Land and Environment Court Working Party


Executive Summary

The Working Party was established to review the way development applications are dealt with by the Land and Environment Court, and to examine the scope for the greater use of alternative dispute resolution. It was concerned with decisions made by councils pursuant to Part 4 of the Environmental Planning and Assessment Act 1979. It assumed the continuing operation of Part 3 of the legislation and examined processes by which applications for developments were assessed and decisions made, commencing with pre-lodgement discussions and concluding with a decision of the Court.

The Working Party viewed some recommendations as more significant than others. The purpose of this executive summary is to identify the more significant recommendations and to ensure their importance is not diminished by reason of their place in the list of recommendations.

Merits Review

The threshold issue the Working Party needed to address, and the issue which attracted most comment during the course of the review, was whether the Land and Environment Court should continue to conduct full merit planning appeals. Some submitted that full merits reviews should be abolished. Others submitted that merit reviews should be restricted. Most submissions directed to this matter were that the present system of merits review should continue. Some submitted that merit appeals, whether de novo (as at present) or restricted, should be determined by a tribunal and not a court.

For reasons which are explained in the body of the report, the Working Party recommended a continuation of full merits appeals and that they continue to be heard by the Land and Environment Court.

Alternative Dispute Resolution

The Working Party was of the opinion that greater use should be made of alternative dispute resolution (ADR) for the settling of development disputes and that the mechanism should be considered at every stage of the development application and review process. The term ADR encompasses a wide range of mechanisms, including mediation. The Working Party was of the opinion that even where ADR does not prevent a matter being litigated, it may serve to reduce the number of issues in dispute, and therefore the time required for hearing and the costs of both parties. Specifically, the Report recommends that Councils should consider establishing Independent Hearing and Assessment Panels, modelled on those of Fairfield and Liverpool City Councils, to provide a forum in which objectors and applicants may be heard in person, development applications may be independently assessed, and recommendations made as to how they should be determined.


Changes to Court Procedures

Less than 1% of development applications are determined by the Land and Environment Court, and these are generally dealt with in a timely way. However, it is still an expensive exercise to litigate a matter in the Court, and may cost parties tens of thousands of dollars. As parties normally bear their own costs, legal costs can seem prohibitive, especially for small, non-commercial developers, such as home owners.

Notwithstanding the Working Party’s recommendations that the present system be retained, it was concerned that appeals to the Land and Environment Court were too costly. It must be remembered that although some people speak of developers in a pejorative sense, the term applies to anyone who needs permission to carry out activities on his or her land. A large number of applications lodged with councils and later the subject of an appeal to the Land and Environment Court are for building additions to houses and small businesses and/or the use of land for small commercial ventures. A significant number of applications heard in the Land and Environment Court extend over a period of 2 days. Although the information given to the Working Party varied, it took the view that the average cost of a 2 day hearing (including lawyers and experts) was between $20 000 and $25 000 for each party. The Working Party was of the opinion that the costs were excessive. As mentioned above, it recommends that ADR should be used more frequently. Further, it makes recommendations which, if implemented, would result in a reduction of costs without prejudicing the rights of any party. In particular, it recommends:

• Minor matters (that is, where the value of the development is less than half the medium house price in the local government area, and the development raises no general pubic interest concerns) should be dealt with by way of compulsory conferences with the presiding commissioner having the power to make a binding decision.
• Conferences for minor matters should generally be held on site, rather than in the Court, and should be conducted by a Commissioner with no cross examination and minimal formality. Appeals from compulsory conferences should be limited to questions of law.
• Subject to resources and it otherwise being appropriate, major matters should be dealt with by way of formal hearings before a panel comprising commissioners or a judge and commissioners. However, it recommends that cross examination be restricted.
• The formality of proceedings should be reduced and matters should be dealt with in a less adversarial manner
• Applicants should not, generally speaking, be permitted to rely on amended plans of development proposals unless the council has had a reasonable opportunity to consider the amended plans.

• Section 82A of the Environmental Planning and Assessment Act 1979 should be amended to allow councils to review their decisions in relation to development applications (granting consent and/or attaching conditions to a consent) for up to a year. At the moment, a 28-day time limit applies, and this forces applicants who have new information which could satisfy a council’s concerns, to either submit a fresh application or seek consent orders from the Court.
• Section 96 of the Environmental Planning and Assessment Act 1979 should be amended to give councils the power to modify development consents granted by the Court, subject to some safeguards. This should ensure that matters are not returned to the Court for determination without good reason.
• The importance of heritage and urban design should be reflected in an amendment to section 12 of the Land and Environment Court Act 1979.