is achieved. When a party submits that the appeal is not a “minor” matter (because, for example, cross-examination is necessary or because the nominated value is not a real guide to the importance of the application) the judge should determine the question.

Recommendation 25: Minor matters

Where proposed development the subject of an appeal would have little or no impact beyond neighbouring properties, and there is no wider public interest involved, the appeal should be identified and dealt with as a “minor matter”. In determining whether an appeal is a minor matter, the estimated value of the development should be used as a guide. As a starting point, where the estimated value of the proposed development is less than half of the median house price in the local government area, the appeal should be regarded as a minor matter.

Where a party submits that the appeal is not minor matter, a judge should determine the question. Recommendation 26 describes how minor matters should be dealt with.

8.9.1 Dealing with minor matters

One solution offered to the issue of minor matters was that:

“we suggest conciliation conferences be compulsory in all small developments. They should be conducted by commissioners with appropriate technical qualifications and experience, and the discretion to dismiss or allow an appeal on its merits without proceeding to a formal hearing. We suggest that conciliation conferences should normally be held locally in country areas, and include on-site inspections as a matter of course”

The Working Party notes that section 34 of the Land and Environment Court Act 1979 provides for conferences between parties to proceedings which are pending in Class 1 or Class 2, to be presided over by a commissioner

It is recommended by the Working Party that generally conferences be mandatory for minor matters, and the commissioner presiding over the conference should have the power to make a binding decision.

As earlier pointed out there will be case that may fall under the cost threshold but still have a significant public interest and there will be cases above the cost threshold that should be treated as minor matters. It is recommended that the Court would have a discretion to transfer matters from one category to another depending upon a proper consideration of the matters referred to above.

It is recommended that a conference would normally take place in public and on site after the commissioner has considered the material put before him or her by the parties. The Working Party sees no need for there to be a transcript of the proceedings nor should there be cross-examination, although some consideration could be given to allowing for a conference of expert witnesses in the discretion of the commissioner, (see 87.4 Use of experts).

Of course, the commissioners would have a wide discretion how to conduct the appeal. Sometimes, for example, it might not be appropriate to determine a matter on site. In that case the commissioner may select a neutral venue after viewing the site.

In the opinion of the Working Party the decision of the commissioner should be final, subject only to an appeal on a question of law to a judge of the Court.

Recommendation 26: Conferences for minor matters

Conferences under section 34 of the Land and Environment Court Act 1979 should be compulsory for minor matters. The commissioner presiding over such a conference should have the power to make a binding decision.

The conference should be held on the site of the proposed development unless the presiding commissioner considers that another venue would be more appropriate. Conferences should be conducted with a minimum of formality. Generally, there would be no transcript of proceedings and no cross-examination. However, it would be open to a commissioner to require the parties’ experts to confer and report on specific issues.

Appeals from compulsory conferences should be limited to questions of law. Recommendation 25 describes what matters are “minor matters”.

8.10 Major matters

Earlier , the Working Party has recommended that major matters raising complex issues should be decided where appropriate and subject to resources by a panel of commissioners orof a judge and commissioner(s).

Of course, an application for consent for development having a value in excess of $200,000 (or whatever is prescribed) may, on application by a party or of the Court’s own motion, be treated as a minor matter and dealt with accordingly.

The Working Party does not propose to do more than outline some suggestions for consideration as to how major matters should be determined. It must be clearly understood, however, that the ultimate guiding principle is that parties are treated fairly and that their perception of the process is they have been given an impartial hearing.

Subject to the above the following process is suggested as a guide when a matter comes on for hearing:

The panel would have read the reports and thereupon allocates a time period in the first instance to the council allowing it to make submissions why the appeal should be rejected or what conditions should be imposed, etc.
The developer would have a limited time to respond.
When necessary the council would have a limited time to reply.
Following these submissions the panel would visit the site.
After the view, the panel would return and determine whether, and if so what, cross-examination should be allowed and/or what orders should be made.

As mentioned above, it is recognised there may be cases where, for example, a site visit would be meaningless until experts have been cross examined. The manner of hearing the appeal, however, must be left to the panel acting fairly.

Recommendation 27: Major matters

“Major matters”, identified as those which are not minor matters, should be dealt with by formal hearings unless the parties reach a settlement by way of alternative dispute resolution facilitated by the Court (that is, preliminary conferences and mediation). As to the use of panels to determine major matters, see Recommendation 17. Recommendation 25 describes what matters are “minor matters”.

Recommendation 28: Site visits for major matters

If a site visit is to be taken in relation to a major matter, it should ordinarily be taken after the parties have made their submissions in chief and before any orders are made or requests for leave to cross-examine witnesses are considered.

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most recently updated 19 September 2001