Posted on June 12, 2013 by

Changes to appeals processes under the New Planning System

The NSW Government’s White Paper ‘A New Planning System for NSW’ proposes minimal change in relation to the appeals system for development applications. However, there are some, and a summary is outlined below.

Expansion of fast-track s34AA mandatory conciliation-arbitration for suitable development

Section34AA of the Land and Environment Court Act 1979 currently provides that certain proceedings concerning development applications, or modifications to development consents for development for detached single dwellings and dual occupancies (including subdivisions), or alterations or additions to such dwellings or dual occupancies are subject to the above mandatory process.

The practice of the court under s34AA is to allocate an expedited timetable for the matter on the first return date. The matters are listed for two(2) days commencing on site. On the first day, the Court conducts a conciliation conference. But if the appeal is not resolved in the conciliation, the Court proceeds forthwith to hold a hearing to determine the matter.

Under the White Paper, the Government sees a role for a wider range of mandatory conciliation-arbitration, apparently in an effort to reduce costs and make better use of the expertise of commissioners. However, the stated rationale may illusory. In many cases, this writer argues that s34AA conferences frequently tend to increase costs where the matter would have been resolved at an ordinary s34 conference held early in the process. If that is the case, the costs incurred in order to prepare for a contested hearing if the conciliation is not successful are wasted.

Most appeals against a refusal of Code Assessment development application that does not meet the performance criteria of the Code will be dealt with by mandatory conciliation-arbitration and the Government proposes to consult on other categories that may be included in the system.

The changes can be implemented by regulation under the Land and Environment Court Act 1979 and are not outlined in the Bill.

An even faster track

The White Paper indicates that a new, even faster track appeals system will be introduced for single dwelling houses, dual occupancies and smaller developers.  The White Paper notes that 15% of appeals in Class One of the Land and Environment Court in 2011 were for single dwellings and dual occupancies, while approvals in this category over the State comprised 27% . The White Paper assumes that the disparity is caused by ‘one off owner builders and small scale developers whose experience of the development assessment system is less sophisticated than experienced developers.’ (p144).  The solution is to establish a new, very fast track procedure, to further reduce costs and simplify procedures.

The ‘very fast track’ will be exclusively for single dwellings and dual occupancies, the current subject of section 34AA appeals and contain two novel  features.

• Firstly, Commissioners will be able to act as experts on issues arising out of the appeal.
• Secondly, ‘simple and straightforward appeals over minor matters’ can be determined on the papers.

The designation of Commissioners as experts may create a challenge for current litigation practice.  At present the Uniform Civil Procedure Rules 2005 (UCPR) allows essentially for three categories of expert.

• The parties’ themselves can appoint their own experts, who prepare individual reports.  The experts can then be ordered to confer and produce a report which requires them to agree where possible and present their findings to the Court: UCPR Rule 31.24.
• The parties appoint an expert jointly (UCPR 31.37)
• The  Court selects an expert to advise on a particular matter: UCPR Rule 31.46.

Under the White Paper proposals, it seems that it will be possible for a Commissioner to make a determination on an issue at odds with the expert evidence led by a party. The White Paper is short on detail as to how the potential for a conflict in the role of the Commissioner is diminished.  In practice, however, Commissioners probably already perform this function unstated in simple matters.

Likewise, it remains to be seen what will be simple and straightforward appeals over minor matters.  The words used to define the special rules used in the proposed very fast track have not been defined in the Bill.