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A Review of the Land and Environment Court

A Review of the Land and Environment Court

Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion.
Briefing Paper No. 13/2001 by Stewart Smith

On 1 September 2000 the Land and Environment Court (the Court) had its 20th anniversary. However, this anniversary was not without controversy in sections of the community about the Court's role and method of operations. This controversy culminated in the Government announcing a Working Party to review elements of the Court in April 2000. As of August 2001, the Working Party has yet to report publicly. This paper explains the operation of the Court, and reviews the submissions from some key stakeholders that contributed to the Working Party review.

The Land and Environment Court is a superior court of record, with rank and status equivalent to the Supreme Court in the hierarchy of courts in NSW. The jurisdiction of the Court is divided into seven classes. Class 1 involves environmental planning and protection appeals, which are generally appeals under the Environmental Planning and Assessment Act 1979 against refusals of local councils to grant development consent (pp2-3).

Class 1 appeals are merit appeals, in that the Court when hearing an appeal 'stands in the shoes of the council', and remakes the decision according to its merits. In contrast, appeals in class 4 of the Court involve judicial review. In this case, the task of the Court is to review the decision of the consent authority to determine if it has, in reaching that decision, acted in accordance with the law. Judicial review is not concerned about whether or not the decision was a good one, but rather: whether decision makers had any power to make it in the first place; and whether they followed correct procedures in arriving at that decision (pp3-7).

In 1999 and 2000, individual councils, mayors, some conservation groups and the Local Government Association became more active in their calls for reform of the Land and Environment Court and the merit appeals process. On 7 April 2000, the then Attorney General the Hon Jeff Shaw MLC announced the appointment of Jerrold Cripps QC to chair a working party to examine the State's planning laws and the role of the Land and Environment Court in reviewing development applications (pp7-8).

A number of submissions to the Working Party are reviewed, reflecting the views of various stakeholders that support the need for fundamental reform, and from other organisations which largely support the status quo (pp9-16).

The main issues of contention and agreement are reviewed (pp16-20).

It could be argued that if the status quo is maintained, reform of the planning system will be needed in an attempt to make the planning system less complex, so that communities, councils and the Court are clearer as to 'what should go where'. Earlier this year the Government released the White Paper, PlanFirst, envisaging the reform of planning legislation in the State (p21).