Resident Involvement in Class 1 Development Appeals

Resident objectors who make a submission to a development application are given an opportunity to participate in development appeals in the Land and Environment Court (Court).  Resident objectors appear as part of Council’s case, with the approval of the Court although have no separate “right” as a party.  Once a matter is in Court, it is the Court, not the Council, that is the consent authority.

Below is an outline of how these appeals are conducted.

Section 34 Conference

  • Most development appeals are facilitated by a conciliation conference before a Commissioner of the Court (known as a s34 conference).  Conciliations are attended by the applicant, its lawyers and experts, and the Council’s lawyers and experts. 
  • The s34 conference is a forum for parties, with the assistance of a Commissioner of the Court, to identify the issues in dispute, develop options, consider alternatives and endeavor to reach an agreement. 
  • The Commissioner will not decide the outcome of the case in the conciliation phase.  If the parties reach agreement, the Commissioner must dispose of the proceedings in accordance with the parties’ agreement.
  • In appeals involving single houses or dual occupancies, a hearing will usually take place on the same day as the conciliation or the following day. In the case of other types of development, the matter will usually be listed for a hearing at a later date.  
  • At a hearing all written resident objections received by Council will be tendered by the Council as evidence in the proceedings.

Resident Participation in S34 Conferences

  • Residents will be invited by the Council’s lawyers to attend the site inspection at the beginning of the conciliation conference and given an opportunity to address the parties and the Commissioner about their concerns.
  • The Court has strict rules about the conduct of s34 conferences and has published a Conciliation Conference Policy.
  • The Policy provides that:
    • Objectors must provide their full name and address when speaking on-site.
    • A maximum of 6 residents can address the Court. Preference is given to those residents directly affected by a proposed development, such as those adjoining or living directly opposite the site of the development.
    • Objectors should try not to repeat the same issues raised by other objectors. 
    • Objectors can give evidence from their property.
    • Objectors may be questioned on their submission by the Commissioner or the legal representatives of the parties.
    • If the proceedings are not resolved in the conciliation phase, a submission given on-site will become evidence in the proceedings and will have the same effect as if it was given in a courtroom.

Once residents have made their oral submission, the parties will engage in private “without prejudice” discussions before the Commissioner. The Council’s lawyers will later inform residents of the outcome of the s34 conference.

Amended Plans

At any stage of the proceedings it is common for applicants to seek to rely on amended plans and documents in an attempt to address the concerns raised by Council. It is up to the Court whether or not an applicant will be allowed to rely on amended plans. Council’s lawyers will use their best endeavours to advise residents about amended plans.  However, sometimes in Court proceedings, there is not sufficient time for this to occur.  It is also up to the Commissioner to direct that amended plans are provided to objectors.

For more information on the Court’s practice and procedure please visit the Land and Environment Court website

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