A Punter’s Guide to Resolving a Planning Dispute in New South Wales
Written by Jennifer Barry, Solicitor, Former Employee of Lovegrove Solicitors
The procedure to bring a claim or appeal with the NSW Land and Environment Court depends upon the ‘class’ of dispute. The court divides types of cases into 8 broad ‘classes’:
- Class 1 – environmental, planning and protection appeals
- Class 2 – tree disputes and miscellaneous appeals
- Class 3 – valuation, compensation and Aboriginal land claim cases
- Class 4 – civil enforcement and judicial review of decisions under planning or environmental laws
- Class 5 – criminal proceedings for offences against planning or environmental laws
- Classes 6 and 7 – criminal appeals against convictions and sentences for environmental offences by the Local Court
- Class 8 – mining related issues
Each of the different classes requires a different application form and the fees imposed by the court to commence a proceeding also differ depending upon the class of dispute.
The dispute’s classification also affects whether the Court can make a costs order against one of the parties at the conclusion of the matter.
- In class 1, class 2 and some class 3 cases, the Land and Environment Court Rules 2007 provide that the Court cannot make a costs order unless that the Court considers that such an
order is ‘fair and reasonable’ in the circumstances, which depends upon the facts of each case. - In class 4 cases, the usual practice is that the successful party is entitled to have their costs paid by the unsuccessful party.
- In class 5 cases, the Court will usually order that you pay the prosecutor’s costs if you are convicted of the offence.
- In class 6 and class 7 cases, generally the unsuccessful party is ordered to pay the costs of the successful party, however this is at the discretion of the court.
- In class 8 matters, the unsuccessful party is generally ordered to pay the costs of the successful party.
The Court provides for a number of different types of dispute resolution in planning matters, including:
- Mediation;
- Conciliation;
- Neutral evaluation;
- Reference to referee; and
- Adjudication.
The type of dispute resolution chosen by the Court will depend on several factors including the time of case, the potential cost of the case, the time it might take to reach finalisation and the complexity of the matter. It is also likely that a proceeding with the Court will progress through several of the different types of dispute resolution mechanisms during the proceeding if an earlier type of dispute resolution, such as a mediation, fails to enable the parties to reach a settlement.
If you believe that you have a planning matter which should be referred to the NSW Land and Environment Court, it is essential that you contact an experienced planning lawyer who can advise you as to what class your dispute would fall into and the application and costs implications of that class. Issuing proceedings in the incorrect class can cause many financial and legal headaches down the road so it is imperative to seek experienced legal advice as soon as possible.
By Jennifer Barry, Solicitor, Lovegrove Solicitors
The Lovegrove Solicitor’s E-Library is a free online resource of articles, which puts a wealth of information at your finger tips. The articles in the E- Library have been written by lawyers and a number of them have been published in the Australian, The Age and the Herald Sun. Some of the articles date back to the 1990’s. To access click here.
© Lovegrove Solicitors 2014
