Posted on November 14, 2013 by
Appeal and Review Rights Under the Planning Bill 2013
Whilst the Planning Bill 2013 (Bill) continues to provide for a comprehensive range of merit appeal rights in relation to decisions made under it, the Bill attempts to limit the circumstances under which persons can challenge decisions on the basis of judicial review.
In light of the approach taken by courts in recent times to overcome attempts to limit or remove the jurisdiction of superior courts, it remains to be seen whether all of these changes will achieve the desired result.
Merit appeals and judicial review under the EPA Act
The Environmental Planning and Assessment Act 1979 (EPA Act) contains a number of provisions allowing for merits appeals by persons who are affected by decisions under the Act. For example, a person who is dissatisfied with a decision by a council about their development application may appeal to the Land and Environment Court which will consider the ‘merits’ of the application afresh.
Section 123 of the EPA Act sets out the civil enforcement/judicial review jurisdiction of the Court. Under this provision, proceedings can be brought to remedy or restrain a breach of the Act. This jurisdiction involves the court:
- reviewing the legality of decisions made under the Act;
- making orders to remedy or restrain breaches of planning approvals, orders etc.
Section 123 of the EPA Act provides for ‘open standing’. That is, any person may bring proceedings. It is often used, for example, by objectors to challenge the validity of a decision of a council to grant development consent. Arguments in these cases often revolve around whether procedures under the Act (such as notification) have been properly followed, and whether relevant considerations under the Act were properly taken into account.
Merit appeals under the Planning Bill
Part 9 of the Bill sets out provisions regarding merit appeals. In essence, these replicate the appeal rights available under the EPA Act for applicants for development consent or modification of a development consent.
Merit appeal rights are provided for objectors to ‘EIS Assessed’ development under the Bill, also on a similar basis to the availability of such rights for objectors to ‘designated development’ under the EPA Act.
Sections 9.14 and 9.15 of the Bill set out the powers of the Court on appeal and make provision for persons to be joined to proceedings in certain circumstances. These provisions replicate ss39 and 39A of the Land and Environment Court Act 1979, and it appears that some amendments to that Act will be made in future to account for what would otherwise be duplication.
Division 9.4 sets out rights of appeal for failure to issue a certificate under Part 8 of the Bill, being construction certificates, occupation certificates and the like. This continues existing appeal provisions under s109K of the EPA Act, although the time limit for making such an appeal has been reduced to six months.
Division 9.5 sets out appeal rights for persons who have been given a ‘development control order’ and continues appeal rights against the issue of such orders currently available under s121ZK in relation to s121B orders under the EPA Act.
Civil enforcement/judicial review under the Planning Bill
Division 10.3 of the Bill continues the civil enforcement/judicial review jurisdiction of the Court.
Section 10.9(1) provides that ‘any person’ may bring proceedings in the Court to remedy or restrain a breach of the Act. However, ss10.11 and 10.12 purports to provide some limitations on bringing such proceedings.
Under s10.11, proceedings challenging the validity of planning control provisions, or the granting of a planning approval, must be brought within three months after the date of their publication or registration on the NSW planning portal.
Section 10.11 is similar to ss35 and s101 of the EPA Act. For example, s101 purports to impose a three month period for bringing proceedings challenging the validity of a development consent where public notice of the consent has been given. Sections 35 and 101 are examples of ‘time limited privative clauses’ that attempt to deprive a court of jurisdiction to review the legality of decisions.
One matter which has plagued the effectiveness of s101 appears to have been resolved by the Bill. Under the EPA Act, there have been many successful challenges to the validity of s101 notices based on minor errors in the form of notices drafted by councils. Under the Bill, this seems to have been resolved by a standardised process where the only matter requiring proof will be the fact of publication on the portal.
Section 10.12, headed ‘Exclusion of legal proceedings’ goes further than 10.11 (and its predecessors in ss35 and 101) and provides that the only mandatory requirements under the Act in relation to the validity of a strategic plan, infrastructure plan or certain planning approvals are the mandatory community participation requirements in section 2.5 or the public exhibition requirements in section 3.27.
It does appear that s10.12 contains a drafting error, as the reference to section 3.27 should be 3.25.
Somewhat predictably, the planning approvals that are to be specially protected under 10.12 are limited to the provisions in Parts 4 and 5 of the Act relating to development consents for State significant development and approvals for State infrastructure development. Both, of course, are species of approvals granted by the Minister or delegate. No such protection is offered to Councils.
Similarly, in relation to public priority infrastructure, the Bill provides that the only mandatory provisions in relation to the validity of anything done under the Act in relation to those is the requirement to publicly exhibit the the project definition report for a period of at least 28 days.
Further attempts to restrict access to the courts are contained in clause 10.3 of Schedule 10 of the Bill. The Bill seeks to prevent review in relation to any function conferred on the Minister in relation to the appointment of a regional planning panel to exercise the functions of a council.
The provision purports to completely remove the right to challenge the exercise of such a function, stating that ‘no court of law or administrative review body has jurisdiction or power to consider any question involving compliance or non-compliance, by the Minister… with …[the provisions of Part 1 of Schedule 10] of with …[the rules of natural justice] as they apply to the exercise of any protected function’. Provisions of this kind are sometimes referred to as an ‘ouster clause‘ because they attempt to ‘oust’ the jurisdiction of the courts.
Will these attempts work?
The intent of the Bill is clearly to limit the circumstances in which proceedings can be brought challenging the validity of decisions under the legislation.
Based on the current state of the law, the attempt to limit the time in which proceedings can be brought to three months will not be effective if the decision under challenge is found to have contained a ‘jurisdictional error’.
In simple terms, a ‘jurisdictional error’ will arise where a decision maker exceeds his or her power under legislation, or fails to make a decision in accordance with the mandatory requirements of the legislation. Where this occurs, the approach of the courts is to ‘read down’ the privative clause so that it does not protect decisions beyond the limits of a decision-maker’s power including where mandatory requirements of the legislation are not adhered to.
On the other hand, what section 10.12 aims to do is to limit the matters that are ‘mandatory’ in the relevant sense, so that only non-compliance with the mandatory matters could give rise to a ‘jurisdictional error’.
In theory, this could limit the scope of errors [that the Minister or delegate] can make under the Bill that can be said to be an error, jurisdictional or otherwise.
Depending on how these provisions are interpreted by the courts, this may be an effective method for reducing the scope for successful judicial review proceedings under the new regime but only in relation to the scope of 10.12 which, as indicated, previously, does not apply to decisions in relation to the vast majority of decisions, such as planning approvals granted a council. A council, for example, that fails to properly consider a matter specified in s4.18 when determining a development application would still commit a jurisdictional error that is not subject to the purported protection after three (3) months specified in s10.11.
It is much less certain that the approach taken in Schedule 10 which attempts to ‘oust’ the jurisdiction of the courts will have the desired effect.
In Kirk v Industrial Court of New South Wales  HCA 1, the High Court of Australia read down a similarly worded ouster clause contained in the Industrial Relations Act 1996 with effect that it did not operate to prevent a challenge to a decision that contained a jurisdictional error. The decision in Kirk imposes a limit on the ability of a State Parliament to take away the ability of a superior court, like the Land and Environment Court, to supervise the legality of actions taken by officials under legislation.
One of the effects of the decision in Kirk was to limit the effectiveness of s101 of the EPA Act. In essence, s101 does not, today, operate as a bar to limit challenges to decisions to grant development consent if the decision is affected by jurisdictional error. Unless Kirk is overturned (and it could only be overturned by the High Court itself), the ouster clause contained in Schedule 10 may well be read down