Posted on July 14, 2020 by Anzer Khan and Carlo Zoppo

UPDATE: COVID-19 Pandemic Arrangements Policy – Land and Environment Court

The Land and Environment Court of NSW (‘Court’) has updated its COVID-19 Pandemic Arrangements Policy (‘Policy’). The Policy commenced Wednesday, 8 July 2020 and replaces the previous Policy made on 23 March 2020.

A summary of the key changes are provided below:

Filing documents and applications to the Court:

Parties in Class 1, 2, 3, 4 or 8 matters (excluding tree dispute applications) should continue to use Online Registry and Online Court in most instances such as filing an originating process, notices of motion and seeking directions.

Class 5 proceedings should be commenced in accordance with the Interim Protocol for Commencing Class 5 proceedings.

Class 6 and 7 proceedings are to be commenced by filing the relevant summons commencing the appeal by posting or delivering it to the Court Registry.

The drop off/pick up service will continue at the Registry where hard copy documents are to be filed or to provide without prejudice material for a conciliation. Parties will be contacted by the Registry once their documents are processed.

All other matters requiring attendance at the Court Registry on Level 4 such as viewing or uplifting subpoena and notice to produce documents will be by appointment only.

Staged return to face-to-face attendances:

As government restrictions continue to ease the Court will implement a staged return to face to face appearances.

The first stage will allow in-court and on-site hearings, conciliation conferences and mediation that can comply with social distancing and public gathering requirements and are requested by the parties.

The second stage will allow listings with multiple parties, witnesses and public attendance to occur only after social distancing and public gathering requirements imposed by the State Government are removed.

The Court will continue to case manage each matter to determine the appropriate mode of conduct of the hearing, conciliation conference and mediation.

Some matters, at the request of parties or by reason of not being able to comply with social distancing and public gathering requirements, will be conducted in the virtual courtroom environment.

Other matters will be conducted using a hybrid model (i.e. part attendance face-to-face and other part virtual courtroom).

Site inspections for hearings and conciliation conferences:

Site inspections for hearings and conciliation conferences within the Greater Sydney area may recommence on 8 July 2020.

At least 3 days before any scheduled site inspection, parties are to advise the Court whether the inspection is necessary or appropriate, and if the location can accommodate social distancing protocols.

People attending a site inspection should be limited to the presiding judge or commissioner, court staff, and as few representatives of the parties, their legal representatives and required expert witnesses as is practicable.

If a site inspection does not proceed, photographs or video presentations of the site, may be admitted into evidence upon application to the presiding judge or commissioner.

The Court’s site inspection policy stating that a maximum of 6 persons objecting to a development proposal should provide oral evidence on site, is temporarily suspended and instead:

  • objectors’ evidence can be reduced to writing and supplemented with any photographic evidence that would assist the Court to understand their concerns or be given orally by telephone, AVL or MS Teams.
  • if a party wishes to call evidence of an objector on site, an application must be made to the presiding judge or commissioner.

In Class 1 and 2 appeals, the Council is to provide objectors’ written material to the other party 3 days before the hearing or conciliation conference.

Hearings in courtrooms:

Social distancing measures are in place with the following control measures:

  • signs on each courtroom indicating the maximum numbers of people allowed in a courtroom;
  • decals identifying the maximum number of people permitted at the bar table and the gallery;
  • the presiding judge or commissioner and the court officer will monitor the number of persons in the courtroom;
  • witnesses may be directed to attend the court at a nominated time; and
  • all courts have hand sanitizer available. It is requested that all parties use the hand sanitiser before and after handing up or exchange a document.

Giving of evidence:

Measures should be taken to reduce time spent in face-to-face hearing, including:

  • lay and expert evidence that can be reduced to writing, should be. The Court may direct that this be done; and
  • parties to consider whether cross-examination is necessary or whether the object of cross-examination could be achieved by written evidence or given or conducted by AVL or MS Teams and advise the Court in advance.

Attending the Court building:

The Court will implement staggered start and finish times to vary from the standard court hours. The Court will communicate start and finish times three business days ahead of the listing by the Registry.

Matters will be staggered at 20 minutes intervals, commencing 9 am and may sit until 5pm. The Court will try to accommodate any practitioner’s difficulties with proposed start times. Notify the Court by Online Court or email lecourt@justice.nsw.gov.au

The Court will implement a policy to ensure the maximum number of people who can attend a Court room to satisfy social distancing requirements. This reduced functional capacity will necessitate limiting party representatives and witnesses attending at the same time (additional members of legal teams and parties may attend via telephone or AVL).

Thermal scanning before entering courtrooms:

Thermal scanning will be conducted with a contactless thermometer before individuals enter a courtroom.

Sheriffs will ask individuals who are entering the court questions relating to whether they are experiencing COVID-19 symptoms and can refuse entry if a person refuse temperature check or refuses to answer questions or exhibit signs of illness.

Self-isolation and vacation of listings

Any practitioner, party, expert or person involved in court proceedings who is required to self-isolate, or who has been in contact with a person who is required to self-isolate, or who is sick, must not attend the Court premises, including the Registry, a courtroom or any other room in the Court building, or any conciliation, mediation, hearing or directions hearing in the proceedings.

If, by reason of the need to self-isolate or sickness, there is a need to vacate any listing, the party or practitioner should immediately apply to vacate the listing, providing reasons, and suggest alternative dates to reschedule the listing.

A copy of the Policy can be found here.

If you have any questions about this or any policy, procedure or requirement imposed during the Covid-19 pandemic or any legal matter please contact Carlo Zoppo, Partner on (02) 8235 9705 or Anzer Khan on (02) 8235 9717