Faster and Cheaper Appeals?
S.34AA
Anthony Whealy, Partner
Gadens Lawyers
October 2011
sydney
melbourne
brisbane
perth
adelaide
port moresby
Background
• 34AA commenced 7 February 2011 applies to
appeals lodged from that date (only 8 months of data)
• Virtually guarantees a fast Land and Environment
Court process
• Applies instead of system legislated for in 2008, but
which never commenced, of appointing independent
‘planning arbitrators’ to review some Council
decisions, outside of the Court system
gadens.com.au
Background - some statistics
• 2nd Reading Speech says small-scale DAs are "the
vast majority" of local DAs:
– in 2008/09, 59% of DAs were new homes or alts and
adds
– in 2008/2009, 93% of DAs were works costing less
than $500K (average of $288K for homes)
– But only 23% of appeals were for homes or alts and
adds: "This figure is too low"
– Since 2007, number of conciliation conferences
increased by 158%
– Conciliations have increased from 29 in 2006 to 632
in 2010 (Annual Review 2010)
gadens.com.au
Stated Aims
• Has the aim of “making it easier for homeowners to
seek a review of Councils’ decisions on their
development applications so they can exercise their
rights as quickly and as cheaply as possible”
• Government says the new laws are designed to
“encourage more homeowners to exercise their
existing appeal rights”
gadens.com.au
Stated Aims – cont.
• 2nd Reading speech - "to provide quick, just and cost
effective appeals for users of the planning system"
• Very similar to 'overriding purpose' in s.56 of Civil
Procedure Act to "facilitate the just, quick and cheap
resolution of the real issues in the dispute"
gadens.com.au
What does s.34AA apply to?
• Applies to single detached dwellings and dual
occupancies (and s.96 applications relating to them),
including those with subdivision
• Higher density development will be unaffected, and
will therefore continue to be dealt with via the usual
Court appeal processes
• Cost of development is irrelevant
gadens.com.au
Caveat
• Be aware - s.34AA(1)(b) says the section applies to:
– "particular proceedings that the Court orders, on
the application of a party to the proceedings or of
its own motion, to be dealt with under this
section"
• Don't be afraid to ask for a 34AA hearing
• Equally though, s.34AA(3) allows Court (including
Registrar) or Commissioner "at any time, if the Court
or Commissioner thinks it appropriate in the
circumstances of the case", to revert to ordinary
Class 1 appeal process
gadens.com.au
Caveat – cont.
• Court says this applies where a DA is “complex” or
where “there are multiple expert witnesses”
• Parties may also apply for exemption under this
section (s.34AA(3))
gadens.com.au
Overview – what is the process?
• “A new hybrid conciliation-arbitration
model”, comprising two phases:
1. Commissioner will attempt to push parties
towards reaching an agreement (i.e.‘conciliation’)
- very similar to s.34 of the Court Act, however
s.34 requires parties to consent to
adjudication/arbitration
2. If no agreement, Court "must" terminate and then
(after hearing all arguments and any evidence)
make a binding decision on the matter (i.e.
‘arbitration’) (s.34AA(2))
gadens.com.au
Overview – what is the process? cont.
• Phase 2 proceeds as an ordinary hearing - evidence
of Phase 1 only admissible if parties agree (s.34(11))
• So that binding agreements can be reached during
the conciliation phase, it is expected that Councils
have someone attend who is authorised to settle the
matter on the spot; But what happens if this is not
honoured?
• s.34(1A) provides that "It is the duty of each party to
participate, in good faith, in the conciliation
conference"
gadens.com.au
Overview – what is the process? cont.
• 2nd Reading Speech says the absence of delegated
authority “will not be acceptable under the new
scheme”
• Court expects parties to have delegated authority to
reach agreement. But see ROI Properties v Sydney
City Council (2010) which limits this to some but not
all issues in dispute
• Remember that Commissioners cannot award costs,
and the conciliation phase is "without prejudice"
(s.34(11)) All bark and no bite?
gadens.com.au
Timing
• A benchmark has been set whereby the Court must
seek to resolve 95% of these appeals within 3
months. In our experience this is being adhered to
• Council Statements of Facts and Contentions due
after 19 days (only 16 days after service of the
appeal)
• Applicant Facts and Contentions for appeals against
conditions due when the appeal is first filed!
• First return date is 21 days after filing (18 days after
service) - matter then fixed for hearing about 6 weeks
later (i.e. ordinarily a 9 week timeframe)
• Ex temp decisions expected for "most matters” seems a little rough on the Commissioners!
gadens.com.au
The Process in Detail
• See the Practice Note Class 1 Residential
Development Appeals on Court's website
• Parties still entitled to be represented by lawyers and
expert witnesses
• Neighbours and other objectors not technically
entitled to participate in conciliation but seem to
anyway (Court website says objectors “do not have a
legal right to participate in the conciliation phase”)
• 2nd Reading Speech says otherwise
• It will remain difficult (politically) for Councils to agree
to compromises in the face of hostile neighbours
gadens.com.au
Amended Plans?
• Difficult for applicants to significantly amend their
plans, but amendments can be made where agreed
between parties (i.e. as part of conciliation)
• Practice Note appears to encourage amendments by
condition - para 40
• Practice Note suggests amendments must "lessen
the environmental impact of the development and/or
otherwise lead to an improved community outcome"
(para 39)
• Remember costs - new s.97B of EP & A Act says
Court (in s.97 appeals) "must make an order for the
payment of those costs...that are thrown away"
gadens.com.au
Case Study #1: South West Rocks
gadens.com.au
Case Study #1 – cont.
gadens.com.au
Case Study #2: Hunters Hill
gadens.com.au
Case Study #2 – cont.
• MINUTES OF ORDINARY MEETING NO.4307 –
14 June 2011
– 2. Council write to the Chief Judge of the NSW
Land & Environment Court, expressing concern at
the process for appeals under the provision of
s34AA conferences in respect to the recent matter
held at 38 Earl Street, Hunters Hill in which
residents were not given the opportunity to make
representation and that the Chief Judge alter the
proceedings to allow for residents to address the
Court in these matters
gadens.com.au
Case Study #3: Leichhardt
gadens.com.au
Case Study #3 – cont.
gadens.com.au
Case Study #3 – cont.
gadens.com.au
Observations – Cheap?
• No reduction in filing fees. Maximum is currently
$6126
• No reduction in solicitor workload or preparation time
- no limit on volume or length of Contentions or
Evidence
• More preparation required than for a conventional
s.34 Conference
gadens.com.au
Observations – Cheap? cont.
• Court website states "Preparing for a hearing is
different to preparing for conciliation. You need to
consider what evidence you wish to present to the
Commissioner and what submissions you wish to
make about that evidence. You need to consider what
witnesses you wish to call and what documents you
wish to place in evidence that are relevant to your
appeal. You need to consider what will be your
response to the evidence the Council is expected to
give as part of its case"
• May be some saving in hearing time if matter
resolved in conciliation on Day 1
gadens.com.au
Observations – cont.
• Take care labelling the process "cheap"! Cost
depends on complexity and scope of appeal
• Residential appeals carry emotion. Clients are
passionate and want quality representation, not quick
representation
• Faster time may indeed "encourage more people to
appeal and get a fair hearing of their concerns”
• Will faster decisions lead to more 56A appeals?
• Solicitors and experts, be on your toes!
gadens.com.au