Lawlink NSW: 9.5 Consent orders

Land and Environment Court - Working Party

9.5 Consent orders

As noted above, because of the current restrictions imposed by section 82A of the Environmental Planning and Assessment Act 1979, which limits a council’s ability to reconsider a refusal for development consent, the Court has instituted a regime of consent orders. The making of consent orders is conditional upon relevant parties (not necessarily the parties to the appeal) not being prejudiced by what the Court orders.

A number of submissions have noted that councils will often refuse an unpopular decision and then later consent and obtain consent orders from the Court. This has the benefit forto councils that the consent order will not be seen as the decision of the council, but as a decision of the Court ( see 4.2 “Inappropriate political decision-making”).

The Working Party has recommended that section 82A of the Environmental Planning and Assessment Act 1979 be amended to give councils the opportunity to review their decisions and approve development applications at any time before they are dealt with by the Court.

The Working Party recognises that notwithstanding the proposed amendment to section 82A it is possible that councils will allow matters to be heard as full appeals rather than approve developments which they really ought approve. The Working Party is of the opinion that where a council is refusing to make a decision for inappropriate political reasons, the remedy is to order the council to pay the costs of a successful appeal (see 9.4 Costs orders).

The Working Party takes the view that matters should only be referred to the Court where there is a real issue for it to determine. The Court should not be issuing consent orders in circumstances where there is no genuine dispute between an applicant and a council.

Recommendation 36: Consent orders

The Court should no longer grant development consents by consent.

9.6 Ancillary orders

It has been proposed that:

“the Court might well be assisted by adding to its jurisdiction the ability to deal with easements, covenants and rights-of-way without referral to a second court, and this would add to its ability to deal with encroachment of buildings, use of party walls, dividing fences etc.”

This refers to the current situation where the Court, if asked to grant an easement as an ancillary order to a development application, must refer the matter to the Supreme Court. Such an example would occur where a developer will be using a crane that may move across the airspace above a neighbouring property.

The Working Party is of the view that it would significantly streamline such processes if all the matters were to be heard in the one Court. It is therefore of the opinion that a broad power to grant easements as ancillary orders to a development application should be granted to the Court.

It is suggested that the most appropriate way to do this may be to grant the Court concurrent jurisdiction under section 88K of the Conveyancing Act 1919. Given the more technical legal nature of easements this power should only be exercised by judges and not commissioners. In this regard the Working Party notes that judges of the Land and Environment Court have the same rank, title, status and precedence as judges of the Supreme Court.

Recommendation 37: Ancillary orders

The Court should be given a broad power to grant easements as ancillary orders to a grant of development consent. This may be achieved by giving the Court concurrent jurisdiction under section 88K of the Conveyancing Act 1919. The power should be exercisable only by judges.

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The information contained on this page is not legal advice. If you have a legal problem you should talk to a lawyer before making a decision about what to do. The information on this page is written for people resident in , or affected by, the laws of New South Wales, Australia only.

most recently updated 19 September 2001