Posted on December 21, 2016 by Sue Puckeridge
Conciliation in Class 1 Appeals – recent developments
Those involved in class 1 conciliation conferences in the Land and Environment Court (Court) should be aware of recent comments made by Commissioners, namely, that parties should not expect multiple adjournments of section 34 conciliation conferences.
The Court is concerned with the number of adjourned section 34 conferences in the Court list. As such, it seems that Commissioners will no longer allow multiple adjournments of conciliation conferences.
In our experience, in recent times, there has been an increasing tendency of developers to commence an appeal as soon as the deemed refusal period has expired with a view to using the conciliation conference process within the class 1 jurisdiction of the Court to negotiate significant amendments to a development application.
The Commissioners have often been willing to grant several adjournments to conciliation conferences if the parties could satisfy them that there was scope for the parties to reach agreement and time was required to allow the Applicant to table new concepts and material and for the Council to provide a response.
It is understood this process is not considered to be an efficient use of the Court’s time and resources. As such, the Court has indicated that Commissioners in their discretion (under ss34(6)) are likely to adopt a stricter approach to the management of s34 conferences and will no longer allow multiple adjournments to facilitate incremental design changes that may potentially be satisfactory to Council.
If the parties can convince the Court to adjourn the conciliation once, it sees unlikely that a second adjournment will be granted. It is anticipated that any adjournments will be limited to a few weeks and all outstanding issues will need to be resolved in that period, or conciliation will be terminated.
The Court has reminded Councils to adopt appropriate delegations to give an officer or their counsel the power to negotiate an outcome, or at very least, to have an appropriate delegate able to step into the conciliation to ensure an agreement is achievable.
Any proposals or in principle agreements made at conciliation need to be detailed with precision so that if the proposal is thereafter presented as a properly worked set of drawings, Councils can enter into an agreement.
Consequently, developers should think twice before commencing proceedings and consider whether the application is suitable for assessment at a hearing. If amendments are to be made to a proposal, this should for the most part be done before the conciliation conference. Similarly, Councils should be clear about what changes are required if approval is to be granted.
Of course the potential for parties to use the conciliation process to narrow the issues in dispute remains an important function of conciliation conferences.
If agreement cannot be reached at the conciliation conference or soon thereafter, it appears that Commissioners will terminate conciliation. At the subsequent directions hearing the Registrar will set the matter down for hearing.
The Commissioners have indicated that even if the section 34 process is terminated, there is still room for the parties to negotiate a mediated outcome. Upon reaching an agreement the parties can seek to restore the matter to the section 34 process by motion, and list the matter before the Duty Commissioner so that the Court can dispose of the matter in accordance with the agreement.
For more information, please contact Sue Puckeridge, Partner on 8235 9702 or firstname.lastname@example.org
Prepared with the assistance of Amanda Berry.