Commercial and community-based objectors to designated development (and State significant development (SSD) which would otherwise be designated development) can join development appeal litigation as a party by taking a procedural step to write to the Land and Environment Court (Court) following a 2020 Land and Environment Court decision.
In The Next Generation Pty Ltd v Independent Planning Commission  NSWLEC 70 (The Next Generation), Pain J interpreted s8.12(3) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) as permitting an objector to designated development to enter proceedings and be heard as a party to the appeal. In reliance on The Next Generation, the act of writing to the Court within 28 days after receiving notification of the appeal entitles that objector to additional rights including participation in s34 conciliation conferences so that the objector need not rely on the consent authority to put its position to the Court.
Objectors have had a long standing right (see s8.8 (previously s98)) to commence merit review litigation following the grant of consent to a designated development application (including any State significant development that would be designated development but for s4.10(2)). Although the right to address the Court was afforded to objectors in development appeals commenced by the applicant, that right did not extend to participating as a party, particularly in s34 conciliation conferences.
Prior to the decision in The Next Generation, objectors to a development appeal could seek to gain entry to proceedings through a joinder application under s8.15(2) of the EPA Act which permits the Court to order the joinder of a person in limited circumstances, where the Court is of the opinion:
- that the person is able to raise an issue that would not be sufficiently addressed if the person were not joined as a party, or
- that it is in the interests of justice, or it is in the public interest, that the person be joined as a party to the appeal.
Justice Pain identified that joinder under s8.15(2) is not as of right. Subject to the necessary steps being taken, s 8.8(2) offers an automatic right.
Key take aways
- Objectors may gain automatic entry to class 1 development appeal proceedings for designated development (or state significant development which would otherwise be designated development but for s 4.10(2) of the EPA Act) by writing to the Registrar of the Land and Environment Court within 28 days of notice of the proceedings.
- Proponents of designated development who appeal a refusal or deemed refusal in class 1 of the Land and Environment Court may find they are:
- forced to prosecute their case against several respondent objectors as well as against the consent authority.
- unable to negotiate and settle the appeal in a s34 conciliation conference as objector parties may be unwilling to settle.
- Potential objectors may be minded to lodge an objection to designated development applications to preserve the right to enter proceedings in the event of a development appeal by the proponent.
For further advice, please contact the Addisons Environment & Planning team.
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