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2.5 Class 4 Proceedings in the Land and Environment Court

2.5.1 Introduction

Class 4 proceedings are concerned with environmental planning and protection, and civil enforcement. They involve either:

1. an applicant alleging a breach of a planning or environmental law (also known as enforcement proceedings); or
2. questions about the legal validity of decisions made by consent authorities, (also known as "judicial review" proceedings).

Any person has the right to bring proceedings to enforce environmental and planning laws in Class 4 proceedings.1

Enforcement

Enforcement proceedings are often brought against people for:

1. Breaches of planning law e.g. carrying out development without consent
2. Breaches of conditions of development consent
3. Breaches of environmental laws eg causing pollution without a licence

If the Court finds there has been a breach of a planning or environmental law, the Court can make orders to remedy or restrain that breach.

Judicial Review

Judicial Review proceedings involve legal challenges to decisions alleging a failure to comply with the requirements of the Environmental Planning and Assessment Act 1979. It is important to note that the decision itself is not being challenged on the merits (as in Class 1 proceedings), but the process that was followed in arriving at that decision. Grounds for Judicial Review include:

1. 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.

If the court finds that the laws have been breached during decision-making the development consent will be rendered invalid. However, provided the development is valid, the developer may reapply for a development consent for the same development and the consent authority may, following the correct procedure, reconsider the application.

2.5.2 Preparation for the Hearing

Class 4 proceedings are commenced by filing a summons (Form 4B of the UCPR forms)2 with the Land and Environment Court Registry and serving it on all other parties. In a summons, you list the orders that you would like the Court to make.

Fees for filing an originating process in Class 4 proceedings are currently $718 for an individual and $1436 for a corporation (valid until 30 June 2009). Check the current fees on the Land and Environment Court website 3 before attempting to file documents at the Registry. If you hold a concession card, do not have a lawyer or your income is below a certain level, you can apply to the Registrar to have payment of these fees waived or postponed. 4

After filing and serving the summons, you (the applicant) must file and serve your Points of Claim (use form A of the UCPR forms). 5 A Points of Claim form sets out the facts that an applicant relies on as the basis of its claim.

2 weeks after the applicant has filed and served its Points of Claim, the Respondent should file and serve its Points of Defence, which sets out which parts of the Points of Claim the Respondent agrees or disagrees with.

Formal rules of evidence and practice and procedure apply in Class 4 proceedings. Evidence-in-chief of all witnesses is to be given by affidavits (Form 40 of the UCPR forms). 6 These are "written statements sworn or affirmed before a person authorised to administer the oath that the contents of the statement are true".

Exceptions to using this method of evidence are:

• if there is any contrary direction by the Court;
• if the court decides that evidence given "in the form of charts, summaries or other explanatory material" will assist the understanding of other evidence; 7 and
• if witnesses are deaf or mute, they may give evidence by alternate means. 8

In enforcement proceedings visual evidence such as photographs or videos is very useful as they enable others to experience or view the site or event in question. Importantly, this type of evidence helps to illustrate the facts asserted in the affidavit.

The applicant bears the onus of identifying the particular provision(s) of law which should have been complied with, and then to present factual evidence to show that it was not. For guidance on the collection of evidence, refer to the EDO 's Fact Sheet 'Evidence Collecting and Environmental Investigations' 9 or 'The Citizen's Guide to Environmental Investigations and Private Prosecutions' 10 (a Canadian e-book).

Documents not included in affidavits that parties wish to rely on are to be included in a 'bundle of documents'. All pages in a bundle of documents must be numbered and there must be a table of contents at the front. Only one bundle of documents is to be filed in the proceedings, so the parties are to discuss and attempt to agree upon what is to be included. If one party objects to a document being included in the bundle, that document is to be included, and the fact it is objected to is to be noted in the table of contents. In judicial review proceedings that involve a challenge to a consent authority's decision, typically the documents that the decision maker looked at when making the decision will be included in the bundle of documents.

The Land and Environment Court has prepared a document called 'Usual Directions for Class 4 Proceedings' which is available on the Court's website. 11 It is intended that parties adapt the Usual Directions to the circumstances of their matter, when seeking directions at Directions Hearings.

2.5.3 Directions Hearings

A directions hearing is a short hearing in a courtroom before the List Judge. The primary purpose of the directions hearing is to make directions about the filing and serving of documents and evidence and if a matter is ready, to list a matter for a conference, mediation or a hearing.

Prior to the commencement of the hearing all the evidence should be filed with the Court and served on all parties. At the directions hearing, the Judge will set down the timetable for filing and serving the evidence. The Judge also make directions to prepare a matter for hearing, such as directions for the filing of evidence, filing of Points of Claim (Appendix 2), Return of Subpoenas, Notices to Produce and Notices of Motion. 12 The Law Access website has information about some of the different Court forms you might need. 13

Opportunities for settlement should be explored at each stage of the proceedings, including the period before the first directions hearing. Litigants should attempt to narrow the issues in dispute as early as possible.

Generally, directions hearings for Class 4 matters are conducted by the List Judge of the Court each Friday.

2.5.4 Hearing

The hearing will then commence before a Judge of the Court, based upon the filed evidence and any other documentary evidence which has been the subject of directions, or which may have been produced during discovery of documents.

Witnesses who prepared affidavits may give oral evidence at a hearing. If a witness has filed an affidavit, the other party can require that they attend the hearing and be available for cross examination. If you want to cross examine a witness the other side, you need to give them notice that they must attend the hearing at least 7 days before the hearing.

2.5.5 Orders

Refer to Fact Sheet 2.4 'The Land and Environment Court' for information on possible orders.

2.5.6 Costs

Class 4 proceedings are subject to the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules (UCPR). 14Accordingly under Part 42 Rule 1 of the UCPR the general rule is that costs follow the event, that is:

"if the court makes any order as to costs, the court is to order that the costs follow the event unless it appears to the court that some other order should be made as to the whole or any part of the costs".

That is, usually the unsuccessful party will be ordered to pay the legal costs of the successful party.

The Court is not required to make the general rule about costs in all proceedings. Whether or not the Court follows the usual rule depends on the circumstances of the case. Some reasons for departing from the usual order as to costs might be if the successful party unnecessarily brought the action or if the matter is of 'public interest'.

Rule 4.2(1) of the Land and Environment Court Rules provides that:

"The Court may decide not to make an order for the payment of costs against an unsuccessful applicant in any proceedings if it is satisfied that the proceedings have been brought in the public interest".

When deciding whether a case is in the public interest, the Court will consider the following: 15

• The public interest served by the litigation;
• Whether that interest is confined to a relatively small number of people in the immediate vicinity of a development, or whether the interest is wide;
• Whether the applicant sought to enforce public law obligations;
• Whether the prime motivation of the litigation is to uphold the public interest and the rule of law; and
• Whether the applicant has no pecuniary interest in the outcome of the proceedings.

2.5.7 Appealing to Court of Appeal

A decision from the Land and Environment Court can be appealed to the NSW Court of Appeal. You can only appeal if you can argue that the Judge of the Land and Environment Court made an error in the way they applied the law in making a decision.

2.5.8 Further Information

• NSW Young Lawyers, A Practitioner's Guide to the Land and Environment Court of NSW
• Land and Environment Court web-site.
• EDO Fact Sheets: 1.4 - Enforcement; 1.5 - Public Participation; 2.2 - DAs and Consents; 2.4 - Land and Environment Court; 10.8 - Legal Advice and Litigation
• Law Access Online. For information on Legal Forms click here.
• Environmental Law Publishing web-site. For more examples of Court documents, see Case Studies presented on the site: http://www.envlaw.com.au/case.html

1. See for example, EP&A Act s 123; Local Government Act 1993 s 674; Protection of the Environment (Operations) Act 1997 ss 252 - 253; Native Vegetation Act 2003 s 41; National Parks and Wildlife Act 1974 s 176A.plications, see Fact Sheet 2.2.
2. Lawlink
3. Lawlink
4. Lawlink
5. Lawlink
6. Lawlink
7. Evidence Act 1995 s 29(4).
8. Evidence Act 1995 s 31.
9. http://www.edo.org.au/edonsw
10. http://www.eprf.ca/ebi/guide/chapter5.html
11. http://www.lawlink.nsw.gov.au
12. Practice Notes of 30 April 2007 Class 4 Proceedings.
13. http://www.lawaccess.nsw.gov.au
14. Land and Environment Court Rules, Rule 4.1.
15. Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA 365, per Lloyd J.