Posted on April 12, 2017 by Sue Puckeridge

New Practice Note for Class 1 Residential Development Appeals

The Land and Environment Court (‘Court’) has issued a new Practice Note for the conduct of class 1 residential development appeals. Parties should be familiar with the changes as the Practice Note imposes new obligations on parties with strict consequences for non-compliance with Court orders.

This post summarises some of the important changes. There is much overlap with the new Practice Note for Class 1 Development Appeals, which we have previously blogged about.

The Practice Note came into force on 30 March 2017. Key changes are:

• new requirements for the evidence of experts,
• a requirement for applicants to provide any amended plans or additional information 14 days before a 34AA conciliation conference and hearing (‘section 34AA’),
• a requirement for Respondents to provide draft conditions of consent and a response to amended plans 7 days before a section 34AA,
• parties must attend a section 34AA with authority to reach agreement, and no adjournments will occur unless an agreement is reached in principle,
• new obligations on parties for a breach of Court directions,
• an expanded use of Online Court which may result in adverse cost orders against a party if a party fails to respond to an online request.

Agent of parties

The new Practice Note now incorporates the Court’s policy as to the obligations of an agent, and an agent’s requirement to obtain the leave of the Court to appear on someone’s behalf.

Before the first directions hearing 

Parties must discuss and endeavour to agree:

• the directions the Court should make, and
• the proposed dates for conciliation conference and hearing.

If parties do not agree, each should prepare their own version of directions they propose.

Usual directions 

The Practice Note contains a new set of standard directions for section 34AA matters. The standard directions may be deleted, amended or abridged to facilitate the just, quick and cheap resolution of the proceedings, or alternative directions may be proposed.

Directions for expert evidence

Expert evidence is no longer permitted as a right. Parties intending to adduce expert evidence at a s34AA must apply for directions from the Court. If they do not, expert evidence may not be adduced.

This application is to be made at the first directions hearing, supported by a completed information sheet outlining:

• the issues in the proceedings,
• the name of the experts whose opinion is sought to be adduced as evidence in the proceedings,
• the areas of expertise of each expert.

When making an application for expert evidence, a party must explain to the Court:

• the expert evidence sought to be adduced,
• why the use of that expert evidence should be permitted, and
• why that expert evidence relates to a real issue in the proceedings and is reasonably required for resolution of an issue.

Any directions made by the Court will specify the name of each expert required to comply. If an expert is to change or is confirmed at a later date, parties must apply via Online Court for further directions. The application must also be accompanied by a new hearing information sheet.

This change may cause practical problems for the parties. A respondent’s contentions are only required to be served on the second last working day before the first directions hearing. If the contentions raise new, unexpected issues for which the applicant determines they require expert evidence, very little time is available to retain that expert prior to the first directions hearing where an application to the Court for expert evidence must be made.

Parties are now obligated to provide any directions made by the Court concerning expert evidence to the experts themselves, within 3 days of the direction having been made.

Prior to the s34AA conciliation conference and hearing

Any amended plans or additional information proposed by the applicant to be the subject of without prejudice discussions at a conciliation conference are to be provided to the respondent 14 days before the conciliation conference,

Any response to the amended plans or additional information, as well as draft without prejudice conditions of consent of the respondent, are to be provided to the applicant 7 days before the conciliation conference.

At the s34AA conciliation conference and hearing 

The Practice Note now expressly obliges parties to attend a section 34AA with the authority or the ready means of obtaining authority to reach agreement.

Use of Online Court

Parties may now seek directions online rather than appearing at a directions hearing. This includes any usual directions, such as fixing a date for a section 34AA, or the making of directions for expert evidence.

The Practice Note sets out the manner and times by which such directions may be applied for and made. Generally such applications should be by consent. However, the Practice Note sets out a procedure to be followed if there is no consent.

Notably the Practice Note now provides for the Court to make a costs order against a party for the cost of the other party’s appearance if that party has failed to respond to an online request by the time specified in the Practice Note.

Variation of Court Timetables

If either party becomes aware of circumstances that will necessitate a variation in a timetable, a request for a variation can be made online.

If not by consent, the Online Court system gives the other party an opportunity to respond. If no response is received within 2 days of the request or such other time as the Registrar determines, the proceedings may be listed for further directions.

Again, if a party fails to respond and another party is unnecessarily put to the cost of attending a directions hearing, the Court may make a costs order against the party unless there is some reasonable excuse for the failure to respond.

Breach of directions

If a party fails to comply with a direction within 2 days of the date for compliance, the Practice Note imposes an obligation on the party to relist the matter within 3 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.

The Practice Note expresses 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.

Conclusion

As with the new Practice Note for Class 1 Development Appeals, this Practice Note reflects the expectation of the Court that parties are to be prepared and proceedings are to progress more quickly than in the past. Case management procedures for the just, quick and cheap resolution of appeals have been significantly extended in their application to expert evidence.

UPDATE – 21/07/17: The Court released a new Residential Development Appeals Practice Note on 20 July 2017 that requires a respondent to serve draft conditions of consent 14 days before a section 34AA, and an applicant to serve draft conditions in response 7 days before a section 34AA.

Katie Mortimer contributed to this post. Should you require advice regarding the Practice Note please contact Sue Puckeridge, Partner on sue.puckeridge@lindsaytaylorlawyers.com.au or 8235  9702.