Changes for planning reviews and appeals

In late 2010 the Planning Appeals Legislation Amendment Act 2010 (‘PALA Act’) was published after passing both houses of Parliament.  The PALA Act will effect a significant widening of the avenues available to applicants who are dissatisfied with original council decisions in relation to development applications and applications to modify existing development consents.

Residential development appeals – amendments to Land and Environment Court Act (commenced 7 February 2011)

The most notable of the changes to be introduced by the PALA Act is a new conciliation-arbitration scheme in the Land and Environment Court for appeals relating to certain types of residential development.  This is intended to streamline the time and cost associated with bringing appeals to the Court relating to a council’s refusal of a development application or modification application for detached single dwellings and dual occupancies (including subdivisions), and alterations and additions to such dwellings and dual occupancies.

The effect of the scheme is that unless the Court can be satisfied otherwise (this is likely to be rare), it will be mandatory for parties to have the appeal dealt with by way of a speedy conciliation conference and hearing.  Conciliation conferences are already a common occurrence in development appeals before the Land and Environment Court.  These involve the parties meeting on site with a commissioner of the Court, who helps the parties to negotiate as to any changes to the applicant’s development proposal that might resolve the matter or at least narrow the issues.  If agreement is not reached at the conference, in standard development appeals there are a few options for the further progress of the matter.

The part of the new conciliation-arbitration scheme for residential development appeals that differs so significantly from the standard scheme for development appeals is that the parties will only have one option if conciliation results in no agreement being reached – a final hearing of the matter by the same commissioner who presided over the conciliation conference.  It is expected that most of these matters will be heard on site, and on the same day as the conciliation conference, allowing for a speedy determination of the appeal.

The Court has published a practice note for residential development appeals, together with a helpful webpage dedicated to the residential appeal process.  The practice note shows that at the first return date of a residential development appeal (usually 21 days after which the appeal is filed), it is expected that the matter will be fixed for a final hearing which will involve a conciliation conference and hearing under section 34AA of the Land and Environment Court Act.  The final hearing will usually be not more than 6 weeks after the first directions hearing.  This effectively means that most residential development appeals will be disposed of within 9 weeks of filing, though in some of those cases judgment might not be given on the hearing day but rather be reserved for an indefinite period.  The result however is what may be a significant shortening of the turnaround time for residential development appeals.

Parties to proceedings that are not residential development appeals will now be entitled to apply for the proceedings to be dealt with under the conciliation-arbitration scheme.  Whether or not the Court will accede to such a request will depend on the facts and circumstances of each individual case.  It will be interesting to see in the future whether or not other types of development appeals are added to the list of proceedings that will usually be dealt with under section 34AA.

The conciliation-arbitration scheme will not apply to residential development appeals commenced in the Court (but not determined) before 7 February 2011.

Amendments to EP&A Act (commencing 28 February 2011)

A number of amendments are being made to the EP&A Act.  The principal changes relate to reviews of council decisions, and appeals against those decisions to the Land and Environment Court.  The changes apply only to development applications lodged after the amendments have commenced (28 February 2011).

Review of council decisions

For over ten years, under section 82A of the EP&A Act applicants for development consent have been able to request a council to review its determination relating to their development applications, subject to some limited exceptions.  Usually this avenue is used by an applicant where the application has been refused or consent has been granted but the applicant is dissatisfied with a particular condition(s) of consent.  In the cases of reviewing a refusal, the applicant can use this avenue to lodge amended plans in an attempt to resolve the Council’s concerns stated in its reasons for refusal.  No similar right of internal review has ever existed however in the following circumstances:

• where a council does not accept a development application for lodgment
  
  
• where a council refuses an application for modification of an existing development consent.

Resulting from the PALA Act, the EP&A Act will be amended to provide applicants with a new right of review by a council in the above circumstances.  Previously, changes were proposed to take place which would allow for external experts known as “planning arbitrators” to carry out those reviews (among others).  That proposal has been scrapped and replaced with expanded rights of internal council review.

Appeals

Two key areas of change will be brought about relating to appeals against council planning decisions to the Land and Environment Court:

• The time for filing of appeals by an applicant who is dissatisfied with the determination of a development application or modification application has been reduced from 12 to 6 months.
  
  
• Since 1 September 2008, section 97B of the EP&A Act has required that in any proceedings where the Court allows an applicant to amend its development plans (except to make a minor amendment), the Court must order the applicant to pay the council’s costs of the assessment of, and proceedings relating to, the original development application the subject of the appeal.  This has had startling effects for many applicants who might make amendments to their development proposals while in the court process to completely resolve or at least narrow the council’s issues and achieve a more acceptable planning outcome.

Section 97B was envisaged as an encouragement for applicants to settle on their development proposals in the development application and (where relevant) internal review processes when the development proposal is still on foot before the council.  This was to avoid parties on appeal to the Court wasting unnecessary time and cost on a proposal that is later changed and results in costs being thrown away.  However, it had quite draconian effects in many cases.

The section is now being amended to bring it more into line with what was originally envisaged.  Whilst the new section 97B will apply in the same circumstances as it does in its current form, the applicant will now be required to only pay the costs of the council that are thrown away as a result of amending the development application.  This is quite consistent with the approach that the Land and Environment Court had developed by way of case law before section 97B was introduced, and produces a more balanced outcome for applicants.