EDO Fact Sheet 2.4 The Land and Environment Court

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Last updated: 24 January 2009

2.4 The Land and Environment Court

1 Overview

Key to terms used in this Fact Sheet

DECCW means the NSW Department of Environment, Climate Change and Water

Director-General means the Director-General of DECCW.

Environment Minister means the NSW Minister for Climate Change and the Environment

LEC Act means the Land and Environment Court Act 1979.

The Land and Environment Court is a specialist court which deals with cases relating to development, the environment and local government. It is part of the NSW court system, and has equal standing with the Supreme Court of NSW.1

The Land and Environment Court is established by legislation (the Land and Environment Court Act 1979), and can only deal with those matters which are listed in the Land and Environment Court Act 1979 (or any other Act) as being within its jurisdiction.2

For example, the Court has jurisdiction to hear appeals arising under, or cases to enforce:

This Fact Sheet explains the types of cases which the Land and Environment Court hears, what sort of orders it can make, what the costs rules are, and how to obtain legal aid.

Environmental disputes under Commonwealth laws are dealt with the Federal Court of Australia.

1.1 Useful web links

The Land and Environment Court has an extensive website which includes its judgments, some fact sheets, and frequently asked questions.

1.2 Useful legal texts

If you want to take action in the Land and Environment Court to challenge a decision regarding a DA, it is important to act quickly. Otherwise, even if you can establish a breach of the law, the Court may find that your appeal was brought too late, or that the delay in bringing the proceedings outweighs the breach of the law.

Appeals about decisions to grant or refuse development consents in NSW are heard by the Land and Environment Court. There are two forms of appeal - merits and judicial review. It is important to understand the difference between these two types of appeal (see below).

The types of appeal which are available in relation to a given development will depend upon whether it is categorized as designated development or non-designated development, advertised development, a Part 3A Major project, or whether there has been a review by the Planning Assessment Commission.

See Fact Sheets 2.2 and 2.3 for more information on how appeal rights arise under each of these categories.

2 Penalty notices

Rather than every minor environmental matter being heard by the Land and Environment Court (or Local Court), public authorities can issue penalty notices for these offences and avoid the time and cost of a court hearing.

For example, certain minor offences under the EPA Act can be enforced through penalty notices. These are called "penalty notice offences". Penalty notice offences are listed in Schedule 5 of the EPA Regulation 2000 which also states the penalty for each offence.4

Under the EPA Act, an authorised officer5 can serve a penalty notice on a person if it appears to the officer that the person has committed an offence under the EPA Act for which a penalty notice can be issued.6 If the person does not want the matter to go to Court, they can pay the penalty notice within the time specified on the notice and avoid a hearing.7 A similar process of issuing a penalty notice is available for pollution offences under the Protection of the Environment (Operations) Act 1997.8

3 Land and Environment Court procedures

The Land and Environment Court is a specialist court which hears appeals and enforcement cases under planning and environment laws in NSW.

The operation and procedures of the Land and Environment Court is governed by the Land and Environment Court Act 1979, the Land and Environment Court Rules 2007, and a range of practice notes and directions issued by the Chief Judge.

3.1 Classes within the Court

The Court's jurisdiction is divided into 7 different classes, depending on the type of case. Different procedures apply to each class. Either a Judge or a Commissioner hears cases in the Land and Environment Court, depending on the nature of the case.

Both Judges and Commissioners hear cases in the Land and Environment Court, depending on the nature of the case. Either a Judge or a Commissioner can hear Class 1, 2 and 3 matters, whereas only a Judge can hear Class 4, 5, 6 and 7 matters.10

Some of the features of Class 1 (merit appeals), Class 4 (civil enforcement), and Class 5 (summary enforcement of criminal matters) are described below.

3.2 Class 1 - Merit appeals

In a merit appeal (also called a "Class 1" appeal), the Court remakes the decision which is under challenge. This is different from assessing the legal validity of a decision (called judicial review: see below).

In a merits appeal, the Court usually has the power to make any decision which the original decision-maker (eg the council or Minister) could have made regarding the development, such as by granting or refusing development consent.11 If the Court approves a development application, then the Court will usually impose conditions of consent.

Merit appeals are available under a range of environmental legislation. However, most merit appeals in the Land and Environment Court are brought by developers against a refusal to grant consent or against the conditions of consent. In some cases, objectors (third parties) are also entitled to either bring (or be joined to) a merits appeal.

Merit appeals are usually heard by a Commissioner, rather than a judge, in the Land and Environment Court. However, if the proceedings are likely to be lengthy, complex or controversial, the matter can be heard by two or more Commissioners, or a Judge and a Commissioner.12

The circumstances in which merit appeals against development decisions are available are described in Fact Sheet 2.2.

The Judge or Commissioner can take into consideration all of the material submitted with the original DA, and can consider any fresh evidence which it thinks may be relevant.13 Merit appeals are usually informal in nature, and the rules of evidence do not apply.14 The Court is required to take into consideration the same issues as the original decision maker in making its decision, eg on whether to approve a development, or whether to grant a pollution licence.15

Merit appeals concerning development applications will usually commence on site.16

Local residents are often able to appear at the beginning of an on-site hearing to express their concerns to the Commissioner. Residents are often invited by the council, the developer or a third party to attend the beginning of a merits appeal to give evidence about what impacts a proposal will have on their property. They can be cross-examined by the other parties' lawyer.

The Court must always make an inspection of the site of a proposed development before deciding a matter unless all parties agree that a site inspection is not necessary.17

Each side in a merits appeal usually presents a number of written reports by experts to the Commissioner to show the merits or failings of the proposal. For example, an objector to a designated development might tender a report from a town planner showing what impact a proposal is likely to have on the amenity of an area, or a report by an ecologist could be tendered to show the likely impact on threatened species.

If more than one party engages experts to give evidence on the same issue, the Court usually requires that the experts confer and then prepare a joint report, setting out what matters they agree and disagree on. The joint report is either prepared after the experts have filed and served their individual reports, or can be done prior to, or instead of individual expert reports, particularly when the matter in disputed is not complicated.18

If a party wants to challenge what is said by an expert in a written report, they should ask the expert to attend the hearing so that they can cross-examine the expert about their report.

The Court can require, or parties can agree, to engage a single expert, known as the Parties' Single expert, to provide expert evidence on particular issues.19 The Parties' Single Expert is briefed by both parties, and both parties are responsible for their fees.20

If the parties cannot agree upon who to appoint as the single expert they are to seek the direction of the Court.21 Parties are to each file and serve the CVs and fee estimates of 3 appropriately qualified experts and the Court will direct the parties to engage one of these experts to act as the parties' single expert.22

No party can seek the preliminary views of the expert before offering that person's name as an expert.23 Parties must seek the permission of the Court if they want to bring evidence from another expert, if they do not agree with the Parties' Single Expert's report.24

However, if the decision was made by a Commissioner in Class 1, a dissatisfied party can appeal to a Judge of the Land and Environment Court (Class 4) on the ground that the Commissioner made an error of law, eg that the Commissioner incorrectly interpreted the terms of an LEP. This type of appeal is called "judicial review". It is not possible to introduce new evidence regarding the merits of the proposal.25

If the original (Class 1) merits decision was made by a Judge, then a legal appeal that an error of law has been made can only be made to the NSW Court of Appeal.

3.3 Class 4 - Civil enforcement

Civil enforcement proceedings are also called "judicial review" proceedings or "Class 4 proceedings".

Civil enforcement proceedings are cases where a person alleges that there has been a breach of an environmental law, and asks the Court to make orders to remedy that breach.

Examples of Judicial Review Cases

Examples of cases where a development consent might be challenged for failure to comply with the requirements of the Environmental Planning and Assessment Act include:

failure to advertise a development application in accordance with legal requirements;
failure to properly notify relevant people in accordance with legal requirements;
failure to provide an Environmental Impact Statement or a Species Impact Statement;
approval of a development in a zone where developments of that type are prohibited, or
failure to take a relevant consideration into account when granting consent.

For further information on the correct procedures for dealing with development applications, see Fact Sheet 2.2.

The Court is not concerned with the merits of a proposal, that is, whether a consent authority's decision to grant development consent was good or bad - it is only concerned with whether the decision was made in accordance with law.

Even if a development consent is declared invalid by the Court, there is nothing to stop the developer from reapplying for a development consent for the same development (unless the development was found to be prohibited, in which case a rezoning will be necessary). The consent authority could then reconsider the DA, this time ensuring that it follows the correct procedures.

Any person can bring civil enforcement proceedings. The EPA Act26 and the Local Government Act 199327 both contain "open standing" provisions which give any person the right to bring proceedings to enforce those laws.

In addition, the Protection of the Environment (Operations) Act 1997 (the pollution laws) also give any person the right to bring civil enforcement proceedings to remedy or restrain a breach of that Act, and to restrain a breach or threatened breach of any other Act if the breach is causing, or is likely to cause, harm to the environment.28

Class 4 cases are always heard by a Judge (and not a Commissioner) in the Land and Environment Court.29 Strict rules of evidence apply, restricting what kind of material the Court can consider.

The onus is on the person bringing the case to point to a particular provision of an environmental law which should have been complied with, and then to present factual evidence to show that it was not. For example, the applicant might show that s 79C(1)(c) of the EPA Act, which requires a council to take into account the suitability of a site for a development, was not considered. The could do this by tendering the council's town planning reports, the minutes of a council meeting, or any other documents which show that this matter was not considered.

Unlike Class 1 proceedings, members of the public are unlikely to be called as witnesses in civil enforcement proceedings to give evidence about the likely impact on them of the proposed development. However, if the case relates to a breach of a development consent, or to work carried out without development consent, a member of the public could be asked to provide a sworn statement (affidavit) if they witnessed any unauthorised development being carried out.

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

The types of orders that the Court can make in civil cases where the Court finds that there has been a breach of the law include:30

If a person fails to comply with an order of the Court within the time specified in the order, then he or she may be in contempt of court and liable to a fine, sequestration of property, or even imprisonment.31

Even if a breach of the law is proved, the Court has a discretion about whether to make any orders at all.32 Therefore, in addition to proving that a breach of the law has occurred, the applicant also needs to show that environmental harm will occur if the orders are not made and that the case is not just about a technical breach of the law.

The Court can grant an injunction on a temporary basis (interim or interlocutory injunction) or a permanent basis (permanent injunction). Where a person is seeking an injunction, it is important that the proceedings be brought without delay, as any delay might mean that the Court will not grant the injunction because of the prejudice to the other party.33

The Court can dispense with the requirement to order an applicant for an injunction to give an undertaking to pay damages if the proceedings have been brought in the public interest.34

3.4 Class 5 - Criminal enforcement

Criminal enforcement cases are also called "prosecutions". A prosecution is where the prosecutor (usually the Environment Protection Authority, or a local council) attempts to show that an individual or a corporation has committed an offence, and asks the Court to impose a penalty on that person or corporation.

Examples of typical offences which can be prosecuted in the Land and Environment Court are:

Class 5 cases are always heard by a Judge of the Court and are subject to strict rules of evidence under whether the prosecutor must prove their case beyond a reasonable doubt.

If the defendant pleads guilty, then the Court will proceed to a hearing to determine what penalty it should impose. If the defendant pleads "not guilty", the prosecutor must lead evidence to establish the offence, which the defendant can contradict. If the defendant is then found guilty, there will then be a further hearing on penalty.

In criminal cases, the Court usually imposes a fine by way of penalty. The Court may also have the power to order remediation of a site which has been damaged, such as the clean up of pollution, or the replanting of trees.39 In extreme cases, the Court can even order a term of imprisonment.40

The kinds of penalty, and the maximum amount of penalty, which the Court can impose are set out under the environmental legislation which has been breached. For example, the EPA Act allows the Court to impose a penalty of up to $1.1 million for a breach of that Act, if no other penalty is specified.41

An important factor which may be taken into account in determining an appropriate penalty is the amount of environmental harm which the offence caused.42

Prosecutions are usually brought by the public authority responsible for that area of law. For example, pollution offences are prosecuted by the Environment Protection Authority (part of the Department of Environment, Climate Change and Water), and illegal clearing of native vegetation under the Native Vegetation Act is prosecuted (civil and criminal prosecutions) by the Department of Environment, Climate Change and Water. Private civil and criminal prosecutions are available under the Act.

A member of the public can bring a criminal prosecution for a pollution offence under the Protection of the Environment (Operations) Act 1997, but only if they can demonstrate that the EPA has not taken action to prevent, control or mitigate the harm caused by the offence (within 90 days of being asked to do so), and only if the Court grants leave.43

There are usually strict time limits within which criminal proceedings must be brought. For example, criminal proceedings for an offence against the EPA Act must be commenced within 2 years of the offence allegedly being committed, or of the offence first coming to the attention of an authorised officer.44

3.5 Time limits

Most environmental laws contain strict time limits for commencing a case in the Land and Environment Court. Time limits apply to merits appeals, judicial review proceedings, and to criminal proceedings.

The time limits differ depending on who is bringing the appeal, and in which class the case will be heard. The specific time limit for each type of appeal or proceeding are usually set out in the legislation under which the decision was made that applicant wishes to appeal against. Where no appeal period is specified, a period of 60 days is applied.45

For example, an applicant who is dissatisfied with the decision of a consent authority in relation to a DA can appeal to the Court within 12 months of receiving notice of the decision, whereas an objector who wishes to appeal against a consent must bring their appeal within 28 days.46

You should therefore act quickly if you are contemplating an appeal to the Land and Environment Court.

4 Costs

4.1 Class 1 - Merit appeals

In a merits appeal, each party usually pays their own costs unless the Court considers that it is fair and reasonable to order one party to pay another's costs.47

Circumstances where the Court might consider making a costs order against a party include:48

4.2 Class 4 - Judicial review proceedings

Class 4 cases can be very expensive to conduct, depending on the complexity of the facts and issues involved.

In Class 4 proceedings, the usual rule is that the loser is ordered to pay the winner's costs.49 This can turn out to be very expensive, as the party will usually have to pay their own legal costs as well.

However, the Court can decide not to order a losing party to pay the other sides' costs if the proceedings were brought in the public interest (eg for the purpose of protecting the environment).50

Case study: costs in public interest environmental matters

Court upholds public nature interest of proceedings: Minister for Planning v Walker (No.2) [2008] NSWCA 334

The Court of Appeal has upheld the principle that a person who brings a case which is in the public interest may not have to pay the other party's costs, even where they lose the case.

In this case Jill Walker succeeded in the Land and Environment Court but was unsuccessful in defending the appeal against the decision in the Land and Environment Court. After making a decision about the issues raised in the proceedings, the Court of Appeal considered whether the unsuccessful party (ie Walker) should pay the legal costs of the successful parties. The usual costs order made by Courts following resolution of proceedings is that the unsuccessful party pay the costs of the successful party. However, in this case the Court of Appeal did not make the usual order and instead ordered that each party pay their own costs, of both the Court of Appeal and Land and Environment Court proceedings.

The Court found that the proceedings brought by Walker, although ultimately unsuccessful, were properly characterised as 'public interest litigation'. This was because the purpose of the litigation was to uphold the rule of law in relation to how the Environmental Planning and Assessment Act 1979 should be applied and because the interest in the outcome of the case was broader than a small number of people in the vicinity of the development. The Court further stated that additional factors were required to warrant the Court departing from the usual order as to costs. The special circumstances in this case were:

the case raised a novel question of law
the point of law raised by Walker was reasonably arguable
both the Land and Environment Court in the first instance, and the Court of Appeal found the Minister did not take into account the principles of ecologically sustainable development (ESD), which is contrary to good decision-making

4.3 Legal aid

Legal Aid will, under limited circumstances, provide a lawyer to assist you or funding to enable you to obtain legal advice and/or representation. This is what is meant by a 'grant of legal aid'. Legal aid is provided to people who are unable to fund their own litigation and who would benefit substantially from legal aid, or would be severely disadvantaged by the refusal of legal aid.

Their free telephone advice line, LawAccess, as available at 1300 888 529. The central office phone number is (02) 9219 5000.

Legal Aid states that 'legal aid is available for public interest environmental matters where the activity or proposed activity raises a matter of substantial public concern about the environment.' Applications for aid in such matters is referred to a special committee called the Public Interest Environmental Committee. In deciding what is of 'substantial environmental concern, the Committee will consider the following:

· whether or not the activity, or proposed activity is likely to have a significant impact on the environment in New South Wales or substantially affect public use or enjoyment of that environment

For legal aid to be granted in such cases, all of the following tests must be satisfied:

It should be noted that legal aid grants may be made on condition that the recipient makes a contribution towards costs and expenses themselves. Such contributions will be assessed according to the means test.

To apply for legal aid, an application form must be completed. It is available on Legal Aid NSW's website.

A form can also be faxed or mailed out by calling Legal Aid's Publications Unit on (02) 9219 5028, or by emailing publications@legalaid.nsw.gov.au. A paper form can be picked up at any Legal Aid office.