Merit Appeals in the Land and Environment Court


Litigation should never be a first option – but sometimes there is just no other way forward – when the Council just doesn’t seem to what to progress that development application (or modification application) with any degree of haste, or they just don’t like it and have refused the application.

In a class 1 merit appeal the Court becomes the consent authority and ‘stands in the shoes of Council’ and assesses the matter as new. In a merit appeal each party bears its own costs so there is no liability to pay Council’s costs on top of your own legal costs if ultimately the appeal is unsuccessful.

There are time limits for when you can file an appeal against an ‘actual refusal’ or a ‘deemed refusal’. So - get advice early.

When you commence proceedings in the Land and Environment Court, the matter will be listed for its first mention to get a date for the Court mediation conference (referred to as a section 34 conference). The Council will file a Statement of Facts and Contentions before that mediation conference setting out the factual background to the application and the Council’s contentions (or issues) with the proposed development – urban planning issues, non-compliance with development controls (height, setbacks, floor space ratio etc), traffic, noise, visual and/or acoustic privacy, waste removal, architectural form, heritage, stormwater etc.

The mediation is conducted by a Commissioner of the Court, whereby the Commissioner (as a trained mediator) will see if the contentions raised by Council can be resolved (or a least narrowed). Often ‘without prejudice’ amended plans are prepared for mediation conference – being amendments addressing the contentions raised by Council. If the parties reach an ‘in-principle’ agreement at the mediation, then the Court has the power to grant development consent or approve a modification application.

If the parties do not agree at the mediation, then the mediation is formally terminated and the matter proceeds to a formal hearing. That said, the parties can continue to negotiate an agreement and the Court is more than happy to relist the matter and resolve as a section 34 agreement.

At SWS Lawyers our property and planning team have an excellent record in resolving class 1 merit appeals at the mediation phase. We provide a client with fixed fee pricing up to and including the mediation phase, then we can provide a separate fixed pricing to the hearing if that is required (once we know what issues remain in contest after the mediation phase). This gives our clients certainty on the cost front. Call our expert Property & Planning Team to advise you further.