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.


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.


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.


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 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.


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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.