27 March 2017 Amended Land and Environment Court Practices

By Colin McFadzean, Special Counsel


The Chief Judge of the Land and Environment Court has issued new practice directions for policies aimed at streamlining merit appeals.

Multiple adjournments of conciliation conferences with parties slowly meandering in an effort to reach agreement will no longer be permitted. If applicants wish to rely on amended plans at a conciliation, they will need to provide them to Council 14 days before the conciliation date, with Council then providing a response and draft conditions 7 days before the conciliation. Short adjournments of no more than 3 weeks will be allowed to give effect to an in principle agreement. Failing that, conciliations will be terminated with the proceedings promptly listed for hearing.

The need for conciliating parties to have power to enter agreements will be strengthened under directions to be made for the carriage of proceedings. Also, the Court has flagged a tougher approach to timetable breaches, including late running expert reports.

The changes take effect from 27 March 2017.

The Chief Judge of the Land and Environment Court has revised and updated practice notes and policies concerning:

  • class 1 development appeals (development applications and s96 modifications);

  • class 1, 2 and 3 miscellaneous appeals (orders, building certificates and a variety of less frequent road, swimming pool, heritage, environmental and vegetation type appeals); and

  • section 34 conciliation conferences.

The changes take effect from Monday 27 March 2017. The intent of the changes relates to streamlining Court processes.

Conciliation Conference Policy Changes

Applicants who intend to provide amended plans or additional information for the Council's consideration are to do so 14 days before the conciliation conference.

Councils are to provide a response to the amended plans / additional information and draft conditions by 7 days before the conciliation conference.

Conciliations will only be adjourned if the Commissioner is satisfied that there is good reason to do so. Usually, an adjournment will only be granted if the parties have realised an agreement in principle and where a short period of no more than 3 weeks is required for plans and conditions to be prepared to finalise the agreement. This aspect of the policy formalises an approach to conciliation conferences adopted by the Court since late 2016.

Development Appeals

Parties will be required to nominate the identity of experts when seeking directions to list the matter for a contested hearing. The Court's directions will list the experts to give evidence and whether they are to prepare individual or joint reports. No other experts may give evidence unless the Court makes additional directions allowing such.

As now, the first directions hearing will be set 28 days after the appeal is filed.  Conciliation conferences will be set within 28 days of the first directions hearing subject to the availability of the Court. We note that based upon the Court's present workload, conciliation conferences are presently being set some 80-90 days after the first directions hearing. New streamlined processes should assist reducing that lag time.

Usual directions made in relation to conciliation conferences will require the parties to have authority (or ready means of obtaining authority) to reach an agreement. Usual directions will also be made for the provision of information, responses and draft conditions as detailed above in the Conciliation Conference Policy changes.

The practice note establishes a tougher approach to breaching timetable requirements including but not limited to the filing of expert reports. Failing a timetable variation being made by the Online Court, a defaulting party that cannot rectify a breach within 2 days of the due date must relist the matter before the Court and provide an affidavit explaining the non compliance. Costs orders for a breach may be ordered.

Miscellaneous Appeals

The Court's earlier version of the practice note for miscellaneous appeals was silent as to which party should prepare the Statement of Facts and Contentions and when it should be prepared. The new version makes clear that the applicant is to prepare the statement, other than for proceedings concerning orders under the Environmental Planning and Assessment Act 1979 and Part 3A projects, in which case the respondent is to prepare the statement. The Statement must be filed 3 working days before the directions hearing.

Changes made to the Development Appeals practice note concerning conciliation conferences, expert evidence and timetable breaches have been similarly incorporated into the Miscellaneous Appeals practice note.

More Information?

Copies of the practice notes and policy are available on the Court's website. If you would like to discuss any aspect of the new procedures including how it might affect current projects or appeal proceedings you are involved with, please contact Colin McFadzean. 

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This article is not legal advice and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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