Introduction:
Most people have heard of the Land and Environment Court (LEC) - possibly in the news and as an option for redressing planning disputes with council. In this blog we’ll try to cut through the mystery and focus on things you should know before considering an appeal in the Land and Environment Court (LEC) and even some things you should consider before submitting a Development Application (DA) to council that you think may be contentious or problematic.
Just a bit of a primer so we’re on the same page - The Land and Environment Court (LEC) in NSW has a number of functions denoted by classes but we’re only going to focus on class 1 which encompasses Development Appeals, Compensation Claims, and Miscellaneous Appeals: This class includes matters such as appeals against a refusal or conditions of a development consent, and appeals against the failure to determine a development application.
Other classes deal with tree disputes, criminal prosecution etc. Find more info here about classes.
Now that we’ve cleared that up, here are “X” things you should know about the LEC:
1. Is the LEC just for wealthy developers?
Some community members perceive the LEC as a tool for wealthy developers to exploit the system and forcefully push through their agendas using expensive lawyers. To be fair, in some cases this is true - people who have the means will push the envelope - particularly when the potential return dwarfs the risk of failure of their case. It’s important to say that people who push the envelope are prepared to lose and often do lose.
2. LEC Levels the playing field
But these cases are relatively rare - in the context of appealing council decisions for the average applicant, the LEC serves to balance the scales. Councils, endowed with the power to dictate what you can and can't do, often err by overstepping their boundaries during development assessment, making subjective judgements about what can and can’t be approved. The fact is that councils make poor decisions all the time, this could be through lack of competent staff, group think or poor management. As a homeowner you are limited - councils hold the power. The LEC aims to mediate such instances, ensuring that power dynamics do not undermine the rule of law.
3. When appealing, council may broaden the list of contentions
The thing you need to be aware of is that when you launch an appeal, council may extend the contentions - including things that may not have been contentious to date, this is known to industry insiders as “throwing in the kitchen sink” and the reason for doing this is not clear because it increases the amount of work for council and applicant alike but I think it’s because they want to keep their options open and arguably it’s a bit of a deterrent - if you ask me it's really stupid.
4. It’s nothing like a criminal or a civil court
If your experience is that of a magistrates court or a district court then the LEC is nothing like that. It is less formal with commissioner led discussions. The commissioner may visit the site, speak to all parties and push the parties towards a compromise, the hearing may be held at the property in question. The commissioner may be a planning professional or even an architect who has trained in LEC law so they are typically nothing like a stereotypical judge keeping a court in order. It also lacks the intensity and stress of other courts. The atmosphere is typically more relaxed and it’s more about getting to the facts than trying to discredit the applicant so you won’t be cross-examined.
5. LEC Application Costs are not prohibitive
It’s crucial to understand the application fee before submitting your application to the LEC. The cost varies based on the development's value which may be worth knowing prior to submitting a DA. For small-scale developments valued under $500K, the application fee is $1026. However, for developments exceeding the $500K mark, the application fee significantly increases, more than quadrupling. Check the full fee schedule here for NSW LEC.
6. It gets technical quickly
Contrary to the belief that the LEC is exclusively for lawyers, developers, or large corporations, the court is designed to be accessible to everyone. But unlike other courts things get technical quickly and a solid understanding of planning laws and principles is a necessity. It’s not a space you can wing it by self representing or bringing in a general purpose lawyer. A competent lawyer specialising in planning is critical in this court, as the LEC strictly adheres to state government planning laws.
7. Impartiality and Fairness
There's a misconception that the LEC inherently favours specific entities, such as government bodies, wealthy clients or wealthy corporations. While parties with more resources might occasionally have an edge in legal proceedings, the LEC operates on principles of impartiality and fairness, ensuring a just hearing for everyone.
8. Efficient Dispute Resolution
The belief that legal proceedings at the LEC are inevitably lengthy and complex is common, but not entirely accurate. While intricate cases might take a while to resolve, the LEC utilises various processes like mediation and conciliation to settle disputes efficiently and swiftly, reducing waiting times. The State government of NSW has also appointed a number of additional Commissioners to speed up the time it takes to get to a hearing.
9. Most Matters are resolved through Mediation and Conciliation
The LEC encourages and even facilitates alternative dispute resolution methods like mediation and conciliation, aiming for amicable agreement between parties. This approach often leads to a satisfactory resolution of most reasonable cases, without the need for a formal court hearing.
10. Council does not want to be in court
The council normally does not want to be in court, particularly when they don’t have a strong case. You may find that, if you have a reasonable case, the council’s legal council may direct that the matter is settled as quickly as possible.
11. You can apply to the LEC 42 Days after DA Submission
You're entitled to apply to the LEC 42 days post-submitting your DA. This is because the council gets 42 days to assess your application, after which a failure to determine on their part can be deemed as refusal. This allows you to proceed with your LEC application, a strategy especially beneficial when dealing with notoriously slow and unreasonable councils.
12. Liability for Costs
Contrary to popular belief, you won't be liable for the council’s costs in Class 1 LEC applications. The financial implications of your case are limited to your own costs, providing a degree of certainty and financial security as you proceed with your application.
13. A commissioner’s decision will come when it comes and not before
It’s nothing like television where the case is heard in the morning and the judge hands down a decision in the afternoon. In fact there is no time limit, after 6 months they may get a warning letter from a chief judge or similar. This can be very frustrating at times.
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