Australia: Changes To Practice And Procedure In The Planning & Environment Court

Last Updated: 12 March 2009
Article by David Nicholls

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.

© HopgoodGanim Lawyers

Australia's Best Value Professional Services Firm - 2005 and 2006 BRW-St.George Client Choice Awards

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.

David Nicholls
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)
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.