March 2020

COVID-19 and the Land and Environment Court of NSW

In light of current circumstances, the Land and Environment Court (LEC) has been adapting daily to try and assist with minimising the spread of COVID-19.

With the LEC’s timetable already under considerable strain in recent times, this has posed a unique problem as it is simply not an option to postpone all active matters indefinitely while the global situation resolves.

Over the last 2-3 weeks, the LEC has been cutting down where possible on human interaction, and this has culminated in the creation of a new ‘COVID-19 Pandemic Arrangements Policy’ (LEC specific) which commenced on 23 March 2020.

The following is a summary of the key changes to the process, as covered by the new policy as well as additional information which has been released by the LEC as recently as today.

Online systems and telephone listings

The LEC has existing online systems - Online Registry, through which parties can file documents electronically and check listings and orders, and Online Court, through which parties can provide updates or make requests of the presiding officer or Registrar.

Parties are now being directed to file all documents via the Online Registry.

Further, as at the time of writing, appearing in person has been phased out completely.

Where matters are listed for more minor mentions, such as directions hearings or returns of subpoenas and motions, the Court is contacting the parties in advance and requesting that they submit agreed short minutes of order two days prior – where a consent position cannot be reached, the listing will be converted to a telephone mention.

The Court will telephone the parties’ representatives at the time of the listing, and the listing will then be carried out over the phone, with each side able to make representations as normal.

Online Court and Online Registry are currently operating 24 hours a day in order to cater for this new approach.

Where matters have more major listings, such as hearings, conciliation conferences, mediations or onsite viewings, a more drastic approach has now been implemented.

In the LEC’s most recent update, released on 24 March, it has been indicated that in light of current health advice these more major listings cannot go ahead as planned, and the following statement was made:

The Court will implement a review of all matters listed from 30 March 2020 to 30 June 2020. Each matter will be listed for a telephone directions hearing to consider whether the listing can be conducted via telephone or other suitable arrangements are able to be made.

If it is determined that the matter cannot proceed, the listing date will be vacated and the matter will be listed for further directions.” 

We are now waiting to hear further from the Court with respect to the above.

Given the nature of the LEC’s jurisdiction, it will be necessary to deal with each set of circumstances on a case by case basis.

Where matters are listed for a section 34 conciliation conference, it may be possible to maintain the listing date and carry out the conference by way of video link and/or telephone. For example, where a smaller development is the subject of a Class 1 Appeal, it is more likely that this could occur, given that less material will be involved and there would not be as much to be seen at a site inspection.

What is certain is that parties will need to stay on top of matters and have any material prepared on time and available electronically (e.g. statements of facts and contentions, amended/additional plans and documents, conditions of consent etc), as in circumstances where listings are maintained it will be crucial that parties have ample time to consider all material in advance.

In our view it will be much harder to maintain hearing dates. The finality of hearings means that they inherently involve far more comprehensive information and analysis. Site views often become critically important, there are regularly multiple expert witnesses involved, and parties make extended representations to the presiding officer involving detailed evidence and documentation.

With this now significantly more difficult to coordinate, it seems likely that the majority of hearings listed within the next 3 months will be vacated.

Moving forward

Over the next few weeks and as more information comes to light, we will liaise with our clients who are affected by the above changes and will assist them in determining what their preferred approach is moving forward based on their specific circumstances.

Where those circumstances dictate that it is important to maintain existing listings we will work to facilitate this, and the Court has shown that it is willing to be flexible. In the interest of the just, quick and cheap resolution of matters the Court will always prefer to keep matters moving where possible.

However, where a matter is not as pressing then it may be in everyone’s interests to vacate existing listings until the global situation begins to resolve.

In summary, where a matter is in its early stages then at this point it is unlikely to be affected significantly and can essentially continue as normal, albeit via Online Court or telephone. Matters that are in their final stages are more likely to be impacted, for the reasons stated above.

This is a rapidly evolving situation, and the LEC is adapting and updating us daily. We will continue to keep you updated with any key changes, and if you have any questions at all please do not hesitate to contact us to discuss.

We will keep you informed of further developments.

Author: Dennis Loether