Posted on January 10, 2013 by Megan Hawley
Managing resident expectations in planning appeals
Resident objectors have a unique role in development appeals in Class 1 of the Land & Environment Court’s jurisdiction. However there are some limitations to that role which, if not adequately explained to residents, can lead to dissatisfaction with the process, and criticism of the Council officers managing or giving evidence in the appeal.
If resident objectors are properly advised of the limitations to their role, and the obligations on councils to properly participate in conciliation to seek to resolve such appeals, this will minimise the potential for criticism of the council or its officers, and avoid concerns arising during the course of the proceedings regarding a perceived lack of transparency.
Status of objectors in development appeals
A resident objector has no legal entitlement to participate in a development appeal. However, councils almost always call resident objectors as witnesses to assist their case, and the Court has the power, under s38 of the Land & Environment Court Act 1979 (Court Act) to inform itself on any matter in such manner as it thinks appropriate, and can therefore hear residents concerns.
Biscoe J of the Land & Environment Court recently explained the status of resident objectors in Newcastle Muslim Association Incorporated v Newcastle
City Council  NSWLEC 20 and stated that they have a status which has no equivalent in conventional civil litigation.
His Honour noted the following legislation, practice notes and policies of the Court, which provide the context for the participation of resident objectors in development appeals:
- one of the objects of the Environmental Planning & Assessment Act 1979 (EPA Act), is to provide increased opportunities for public involvement and participation in planning (s5(c) of the EPA Act);
- any person may inspect a development application and make written objections (s91 of the EPA Act);
- the public have legally enforceable rights to access government information, including information regarding development applications, under the Government information (Public Access) Act 2009;
- the usual directions made by the Court pursuant to the Court’s Practice Note – Class 1 Development Appeals, include a direction that the consent authority files a notice of those resident objectors who wish to give evidence in the appeal; and
- the Court’s Site Inspections Policy provides for residents to give evidence on-site during a site inspection, and provides that a council is to ensure that resident objectors have a full understanding of the development proposed to ensure that any concerns expressed in their evidence are relevant.
Limitations on Resident Objector’s Status
Resident objectors are not parties to the proceedings
Despite their special status, resident objectors are not parties to the proceedings before the Court. This needs to be made clear, particularly where a development application has been refused on the basis of impacts on one particular resident, as in such cases, that resident can feel as if the case is one about the competing rights of the applicant for consent, and the affected resident. Councils’ legal advisors should make it clear that they act for the Council, not the resident objector.
Resident objectors can seek to be joined as a party to proceedings (see s39A of the Court Act), or seek to have an order made by the Court allowing them to participate as though they were a party to the proceedings. The latter is done by an order made under s38(2) and is called a Double Bay Marina order, after the case in which the first such order was made (see Double Bay Marina Pty Ltd v Woollahra Municipal Council (1985) 54 LGRA 313).
However, such orders will only be made where the resident objector can establish that he or she can raise an issue which should be considered by the Court, but which would not be sufficiently addressed if the order was not made.
In the majority of cases, such an order will not be made, and the resident objectors will not be parties to the proceedings, and therefore cannot participate in all aspects of the proceedings. This is discussed further below.
Just, quick and cheap resolution
The Court’s approach to development appeals is that they must be resolved in a just, quick and cheap manner. Whilst the leave of the Court is still required to the amendment of development proposals, the Court encourages proceedings to be resolved if possible without a full hearing. This can impact on the extent to which residents are involved in the ultimate outcome in the proceedings.
In order to ensure the just, quick and cheap resolution of development appeals, the Court encourages conciliation conferences to be held, and requires such conferences to be held in residential development appeals.
The Court has special procedures applying to residential development appeals, being appeals regarding development applications and applications to modify development consents for detached single dwellings and dual occupancies (including subdivisions), or alterations or additions to such dwellings or dual occupancies.
Section 34AA of the Court Act requires that in all residential development appeals there is to be a compulsory conciliation conference between the parties.
The Practice Note – Class 1 Residential Development Appeals indicates that the conciliation conference must be held within 6 weeks of the first directions hearing. The practice of the Court is that the hearing, which will proceed if the matter is not resolved at the conciliation conference, is listed for the day following the conference.
All residential development appeals commence with a site inspection at 9.30am before the conciliation conference. The resident objectors will generally be involved in that site inspection, particularly if their properties are directly affected, and access to their properties is required. Resident objectors generally also give their evidence at the site inspection.
The conciliation conference then follows the site inspection.
As noted above, in appeals which are not residential development appeals, the Court also encourages conciliation conferences.
Section 34(1A) of the Court Act provides that where a conciliation conference has been arranged, it is the duty of each party to participate, in good faith, in the conciliation conference.
The conciliation conference, being a conference between the parties, is not one in which the residents are entitled to participate.
Many of the Commissioners of the Court will take the approach that resident objectors are to be excluded from the conciliation conference, on the basis that to have them involved could hinder the Council from participating in good faith in the conference.
This can result in residents feeling excluded from the process, and concerned at the lack of transparency regarding what occurs at such a conference.
Given the overall objective of the Court to resolve such matters in a just, quick and cheap manner, for the council to comply with its obligation to participate in a conference in good faith, this means properly considering the manner in which the proceedings can be resolved. Also, Council officers who are participating in a conference as expert witnesses owe their primary duty to the Court, and not to the residents or indeed the Council itself. Therefore in many instances a matter will be resolved at a conciliation conference
Councils and their legal advisors should therefore ensure that resident objectors understand the above obligations of the council and its officers.
I note that the Court requires council officers participating in conciliation conferences to have the appropriate delegation from the council to enable the council to meet its obligations to participate in the conference in good faith.
Notification of amended plans
It is increasingly common in development appeals for developers to propose amendments to their development application during the course of the hearing, or at a conciliation conference.
In a recent decision (V’landys v Land and Environment Court of NSW  NSWLEC 218), Biscoe J held that the Court was not bound to follow the Hunters Hill Notification DCP to require amendments to a DA made during the course of a development appeal, to be renotified to resident objectors.
If a notification DCP provides for the notification of amendments to a DA, it has been common practice for the Court to adjourn the proceedings while this occurs.
However, the result of this decision is that if the wording of the DCP suggests that it was not intended to bind the Court, but only the Council, then the Court may not grant an adjournment to allow for renotification.
In any particular matter, it seems that it will be necessary to review the council’s notification DCP to discern whether the DCP is intended to bind the Court on appeal or only the council.
This is also a matter on which the council should advise resident objectors at the outset of any proceedings, so that if its DCP does not appear to bind the Court, residents are aware that it is a matter for the particular Commissioner or judge hearing the case to determine whether or not to allow renotification. One would assume that many applicants would oppose renotification.
Access to expert reports
There is no issue with resident objectors having access to expert reports once the expert reports are tendered and admitted as evidence in the proceedings.
However, in the Newcastle case referred to above, the Court considered the right of objectors to have access to expert reports prepared and served between the parties, before those reports become formal evidence in the proceedings. It was the first time this issue had arisen in the Court.
The Applicant opposed the access on the basis that parties to proceedings give an implied undertaking to the Court not to use documents with which they are provided for purposes other than the proceedings, and that therefore the documents could only be provided with the leave of the Court, until they became evidence and were part of the public record.
Biscoe J did not consider it necessary to determine whether or not the ‘implied undertaking‘ applied to expert reports in development appeals, nor whether it would be breached by providing the reports to resident objectors. Biscoe J held that even if the leave of the Court was required, he would grant that leave, given the special status of objectors in development appeals (discussed above).
It would seem that in most cases, the Court would, if leave were required to provide objectors with expert reports, grant that leave. However, in very contentious matters it may be that applicants will strongly argue that leave should not be granted.
Residents should therefore be forewarned that they may not automatically be entitled to be provided with all documents with which the council is provided in an appeal.
Site Inspections Policy
The Court’s Site Inspections Policy (Site Inspections) should also be provided to all resident objectors at the start of the development appeal.
The particular provisions of the Site Inspections Policy to which resident objectors’ attention should be drawn are as follows:
- a site inspection at which objectors give evidence is part of the hearing, and therefore forms of address and conduct appropriate to a hearing should be followed;
- the number of residents giving evidence should be limited, in most cases to a maximum of 6. Preference should be given to objectors directly affected by the relevant development. If the same impacts affect a large number of residents a representative can give evidence on behalf of all residents;
- residents are to give their evidence in a truthful and helpful manner;
- residents are limited to formally giving their evidence, and are not entitled to make further comments or otherwise raise issues during the site inspection;
- residents can be cross-examined;
- a resident can refuse to allow the Court to have access to his or her property (although this can affect the council’s ability to properly run its case if the property is affected by the development), or can request that the number of people allowed into the property is restricted (generally to the Commissioner, experts and legal representatives).
It is also appropriate in my view to advise residents that their evidence should be limited to the planning impacts of the development in question. The Court will not be concerned with the history of dealings between the proponent and resident objectors, or any other matters not touching on the planning impacts of the development.