The Computer Says NO! – Going to the Land and Environment Court

A class 1 merit appeal is not an exercise in the Court reviewing Council’s assessment and/or determination. An appeal is a ‘de novo’ (as new) application to the Court as the ‘consent authority’ for the development application.

That appeal must be commenced within 6 months of an actual determination (refusal) by Council. There is no extension to that time limit available.

There is a similar “deemed refusal’ period, in circumstances where no determination has been made to date i.e. an application is still under assessment by Council (note: the “deemed refusal’ period is a little more technical and advice from a planning lawyer should be sought early in the assessment process if that is a potential option).

On some occasions, you can absolutely get the ‘vibe’ from Council at the outset that they will never approve your proposal – so filing an appeal with the Court might be the most expedient course ,thereby avoiding the local politics, unnecessary delay, obfuscation or outright decision paralysis. Once again – you need legal advice about that timing, because there are some additional considerations about getting amended plans and other documents in place before pulling that appeal trigger.

Although based in Macquarie Street (Sydney), the Court does sit in available local courthouses all over the State. It is a statutory Court that exists at the same level in the judicial hierarchy as the NSW Supreme Court.

The Court has a two-pathway approach for class 1 merit appeals:

• if the development application is for a single residential dwelling or dual occupancy – whether a new build or alterations and additions (assuming it is not otherwise a complying development) – then it commences in the fast-tracked ‘residential appeals’ stream;
• for all other types of development requiring development consent – the process always starts with a separate section 34 mediation conference.

Once an appeal is filed, the Respondent (Council) files a Statement of Facts and Contentions, the Applicant files a reply and the matter is set down for a section 34 mediation conference that will commence on-site before a Commissioner of the Court. The Commissioners are specialist planners, architects, engineers, ecologists, lawyers etc and in this phase are trained mediators (not adjudicators). They are there to encourage the parties towards an agreement. The parties’ respective experts are all expected to attend (or at least be contactable) for the section 34 conference. The mediation is quite informal and usually starts with an opportunity for any objectors to address the Court with their collective concerns. Then a site-view followed by confidential discussions between the parties. If no in-principle agreement can be reached to resolve the contentions identified by Council (and the objectors), the mediation is terminated and the parties proceed to a formal hearing.

Despite this, the parties may continue to work cooperatively, and the matter can be relisted for a mediation at any time. That requires the parties to reduce the agreement to writing and file with the Court with some other documents (amended plans and DA documents, conditions, jurisdictional statement). The Court welcomes a resolution by this process. The Court will vacate the allocated hearing dates and relist the matter before an available Commissioner (this can be done in person or via AVL). The Court still has to be satisfied about the jurisdiction points and that it has all of the information (plans and documents) before it to make the decision that the parties are seeking by consent– but that is a very quick process by comparison to running a contested hearing – and much more cost effective for all parties.

The usual cost rule in class 1 proceedings is that each party bears its own costs. So, absent some extraordinary or special circumstance, there are no adverse cost orders to be concerned about. This was a clear policy position taken by the NSW Government when the Court was established in the late 1970s.

If mediation fails, the matter proceeds to a formal hearing, which usually begins again with a site view then back to either a nearby local court or the Land and Environment Court in Sydney for the remainder of the hearing.

Expert evidence is ordinarily dealt with by way of a Joint Expert Report for each respective discipline (planning, ecology, traffic, bushfire, noise etc). The hearing opens with tender of documents, opening submissions by each party, followed by cross-examination of the expert witnesses. Those witnesses (for each discipline) are sworn or affirmed into the witness box together – in a process colloquially referred to a “hot-tubbing”. The hearings are usually held before a single commissioner – or on occasion two commissioners (each with different relevant professional experience). Rarely again, sometimes before a Judge of the Court with the assistance of a Commissioner. After expert evidence is given, there are closing submissions and judgment is generally reserved to be handed down at a later date – usually no more than about 6 weeks.

In the fast-tracked “residential appeal’ stream – the matter commences on-site as a mediation phase – but if no agreement is reached quickly it moves “immediately” to a Court room for a formal hearing (as that part must be audio-recorded). It is colloquially referred to as the “Sudden Death” pathway. While it is intended to fast-track the matter and avoid a delay between a mediation phase and the hearing phase for what is considered to be a simple residential matters, it does require preparing to run a hearing in any event and that has cost consequences.

In our experience a high proportion of matters resolve through mediation, so it can be a missed opportunity to control costs. One common strategy to try to avoid that outcome, is to encourage without prejudice discussions between the parties before commencing the mediation.

Regardless, it is generally preferable to mediate and control the outcome, rather than run the risk of litigation with its inherent uncertainty.

For those of you – experts and developers – who have no experience of the Land and Environment Court, it can offer a more ordered and independent pathway to seek a development consent.

This article is not legal advice.  It is intended to provide commentary and general information only.  Access to this article does not entitle you to rely on it as legal advice.  You should obtain formal legal advice specific to your own situation.  Please contact us if you require advice on matters covered by this article.