Land and Environment Court Appeal Process

View from Warragamba Lookout

Here are some of the Frequently Asked Questions around Land and Environment Court Appeals and the process that Council must follow.

One of the early steps in the process is to prepare a Statement of Facts and Contentions. The matters that both parties agree to are listed along with those that remain ‘in dispute’. Council’s experts then respond to that statement.

A Joint Report is prepared to identify the experts involved, the date of their joint conferences and the matters for agreement and disagreement. The experts (on both sides) are required to respond to the Court on technical matters with a professional expert response. The type of experts required will vary depending on the matters and may include town planners, traffic engineers, ecologists and heritage or acoustic specialists.

There are different types of hearings that may occur as part of the court process. These can include:

  • An onsite hearing is always held so that those who made submissions are given the opportunity to speak. Groups and other members of the community are also able to speak.
  • An onsite inspection by the Commissioner is also held with the parties (including Council’s and the applicant’s legal representatives and experts). 
  • Court hearings are open to the general public. The general public cannot speak in the Court.

A Conciliation Conference is a meeting held in an attempt to assist the parties to reach an agreement so the matter does not proceed to the next stage, which is a hearing.

When a planning appeal for a development application (DA) is made to the Land and Environment Court (the Court), it follows a strict process determined by the Court. Once an appeal is lodged the original Council decision is ‘set aside’ and the Court will either:

  1. Maintain Council’s original decision; or
  2. Overturn Council’s original decision and may consider an amended proposal; or
  3. Reverse Council’s original decision.

You can view this process on the Land and Environment Court website

After the hearing is completed the Commissioner will consider the evidence presented and any relevant case law.  Then the Court will issue a written decision called a Judgement. The Judgement explains how the Commissioner came to that decision.  The Council and the Developer are bound by that decision.

After the hearing is completed the Commissioner will consider the evidence presented and any relevant case law.  Then the Court will issue a written decision called a Judgement. The Judgementexplains how the Commissioner came to that decision.  The Council and the Developer are bound by that decision.

All decisions made in the NSW Land and Environment Court from 1999 onwards are published on the NSW Caselaw website.

All decisions made in the NSW Land and Environment Court from 1999 onwards are published on the NSW Caselaw website 

Council has a panel of Law Firms that defend appeals together with technical experts from Council and specialist consultants if required.

The lawyers, experts and the Court must follow the law and are not permitted to act contrary to law.  Experts from both sides have to answer honestly and in as much technical detail as the Court requires.  The Court process requires the experts to remain independent and impartial.  Further information is available on the 'Experts and Expert Advice' page on the Land and Environment Courts website