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The information contained in this fact sheet is current as at 18 October 2006.

Topic 2 - Planning and Development

2.1 NSW Planning and Assessment Law

2.1.5. Legal Proceedings in the Land and Environment Court

The Land and Environment Court is a specialist Court which deals with cases relating to land, the environment and local government. It is part of the New South Wales Court System, and has equal standing with the Supreme Court.

The Land and Environment Court can only deal with matters covered by certain legislation referred to in the Land and Environment Court Act 1979. The most important pieces of legislation are the Environmental Planning and Assessment Act 1979, the Protection of the Environment (Operations) Act 1997 and the Local Government Act 1993.

Note: The information contained in this publication is for general reference only. If you are contemplating legal action, you should seek legal advice on the specific facts of your case as soon as possible.

What kinds of cases are dealt with in the Land and Environment Court?

In the Land and Environment Court Act, the Court's jurisdiction is divided into six ‘classes' depending on the type of case. Different procedures apply to each class. The classes are as follows:

Class I – Environment protection and planning appeals (‘merits appeals')

Class II – Local government and miscellaneous appeals

Class III – Land tenure, valuation and rating appeals

Class IV – Civil enforcement

Class V – Criminal prosecutions

Class VI – Appeals from environmental convictions in lower courts

Class VII – Other appeals relating to environmental offences.

The cases which are likely to be of most interest to members of the public fall into classes I, IV and V. The features of these cases are described in more detail below.

Class I – Merits Appeals

The circumstances in which merits appeals may be commenced are discussed in Section 2.1.3.1 – Merits Appeals above.

Each side in a merits appeal usually presents a number of written expert reports to the Commissioner that show the merits or failings of the proposal. For example, reports by town planners will be tendered to show whether the proposal is likely to have an adverse impact on the amenity of the area, and reports by ecologists will be tendered to show whether the proposal is likely to have an adverse impact on flora and fauna.

If a party wants to challenge what is said by an expert in a written report, they should ask that expert to come to Court during the hearing so that they can cross-examine him or her in Court about contentious aspects of their report. Local residents are also often asked by local councils to appear in Court and give evidence about the impacts which a proposal will have on their properties. They may also be cross-examined by the developer's lawyer.

The Commissioner or Judge can make any decision which the original decision-maker could have made with respect to the proposal. If the Commissioner or Judge approves a development proposal they will usually impose conditions of consent.

Parties cannot appeal from a merits review decision on merits grounds. However, if the decision was made by a Commissioner, they can appeal to a Judge of the Land and Environment Court on the grounds that the Commissioner did not make the decision in a legally correct way (for example - that he or she misinterpreted the terms of the Local Environmental Plan).

This type of appeal is conducted in the same way as civil enforcement proceedings (see below), without introducing any new evidence of the merits of the proposal. If the merits review decision was made by a Judge, legal appeals can only be made to the Court of Appeal.

Class IV – Civil Enforcement Proceedings

Civil enforcement proceedings are cases where one party alleges that another party has not complied with the environmental law, and asks the Court to make orders to remedy the breach of the law.

Judicial review proceedings are one kind of civil enforcement proceedings, where a person alleges that a government authority has not followed the law in making a particular decision, such as a decision to grant a consent or approval.

The circumstances in which judicial review proceedings may be commenced are discussed in Section 2.1.3.2 – Judicial Review.

Civil enforcement proceedings are different from criminal proceedings in that the objective of the proceedings is not to punish a person who has broken the law, but to restore compliance with the law.

The Environmental Planning and Assessment Act 1979 and the Local Government Act 1993 give any person the right to bring proceedings to remedy or restrain a breach of those Acts.

The Protection of the Environment Operations Act 1997 gives any person the right to bring proceedings to remedy or restrain a breach of that Act and to restrain a breach or a threatened breach of any other Act if the breach is causing or is likely to cause harm to the environment.

If members of the public commence civil enforcement proceedings, they have the responsibility to present evidence to the Court to show that a breach of an Act has occurred. On the other hand, if proceedings for breach of development consent are commenced by a council, local residents will not have a formal role in the proceedings.

Members of the public are unlikely to be called as witnesses in civil enforcement proceedings, because the merits and potential impact of the proposal are usually not relevant. However, they may be asked to make sworn statements for the Court if they witnessed any unauthorised development being carried out.

Civil enforcement proceedings are always heard by a Judge and formal rules of evidence apply, restricting what kind of material can be considered by the Court.

To succeed, the applicant needs to be able to point to a particular provision of the environmental law (in an Act, a Regulation or Environmental Planning Instrument) which should have been complied with, and then present factual evidence to show that it has not been complied with.

For example, the applicant might be able to show that s79C(1)(c) of the Environmental Planning and Assessment Act 1979, which requires a council to take into account the suitability of the site for the development, has not been complied with, by presenting evidence of council reports, minutes of council meetings or other documents which show that there was no consideration of this matter.

Class V – Criminal Prosecutions

A prosecution is a case where one party attempts to show that an individual or corporation has committed an offence, and asks the Court to impose a penalty on that person or corporation as punishment. Examples of offences which may be prosecuted in the Land and Environment Court include pollution of water and cutting down trees which are subject to a tree preservation order.

Carrying out a development without consent and breaching the terms of a development consent are also offences under the Environmental Planning and Assessment Act, but are more frequently dealt with by civil enforcement proceedings rather than prosecutions. A criminal conviction for these offences cannot be made while the same matter is the subject of civil enforcement proceedings, or after an order has been made in civil enforcement proceedings. Criminal offences are also discussed in Section 2.1.4.2 - Criminal Offences.

A prosecution is usually commenced by the government body responsible for that area of the law. Clearing of native vegetation is prosecuted by the Department of Natural Resources, breaches of tree preservation orders are prosecuted by local councils, and pollution offences are prosecuted by the Department of Environment and Climate Change.

Members of the public can commence a criminal prosecution for pollution offences under the Protection of the Environment Operations Act 1997, but only if they can demonstrate that the Department of Environment and Climate Change has not taken action to prevent, control or mitigate harm caused to the environment by the offence, and the Court grants leave.

Members of the public do not have a formal role in prosecutions. The prosecutor may ask members of the public to be involved in the proceedings as witnesses to give evidence in Court, especially if they witnessed the offence taking place. When attempting to show the impact which the offence has had on the environment, the prosecutor is more likely to rely on evidence from scientific experts rather than lay people.

Criminal cases are always heard by a Judge of the Court. Strict rules of evidence apply.

In the first stage of the proceedings, the prosecutor presents evidence to prove that the defendant committed the offence. The defendant, if he or she pleads ‘not guilty', may present evidence to contradict the prosecutor's evidence, or may simply argue that the prosecutor does not have enough evidence to prove the offence. Where a defendant pleads ‘guilty', the offence does not need to be proved, therefore the only matter which will need to be determined by the Court is the penalty.

In criminal cases, the Court must be convinced beyond reasonable doubt that an offence has been committed.

If a finding of guilt is made, or the defendant pleads guilty, the prosecutor and defendant will then make submissions to the Court on what kind of penalty should be imposed. An important factor which may be taken into account in determining the penalty is the amount of environmental harm caused by the offence. Therefore, the prosecutor often presents expert reports to prove that environmental harm was caused, or was likely to be caused, by the offence.

If the prosecutor succeeds in proving that an offence has been committed, a fine is usually imposed. In extreme cases, the defendant could even be sent to jail.

Depending on the offence, the Court also has the power to make orders requiring the offender to make good the damage caused by the offence. For example, where an offence under the Environmental Planning and Assessment Act involves damage to vegetation, the Court can order the defendant to plant new vegetation and maintain it to mature growth.

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