Lawlink NSW: 9. Powers of the Court

Land and Environment Court - Working Party

9. Powers of the Court

9.1 Mediation by the Court
In major matters, the Working Party generally recommends that the current system of full merit appeals be retained. However, in some cases both parties may elect for a binding conference.

Where no conference occurs, other alternative dispute resolution options may be appropriate. One option raised in a number of submissions was mediation. It was suggested that:

“compulsory mediation, as practised in South Australia, might assist in resolving disputes or, at the very least, in defining and limiting points of difference that a hearing can concentrate on. Whilst mediation is currently offered by the Court it is not always taken up, particularly when it may be politically difficult for a local consent authority to do so. The practice of compulsory mediation is well regarded in South Australia”

Part 5A of the Land and Environment Court Act 1979 provides for the referring of matters for mediation or neutral evaluation. Part 18 of the Land and Environment Court Rules 1996 makes further provision for referring matters to mediation. Pursuant to section 61H of the Land and Environment Court Act 1979, the Court Registry keeps a list of suitable mediators. The criterion for inclusion on the list is completion of a recognised training course, and completion of at least 10 mediations as either a sole or co-mediator, with ongoing mediation experience preferably in local government, planning, building, community and environmental matters.

In the Court’s experience, matters referred to mediation, even matters that have been commenced in the Court, have a high settlement rate. However, relatively few matters are being dealt with by mediation, with the Court recording just 28 mediations in 1999 (64% settlement rate), and 30 in 2000 (70% settlement rate).

The judges of the Court have suggested that the Court should be given powers similar to those possessed by the Supreme Court to order that any matter, or part of any matter, be referred to mediation or neutral evaluation if it considers the circumstances appropriate (see Part 7B of the Supreme Court Act 1970).

The Working Party maintains the view that mediation should not generally be mandatory. If the Court considers it may be useful in some circumstances to refer a matter to mediation or neutral evaluation (if only to limit the number of matters in dispute) then it is open to the Court to seek the requisite legislative amendment. The Working Party is not prepared to recommend that the Court be given power to direct that a major matter, or part of a major matter, be referred to mediation in a similar way to the Supreme Court.
One key problem identified in relation to alternative dispute resolution mechanisms used by the Court is the failure of councils to adequately delegate responsibility. This has been explained as follows:

“there is also a need to address the general reluctance of councils to provide staff with sufficient delegations to enter into agreements to settle reached at mediation with the authority of the council. This has placed limitations on the effectiveness of mediations as an alternative to hearings. .... We would encourage the Court to ensure that a representative has appropriate authority to settle. This would be a discretionary matter which could perhaps be supported by a rule of the Court.”

Recommendation 32: Court-assisted alternative dispute resolution

Councils are encouraged to make appropriate delegations, including the power to negotiate and settle matters, so as to enable their representatives to participate effectively in alternative dispute resolution facilitated by the Court (that is, preliminary conferences and mediation).

9.2 Perceived overuse of SEPPs

It is apparent that there is community concern that certain State Environmental Planning Policies are being used inappropriately by the Court. The two SEPPs that have received the most criticism are SEPP 1, which is designed to provide flexibility in planning controls, and to a lesser extent SEPP 5, which promotes the development of housing for older people and people with a disability. As noted at the outset of this report, SEPP 1 is currently being reviewed by the Department of Urban Affairs and Planning (see 1.5.2 Review of SEPP 1: Development standards).

It has been suggested that planning policies such as SEPP 1 and SEPP 5 have too much flexibility and their overuse is one of the reasons for the adverse public perception of the Court.

Some submissions thought that SEPP 1 should be:

“completely re-drafted to avoid the excesses of variation which have occurred. While it is acknowledged that there is a need for some flexibility in the planning process to enable minor variations from development standards to suit a particular site, SEPP 1 has been used in a manner which undermines the intent and spirit of the planning controls.”

It has also been suggested that some of the more controversial aspects of SEPP 1 could be addressed by the Court providing:

“clear and accessible explanations for exercising discretion to vary …instruments or set them aside.”

The approach of the Court to SEPP 1 is often misunderstood. As noted above, some of the submissions to the Working Party criticise of the Court’s use of SEPP 1. Many of these submissions demonstrate a misunderstanding of the Court’s power. The Court as an appellate body is not invested with power to do that which the council or any other consent authority could not have done. Accordingly the Court’s present approach to SEPP 1 is to require answers to a number of questions:

Is the planning control in question a development standard?
What is the underlying object or purpose of the standard?
Is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979?
Is compliance with the development standard unreasonable or unnecessary in the circumstances of the case?
Is the objection well-founded?

Only if each of these five hurdles is overcome can the Court exercise its discretion to grant consent to a development notwithstanding the particular development standard to which objection has been made.

Recommendation 33: Application of SEPP 1 by the Court

The majority of the members of the Working Party consider that the Court should retain the ability to apply SEPP 1, just as the original consent authority may do so.

9.3 Attitude to council policies

A matter that was raised in a number of council submissions was that the Court was accused of failing to take proper notice of council policies as expressed in development control plans.

It has been argued that greater weight should be given to council policies because:

“many of these policies have been drafted having regard to the views and concerns of the local community. The Court needs to give greater weight to the contents of council development control plans that have been prepared in consultation with the community and adopted as a planning policy by the council. It should be acknowledged that the public participation is a vital component of the planning process.”

In this regard the Working Party notes that the Department of Urban Affairs and Planning has encouraged councils to place many of their standards in DCPs rather than LEPs in recent times. This may have helped to exacerbate this problem.

The Working Party notes that there is considerable variation in the quality of policies. While some are of a very high quality others are poorly thought out and badly drafted. It must be remembered that putting controls in DCPs rather than in LEPs was for the purpose of promoting flexibility and that, accordingly, there will be times when the Court, like the council, should be permitted to depart from the policy.

Recommendation 34: Consideration of council policies

The Court should retain the ability to depart from the provisions of a DCP or other council policy, just as the council may do so.

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most recently updated 19 September 2001