Australia: New Rules For Class One Proceedings In The Land And Environment Court

Last Updated: 16 January 2004

By John Taberner and Cristy Clark


The Chief Judge of the Land and Environment Court, Justice Peter McClellan, has announced a number of changes to court procedure in relation to Class One matters. The measures are all designed to ensure an efficient decision-making process, and relate primarily to case management, expert evidence, cross-examination and costs orders.

Case management

Under the new rules, provision will be made for the case management of complex Class One proceedings. Parties will be required to inform the registrar on the first return date or as soon thereafter as appropriate whether the matter is suitable for case management, and the Court will also have the power to refer the matter for case management even if the parties do not agree. The primary object of case management is to identify the real issues in dispute and lay out a blue print for the hearing which ensures that those issues are resolved as efficiently as possible.

On site presentations

The new process will require every Class One matter to commence with a view on site at 9.30 am on the first day fixed for the hearing unless otherwise directed. Those cases which commence on site will be conducted by a Commissioner who has had an opportunity to read the material filed. Objectors will be encouraged to be present and to put their point of view in an informal manner on site.

Expert evidence

Under the new rules, parties will be encouraged to agree on an expert and will share the costs associated with the expert evidence. However, if the parties cannot agree, the Court has the power to appoint an expert for the proceedings, and will do so for matters such as noise, traffic, parking, overshadowing, engineering, hydrology and contamination issues.

Experts' reports

To avoid excessive repetition in evidence submitted to the Court, the new rules will require councils to file a statement of basic facts, which will include a description of the development, identification of the zoning, the locality, relevant planning instruments and development control plans, and other material fundamental to the matter. The other party will then be allowed to file a document indicating where disagreement exists. Thereafter the statement of basic facts will be accepted by the Court as correct and the decision will be based upon it unless the other party demonstrates there is an error. The material in the statement of basic facts must be accepted by all experts and their reports must not repeat the material in the statement of basic facts.


A new rule in relation to costs for Class One proceedings will replace the old rule which makes an order for costs dependant on 'exceptional circumstances'. Instead, the test will be based on whether 'the making of a costs order is, in the circumstances of the particular case, fair and reasonable'.


Due to the 'universal view' among lawyers that cross-examination is often excessive and in many cases unnecessary, the new procedures will encourage commissioners to confine cross-examination to matters where they are persuaded that cross-examination will do other than advance the contradictory opinion which is already contained in an expert's report.

South Creek green offsets pilot

The New South Wales Government issued a concept paper for discussion in April 2002 entitled Green Offsets for Sustainable Development. The paper outlines the government's policy on green offsets—a new approach which promises to promote development in a way that protects the environment. The first green offsets pilot was launched on 14 August 2003 by Environment Minister Bob Debus.

The Environment Minister stated at the launch that if this pilot was successful it 'could revolutionise the way business is regulated'. He also said that:

'This innovative approach has the potential to change the way we think about development and has applications in every setting, including reducing air pollution and salinity, protecting biodiversity and enabling sustainable housing and development. Green offsets is about partnering development with environmental protection. Basically if a new development increases pollution in an area, the developer takes action to cut other sources of that type of pollution nearby.'

The New South Wales Environment Protection Authority (EPA) will manage the two-year project, under which, if a new development increases pollution in an area, the developer will take action to cut other sources of that type of pollution nearby.

Sydney Water and Landcom have volunteered to participate in the pilot and have contributed $100,000 and $50,000 respectively to assist the initiation of the program. As part of their participation, Sydney Water, which runs three local South Creek sewerage plants, and Landcom, which has earmarked local land for development, are paying for work on farms and market gardens to reduce pollution in the creek.

As part of the scheme, market gardeners and some urban areas will have offsets installed free of charge, in return for a commitment to better environmental management. The offsets will reduce nutrient run-off and include:

  • storing and recycling run-off from local market gardens
  • planting vegetative 'filter strips' on the creek banks (some plants can naturally remove nutrients from run-off before it reaches the creek)
  • changing the way fertilisers are used on farms and gardens, and
  • revegetating and stabilising riverbanks.

The EPA will closely monitor the results and the effectiveness of the green offsets framework, with a view to extending the green offsets throughout New South Wales.

Greenhouse initiatives in New South Wales

On Thursday, 20 November 2003, Premier Bob Carr called for the Federal Government to ratify the Kyoto Protocol and announced several new New South Wales Government initiatives on greenhouse gas reduction during his speech at the Total Environment Centre 'In Control of Carbon' Breakfast.

These initiatives included the establishment of BASIX, a new Department of Energy, Utilities and Sustainability and a new New South Wales Greenhouse Office, reporting directly to the Premier. Premier Carr also announced that New South Wales will be pushing for the establishment of a nation emissions trading scheme. These initiatives are designed to position New South Wales and Australia to take advantage of the opportunities that Kyoto will open up, such as:

  • access to low cost greenhouse abatement through international emissions trading
  • investment potential for Australian firms in developing countries through the Kyoto Protocol's Clean Development Mechanism, and
  • new investment in Australia, particularly for carbon credits generated by the establishment of new forest plantations.

However, Premier Carr concluded that if Australia still fails to ratify Kyoto, Australia will suffer tough economic penalties, including lost opportunities in carbon credit trading. In support of this argument Premier Carr listed several examples of current situations where Australia's failure to ratify Kyoto was going to cost us economically. These examples included:

  • Japan, which currently accounts for around 46 per cent of Australia's coal exports and has announced a new carbon tax from 2005 on coal, oil and gas imports. In addition, Japanese coal buyers are beginning to request that Kyoto-compatible credits be 'stapled' to imports of coal, to offset the greenhouse gases emitted by burning coal in Japan.
  • The EU has announced that non-ratifying parties will be barred from participation in the EU's internal emissions trading system.
  • Firms based solely in Australia will not have access to credits under the Protocol's formal trading regime.
  • Kyoto parties will be able to establish domestic regulations to restrict the flow of credits to non-parties and secondary markets as part of the requirement to register movements in credits.
  • Although carbon credits will be available through secondary markets, international purchasers may be unwilling to purchase Australian credits to meet their domestic obligations because credits from Kyoto Protocol parties should be readily available.

Premier Carr concluded that we not only risk losing trade, but we also lose investment in carbon credits such as clean power or forestry plantations. Therefore, despite the Federal Government's failure to act, the New South Wales Government was implementing a number of new initiatives aimed at reducing greenhouse gas emissions in the State.

Building sustainability index

Premier Carr reiterated the government's announcement that it will require all new residential developments in New South Wales to meet tough new energy and water efficiency targets embodied in the building sustainability index (BASIX). From 1 July 2004, all new homes and units will be required to achieve:

  • a 40 per cent reduction in water consumption, and
  • a 25 per cent reduction in greenhouse gas emissions, rising to 40 per cent from July 2006.

The Government predicts that BASIX is estimated to save 182 billion litres of water and 8.3 million tonnes of greenhouse emissions over 10 years.

A new Department of Energy, Utilities and Sustainability

A new Department of Energy, Utilities and Sustainability will be established to incorporate SEDA's specialists in demand management, energy efficiency and renewables into the existing Department of Energy and Utilities. The expanded department will work closely with the new New South Wales Greenhouse Office and agencies such as the Department of Infrastructure Planning and Natural Resources and the Department of Environment and Conservation to ensure cross-government coordination.

New South Wales Greenhouse Office

Premier Carr announced that a New South Wales Greenhouse Office will be established early in 2004 to lead the development and review of greenhouse policy across government. One of its first tasks will be to develop a New South Wales greenhouse strategy within the first 12 months of its operation. The New South Wales Greenhouse Office will be supported by an independent greenhouse panel to advise the office on broad policy and program directions.

New Greenhouse Innovation Fund

A key responsibility of the New South Wales Greenhouse Office will be to administer a new Greenhouse Innovation Fund (Fund) to support innovative research and technologies particularly in areas outside the energy sector such as waste, industrial processes, transport, forestry and land use. The Fund will be supported by an allocation of $6 million a year.

New taskforce on energy demand management fund

A further priority for the New South Wales Greenhouse Office will be establishing a taskforce on an energy demand management fund. The Independent Pricing and Regulatory Tribunal recommended the fund as part of the solution to an increasing demand for electricity which is putting the system under strain during the summer. The fund is also going to promote measures to ensure serious State-wide reductions in energy demand.

National emissions trading scheme

Premier Carr also announced that New South Wales will, in partnership with the other States and Territories, make a decisive push for a national emissions trading scheme based on the successful benchmark scheme also underway in New South Wales. Premier Carr stated that a national emissions trading scheme would have a range of benefits, including:

  • emission reduction targets could be applied across a number of sectors such as waste management, manufacturing, forestry and farming, as well as energy
  • it could provide an 'opt-in' provision for large energy users to develop their own benchmarks, with provision for banking, borrowing and trading of carbon credits
  • the government would be confined to a regulatory and oversight role, leaving the maximum possible scope for the private sector to design and run a carbon credit system
  • targets could be set initially at a modest level that still manages to set a national price signal for greenhouse emissions
  • the costs of not meeting targets could be set to ensure that abatement is always a cheaper option, giving a 'ceiling price' to carbon credits, and
  • carbon credits under an Australian national emissions trading scheme could be eligible to be traded internationally.

This article provides a summary only of the subject matter covered, without the assumption of a duty of care by Freehills or Freehills Carter Smith Beadle. The summary is not intended to be nor should it be relied upon as a substitute for legal or other professional advice.

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