Appeals to the Land and Environment Court

11 Oct Appeals to the Land and Environment Court

Under section 97(1) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) an applicant who is dissatisfied with the determination of a consent authority (usually the local Council) in relation to their development application may appeal to the Land and Environment Court within 12 months of:-

(a) the date on which the applicant received notice of the determination of that application, or
(b) the date on which that application is taken to have been determined under section 82(1) of the EP&A Act.

A consent authority that has not determined a development application within 40 days of the date the development application is lodged (except in the case of designated development or integrated development) is taken to have determined the application by refusing consent on the date on which the period expires.  For designated development or integrated development, the relevant period is 60 days.  Such a determination is known as a “deemed refusal”.

Similar provisions are contained in section 109K of the EP&A Act in relation to the failure or refusal to issue:-

• a construction certificate,
• a final occupation certificate, or
• a subdivision certificate.

It is important to note that nothing prevents a consent authority or council from determining an application for a development certificate, construction certificate, occupation certificate or subdivision certificate after the expiration of the relevant period prescribed by the Act for the commencement of an appeal.  Accordingly, the situation often arises that an appeal is instituted in the court as a consequence of the deemed refusal of a council to grant consent or issue a certificate, but notwithstanding this, the council continues its own assessment process.  Knowing this, developers often commence proceedings in the court with a view to attempting to have the council expedite its own assessment process.

Part 3 of the Land and Environment Court Act 1979 (“the Court Act”) invests the Land and Environment Court of NSW with jurisdiction to hear and dispose of prescribed matters.  The jurisdiction of the court is divided into various classes which may be summarised as follows:-

Class 1 – Environmental planning and protection appeals.
Class 2 – Local government and miscellaneous appeals and applications.
Class 3 – Land tenure, valuation, rating and compensation matters.
Class 4 – Environmental planning and protection and development contract civil enforcement.
Class 5 – Environmental planning and protection summary enforcement.
Class 6 – Appeals from convictions relating to environmental offences.
Class 7 – Other appeals relating to environmental offences.

Appeals from the decision of a council or other consent authority to refuse a development application or the deemed refusal of that authority to consent to a development application fall within class 1 of the court’s jurisdiction.

A class 1 appeal in relation to the refusal or deemed refusal of a development application will be heard before a commissioner of the court.  Commissioners come from a wide variety of backgrounds and are not required to have legal qualifications or training.  Proceedings before commissioners are less formal than before a judge of the court.  The rules of evidence do not apply, barristers do not wear wigs and gowns and the parties remain seated while addressing the court.

Under section 63 of the Court Act a person entitled to appear before the court may appear in person, by a barrister or solicitor or by an agent.  As a result, leave is not required for legally unqualified agents to appear before the court, a provision which is highly unusual and which has no equivalent form in the Federal Court Act, the Supreme Court Act or the District Court Act.

Class 1 appeals are usually heard and determined by the court within six months of the proceedings being instituted.

Prior to 2 February 2004 the practice of the court was to award costs in Class 1 appeals only where there were exceptional circumstances.  From that date as a consequence of amendments to the Land and Environment Court Rules, no order for the payment of costs will be made in such proceedings “unless the Court considers that the making of a costs order is, in the circumstances of the particular case, fair and reasonable”.

The new rules in relation to costs in Class 1 appeals was recently tested in CSA Architects Pty Ltd v Woollahra Municipal Council (No 2) [2004] NSWLEC 234.  Commissioner Brown in that case declined to make an order for costs in favour of a successful applicant.  The applicant submitted that it should be entitled to an order for costs on a number of grounds, including that:-

• the applicant had succeeded in the appeal;
• the respondent council had called no expert or lay evidence in relation to certain issues which it had raised in the proceedings; and
• the issues raised by council in the proceedings “ignored the reality of the situation in that the development application was only for alterations and additions”.

Although the court ultimately found in favour of the applicant on the merits, the application for an order for costs was dismissed by Commissioner Brown because he was “not convinced that the proposed development was not so lacking in merit as would justify an order for costs”.

For further information, please contact Ian Smith