We often get asked by clients' right at the beginning of a matter for advice on the steps in the appeal, timing and costs. We outline below our answers to some of the most common questions.
Nature of the appeal
An appeal will most commonly be to the Planning and Environment Court of Queensland, although there are some limited circumstances where certain 'technical matters' can be heard by the Development Tribunal.
The Planning and Environment Court is a specialist court constituted under statute which is comprised of District Court judges who receive a Planning and Environment Court commission.
The court's function, in its appellate jurisdiction, is to hear and determine appeals from the original Council decisions and to decide the development application on its merits. The legislation talks of this kind of hearing being a hearing "anew". This is often described as the court "standing in the shoes of the Council at first instance". In other words, this kind of appeal is not limited to considering errors in the original decision made by the Council, but rather starting with a blank page and considering the whole application afresh.
The actual hearing itself is an adversarial process in which usually the parties are legally represented – and generally by barristers. The court will generally be required to consider:
1. The development application and other material that was generated during the development assessment process – this will include the reports that were prepared to support the application, the plans of development, any conditions of approval and any objections received during the public notification process.
2. The planning scheme and other statutory instruments which were in force at the time the application was made and in some circumstances changes to the planning instruments since that time;
3. Any further evidence that the parties call during the hearing, usually consisting of:
(a) expert reports; and
(b) statements from the proponent, objectors and other lay witnesses.
The hearing itself will usually comprise:
1. An opening – where the lawyers for each side will explain to the court what their case is, what they'll need to prove to succeed in the case, the witnesses they will each call and the order of those witnesses.
2. A site inspection – where the trial judge, usually accompanied by legal representatives for each party will attend the site to gain a better appreciation of the context for the proposal.
3. The giving of evidence – this will involve the party with the onus of proof going first calling its witnesses to give evidence in chief, to be cross-examined and give any evidence in reply; this process would then be repeated for each of the parties to the appeal.
4. Closing arguments – this involves the lawyers for each party arguing, based upon the evidence the court has received, why the court should make a finding favouring their respective clients.
Usually the judge will then reserve the decision for a period of some weeks (or in some cases months) and then return to deliver the reasons for judgment. If the court determines that a development application should be approved it would typically make an order that the development application is to be approved and adjourn the further hearing of the appeal to enable the parties to formulate draft conditions of approval. If the conditions can be agreed upon between the parties the court will usually make orders by consent. Occasionally, the parties cannot agree on conditions, and there is a second hearing involving a contest about what the conditions of approval should be. In circumstances where you are appealing against another party's approval and were successful, then the court would typically allow the appeal and refuse the application.
The length of the hearing of an appeal is variable and depends upon many factors. Some of those factors are:
1. the number of parties to an appeal (generally more parties means a longer hearing);
2. whether the parties are legally represented;
3. how the parties conduct themselves (for instance, the number of witnesses called, whether they conduct a lengthy cross examination of the witnesses et cetera);
4. the number of issues in the case; and
5. how the judge themselves allows the parties to conduct themselves.
A large and complex appeal can lead to a hearing of many weeks. A relatively short and simple case might require two or three days.
The Process
The first step is to commence an appeal by filing in the court and serving within 10 days thereafter a notice of appeal. That is a relatively formal document, the purpose of which is to invoke the court's jurisdiction to hear and determine the appeal. The notice of appeal can be a relatively simple document which briefly recites basic features of the application. If you are appealing against a refusal then it would generally state that the development application should have been approved rather than refused, or if you are appealing against an approval that it should have been refused. The notice of appeal should also set out the basis for the appeal.
The notice of appeal must be served on the Council, any concurrence agency and any submitter. The Council will automatically be a party to the appeal. Submitters have the right to join the appeal and participate in it by filing in the court a notice of election to correspond. If the appeal is also against a concurrence agency's referral response it will be a co-respondent to the appeal, otherwise it has the right to elect to join the appeal as a co-respondent by election.
The amount of parties varies from case to case and on occasion, large groups of submitters join appeals and participate in the process.
Once the period for joining the appeal has expired, it is usually up to the appellant to apply to the court to obtain directions governing the conduct of the matter. In most cases it is the developer who applies because they are the party which is prejudiced by delay.
To obtain directions some court documentation is required to be prepared in the form of an application for directions and affidavits about service of the notice of appeal and public notification. The draft orders can be tailored and individualised from case to case, but at a minimum will deal with the sequence and timing of a series of steps to take the matter to appeal.
Relevantly, the order will deal with such things as:
1. The identification of issues in dispute which is usually comprised of:
(a) reasons for refusal typically constituted by the Council's decision notice, in the case of an appeal against a refusal, together with any additional issues that the submitters or the Council wish to raise; and
(b) any grounds for approval upon which the developer wishes to rely;
2. Disclosure of any relevant documents – relevance is determined by the issues in dispute and usually in these kind of cases, the requirement for disclosure is quite limited (it would however include a copy of the Council's development assessment file, which can be quite useful to understand its reasons for its decision).
3. An alternative dispute resolution plan – the court heavily encourages the parties to attempt to resolve the appeal outside of the formal hearing process. Invariably the court will require at least one attempt at mediation convened by the ADR Registrar of the court. The ADR Registrar is an experienced planner and mediator who will typically try to get the parties to focus upon the main issues in contention and to explore options for a compromise or settlement of them.
4. Nomination of expert witnesses in the case – this will be dictated by the issues in dispute. For instance, if acoustic issues are an issue in the appeal then acoustic engineering evidence might be required. For any area of expertise in which a disputed issue has been raised then an expert witness must be called by the developer in order to discharge the onus of proof. The amount of experts required in a case will depend on the facts of each case.
5. For any area of expertise in which there are two or more experts nominated, the court will order that they prepare joint reports. In some cases the court will order that the report preparation process be staggered, with the town planning experts to confer and prepare their joint report only after all of the other joint reports are available.
Joint reports are an important feature of the process as they require that the experts, without any communication with the parties or their lawyers, prepare a report setting out, for the issues within their area of expertise, what they agree upon, what they do not agree upon and, where they do not agree, what the reasons are for the disagreement.
The parties are bound by the evidence contained within the joint report and leave of the court is required in order for the expert to depart from their evidence at any subsequent hearing. Therefore the extent of agreement during that process is critical to the success of the case for both sides.
The key to a good outcome in the joint report process is thorough preparation. This involves careful investigation of the relevant issues before the joint report process starts. Depending upon the nature of the case, that can be a substantial undertaking and in some cases requires significant level of investigation. It can be valuable at this stage in the case to involve the barrister to be used at trial to help the expert prepare.
6. Following the provision of the joint reports, depending upon how many issues have been resolved it can be productive to have another attempt at mediation. Many cases do settle by the combination of the case having undergone joint report preparation and a subsequent mediation.
7. If no settlement is achieved, the directions will usually include provision for the exchange of any witness statements and individual expert reports that are required prior to trial, and for the trial to be allocated to sittings of the court for hearing dates to be allocated.
8. The court holds monthly call overs in which hearing dates are allocated.
Costs
There are two types of costs which should be borne in mind in any court proceeding.
The first cost is the cost which the client must pay their own legal and expert team for preparing and running the case. The cost will depend upon the factors which were mentioned earlier which influence the length of the hearing. Appeals can be time-consuming and expensive to run properly, and involve significant time and effort to prepare.
The other aspect of costs which the client must consider is their ability to recover costs from the other parties and their potential exposure to the other side's costs. Unlike most other jurisdictions, costs do not follow the event. That is, the "winner" does not normally receive an award of costs, and there are a range of statutory and discretionary factors the court will consider.
If you have any questions about the process or wish to discuss a potential appeal to the Planning and Environment court please feel free to call us. Our details are below:
