February 2011

New appeals process for residential development applications

A new practice note has been issued (the Residential Development Appeals Practice Note) that seeks to streamline the conciliation/hearing process for particular types of residential development appeals commenced in the Land and Environment Court on or after 7 February 2011.

The practice note applies to appeals and applications under Section 97 or 97AA of the Environmental Planning and Assessment Act 1979 comprising:

  • Development and modification applications for detached single dwellings and dual occupancies (including subdivisions) or s96 modifications.

  • Particular proceedings that the Court orders to be dealt with under section 34AA.

The main features of the new Practice Note include:

  • The directions hearing ('callover') will occur within 21 days from the date of filing.

  • Only one directions hearing is allowed.

  • Access to public documents is to be provided within seven days of the request.

  • At the callover, a hearing date will be fi xed for a conciliation conference and a hearing within six weeks. If resolution fails at the conciliation conference, it will move to the hearing phase.

  • The goal is to have 95% of these appeals completed within three months of filing.

  • Any party may apply to the Court to vary the Court\'s directions providing the request is in writing.

  • If an application needs to be amended, the applicant is to apply for leave as soon as reasonably possible.

  • Residential development appeals will not generally be adjourned.

  • Parties are encouraged to consider whether expert evidence is genuinely necessary to resolve the issues in dispute.

  • Any party seeking an order for costs must apply by notice of motion fi led within 28 days of the making of the fi nal orders in the proceedings.

Statement of facts and contentions

A respondent consent authority will still be required to prepare a Statement of Facts and Contentions (SOFAC), which continues to be divided into Part A Facts and Part B Contentions.

Changes to Part B Contentions

Part B Contentions should be divided into three parts:

  • B1 - Contentions that the application be refused.

  • B2 - Contentions that may be resolved by conditions of consent.

  • B3 - Contentions that there is insuffi cient information to assess the application.

Part B1 - is to identify contentions which the respondent says must result in Court refusal. The factual and legal basis for the contention must be clearly identifi ed.

Part B2 - is to identify contentions that may be resolved by conditions of consent, must identify that point and, importantly, the respondent must provide details of the type of condition that would satisfy the contention

Part B3 - if it is contended that insuffi cient information has been provided, the respondent must identify those matters that could not be considered because of the lack of information.

How will matters be determined?

Applicable residential development appeals are to be determined by a conciliation conference and hearing under section 34AA of the Land Environment Court Act 1979.

The hearing will commence with a conciliation phase; if this results in an agreement being reached, the presiding Commissioner is obliged to give legal effect to the agreement, provided the Commissioner is satisfied there is a proper basis for doing so.

If the dispute cannot be resolved by conciliation, the conciliation phase of the hearing will be terminated and, following a short break, the hearing phase will start.

Summary

The Residential Development Appeals Practice Note sets out the streamlined process for applicable residential appeals. The end result is likely to be quicker and cheaper determinations of appeals.

Stay tuned for more updates in future bulletins.

Author: Dennis Loether

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