Australia: The Planning and Environment Court

A Consumer's Guide

We have produced this guide to summarise briefly the manner in which the Planning and Environment Court operates. It is not meant to take the place of specific advice in relation to any particular matter, but to provide background as to the role of the Court, how it works and the procedural steps which most cases follow.

Role of the court

The appeal is a hearing anew - the Court's role is not to decide whether the original decision of the local government was right or wrong, but rather to approach the development application afresh.

A consequence of this is that the parties are not restricted in a hearing to the matters put before the local government during the development application process - the applicant can advance new arguments, the submitters can also do so, and the local government (if it refused the application) is not limited to its reasons for refusal.

The Court is commonly regarded as a 'court of experts'. Evidence is usually of a technical nature, principally in the areas of town planning, environment and engineering. It is important that we engage experts who are well regarded in their fields and experienced in giving evidence. In most appeals, rather than emotive issues, the technical and intellectual integrity of the expert evidence is decisive.

In general, it is not the function of the Court to determine whether the subject site is the best site for the proposed use, or to enquire as to whether there are better sites available. The Court's role is to determine whether approval should be given for the proposed use of a particular site.

The general rule is that the person who made the development application to the local government has the onus of proof, i.e. the obligation to persuade the Court of the merits of the proposal. This is so even where the applicant is a respondent to a submitter appeal.

When deciding appeals, the Court has power to impose or vary any of the conditions attaching to an approval.

Changing conditions during the applicant's appeal period

Where the applicant wishes to dispute conditions attached to a development approval, the applicant may make representations to the local government about the conditions during the appeal period of 20 business days. Representations may take the form of proposed conditions to be attached to the applicant's development approval.

If more time is needed by the applicant to make the representations, the applicant may give a notice suspending the appeal period for a further 20 business days.

The local government may either accept or refuse the representations made by the applicant, at which time the balance of the applicant's appeal period will restart.

Institution of appeal

An appeal against a local government's approval or refusal of a development application, or against conditions attaching to an approval, may be instituted by an applicant or a submitter.

An appeal by an applicant must be instituted within 20 business days after the day the decision notice or negotiated decision notice is given to the applicant. In the case of a deemed refusal, an appeal may be started at any time after the last day a decision on the development application should have been made.

An appeal by a submitter must be started within 20 business days after the day the decision notice or negotiated decision notice is given to the submitter.

Our normal practice is to obtain a preliminary town planning report to assist us to draft the grounds of appeal. This report should be commissioned as soon as possible.

For appeals about development applications and approvals, once the appeal has been instituted by filing a Notice of Appeal with the Court registry, the following parties must be served with a copy of the Notice of Appeal within the time frame indicated:

• if we are acting for an applicant - the Chief Executive administering the Sustainable Planning Act 2009, the local government, any concurrence agency, any principal submitter who has not withdrawn their submission and any advice agency treated as a submitter – within 10 business days of filing in the Planning and Environment Court, or
• if we are acting for a submitter or an advice agency whose response is treated as a submission for an appeal – the Chief Executive administering the Sustainable Planning Act 2009, the local government, the applicant and any referral agency – within 2 business days of filing in the Planning and Environment Court.

The entity responsible for the decision or the conditions on appeal will also be responsible for defending that decision or conditions in the appeal. If the decision being appealed is that of the local government, then the local government is automatically a respondent for the appeal. However, if the appeal only concerns a concurrence agency response, the local government may apply to the Planning and Environment Court to withdraw from the appeal.

If the appeal is started by a submitter, the applicant is automatically a co-respondent to the appeal.

A submitter is entitled to elect to become a co-respondent to an applicant's appeal by lodging a Notice of Election in the Court, within 10 business days after the day the Notice of Appeal is given to it.

Towards a hearing - application for an order or directions

Any party may make an application to the Court for an order or directions as to how the appeal is to proceed.

The application may be for one or more of the following:

• a declaration that the court is satisfied that the public notification of the development application and service of the Notice of Appeal were correctly carried out
• an order about a preliminary point that may wholly or substantially determine the proceeding
• directions about a procedural matter not provided for in the rules of the Court or under the Sustainable Planning Act 2009
• an application for directions about the conduct of the proceeding including one or more of the following:
• • the grounds of the dispute
  • disclosure by list of documents and inspection of documents
  • joint expert meetings
  • exchanging statements of evidence / expert reports
  • alternative dispute resolution (ADR) conferences
  • a hearing date
  • a pre-hearing review by the Court.

In setting hearing dates, it is the practice of the Court to allocate the case to a particular month for hearing – in the month preceding that month a call-over will be held to determine the exact dates on which the case will be heard. It is quite common for cases to settle between the callover and the hearing.

It is important to be careful in determining the issues – if an issue is raised by a party who calls no evidence on it, an order for costs may be made against that party.

Particulars

The order made at the directions hearing often allows for one party to request further and better particulars of any appropriate matter. This facility is often used to obtain further details of the grounds of refusal of an application from a local government, but it can also be used to obtain further information about any grounds of appeal.

Discovery

Following the directions hearing, parties are required to disclose all documents relating to the issues in the appeal. This allows access to the local government's file to investigate the background to the local government's decision. It also allows for inspection of the applicant's or submitter's files to establish the basis for the application or submission.

All documents relevant to the case must be disclosed, whether they are favourable to a party's position or not, and whether or not they are 'confidential'. The only documents which need not be disclosed are correspondence between a party and its solicitor, or documents which have been created (e.g. expert reports) for the purposes of the appeal. Any consultants' reports prepared in support of the original application must be disclosed.

With the Court's approval, it is possible to inspect documents in the possession of someone not a party to the appeal e.g. a government department or statutory body.

Experts

Depending upon the nature of the proceeding a party to an appeal or application may require expert evidence in a range of different fields including (but not limited to) town planning, traffic, noise, amenity, economic need and engineering. Each party may call an expert consultant to give evidence in each field of expertise for the proceeding.

Other than with the Court's leave, each party to the appeal may call evidence from only one expert witness for each subject of expertise to be dealt with in the hearing.

An expert's primary obligation is to the Court. An expert is independent from the party who engaged them and an expert must not accept instructions to adopt or reject a particular opinion in relation to an issue in dispute in the proceeding.

As mentioned above, the order made at the directions hearing will generally provide for the steps relating to giving of expert evidence as required under the Planning and Environment Court Rules 2010 (the Rules).

These steps generally include:

• Notification of experts – this involves each party notifying the name and field of expertise of each expert they have engaged to give evidence in the proceeding.
• Meeting of experts – this is a meeting at which each parties' experts, in each area of expertise, discuss and attempt to reach agreement about the experts' evidence in relation to an issue in dispute as it relates to their area of expertise and to prepare a joint report which records the experts' areas of agreement and disagreement about the relevant issues in dispute (Joint Report). The Meeting of Experts and preparation of the Joint Report takes place independently of the parties and their legal team.
• Statements of evidence – following the meeting of experts each expert must prepare a written statement of evidence. The written statement of evidence includes the Joint Report prepared at the meeting of experts and a further statement of evidence in relation to any issue of disagreement recorded in the Joint Report (Expert Report). This step requires the parties to serve on each other the individual Expert Reports.

The Expert Report must not, without the court's leave:

• contradict, depart from or qualify an opinion in relation to an issue the subject of an agreement in the Joint Report, or
• raise a new matter not already mentioned in the Joint Report.

If directed by the Court or requested by the parties, an ADR Registrar may convene and chair a meeting of experts for the proceeding. This can be an effective process if the experts cannot agree on any or limited areas of evidence.

Alternative Dispute Resolution

The directions order will also generally provide an opportunity for the parties to participate in an ADR process. The most commonly used ADR processes in the Planning and Environment Court are:

• an 'unsupervised' without prejudice meeting between the parties
• a mediation conducted by the Planning and Environment ADR Registrar (the Registrar).

The Planning and Environment Court provides the services of the Registrar free of charge.

While generally a directions order will provide for one to two ADR processes, there is no limit on the number of without prejudice meetings or mediations the parties participate in.

ADR can occur at any time during the appeal process, however, depending upon the nature of the proceeding it is often useful to have one ADR process after discovery and the second ADR process after the meetings of experts but before the exchange of Expert Reports.

Experts do not have to be involved in the ADR process, however, it is often useful to have experts involved, particularly leading towards hearing.

Costs

Costs in planning appeals are at the discretion of the Court. The matters the Court can have regard to in making an order for costs include the following:

• the relative success of the parties in the proceeding
• the commercial interests of the parties in the proceeding
• whether a party commenced or participated in the proceeding for an improper purpose
• whether a party commenced or participated in the proceeding without reasonable prospects of success
• if the development application has been changed during the appeal process, the circumstances relating to making the change and its effect on the proceeding
• whether the proceeding involves an issue that affects a matter of public interest
• whether a party has acted unreasonably leading up to the proceeding or in the conduct of the proceeding
• whether a party has incurred costs because another party has introduced new material, has not complied with a provision of the Sustainable Planning Act 2009 or has defaulted in the Court's procedural requirements
• whether a party should have taken a more active role in a proceeding and did not do so.

However, if the parties participate in an early ADR process which is successful in resolving the appeal, the parties generally bear their own costs with respect to the appeal. If the ADR process is unsuccessful in resolving the appeal, the costs of the ADR process could be recoverable under a later costs order.

The hearing of an appeal

An appeal is heard before a District Court Judge who comprises the Planning and Environment Court. The proceedings are formal, and the Judge and legal representatives may wear wigs and robes. The Judge is addressed as 'Your Honour'.

Witnesses are required to give evidence on oath, but a fair degree of latitude is given in respect of the presentation of that evidence. Expert evidence is often accompanied by charts, plans, drawings, artists' impressions or models. The Court is dealing in ideas and opinions, but those ideas and opinions must be honestly expressed.

Each expert witness is questioned firstly by the legal representative for the client (examination in chief) and then cross-examined by legal representatives for the other parties. Once the cross-examination is complete, the legal representative for the client will re-examine the expert to cover any points which may have been ambiguous or misconstrued in the cross-examination.

Other than with the Court's leave, an expert witness in examination in chief, must not repeat or expand on matters contained in the expert's written report or introduce fresh material.

The same procedure usually applies to lay witnesses, such as the applicant or a submitter, or other people such as local residents giving evidence in relation to amenity or their expectations with respect to the land. It is usual to tender a written statement of that evidence on which the opposition will cross-examine.

Judgment

Following conclusion of a hearing, judgment will usually be reserved and delivered by the Judge at a later date. Usually only one day's notice is given of impending judgment and judgment is ordinarily delivered within 3 months of conclusion of the hearing.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.