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Consistency of Planning Decisions

Most people are aware that development consent is usually required to be obtained from the local council if they wish to carry out building work on their property. There are some exemptions to this requirement. Exempt development is development that may be carried out without development consent and is usually restricted to minor building works such as fencing, barbecues, letter-boxes and the like.

Where development is more complex or involves more substantial building work, it is necessary to make application for development consent. The consent authority is usually the local council. If a development application has been lodged with a council and has either been refused or not determined, an applicant has a right to appeal to the Land and Environment Court. Generally, that right of appeal must be pursued within 12 months after the date on which the applicant receives notice of refusal of the application or the date on which the application is deemed to have been determined.

An appeal against the refusal or deemed refusal of a development application will be heard before a Commissioner of the Land and Environment Court. Commissioners come from a wide variety of backgrounds but are often town planners or architects. Commissioners are not required to have legal qualifications or training although many do. There are presently ten Commissioners of the Court.

From time to time decisions of the Commissioners in what are known as merit appeals are criticised, usually by poorly informed commentators. As a result of this often unfounded criticism, the current Chief Judge of the Court, Justice Peter McClellan, introduced a number of changes. Commencing in about September 2003, the Court has published decisions of Commissioners in merit appeals on the internet.

The Chief Judge stated in September 2003 that as many of the Commissioners' decisions concerned development proposals which are matters of debate within a local community, there should be much more open access to the full terms of the judgments so that people can appreciate the principles which are being considered and applied by the Court.

As a further means of identifying the principles upon which decisions are often reached by the Court, planning principles are now also published on the Court's website.

In a seminar delivered in February 2005, Dr John Roseth, the Court's Senior Commissioner, pointed out that all Commissioners initiate planning principles as they come across issues that, in their opinion, have general application. As a planning principle published in a judgment obliges Commissioners dealing with similar issues to at least consider an earlier established principle, the Senior Commissioner pointed out that the Commissioners' practice is to circulate a principle in draft form and invite other Commissioners to comment, amend, delete or add to the draft version. As a consequence, by the time the principle finds its way into a judgment, it is more likely that the principle has been arrived at following a consensus approach.

Judgments containing planning principles in relation to a number of issues have been published on a range of issues including:-

  • heritage impact;
  • privacy;
  • reliance on landscaping;
  • small or narrow sites; and
  • the assessment of view impact.

If you are having problems with your local council either as a developer or as an objector, you should consider contacting us to assist you determine whether the application of the Court's planning principles may assist in a resolution of the dispute.

For further information, please contact Ian Smith.

Ian Smith

This publication is intended only to provide a summary of the subject matter covered. It does not purport to be comprehensive or to render legal advice. The publication reflects the law at the date the publication was written which may differ at the date the publication is being read. No reader should act on the basis of any matter contained in this publication without first obtaining specific professional advice.
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