Posted on April 26, 2017 by

New LEC Conciliation Conference Policy

In conjunction with recent changes to the Class 1 Development Appeals Practice Note (‘Practice Note‘), the Land and Environment Court has also issued a new Conciliation Conference Policy (‘Policy‘).

The Policy is substantially the same as the previous version. Nonetheless, there are some significant amendments that reflect the changes to the Practice Note, which we have discussed previously.

Reliance on Amended Plans

Most significantly, the Court is seeking to limit the way in which  amended plans are used in s34 conferences.  A practice had developed where plans were tabled at the conference which led to adjournments where the council was unable to deal with the new matters on the spot.  To this end, the Policy states that:

• if an applicant intends to provide amended plans or additional information for consideration at the conference, those plans or information should be provided to the respondent 14 days before the conference, and
• the respondent should provide the applicant with any response to the amended plans or additional information, as well as any draft without prejudice conditions that the respondent seeks to have imposed, 7 days before the conference.

It should be noted that the language used here is more permissive than in the Practice Note. The corresponding provisions in the Practice Note state that amended plans or further information “are to be provided” 14 days before the conference, and that the respondent “is to” provide its response 7 days prior.

Council’s are also required to prepared draft WP conditions 7 days prior to every conciliation conference which is a measure also designed to limit the need for adjournments.

Adjournments

The other major alteration is that the Policy reflects the recent practice of the Court with respect to the adjournment of conferences. In this respect, the new Policy mirrors closely the Practice Note.

The Policy provides that:

• a conference is to be adjourned only if there is good reason to do so,
• adjournments will usually only be granted in circumstances where the parties have reached an agreement in principle and where a short adjournment is required for the preparation of documents to finalise the agreement (including plans and conditions),
• adjournments will generally not be appropriate where either party requests time to consider their position or obtain advice, and
• where an adjournment is given, the conciliation may be listed after 4pm at a date less than 3 weeks after the conference. This can be by telephone.

Provision of a document prepared for the purpose of a conference

The only other change is that the Policy appears to close off the possibility of providing documents to a Commissioner prior to the conference electronically. The documents should be lodged at, or posted to, the registry in a sealed envelope marked with the file number, date of the conference, and to the attention of the presiding Commissioner.

Conclusion 

As with the Practice Note, the new Policy clearly indicates the Court’s expectation that parties be prepared for, and genuinely participate in, any conciliation conference. If parties are to avoid being placed on a track to an unwanted hearing, steps ought to be taken to ensure that they are in a position to genuinely negotiate at a conciliation conference. Conferences will not be adjourned should a party be unprepared.

Matt Harker contributed to this post. If you require advice about the new Policy, or the new Practice Note, please contact Stuart Simington, Partner, at stuart.simington@lindsaytaylorlawyers.com.au or on 8235  9704.