This Fact Sheet outlines the role of the Land and Environment Court in environmental decision-making. It explains the types of cases heard by the Court, the orders it can make, and what to expect when going to Court. 

The Fact Sheet will be useful for people who want to appeal an environment or planning decision to the Land and Environment Court, or who want to enforce a breach of environmental law such as pollution.


Last updated: June 2016

These Fact Sheets are a guide only and are no substitute for legal advice. To request free initial legal advice on an environmental or planning law issue, please call our Environmental Law Advice Line. Your request will be allocated to one of our solicitors who will call you back, usually within a few days of your call.

Overview

The information contained in this fact sheet is for general reference only. If you are contemplating legal action, you should seek legal advice on the specific facts of your case from a qualified legal practitioner as soon as possible.

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 NSW1.

The Land and Environment Court was established by legislation2, and can only deal with matters listed as being within its jurisdiction3.

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

  • Environmental Planning and Assessment Act 1979 (NSW), such as appeals about decisions to grant or refuse development consent4;
  • Protection of the Environment (Operations) Act 1997 (NSW), such as prosecutions for pollution offences; and
  • Local Government Act 1993 (NSW)

The operation and procedures of the Land and Environment Court are governed by the Land and Environment Court Act 1979 (NSW), the Land and Environment Court Rules 2007 (NSW), and a range of practice notes and directions issued by the Chief Judge5.

The Court’s jurisdiction is divided into 8 different classes, depending on the type of case. Different procedures apply to each class.

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 arising under Commonwealth laws are dealt with by the Federal Court of Australia.

If you want to take action in the Land and Environment Court to challenge a decision regarding a Development Application (DA), it is important to act quickly as strict time limits apply for bringing a matter before the Court.

There are two forms of appeal – merits appeals and judicial review. It is important to understand the difference between these two types of appeal (see 2.4.3 below).

The types of appeal which are available in relation to a given development will depend upon the category of development.

See our Development Applications and Consents, Part 3A Major Project Approvals and State Significant Development and State Significant Infrastructure Fact Sheets for more information on how appeal rights arise under each category of development.

Penalty notices

Public authorities can issue penalty notices for some offences and avoid the time and cost of a Court hearing6.

Penalty notices tend to be available for minor offences and can be issued by an authorised person. If the alleged offender 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.

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.

Classes within the Court

The Court’s jurisdiction is divided into 8 different classes, depending on the type of case. Different procedures apply to each class. The classes are as follows7.

  • Class 1 – merits appeals
  • Class 2 – local government and miscellaneous appeals and applications (including disputes under the Trees (Disputes between Neighbours) Act 2006 (NSW)
  • Class 3 – land tenure, valuation, rating and compensation matters
  • Class 4 – civil enforcement and judicial review
  • Class 5 – summary enforcement (criminal matters)
  • Class 6 – appeals from convictions relating to environmental offences (criminal matters)
  • Class 7 – other appeals relating to environmental offences
  • Class 8 – mining matters


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, 3 and 8 matters, whereas only a Judge can hear Class 4, 5, 6 and 7 matters8.

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, civil enforcement and 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 is usually set out in the legislation under which the decision was made that the applicant wishes to appeal against. Where no appeal period is specified, a period of 60 days is applied9.

For example, an applicant who is dissatisfied with the decision of a consent authority in relation to their 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 for designated development must bring their appeal within 28 days after the date on which notice of the determination was given for merits appeals, and 3 months after the date on which notice was given for judicial review10.

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

For more information on time limits and appeals under the EP&A Act, see our Development Applications and Consents Fact Sheet.

Class 1 – Merits appeals

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

In a merit appeal, the Court usually has the power to make any decision which the original decision-maker could have made, such as by granting or refusing development consent11. If the Court approves a development application, then the Court will usually impose conditions of consent.

Merits appeals are available under a range of environmental legislation. However, most merits appeals in the Land and Environment Court are brought by developers against a refusal to grant development consent or against the conditions of consent. In some cases, a person who objects to the granting of development consent (known as an objector or third party) is also entitled to either bring (or be joined to) a merit appeal. See our Development Applications and Consents Fact Sheet for more information about development consents.

Merits appeals are usually heard by a Commissioner, rather than a Judge. 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 sitting together12.

Examples

Most merit appeal cases in the Land and Environment Court are appeals of either a refusal or an approval of a development application.

Who can bring merit appeal proceedings?

An applicant can bring a merit appeal to challenge the refusal of their development application.

Objectors have limited rights to bring merits appeals. Merits appeals are only available to ‘objectors’– that is, those people who wrote a submission during the exhibition of the proposal objecting to the proposal. Furthermore, merits appeals are only available with regards to certain types of development – designated developments and State significant development. With regards to State significant developments, merits appeals are only available if the Planning Assessment Commission has not held a public hearing in respect of the matter13.

See our Development Applications and Consents Fact Sheet for more information about who can bring merits appeals with regards to development applications.

How is a Class 1 case conducted?

The Judge or Commissioner can take into consideration all of the material submitted to the original decision-maker, and can consider any fresh evidence which they think may be relevant14. Merits appeals are usually informal in nature, and the rules of evidence do not apply15. The Court is required to take into consideration the same issues as the original decision-maker in making its decision, e.g. on whether to approve a development, or whether to grant a pollution licence16.

Preparation for the hearing

Class 1 proceedings are commenced by a Class 1 Application (Form B [version 2])17 with the Land and Environment Court Registry and serving it on all other parties (i.e. the consent authority and the person who made the application)18.

Fees for filing an originating process in Class 1 proceedings are $875 for an individual and $1,750 for a corporation (current 22 July 2014). Check the current fees on the Land and Environment Court website19 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 postponed20.
The respondent is required to file a statement of facts and contentions with the Court and serve a copy on the other parties at least three days before the first directions hearing.

Directions hearings

A directions hearing is a short hearing in a courtroom. The first directions hearing for Class 1 proceedings is usually before the Court’s Registrar. 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. Conciliation conferences are mandatory before a matter can proceed to hearing in some cases21. In other cases, the Court may arrange a conciliation conference22. The Court’s website has information about conferences23.

Prior to the second directions hearing, parties are required to agree on the expert evidence to be called by each party at the hearing, as well as the directions that the Court should make at the second directions hearing. At the second directions hearing, the Registrar will make directions, including fixing a date for the hearing24.

Prior to the commencement of the hearing, all the evidence should be filed with the Court and served on all parties. The Law Access website has information about some of the different Court forms you might need25.
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.

On-site hearings

Merits appeals concerning development applications will usually commence on site26.

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 merit 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 necessary27.

Hearing

The hearing will commence before a Commissioner or 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 of the other side, you need to give them notice that they must attend the hearing at least 7 days before the hearing28.

Expert reports

Each side in a merit appeal usually presents a number of written reports by experts 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 the proposal is likely to have on the amenity of the 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 dispute is not complicated29.

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.

Parties’ single experts

The Court can require, or parties can agree, that a single expert, known as the parties’ single expert, be engaged to provide expert evidence on particular issues30. The parties’ single expert is briefed by both parties, and both parties are responsible for the expert’s fees31.

If the parties cannot agree upon who to appoint as the single expert they are to seek the direction of the Court32. 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 expert33.

No party can seek the preliminary views of the expert before offering that person’s name as an expert34. 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 report35.

What orders can the Court make in merit appeal cases? In merit appeal cases, the Court can uphold the original decision, or overturn the decision and make a fresh one.

Further appeals

There is no further appeal on the merits against a merit decision.
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 when coming to a decision. This type of appeal is called ‘judicial review’. It is not possible to introduce new evidence regarding the merits of the proposal. 36
If the original merit decision was made by a Judge, then an appeal can only be made to the NSW Court of Appeal.

Class 4 – Civil enforcement and judicial review

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

  • Civil enforcement proceedings, where a person alleges that there has been a breach of an environmental law, and asks the Court to make orders to remedy or restrain that breach; or;
  • Judicial review proceedings, when a person challenges an administrative decision or conduct under planning or environmental laws.

Any person has the right to bring proceedings to enforce environmental and planning laws in Class 4 proceedings37

Examples

Civil enforcement cases

Examples of breach of environmental law that might be enforced in the Land and Environment Court include:

  • where a person causes pollution without an environment protection licence or in excess of the limit permitted by that licence;
  • where a developer breaches the conditions of their development consent;
  • where a person breaches wildlife protection provisions of the National Parks and Wildlife Act 1974 (NSW) or the Threatened Species Conservation Act 1995 (NSW); or
  • where a person undertakes development without the required development consent.

The person who brings the case is the applicant. The case is brought against the person who is alleged to have breached the law, the respondent.

Judicial review cases

Examples of cases where a person may seek judicial review, for example where a development consent might be challenged for failure to comply with the requirements of the EP&A 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 when required;
  • 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.

The Court is not concerned with the merits of a proposal, that is, whether the decision was good or bad – it is only concerned with whether the decision was made in accordance with law.

Even if the decision is found to be invalid, there is nothing to stop the applicant from reapplying and the consent authority reconsidering the application, this time ensuring that it follows the correct procedures.

In judicial review cases, the person who brings the case is the applicant. The case is brought against the person who benefits from the decision being challenged, such as the developer who was granted a development consent, as well as the person making the decision, such as the Minister for Planning or the Council. The developer is the first respondent and the decision-maker is the second respondent38.

Who can bring civil enforcement or judicial review proceedings?

Many environmental laws allow any person can bring civil enforcement or judicial review proceedings39.

How is a Class 4 case conducted?

Class 4 cases are always heard by a Judge (and not a Commissioner) in the Land and Environment Court40. 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 EP&A Act, which requires a council to take into account the suitability of a site for a development, was not considered. They 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.

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.

Preparation for the hearing

Class 4 proceedings are commenced by filing a summons (Form 4B of the UCPR forms for self-represented litigants)41 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 $875 for an individual and $1,750 for a corporation (current 22 July 2014). Check the current fees on the Land and Environment Court website42 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 postponed43.

After filing and serving the summons, you (the applicant) must file and serve your Points of Claim (use form A of the UCPR forms)44. A Points of Claim form sets out the facts that an applicant relies on as the basis of its claim.

21 days after the applicant has filed and served its Points of Claim (or any other time that the Court directs), 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)45. 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:

  1. if there is any contrary direction by the Court;
  2. if the Court decides that evidence given “in the form of charts, summaries or other explanatory material” will assist the understanding of other evidence46; and
  3. if witnesses are deaf or mute, they may give evidence by alternative means47.

In enforcement proceedings, visual evidence such as photographs or videos is very useful as it 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 our Fact Sheet Evidence Collecting and Environmental Investigations48 or ‘The Citizen’s Guide to Environmental Investigations and Private Prosecutions’49 (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, the bundle of documents will typically include the documents that the decision-maker looked at when making the decision.

The Land and Environment Court has prepared a document called ‘Practice Note: Class 4 Proceedings’ which is available on the Court’s website50. It is intended that parties adapt the Usual Directions set out in Schedules A and B to the circumstances of their matter, when seeking directions at directions hearings.

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 makes 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 Motion51. The Law Access website has information about some of the different Court forms you might need52.

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.

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 of the other side, you need to give them notice that they must attend the hearing at least 7 days before the hearing.

What orders can the Court make?

Civil enforcement and judicial review 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 enforcement and judicial review cases where the Court finds that there has been a breach of the law include53:

  • Declarations – this is a legally binding statement by the Court that a breach of an Act has occurred, e.g. the Court could make a declaration that a development consent is invalid because it was issued in breach of the EP&A Act;
  • Injunctions – this is an order restraining somebody from doing something, e.g. from carrying out further work on a site;
  • Demolition or removal orders;
  • Remediation orders – e.g. an order directing a person to carry out remediation work on a site, such as replanting trees; and
  • An order that the decision be sent back to the original decision-maker to make again, this time in accordance with the law. Note that the Court cannot make a fresh decision in judicial review cases, but must send it back to the original decision-maker if it finds that the decision must me re-made.

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 imprisonment54.

Even if a breach of the law is proved, the Court has discretion about whether to make any orders at all55. 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.

Injunctions

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 party56.

Appeal to Court of Appeal

Appeals from Class 4 decisions are made to the NSW Court of Appeal57.

Class 5 – Criminal enforcement

Criminal enforcement cases are also called ‘prosecutions’. A prosecution is where the prosecutor (usually the Environment Protection Authority (EPA) 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:

  • Polluting water without a pollution licence (or in breach of a licence)58,
  • Carrying out development without development consent (if consent is required) under the EP&A Act59, and
  • Clearing native vegetation in breach of the Native Vegetation Act 200360.

Class 5 cases are always heard by a Judge of the Court and are subject to strict rules of evidence under which 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 provide 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 the penalty.

Penalties

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 trees61. In extreme cases, the Court can even order a term of imprisonment62.

The kinds of penalty which the Court can impose are set out under the environmental legislation which has been breached. For example, the EP&A 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 specified63.

An important factor which may be taken into account in determining an appropriate penalty is the amount of environmental harm which the offence caused64.

Who can bring a prosecution?

Prosecutions are usually brought by the public authority responsible for that area of law. For example, pollution offences are prosecuted by the EPA, and illegal clearing of native vegetation offences under the Native Vegetation Act 2003 (NSW) are prosecuted (civil and criminal prosecutions) by the OEH.

A member of the public can bring a criminal prosecution for a pollution offence65, but only if they can demonstrate that the EPA has not taken action to prevent, control, abate or mitigate the harm to the environment caused by the alleged offence or to prevent the continuance or recurrence of the alleged offence (within 90 days of being asked to do so), and only if the Court grants leave66.

There are usually strict time limits within which criminal proceedings must be brought. For example, criminal proceedings for an offence against the EP&A 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 officer67.

Costs

Class 1 – Merits appeals

In a merit 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.68 Circumstances where the Court might consider the making of a costs order to be fair and reasonable include where69:

  • a party has failed to provide, or has unreasonably delayed in providing, information or documents to the other side;
  • a party has acted unreasonably during the time leading up to the case;
  • the proceedings have been commenced or defended for an improper purpose; or
  • a party has commenced or continued a claim which did not have reasonable prospects of success.

Class 4 – Civil enforcement and judicial review proceedings

In Class 4 proceedings, the usual rule is that the loser is ordered to pay the winner’s costs70. This can turn out to be very expensive, as the losing 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 (e.g. for the purpose of protecting the environment)71.

When deciding whether a case is in the public interest, the Court will consider the following72:

  • 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.

Case Study: Costs in public interest environmental matters – Court upholds public nature interest of proceedings

The Court of Appeal 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 case73, Jill Walker succeeded in the Land and Environment Court but was unsuccessful in defending a subsequent appeal to the Court of Appeal. After making a decision about the issues raised in the proceedings, the Court of Appeal considered whether the unsuccessful party (i.e. Walker) should pay the legal costs of the successful parties. The usual costs order made by Courts is that the unsuccessful party pays 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, which is contrary to good decision-making.

Legal aid

Legal aid is no longer available for public interest environmental law cases in NSW.

Appealing to the Court of Appeal

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

Glossary

Key to terms used in this Fact Sheet


Act means the Environmental Planning and Assessment Act 1979 (NSW)
Class 1 means Class 1 merit appeals in the NSW Land and Environment Court
Class 4 means Class 4 civil enforcement and judicial review in the NSW Land and Environment Court
Class 5 means Class 5 Criminal enforcement in the NSW Land and Environment Court
Consent authority means the person responsible for deciding whether to grant development consent or not, usually a local council, but sometimes the Minister for Planning or the Planning Assessment Commission
19
Court means the NSW Land and Environment Court
CSSI means critical State significant infrastructure
DA means a development application
Director-General means the Director-General of the Department of Planning and Environment
EIS means an Environmental Impact Statement
Environment Minister means the NSW Minister for the Environment
EPA means the Environment Protection Authority
EP&A Act means the Environmental Planning and Assessment Act 1979 (NSW)
EPI means an environmental planning instrument, which includes LEPs and SEPPs
LEP means a Local Environmental Plan
OEH means the Office of Environment and Heritage
PAC means the Planning Assessment Commission
Planning Minister means the NSW Minister for Planning
SEPP means a State Environmental Planning Policy
SSD means State significant development
SSI means State significant infrastructure
TSC Act means the Threatened Species Conservation Act 1995 (NSW)

1 Land and Environment Court Act 1979 (NSW), s. 5(1).
2 Land and Environment Court Act 1979 (NSW).
3 Land and Environment Court Act 1979 (NSW), s. 16.
4 Note: proceedings for an offence against the EP&A Act or Regulations can also be taken before a Local Court, but the penalty that the Local Court can impose is limited to $110,000.
5 http://www.lec.justice.nsw.gov.au/Pages/practice_procedure/practice_notes.aspx
6 See Environmental Planning and Assessment Regulation 2000 (NSW), cl 284(1; Protection of the Environment (Operations) Act 1997 (NSW), ss. 222-229; Water Management Act 2000 (NSW), Chapter 7 Enforcement.
7 Land and Environment Court Act 1979 (NSW) 1979, ss. 16-21B. Land and Environment Court Act 1979 (NSW), s. 33.
9 Land and Environment Court Rules 2007, Rule 7.1(1)(a).
10 Uniform Civil Procedure Rules 2005 NSW, cl. 59.10(1); Environmental Planning and Assessment Act 1979 (NSW), s 97(1), 98(1), s. 101.
11 Land and Environment Court Act 1979 (NSW), s. 39.
12 Land and Environment Court Act 1979 (NSW), s. 34C(1), 37(1).
13 Environmental Planning and Assessment Act 1979 (NSW), ss. 98, 4.
14 Land and Environment Court Act 1979 (NSW), s 38(2), 39(3).
15 Land and Environment Court Act 1979 (NSW), s 38(1), (2).
16 Land and Environment Court Act 1979 (NSW), s. 39(4).
17 http://www.lec.justice.nsw.gov.au/Pages/forms_fees/forms.aspx#Application_forms
18 Note that there is a different process for residential development appeals. See the Court’s website for more information: http://www.lec.justice.nsw.gov.au/Pages/types_of_disputes/class_1/residential_development_appeals.aspx
19 http://www.lec.justice.nsw.gov.au/Pages/forms_fees/forms_fees.aspx 20http://www.lec.justice.nsw.gov.au/Pages/coming_to_the_court/cost.aspx#Waiver%2c_postpone
ment
21 Land and Environment Court Act 1979 (NSW), s. 34AA.
22 Land and Environment Court Act 1979 (NSW), s. 34.
23 http://www.lec.justice.nsw.gov.au/Pages/resolving_disputes/conciliation.aspx
24 http://www.lec.justice.nsw.gov.au/Pages/coming_to_the_court/hearings.aspx
25http://www.lawassist.lawaccess.nsw.gov.au/lawassist/lawassist_what_you_should_know/lawassist_readingwritinghome_wysk/lawassist_affidavits_wysk.html
26 Land and Environment Court Act 1979 (NSW), s. 34A, 34B
27 Land and Environment Court Act 1979 (NSW), s. 34D.
28http://www.lec.justice.nsw.gov.au/Documents/pn_class_1_development_appeals_14_may_2007.pdf
29 Uniform Civil Procedure Rules 2005 (NSW), rule 31.24 and 31.26, Land and Environment
Court Practice Directions, ‘Class 1 Development Appeals – Usual Directions’
http://www.lec.justice.nsw.gov.au/Pages/practice_procedure/directions.aspx
30 Uniform Civil Procedure Rules 2005 (NSW), rule 31.37, Land and Environment Court Act 1979
(NSW), s. 38(3).
31 Uniform Civil Procedure Rules 2005 (NSW), rules 31.38 and 31.45
32 Uniform Civil Procedure Rules 2005 (NSW), rule 31.37(2), Land and Environment Court
Practice Directions, ‘Class 1 Development Appeals – Usual Directions’
http://www.lec.justice.nsw.gov.au/Pages/practice_procedure/directions.aspx
33 Land and Environment Court Practice Directions, ‘Class 1 Development Appeals – Usual
Directions’ http://www.lec.justice.nsw.gov.au/Pages/practice_procedure/directions.aspx
34 Uniform Civil Procedure Rules 2005 (NSW), rule 31.37(4)
35 Uniform Civil Procedure Rules 2005 (NSW), rule 31.44
36 Land and Environment Court Act 1979 (NSW), s. 56A.
37 See for example, Environmental Planning and Assessment Act 1979 (NSW), s 123; Local
Government Act 1993 (NSW), s 674; Protection of the Environment (Operations) Act 1997
(NSW), ss. 252 – 253; Native Vegetation Act 2003 (NSW), s 41; National Parks and Wildlife Act
1974 (NSW), s 193
38 Uniform Civil Procedure Rules 2005 (NSW), r. 59.3.
39 Environmental Planning and Assessment Act 1979 (NSW), s. 123; Local Government Act 1993
(NSW), s. 674; Protection of the Environment (Operations) Act 1997 (NSW), s. 252, 253.
40 Land and Environment Court Act 1979 (NSW), s. 33(2)41 http://www.lec.justice.nsw.gov.au/Pages/forms_fees/forms.aspx
42 http://www.lec.justice.nsw.gov.au/Pages/forms_fees/forms.aspx
43 http://www.lec.justice.nsw.gov.au/Pages/forms_fees/forms.aspx
44 http://www.lec.justice.nsw.gov.au/Pages/forms_fees/forms.aspx
45 http://www.lec.justice.nsw.gov.au/Pages/forms_fees/forms.aspx
46 Evidence Act 1995 s 29(4).
47 Evidence Act 1995 s 31.
48 http://www.edonsw.org.au/pollution
49 http://ebi.probeinternational.org/citizens-guide/
50 http://www.lec.justice.nsw.gov.au/Pages/practice_procedure/practice_notes.aspx
51 Practice Notes of 14 May 2007 Class 4 Proceedings.
52http://www.lawassist.lawaccess.nsw.gov.au/lawassist/lawassist_what_you_should_know/lawassist_readingwritinghome_wysk/lawassist_affidavits_wysk.html
53 Environmental Planning and Assessment Act 1979 (NSW), s. 124; Land and Environment
Court Act 1979 (NSW).54 Land and Environment Court Rules 2007 (NSW), Rule 4.5.
55 Land and Environment Court Act 1979 (NSW), s. 23.
56 See Tegra (NSW) Pty Ltd v Gundagai Shire Council and Another (2007) 160 LGERA 1, where a trade competitor brought Class 4 proceedings challenging the validity of development consent for a new sand and gravel quarry. The applicant had delayed in bringing the proceedings, and the Court declined to grant an interlocutory injunction because the quarry had already entered into sales contracts.
57 Land and Environment Court Act 1979 (NSW), s.
58 Land and Environment Court Act 1979 (NSW), s. 21(a).
59 Land and Environment Court Act 1979 (NSW), s. 21(f).
60 Land and Environment Court Act 1979 (NSW), s. 21(i); Native Vegetation Act 2003 (NSW), s.
12.
61 Protection of the Environment (Operations) Act 1997(NSW), s 245; Environmental Planning and Assessment Act 1979 (NSW), s. 126(3).
62 EPA v Charles Anthony Leslie Gardner [1997] NSWLEC 169.
63 Environmental Planning and Assessment Act 1979 (NSW), s. 126(1)64 Protection of the Environment (Operations) Act 1997(NSW), s. 241.
65 under the Protection of the Environment (Operations) Act 1997 (NSW)
66 Protection of the Environment (Operations) Act 1997(NSW), s. 219.
Environmental Planning and Assessment Act 1979 (NSW), s. 127(5), (5A).
68 Land and Environment Court Rules 2007 (NSW), Rule 3.7(2).
69 Land and Environment Court Rules 2007 (NSW), Rule 3.7(3).70 Land and Environment Court Rules 2007 (NSW), Rule 4.1; Uniform Civil Procedure Rules, Part
42 Rule 1; Latoudis v Casey (1990) 170 CLR 534.
71 Land and Environment Court Rules 2007 (NSW), Rule 4.2(1); Oshlack v Richmond River
Council (1998) 193 CLR 72.
72 Engadine Area Traffic Action Group Inc v Sutherland Shire Council (No 2) (2004) 136 LGERA
365, per Lloyd J.
73 Minister for Planning v Walker (No.2) [2008] NSWCA 334