|
|
|
|
|
|
|
Land and Environment Court - Working Party
The suggestions emphasised the need for pro-active case management from commissioners and Judges to encourage time efficiency (for example, grant cost orders against the party who pursues an issue at the preliminary hearing but later abandons it in trial). It was also suggested that there should be an independent professional planner or duty commissioner to review the context of issues and expert evidence of filed proceedings to advise the Court’s Registrar at the time the parties are being provided with hearing dates. Standing - third party rights and public participation (see also ‘Public participation’ under Term (iv) and ‘Third party rights and public participation’ under Term (v)) There was strong support from the councils, regional organisations of councils and government organisations for the right of third party objectors to be heard in proceedings. It was suggested that the Court should have the power to order third parties to be joined in the proceedings in appeals brought under sections 97 and 98 of the Environmental Planning and Assessment Act. It was also suggested that in designated developments, the time limit for an objector’s right to appeal should be increased from 28 days to two months. However, developers were of the opinion that third party objectors should not have a right to be heard as any objections should be made by the parties themselves. Where there are third party objectors, it was argued that they should be limited to designated developments only. This is because by the time planning appeals are heard by the Court, public opinion about the proposed development is well understood by all parties. Views - should the Court visit sites of proposed development? There was an overall support for site inspections to be undertaken by the Court however, there were mixed responses as to whether the inspection should take place prior to proceedings or whether site inspections should be subject to any fixed rules. Should the Court hear cases in the communities directly affected? The submissions showed support for on-site hearings as it saves time and reduces formality in the process. Disposal times and related matters The councils and regional organisations of councils recommended number of changes to the time standards of the Court. It was submitted that the time of disposal matters should be amended so that Class 1, 2 and 3 applications are to be disposed of within 4 months of filing and Class 4, 5 and 6 applications within 6 months of filing. Furthermore, the time standard for the handing down of reserve judgements should be amended so that all judgements are handed down within 40 working days of the hearing. Call-overs It was thought that there should be no need for a second call-over if the parties are properly prepared for the first call-over and the preparation is enforced by the Court. However, where there is a second call-over, the cost should be borne by the party who was not ready for the first one. Furthermore, it was thought that the council should be required to bring the relevant development application file to Court at or prior to the call-over and it should be made available to either party at that time. Consents granted subject to conditions It was submitted that arguments going to conditions of consents should be able to be made without risking the consent itself, and an expedited procedure should be available. However, it was also submitted that there should be a special procedure for dealing with arguments going to conditions relating to payments towards the provision or improvement of public amenities or services under section 94 of the Environmental and Planning Assessment Act, so that there is no delay for the applicant and the consent itself is not put at risk. Onus of persuasion? It was suggested that:
Court proceedings to be inquisitorial rather than adversarial? There was a strong support for a more inquisitorial approach in Court proceedings, with minimal intervention from legal representatives. Who should present their case first? It was submitted that the applicant should be required to present its case first in a Class 1 appeal. This was because the reversal of the current procedure would have the advantage that if, having heard the applicant’s case, the Court is not convinced that the development application should be approved, then it could dismiss the appeal without having to hear the council’s case. Furthermore, reversing the current procedure would also be more in keeping with the onus borne by an applicant to satisfy a consent authority that its proposal should be approved. Different procedures for different types of appeal or development? It was believed that there should be different procedures for different types of appeals. Some of the suggested categories for procedural variations included:
(II) THE CONSTITUTION OF THE LAND AND ENVIRONMENT COURT IN REVIEWING THE DECISIONS OF COUNCILS, INCLUDING WHETHER THE COURT SHOULD BE CONSTITUTED BY MORE THAN ONE JUDGE OR COMMISSIONER OR BY COMMISSIONERS POSSESSING SPECIFIED QUALIFICATIONS OR EXPERTISE Judge or commissioner to hear appeals? Although it was strongly supported that questions of law should be determined by Judges, opinions were divided on the role of Judges and commissioners in determining merit appeals. More than one Judge or commissioner? A Judge and commissioner(s)? There was an overall support for the use of Panels to assess appeals, especially in complex matters. However, there were mixed views as to the composition of the Panel. The submissions suggested a Panel of:
However, there was also concerns raised about the use of Panels, such as the potential to slow the disposal time for cases. Qualifications or expertise of commissioners There was an overall support for the use of Judges and commissioners with qualifications which relate to environmental and planning matters. Suggestions were made to broaden the expertise available to the court by appointing people experience in areas such as: ecology; flora and fauna; geomorphology; and heritage conservation and architecture; Part-time commissioners? The use of part-time commissioners was generally endorsed, noting the practicality and advantage in the use of part-time commissioners with expertise in a particular field suited to a matter in question. Furthermore, it was submitted that part-time commissioners would be less likely to become caught up in the Court culture and lose sight of the practicalities of the environmental disputes. Training for Judges and commissioners? It was submitted that Judges and commissioners of the Court should undergo training in the principles of ecologically sustainable development and total catchment management. Commissioners’ terms of office It was submitted that consideration should be given to introducing term limits for commissioners, for example, up to no more than two consecutive terms. Subsequent proceedings relating to the same site It was submitted that proceedings relating to an alternative development application for a site should be heard by the Judge/commissioner(s) who heard the earlier proceedings, if so requested by the parties and at the convenience of the Court, because of the obvious savings in time and cost. Consistency between commissioners It was submitted that the claims of inconsistency between commissioners could be addressed through a rigorous set of internal checks and performance management systems and enhancing the level of internal communication amongst commissioners to ensure consistency of approach. Furthermore, statistical information on the breakdown of appeal type / outcome / commissioner, for example, should be made available to the Chief Judge. (III) WHETHER THE COURT SHOULD HAVE REGARD TO ANY ADDITIONAL MATTERS IN REVIEWING A COUNCIL DECISION IN RELATION TO A DEVELOPMENT APPLICATION Ecologically Sustainable Development (‘ESD’) and catchment management It was submitted that that section 79C(1) of the Environmental and Planning Assessment Act should be amended to include the principles of ecologically sustainable development and catchment management. The onus should be on the applicant to satisfy the decision-maker that the development is consistent with ecologically sustainable development (or catchment management). This would be aided by the requirement of Judges and commissioners to undergo training in the principles of ecologically sustainable development and total catchment management. Matters to which the Court should not have regard It was submitted that the Court should not be permitted to introduce new issues on its own accord or express personal opinions. Issues for determination should be limited to those considered by the council and additional issues should be permitted only with the leave of the Court. History of negotiations and council’s decision (see also ‘Merits or judicial review’ under Term (i)) It was submitted that the history of negotiations, pre-development application assessments, amendments to development applications and councils’ decisions should be made available to the Court and if necessary, taken into consideration. It was thought that this will increase the accountability of council’s decisions. Section 79C(1) of the Environmental and Planning Assessment Act - matters for consideration by consent authorities in determining development applications It was submitted that section 79C(1) of the Environmental and Planning Assessment Act should be amended to include a more extensive list of matters that the consent authority must take into consideration, similar to the list previously contained in section 90. It was also submitted that Judges and commissioners should be required to demonstrate that in reaching their determinations, they have specifically considered each of the matters listed in section 79C(1). However, there were also views that section 79C(1) is expressed in wide terms and in conjunction with the objects of the Environmental and Planning Assessment Act, there is no room for further additional matters that might reasonably be taken into account in determining development applications. Cumulative impact of Court decisions and of developments It was submitted that the Court should consider both micro and macro effects of a development, including its cumulative impact. Consequently, it was argued that a mechanism should be established for assessing outcomes of cases some time after they have been decided to see how the decision worked out in terms of community acceptance and the impact on social, economic and environmental issues. The review of previous decisions and the history of similar development applications was considered to be necessary to achieve consistency in decision-making and to assist in putting the Court “in the shoes” of the consent authority. Council’s planning framework Some submissions indicated that there should be a clearer link between the Court’s decisions and councils’ planning framework, and greater recognition and respect should given to councils’ representative role. Also, it was submitted that the Court should determine a development application in the context of the planning framework which existed when it was lodged in the form ultimately determined by council or, in the case of deemed refusal appeals, when the appeal was lodged. (IV) WAYS IN WHICH TO STREAMLINE THE MANNER IN WHICH DEVELOPMENT APPLICATIONS ARE PROCESSED BY COUNCILS AND THE DEPARTMENT OF URBAN AFFAIRS AND PLANNING SO AS TO REDUCE THE INCIDENCE OF SUCH REVIEWS Deemed refusals There was strong support from the councils and regional organisations of councils that the current time limit of 40 days for determining development applications is too short. As an alternative, it was submitted that the time limit should be extended to:
It was submitted that there should be no automatic right to appeal against deemed decisions (where the council fails to make a decision within the legislative time limit). In contrast, the developers submitted that the current deemed refusal period is adequate and any extension of timeframes would unnecessarily and unfairly delay the development process. It appeared from a number of submissions that clauses 48(6), 50(3), 53(4) and 53AA(1) of the Environmental Planning and Assessment Regulation, which (clause 53AA(1) excepted) ‘stop the clock’ between a request for information and its provision, are seldom used. Guidelines on information required to be submitted with a development application It was submitted that standard forms, and better availability of information, guidelines and flow charts would help to streamline the processing of development applications. Consultation process to precede submission of a development application? It was submitted that pre-lodgement discussion of development applications, with community involvement, might streamline the way in which development applications are processed by councils, save cost and time, and reduce the incidence of appeals. Development applications amended on appeal Many councils and some regional organisations of councils submitted that amendments to development applications should not be permitted prior to or during a hearing. If permitted, any significant changes to development applications must be returned to the consent authority for reconsideration in light of the amendments made, with costs awarded against the applicant for legal costs and for additional work. In contrast, a number of developers maintained that there needs to be a right to amend development applications prior to or during an appeal process. This is particularly the case when amendments have been made to development applications in order to respond to council and community objections. Consents granted subject to conditions It was submitted that local councils should be encouraged to facilitate the negotiation of conditions, prior to the determination of a development application. Furthermore, standard conditions imposed by councils should be publicised. Section 82A of the Environmental and Planning Assessment Act - review of determinations by councils themselves There was a general perception that section 82A is being under used, and amendments should be made to provide incentives for applicants and the council to use this section. It was submitted that consideration should be given to amending sections 82, 82A, 97 and 98 of the Environmental and Planning Assessment Act with a view to facilitating the review of determination of development applications by the councils themselves, with an option to refer the development application to an independent expert planner for reassessment prior to reviewing determination. This was thought to be a positive alternative to deemed refusals being appealed to Court. Flow of information from Court back to councils It was submitted that although a system of merits review should lead to improvements in the consistency, quality and accountability of decision-making, it was doubtful whether this is being achieved. Therefore, it was thought that there is a need to provide a mechanism by which councils are guided by the decisions made by the Court, perhaps by a process of education rather than by changing the legislation. It was also submitted that the Court should provide regular statistics, including on a trend basis over time, on the percentage of appeals upheld and dismissed by council area, the Judge or commissioner involved, a brief description of the type of case, etc. Education of Councillors and the community A number of submissions referred to the need to educate Councillors in their duties under the Environmental and Planning Assessment Act, planning issues, urban design issues, and the general development assessment process. There is a similar need for public education in relation to planning and development matters and the associated rights of individuals. Section 96 of the Environmental and Planning Assessment Act - modification of consents It was submitted that councils should be permitted to determine section 96 applications arising from appeals granted by the Court, for example, where both the local council and the applicant support the modifications. It was also suggested that too much time is spent on deciding whether an amending development application is really a new development application. This time could be saved if any change to an existing development application is considered to be a section 96 application given that sub-section 96(3) applies section 79C of the Environmental and Planning Assessment Act to amending development applications anyway. Public participation It was submitted that Community concerns about development applications would be reduced if there was greater community input earlier in the process of preparing plans and there could be an introduction of developer forums, in which problems that have arisen can be discussed by councils and applicants. Advertising of development applications Some submissions suggested the standardisation of advertising requirements throughout the State, or at least regionally, including: the identification of persons to be notified, the number of days and manner of advertising, the amount of information to be provided and the exhibition of the council report with the development application. General comments It was submitted that streamlining or reducing the time spent in processing development applications was undesirable as it undermines the residents’ rights, integrated and ecologically sustainable management of natural resources and the general quality of the decisions. Delegation by councils of the power to determine development applications A number of submissions endorsed the greater use of delegation to council staff to determine development applications, with DUAP monitoring the use of delegation. Monitoring of councils’ performance It was submitted that DUAP should monitor the performance of councils in relation to the determination of development applications and, if necessary, take steps to ensure that time limits are achieved, that enough staff are made available to achieve time limits and that appropriate standard procedures are in place. Furthermore, councils should be required to report to their ratepayers their “score card” of wins, losses and costs in the same way as developers do to their boards and banks. Integrated development In relation to development applications for integrated development, it was suggested that there may be benefits of giving DUAP the role of co-ordinating the responses of State Agency concurrence bodies and on receipt of information from those bodies, councils should have 40 working days to assess the application. (V) WHETHER GREATER RELIANCE COULD BE PLACED UPON ALTERNATIVE DISPUTE RESOLUTION MECHANISMS IN RESOLVING DISPUTES IN RELATION TO DEVELOPMENT APPLICATIONS General comments It was submitted that the principal impediment to the use of ADR mechanisms in relation to development applications has been the reluctance of local councils to delegate powers of negotiation and compromise. The use of ADR was strongly supported in many submissions. It was also submitted that greater use should be made of the Court’s Mediators’ Panel and consideration should be given to mandating mediation by the Court. Conversely, it was viewed that ADR may not be suitable where there is a strong divide between developers and community groups / environmentalists or where there are broad public interest implications. Also, it was stated that ADR is unnecessary given that Courts exist specifically to exercise jurisdiction in planning matters. How to encourage settlements There was a general endorsement for the early use of ADR to either settle the issues or narrow the matters of concern with incentives to encourage the use of ADR, such as relaxing procedural requirements and formalities in proceedings. It was also submitted that council representatives should have greater authority to settle at ADR. However, it was also suggested that the Department of Urban Affairs and Planning, Department of Local Government, the Local Government and Shires Association of NSW and the Court should research and develop further guidelines or Practice Directions relating to procedures incorporating the delegation of powers in dispute resolution. It was also submitted that there is a need for greater awareness campaigns for the use of ADR by making the Court’s mediation information more user friendly and adopting a scheme similar to that used by the Retail Tenancy Dispute Unit. Section 34 of the Land and Environment Court Act - preliminary conferences Section 34 conferences were considered to be an appropriate forum in which issues can be identified at an early stage of the proceedings. It was submitted that consideration should be given to making section 34 conferences compulsory with party representatives empowered to make decisions which bind them. Furthermore, it was recommended that the Court should play a more pro-active role in identifying proceedings that are suitable for preliminary conferences under section 34. Peer or independent review (see also ‘Use of experts’ under Term (i)) There was an overall support for the use of experts to resolve disputes on technical matters. The use of a panel of assessors with expertise appropriate to the issues in the case was also considered to be beneficial. The use of a panel would have the role of being an alternative procedure or as a preliminary hearing prior to a proceedings in the Court, with only matters of law reaching the Court for determination. Other suggestions included the adoption of the IHAP scheme used in Liverpool council, or the UK Planning Inspectorate model. Third party rights - public participation A number of submissions suggested that third party objectors should have the opportunity to be represented in ADR, but only if they had been granted separate standing by the Court. It was also suggested that clause 9 of the Practice Directions 1993 (the requirement that where the Court is being asked to make consent orders, consent authorities must demonstrate that all relevant persons have been notified of the proposed orders and that persons objecting to the proposed orders have been notified of their right to seek to be heard by the Court), should be given statutory force in the Land and Environment Court Act. Compulsory ADR? There were mixed views as to whether ADR should be made compulsory. On one hand it was thought that compulsory mediation would have the benefit of resolving disputes or at least, defining and limiting the issues in dispute. Conversely, it was submitted that compulsory mediation is a contradiction in terms. Conciliation only works where all the participants are willing to compromise and it is inappropriate for the Court to require parties to engage in mediation against their will. It was also submitted that greater use should be made of compulsory/voluntary section 34 conferences to identify issues prior to a Court proceeding or as a default procedure to mediation where the mediation fails. ADR to be undertaken by councils rather than the Court? There was support for the view that ADR mechanisms should be available prior to the council’s determination and not necessarily where there are disputes. This was thought to streamline the manner in which development applications are processed and enables effective community involvement. Should parties’ experts confer? It was thought that preliminary meetings between experts should be encouraged to minimise issues and reach agreement on facts. Issues conferences and preliminary conferences under section 34 of the Land and Environment Court Act and the new Expert Witness Practice Direction, which gives the Court power to direct parties and their expert witnesses to confer on a “without prejudice” basis, was apparently under utilised. Costs orders were thought to be appropriate where experts fail to meet as directed by the Court. |
|
|
|