New fast-tracked Land and Environment Court appeals for single houses and dual occupancies and

Contents

• A fast game's a good game': New fast-tracked Land and Environment Court appeals for single houses and dual occupancies
• Other important changes to NSW planning laws

A fast game's a good game': New fast-tracked Land and Environment Court appeals for single houses and dual occupancies

From 7 February 2011, new laws will commence in NSW which will ensure that applicants / home owners are guaranteed a very fast Land and Environment Court appeal process to challenge local councils. In theory, the new laws will ensure that appeals relating to single dwellings and dual occupancies (including alterations to them), will be finalised within only 3 months, via a reasonably low-cost and informal process.

The Planning Appeals Legislation Amendment Act 2010 (assented to in November 2010) has the aim of "making it easier for homeowners to seek a review of councils' decisions on their development applications so they can exercise their rights as quickly and as cheaply as possible".  Indeed, the Government says the new laws are designed to "encourage more homeowners to exercise their existing appeal rights" (our emphasis).  In summary, the key features of the new scheme are:

• The new laws will apply to development applications and modification applications relating to single (detached) dwellings and dual occupancies, including those involving subdivisions;
• Higher density development will be unaffected, and will therefore continue to be dealt with via the usual Court appeal processes;
• The new scheme will involve "a new hybrid conciliation-arbitration model", where a Commissioner of the Court will attempt to push the parties towards reaching an agreement (i.e. 'conciliation') but if agreement is not reached, that Commissioner will then (after hearing all arguments and any evidence) immediately make a binding decision on the matter (i.e. 'arbitration').
• Where a Commissioner determines the appeal, there will be no further appeal rights other than where a party can identify that the Commissioner has made a legal error (as distinct from a merit or subjective consideration);
• A benchmark has been set whereby the Court must seek to resolve 95% of these appeals within 3 months. The usual benchmark for appeals has been six months, with many taking longer than this;
• To ensure that binding agreements can be reached during the conciliation phase, it will be compulsory for councils to have someone attend who is authorised to settle the matter on the spot;
• Neighbours and other objectors will still be entitled to express their opinion to the Commissioner early in the process, before a binding decision is made. This means it will remain difficult (politically) for councils to agree to compromises in the face of hostile neighbours who generally look to the councils to oppose new development;
• The matters will generally be dealt with on-site rather than in Court, and parties will still be entitled to be represented by lawyers and expert witnesses (for example, town planners and architects);
• It will be difficult for applicants to significantly amend their plans, but amendments can be made where agreed between the parties (i.e. as part of a negotiated outcome) or where the amendments can be achieved by imposing conditions on the approval;
• This new scheme will apply instead of the system that was legislated for back in 2008, but which never commenced, of appointing independent 'planning arbitrators' to review council decisions, outside of the Land and Environment Court system ( style="background-image: none; background-repeat: repeat; background-attachment: scroll; background-position: 0% 0%"> see link to our April 2008 update here ). That concept has now been abandoned;
• The Commissioners will in some instances refer the matter back to the usual Court process. This can occur where a DA is "complex" or where "there are multiple expert witnesses". This fallback power, if overused, has the potential to undermine the new laws, as many simple DAs for single dwellings can often be made to look complex when councils raise numerous issues / contentions. Equally though, applicants who want a full and proper hearing (with the benefit of well-credentialed expert witnesses) can use this power to apply to the Court, to seek that the matter be dealt with as a conventional appeal, having a fully contested hearing in Court in the fullness of time. It is yet to be seen how often the Court will allow this, but the 95% benchmark referred to above suggests that the power will be used sparingly.

In summary, this is all good news for people building new homes or dual occupancies, or undertaking alterations and additions to their existing home. The Planning Appeals Legislation Amendment Act 2010 looks set to entice landowners to challenge Council decisions more readily, in light of the lower costs and faster timeframes that apply. Interestingly, much of the State Government's literature makes it clear that the intention is exactly that – "to encourage more people to appeal and get a fair hearing of their concerns".

By Anthony Whealy and Jodie Wauchope of Gadens Lawyers, Sydney

Other important changes to NSW planning laws

The new laws also introduce several unrelated but important changes to planning laws in NSW, in particular:

• The time within which an appeal may be commenced (for any type of development application in NSW) is slashed from 12 months from the date of decision (or deemed decision) to six months.  After that time has expired, an applicant loses their appeal rights entirely. Decisions will need to be made quickly.
• The ability to request that a council review (internally) its own decision on a development application has been overhauled. These reviews (known as section 82A reviews) now apply not only to most development applications, but also to section 96 modification applications and to council decisions to reject development applications without determining them.
• Moreover, where an applicant requests a review, the Council now "must" review the decision. This overcomes a Land and Environment Court decision (Hainbury v Campbelltown Council, 2007) which ruled that councils were not required to carry out a review when requested to do so, but that they "may" if they choose to. The new laws overcome this anomaly.
• Where an applicant amends plans in a Land and Environment Court appeal process, the Court will now be required to order that the applicant pay the council's wasted costs ("costs thrown away"). This is a mandatory requirement and does not depend on whether the amendments are major or minor. Nevertheless, it is an improvement on laws passed in 2008 which had required applicants to pay far greater costs whenever amendments were not "minor".  This proved to be a costly disincentive to amending plans, even where the amendments would have achieved a sensible compromise.
• For appeals commenced after 7 February 2011, where the development application was a JRPP application (Joint Regional Planning Panel  - typically developments where the works will cost more than $10M), the JRPP will have an automatic right to be involved in the hearing as if they were a party in the proceedings. The relevant local council will continue to be an actual party. This means the applicant will be opposed by two parties and perhaps two teams of expert witnesses.  We understand that in the first year of the JRPP system, there have only been 3 appeals lodged on JRPP matters. Gadens are presently acting for the applicant in 2 of those 3 appeals. None have yet reached a hearing.

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