Posted on March 29, 2017 by Stuart Simington
New Practice Note for Class 1 Development Appeals
The Land and Environment Court has issued a new Practice Note for the conduct of class 1 development appeals. Parties need to familiarise themselves with the altered arrangements as the Practice Note imposes new obligations on parties, some of which are more onerous. This post summarises some of the most important changes.
The Practice Note took effect on 27 March 2017, and introduces:
- a change to the usual directions for matters proceeding to a s34 conciliation conference and to hearing,
- new requirements regarding the evidence of experts,
- changes to the s34 process to reflect the new practices instituted by the court towards the end of 2016, and
- new and specific obligations on parties who do not comply with a direction.
Prior to the first directions hearing
The Practice Note expands on the obligations of the parties prior to the first directions hearing. Parties are to discuss and attempt to agree upon:
- whether the proceedings are suitable for a conference,
- the directions the Court should make at the first directions hearing,
- the proposed dates for hearing or conciliation conference, usually being dates within the Court’s range, and
- if any party intends to adduce expert evidence at the hearing:
- a statement of the disciplines in respect of which expert evidence is proposed to be called,
- the names of the experts,
- the issues to which the evidence relates, and
- the reasons why the evidence is reasonably required.
The Practice Note contains two new sets of standard directions for matters proceeding respectively:
- to a conciliation conference, and
- to hearing.
The standard directions are not immutable and the parties may delete, amend or abridge any part of the usual directions to facilitate the just, quick and cheap resolution of the proceedings (cl36) or suggest alternatives in an appropriate case (cl37).
Directions for expert evidence
A significant change relates to expert evidence. Before the first directions hearing, the parties must discuss and endeavour to agree on the name of each expert whom the party is intending to call at a hearing (cl22(d)).
This may be onerous in some cases.
If the council’s contentions have only been served a day or two before the first directions hearing, there may be very little time for the Applicant to retain new expertise relating to an unexpected matter raised by the council.
Similarly, in cases where a council has refused an application contrary to staff recommendations, it is not uncommon for a council not to have secured an expert who can support the decision of the elected body by the date of the first directions hearing.
The Practice Note then imposes an obligation on the parties to provide any directions made concerning expert evidence to the experts themselves, within 3 days of the direction having been made.
If a party is to change an expert, an application must be made to the Court for further directions. The application must also be accompanied by a new hearing information sheet.
Matters proceeding to a conciliation conference
The Practice Note limits the scope for multiple adjournments of s34 conciliation conferences which had been occurring previously. To some extent this reflects the recent practice of the Court which we have previously discussed. The Practice Note provides that a conference will generally only be adjourned where the parties have reached an agreement in-principle on the terms of the decision and the adjournment is required merely to finalise the agreement. The adjournment may not be for more than 3 weeks (cl53).
Further, the failure of a party to attend the conference with sufficient authority to reach an agreement will not typically be a good reason for the adjournment of a conciliation conference.
Interestingly, the Practice Note and usual direction for matters proceeding to conference goes further and all but places an obligation on the parties to come with the authority to reach agreement. The direction states that the parties are to participate in good faith ‘including preparing to be able to fully and meaningfully participate, having authority or the ready means of obtaining authority to reach agreement and genuinely endeavouring to reach agreement at the conciliation conference‘ (cl47). In our experience, some councils have a practice of not providing a delegation to staff participating in s34 conferences. It seems that the new practice direction virtually mandates that such a delegation be provided because the need to seek ratification at a council meeting of any in-principle agreement reached at a conference does not appear to be a ‘ready means‘.
Furthermore, several obligations are imposed on parties in the weeks prior to a conference. Most significantly:
- any amended plans or additional information to be relied upon by the applicant is to be provided to the council 14 days before the conference, and (cl48)
- the council is to provide any response to the amended plans and additional information, and draft without prejudice conditions of consent, 7 days before the conference. (cl49)
The requirement to provide draft without prejudice conditions prior to a s34 conference is a considerable change and will certainly bring forward work usually left until much later in the process.
Adjournments in the case of deemed refusals
Councils need to be aware that the Practice Note specifies that proceedings will not be adjourned on the basis of a deemed refusal unless the parties agree and satisfy the Court that there is a reasonable likelihood that the development application or modification application the subject of the appeal will be determined on a date able to be identified, being a date not more than 4 weeks away, or one party satisfies the court that a failure to do so would result in an undue waste of resources.
Breach of directions
If a party fails to comply with a direction within two days of the date for compliance, the Practice Note imposes an obligation on the defaulting party to relist the matter within three days of the date for compliance. On relisting, the party must supply the Court with an affidavit explaining the non-compliance, the reason for it, and what action the party proposes to take to comply.
Furthermore, the Practice Note indicates that the Court will usually order the non-complying party to pay the costs of the other party caused by the non-compliance and re-listing.
Costs of appeals generally
On the point of costs, once a development appeal has been determined by a Commissioner, any application for costs must be made by notice of motion within 28 days of the final orders.
Hearing Information Sheet
The Hearing Information Sheet is of greater significance under the new Practice Note. Not only has the format of the sheet changed, but a party must provide the Court with a completed information sheet when seeking directions for a matter to be listed for hearing.
The Practice Note provides an extended role for Online Court. If parties provide proposed directions to the Court on the morning of the day prior to a directions hearing, the parties may not be required to appear the following day. A party may also apply to vary a timetable by an Online Court request (except for an application to vacate a hearing date which is still to be made by notice of motion).
The Practice Note also clarifies several points that may not previously have been clear enough.
The Applicant, rather than the council, is required to file the Statement of Facts and Contentions first where the proceedings involve “an appeal against a determination to grant consent subject to conditions”.
Furthermore, where there has not been an interlocutory application, an appeal will normally only be in court prior to hearing on three occasions: the first directions hearing, the conciliation conference, and the second directions hearing.
From a procedural standpoint, the Practice Note also specifies several circumstances in which a party is to provide an affidavit. These are in support of:
- a notice of motion to rely on an expert other than the parties’ single expert,
- an application by notice of motion for separate determination of an issue,
- an application by notice of motion for expedition of an appeal,
- reasons for non-compliance with a direction of the Court,
- an application by notice of motion for leave to rely on an amended application including amended plans,
- an application by notice of motion for leave to amend the party’s statement of facts and contentions, and
- an application by notice of motion for the vacation of hearing dates.
On the whole, the Practice Note reflects the expectation of the Court that parties are to be prepared and to assist in the generally speedier progress of proceedings towards resolution. Parties and those appearing in proceedings before the Court should therefore take action to ensure that they are fully familiar with its terms and the likely consequences of non-compliance.
Matt Harker contributed to this post. Should you require advice regarding the Practice Note please contact Stuart Simington, Partner on email@example.com or 8235 9704.