The Decision Makers
An applicant can file an appeal with the NSW Land and Environment Court (‘LEC’ or ‘Court’):
If a development application or ‘Modification’ (‘Mod’) application is refused;
If a development application or ‘Mod’ application is approved, but in terms the applicant disputes;
If a development application is not determined within the number of days stipulated by the EPA Regulation. This is referred to as a ‘deemed refusal.’
What happens after an appeal is filed?
The respondent (usually the council) files a ‘statement of facts and contentions’ – usually abbreviated to ‘SOFC’ and pronounced ‘SO-FAC’. The ‘facts’ section describes the proposal, the environmental context, the history of the DA and the controls that apply. It will usually also summarise community concerns as per the submissions received. The ‘contentions’ section basically lists the respondent’s reasons why development consent should not be granted, supported by ‘particulars’ (ie ‘reasons’).
The applicant will generally be provided the opportunity to file a ‘SOFC in reply’ which it might use to dispute facts or respond to contentions raised by the respondent*.
The Court may give orders:
that the applicant and respondent participate in ‘without prejudice’ discussions in an attempt to resolve the dispute or narrow the issues in dispute. If an agreement is reached the respondent may agree by consent that development approval be granted.
to participate in what is referred to as a conciliation conference (also referred to as a ‘section 34’ (s34) or, for certain types of residential DA, a ‘s34AA’). This is also a process promoting discussion between the parties with a view to resolving the dispute, but convened by a commissioner of the Court.
that the matter proceed directly to a full hearing before the Court. This generally occurs where it is unlikely that any significant agreement would be reached between the parties.
During the s34/s34AA the parties may discuss amendments to the DA that could resolve the differences between the parties. For example, if the key issues are ‘view loss’ and ‘privacy’ the applicant might agree to remove part of the building causing the view loss, or screen or redesign windows causing the privacy impact. If agreement is reached on the terms of a decision acceptable to both parties, then the Court will determine the matter in accordance with that agreement.
If agreement is not reached in a s34, then the conference will be terminated and the matter will be ‘set down’ for a final hearing before the Court, usually some months down the track.
If agreement is not reached in a s34AA, then the commissioner will proceed to arbitrate (that is, ‘determine’) the matter.
*in an appeal against conditions, the appellant prepares the SOFC, setting out why it disputes the terms (usually conditions) of consent and the respondent/council prepares the SOFC in reply.
The Court hearing
For most residential appeals, unless otherwise agreed the hearing will start with a ‘view,’ which in most cases will start at 9.30am on the DA site. The commissioner will introduce the proceedings. The legal representatives for each side will then introduce themselves and the individuals present for the applicant and the respondent. Those present may include a range of experts, depending on what the issues are - commonly, town planners, arborists, traffic engineers and so on. The respondent’s (ie usually the council’s) lawyer will then call on objectors who have registered to make their further verbal submissions. The applicant’s lawyer may ask questions of residents after they have spoken, but this is less common these days.
Afterwards the Court and the parties will inspect the site, any objector’s property as relevant, and the surrounding locality - the extent of the site visit depends on what the issues are.
The Court will then reconvene in the ‘physical’ court, which might be the Court’s building at 225 Macquarie Street, Sydney, or a local courthouse for country matters. On the first day the commissioner will advise at what time the hearing will commence in Court and on subsequent days the hearing will usually commence at 10.00am (although this sometimes varies). Anybody can attend to observe. At the Court building in Macquarie Street there is a board in the ground floor foyer which will tell you which courtroom the matter you are interested in will be heard.
At Court
The hearing may be heard by a judge or a commissioner. The same procedural/etiquette rules apply. Assuming it is a commissioner you should stand when the commissioner enters or leaves the Court, and ‘bow’ your head to the commissioner when you enter (or leave) the Court. You must make absolutely sure that your phone is switched off or on mute, including notifications - allowing it to make any noise is an absolute no-no.
Likewise you are expected to keep quiet during the proceedings - if you need to talk you should do this outside of the courtroom with your voices kept low enough so as not to be heard (air-conditioning in various courtrooms is notoriously inconsistent so the door is often left open.)
Who sits where?
You will find the commissioner seated at the head of the court, with a court attendant and another charged with recording proceedings to one side. The vacant ‘box’ is the one that will be occupied by witnesses. At the bar table you will see the lawyers for each side. The respondent (eg council) sits to the right hand side (usually with their experts behind them) and the applicant’s representatives are to the left side. The seats closest to the bar are generally occupied by a raft of experts and others supporting or instructing the lawyers so community members observing will generally sit towards the rear.
The proceedings
Usually, the respondent’s representative (which maybe a barrister, or a solicitor) will first make an opening address, which sets out an outline of the case, with relevant documents identified and tendered. This will be followed by the applicant’s representative doing the same.
Each side will then call its witnesses, with the public authority (eg council) going first. In residential appeals, however, it is common for the experts for each side to give evidence in the witness box together.
Each witness can be ‘examined’ (ie asked questions about their evidence) by the representative of the party who has engaged them, then ‘cross-examined’ by the representative ‘on the other side.’
Once all of the evidence has been heard, the lawyers for the applicant and respondent will make closing submissions, basically detailing why consent should or should not be given. During the hearing the applicant’s side might seek to offer up solutions which might at least partially address some of the respondent’s concerns, and if agreed, these amendments might be dealt with in amended plans or conditions, which will also be outlined during closing submissions.
Sometimes the Court will give an immediate judgment, although this is uncommon. Usually, judgment will be ‘handed down’ days or weeks after the conclusion of the hearing.
The role of experts
It is usual for the applicant and respondent to engage or rely on experts to give evidence on why approval should or should not be granted by the Court. If the respondent is a council, and the council staff have recommended approval for something subsequently refused consent then it is common for the council to engage an external expert to give evidence in the proceedings.
Expert witnesses will provide input in various ways, depending on how the appeal is managed. They may be involved in without prejudice discussions or in a s34 conference where impacts raised by a development are discussed as well as options to resolve or mitigate those impacts through amended plans for example. If the matter proceeds to a final hearing the experts will each prepare an expert report or if the Court directs, a joint report between the experts. The purpose of the joint report is to attempt to reach some level of agreement on what the key issues are and which issues might be capable of resolution (or agreed to be no longer in issue). The evidence then given in Court will be on the remaining issues in dispute.
When an expert accepts a brief, whether from the applicant or respondent, they will do so only if they consider there is merit in the case presented. As the appeal progresses, things may happen to cause that opinion to change, in part or whole: as examples, the ‘other side’s’ expert may present compelling new evidence or the applicant may amend the plans in order to ameliorate or remove an impact. Experts are bound by the Expert Witness Code of Conduct. A key requirement under this code is that an expert’s role is not to advocate for one or other ‘side’ but rather to assist the Court in reaching its decision. If the expert’s position changes, therefore, they are obliged to inform the Court.
This sometimes means that you will hear an expert ‘on your side’ making concessions or give evidence that you might personally be unhappy about. For example, the council’s expert might agree that the impact of a development on your harbour ‘view’ is minor, when you think it’s significant. If the expert does this, it is because they have formed a professional opinion, based on expert knowledge and experience, that this concession should be made. The expert is obliged to give their independent opinion, not ‘go in to bat’ for the party who has engaged them. Bear in mind the commissioner will weigh up this evidence with what they have heard from other witnesses (including lay/community witnesses) and with what they have seen on site.
There are usually many different facets to Land and Environment Court matters, and commonly experts for both ‘sides’ will make concessions, hence it is uncommon for any one concession to be determinative. Usually the Court will, after hearing all of the evidence, as well as submissions by the community, have the task of reaching a decision that achieves appropriate balance between the competing facts, opinions and expertise it has been presented with.
Who ‘runs’ the case for the council?
The appeal may be managed by Council’s in-house lawyers or by an external law firm engaged and instructed by the council. Usually, once an appeal is filed these are the best people to advise you as to the progress of the matter.
Can I make any further input once an appeal has been filed?
For a s34/s34AA or a final Court hearing, there will be an opportunity for you to address the commissioner either on site (as is now most common) or in Court. You will need to register your intention to speak with Council’s lawyer. If there’s something specific that you want the commissioner and parties to see (eg a ‘view’ impact), then you can ask to make to make your submission from your property. It is normal for representative of both parties (ie applicant and respondent) to accompany the commissioner, however you can ask that the numbers be kept down so that only those experts who need to understand your concerns are in attendance.
The protocols for giving lay (ie ‘non-expert’) evidence on site are similar to those for presenting to local planning panels:
Give your name and address (if this has not already been explained by the legal representative);
Explain your concerns to the commissioner as succinctly as possible. Keep it focussed. If another neighbour has already made a point you agree with, there’s no need to repeat - just indicate you heard what they said and support that view.
Assume your written submission has been made available to the commissioner - you do not need to repeat it. Better to focus on the main points, and anything new you wish to add or point out on site.
Do not repeat evidence given by other community members - if you agree with what they’ve said, just say so.
Make sure your evidence is confined to things that concern you - ie don’t say “I’m here to back up my neighbour etc.”
The commissioner will aim to keep this a non-confrontational environment and just wants to hear what concerns you have. It’s fine to use notes and don’t worry if you’re not the world’s best public speaker; no one expects you to be.
Once you have finished speaking, the commissioner will ask each of the lawyers if they want to ask you any questions. This is less common these days, but you might be asked one or two things for clarification. When this is finished, step back and listen quietly to other speakers. Do not interject or call out or clap. Do not take photographs or audio-visual recordings. Be respectful of everyone attending. The on site view is generally quite informal but it is part of a Court hearing nonetheless, so think of yourself as being ‘in Court’ - in other words, before you do anything ask yourself whether that would be appropriate behaviour in a court room. If the answer is ‘no’ then probably not!
Don’t be offended if the commissioner declines to shake your hand! Firstly there could be a lot of hands to shake but more importantly they are, and need to be seen as, completely impartial by all participants in the hearing, so they will make sure their conduct and interactions reinforce this impartiality. For the same reason, best not to open a conversation if you happen to meet in the lift foyer or in the street and definitely do not make any attempt to discuss the matter being heard. A polite ‘hello’ is fine, and perhaps step aside and let them take the first lift up.
The on site is an opportunity for you to express your views, but it is not a general discussion. You will not usually be permitted to ask questions of the applicant, for example, nor say “can I just add something….” after you’ve had your turn.
If you are speaking on behalf of someone else or a group of people it’s a good idea to bring some written evidence with you confirming you are authorised to speak on their behalf. If you have prepared notes you are reading from, bring extra copies so you can provide a copy for the Court’s consideration.
Further amended plans
If the DA plans are amended as a consequence of ‘without prejudice’ discussions between the parties or a s34 then, if the amendments are considered significant and/or that Council’s notification policy requires, these amended plans may be re-notified, in which case you will have the opportunity to provide comments on them.
Find out more
The NSW Land and Environment Court Act sets out the key procedures. The most useful starting point (relevant to most residential appeals) is Division 4 ‘special provisions respecting Class 1, 2, or 3 proceedings.)
The NSW Land and Environment Court website provides a lot of useful information, including ‘practice and procedures’ and what to expect when coming to Court.