Posted on July 25, 2018 by Matt Harker and Megan Hawley
When can a Sydney District or Regional Planning Panel ‘Direct and Control’ a Council in a Class 1 Appeal?
For the first time, the Land and Environment Court has considered a recently introduced provision of the Environmental Planning and Assessment Act 1979 (EPA Act) which makes a council subject to the direction and control of a planning panel in the conduct of a Class 1 Appeal.
The Court not only found that the Council was subject to the direction and control of the relevant panel, but ordered that the panel be joined as a party in circumstances where the Council had sought to enter into an agreement to resolve the proceedings.
The case of M.H. Earthmoving Pty Ltd v Cootamundra-Gundagai Regional Council (No 2)  NSWLEC 101 concerned a development application to expand an existing landfill.
The development application was required to be determined by the Southern Joint Regional Planning Panel (JRPP) and the JRPP determined the application by way of refusal, prior to the amendments to the EPA Act which commenced on 1 March 2018.
The Applicant commenced an appeal in the Land and Environment Court and the JRPP was notified of the appeal in accordance with the EPA Act.
The proceedings were then the subject of a conciliation conference between Council and the Applicant. In the course of the conference, the parties reached an agreement for consent to be granted to the development subject to conditions.
By this time, the amendments to the EPA Act had been made and the relevant planning panel for the Council’s area became the Southern Region Planning Panel (Panel). The EPA Act also contained a new provision to the effect that planning panels could direct and control councils in class 1 appeals in respect of determinations by the panel.
The Applicant argued that the Panel was a different entity to the JRPP, and therefore as the Panel had not determined the relevant development application (as it was the JRPP which had determined it) it could not direct and control the Council.
The Panel also then sought to be joined as a party to the proceedings.
The Relevant Amendments
Section 8.15(4) of the EPA Act was introduced on 1 March 2018. It provides relevantly:
If the determination or decision appealed against under this Division was made by a Sydney district or regional planning panel or a local planning panel, the council for the area concerned is to be the respondent to the appeal but is subject to the control and direction of the panel in connection with the conduct of the appeal. The council is to give notice of the appeal to the panel.
The EPA Act also reconstituted each of the Sydney district and regional planning panels. As stated above, the relevant panel for the Council’s area became the Southern Regional Planning Panel, and the Panel was brought into existence by way of the EPA Act itself. Under the previous regime, the JRPP was brought into existence through a proclamation.
Direction and Control
Justice Robson rejected the Applicant’s argument that the Panel was a different entity to the JRPP and held that Council was therefore subject to the direction and control of the Panel. In this regard, he emphasised that the statutory scheme embodied in the EPA Act established an alternative consent authority for certain types of development. An interpretation which held that the current Panel had direction and control over the Council would be consistent with the object and purpose of that scheme.
In addition, His Honour emphasised that the functions of the Panel were the same as those of the JRPP under the previous regime, and it was made up of the same members as the JRPP by way of a deliberate provision in the Environmental Planning and Assessment (Savings, Transitional and Other Provisions) Regulation 2017. The Panel was also constituted in respect of the same local government areas as the JRPP. This suggested that the Panel was merely a continuation of the JRPP.
The Court also stressed that the interpretation put forward by the Applicant would have the anomalous result that the Panel would have no rights in connection with the appeal, merely because the determination to refuse development consent was made prior to 1 March 2018.
Joinder of the Panel
Arguably, where a council is subject to the direction and control of a planning panel, the panel itself need not be joined as a party as it could merely direct the council in the running of the appeal.
Despite this, Justice Robson formed the view that it was appropriate for the Panel to be joined as a party in its own right in this case. If the Panel were not joined, it could not effectively and efficiently direct Council in tactical and procedural matters arising during the hearing of the appeal. For instance, the Panel could not direct Council on the nature of questions to be asked in the cross-examination of expert witnesses without considerable delays to the hearing.
The just, quick, and cheap resolution of the proceedings therefore required joinder of the Panel.
The judgment of Justice Robson should shape the conduct of future litigation involving a planning panel.
Where a decision is made by a Sydney district or regional planning panel prior to 1 March 2018, a council will be subject to the direction and control of the newly constituted panel.
Councils are subject to the direction and control of planning panels in respect of decisions they make after 1 March 2018.
Furthermore, in circumstances where the panel and council have conflicting views on a development, the appropriate approach would be for the panel to apply to be joined as a party to the proceedings. The judgment suggests that not only is this the appropriate course of action, but that it may be necessary in the interests of the just, quick, and cheap resolution of the appeal.
A full copy of the judgment can be read here.
If you wish to discuss the case and its implications for present appeals, please contact Megan Hawley, Partner, on 8235 9703, or Matt Harker on 8235 9714.