The Chief Judge of the Land and Environment Court has issued new
practice directions for policies aimed at streamlining merit
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
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
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
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
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
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.
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
Suppression orders are often too broad, are unclear in their scope and terms and infringe too far on open justice.
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