There have been a number of recent changes to the rules and procedures relating to the Planning & Environment Court.
A new set of rules, the Planning and Environment Court Rules 2008 along with Planning and Environment Court Practice Direction No. 2 of 2008, commenced in December 2008. The new rules replace the old Planning and Environment Court Rules 1999, and the new Practice Direction replaces the Practice No.1 of 2006. The new P&E Court Practice Direction No. 2 of 2008 also commenced in December 2008. It replaces the P&E Court Practice Direction No. 1 of 2006.
As a general comment, many of the requirements formerly found in the old practice direction have been transported into the new rules.
The following are the key changes to be aware of:
- There is now a requirement in the new rules that the party with the onus in the proceeding (that is, generally speaking, the developer) apply for a directions order within three months of filing the proceedings. Whilst this requirement was previously contained in the old practice direction, it has been brought into the rules. This rule, combined with the additional powers provided to the ADR registrar, mean that if the matter is not brought on for a directions hearing within three months of the proceedings being filed, the ADR registrar may list the proceedings for review at a time convenient to the Court. These rules appear to be directed to avoiding the instance where appeals are left to sit idle.
- There is a new requirement in the rules in relation to the briefing of experts. A party and its solicitors are required to ensure, as far as possible, that a chosen expert is ready to take part "fully, properly and promptly" in the meeting of experts. The rules require that the following be done to ensure that this occurs:
- give the expert reasonable notice that the meeting has been ordered;
- notify the expert of any order or directions about the meeting;
- inform the expert of the issues in dispute that are relevant to that expert's discipline;
- provide the expert with sufficient information and opportunity for the expert to investigate the scenario; and
- give the expert written notice of his or her duty to assist the Court and that the duty overrides any obligation the expert has to a party or any person liable for the fees.
This new requirement appears to be directed at avoiding problems where experts are briefed late and are unable to properly participate in the joint meeting by the deadline set down in a directions order.
- Whilst the requirements for joint experts' reports have not changed substantially, it is worth noting that there has been a change in relation to material that cannot be included in an expert's individual report. Under the old practice direction, an expert's report could not contain any information already contained in an earlier joint report. The exclusion now appears to be wider under the rules as an expert's report cannot contradict, depart from or qualify an opinion in relation to an issue agreed in the joint report or raise a new matter not mentioned in the joint report.
The effect of this is that experts should be aware of this requirement and ensure that they raise all relevant matters in the joint experts report to ensure that they are not prevented from raising relevant matters in their individual reports.
- The rules now contain an explicit statement that an expert must act independently and not adopt or reject a particular opinion. Whilst experts have always been required to act independently, the enunciation of this requirement in the rules is new. The requirements for an expert's individual report are now found in rules 29 and 30 of the new rules, in combination with rule 428 of the Uniform Civil Procedure Rules 1999. Although the requirements have not changed in any substantive way, it is useful to recall that an expert's individual report must:
- be addressed to the Court and signed by the expert;
- contain details of the expert's qualifications;
- state all material facts upon which the report is based;
- refer to any literature or other material relied on;
- for any inspection, examination or experiment conducted, initiated or relied on by the expert, provide a description of what was done, whether it was done by the expert or under the expert's supervision, the name and qualifications of other involved and the result;
- if there is a range of opinions that can be adopted, provide a summary of those opinions and why the chosen opinion was adopted;
- a summary of the conclusions reached;
- a statement about whether access to any readily ascertainable facts would assist the expert in reaching a more reliable conclusion;
- contain a statement verifying that the expert has not received or accepted instructions to adopt or reject a particular opinion; and
- at the end of the report, confirm that:
- the factual matters stated in the report are, as far as the expert knows, true;
- the expert has made all inquiries considered appropriate;
- the opinions stated in the report are genuinely held by the expert;
- the report contains reference to all matters the expert considers significant; and
- the expert understands the duty to the Court and has complied with the duty.
As a result of these changes, parties should be aware that some of the rules in relation to conduct of proceedings have changed, especially in relation to the role of the ADR registrar in the Court process and in briefing experts for joint meetings.
Additionally, Court experts should consider updating their compliance statements for joint expert reports and individual expert reports to ensure that they reflect the recent changes.
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