Introduction
Few things are more frustrating than receiving a planning decision that feels wrong. The QueenslandPlanning and Environment Court (QPEC) exists precisely for these situations and understanding how the QPEC appeal process works is essential before committing to litigation.
There are two forms of proceedings.
Firstly, a proceeding started with a notice of appeal. For example, an appeal by a developer against the refusal of a development application, or against conditions in an approval. If the application was impact assessable (which involves public notice and provides the opportunity to make submissions) then a submitter may appeal against the decision to approve the development or the conditions of approval.
Secondly, a proceeding started with an originating application. The most common example is where the QPEC has previously given an approval and the developer wants to make minor changes to the approval. Another example is to seek a declaration that a use is being carried out unlawfully and for orders to stop the illegal use.
Other types of town planning and environmental matters are dealt with by other entities, such as the Land Court, the Magistrates Court, the Queensland Civil and Administrative Tribunal and the Development Tribunal.
Part 1 – Things to Do Before Commencing an Appeal
Schedule 1 of the Planning Act 2016 identifies the specialist jurisdiction of the QPEC and lists the types of matters that may be appealed to the QPEC. These include, but are not limited to, proceedings relating to development, change, extension, and conversion applications; infrastructure charge and enforcement notices; compensation claims; and tribunal decisions. Schedule 1 of the Planning Act 2016 also identifies the appellant, respondent, co-respondent (if any), and co-respondent by election (if any) for such proceedings.
The conduct of QPEC proceedings is outlined under Part 2 of the Planning and Environment Court Rules 2018 (Qld).
If you are an appellant or applicant, you should:
- Engage lawyers, counsel, and experts to file a notice of appeal (or originating application) and commence proceedings;
- Calculate the appeal period or consider an application to extend if the appeal period has already ended;
- Ensure that the issues with the original decision are well-articulated; and
- Develop a broad case strategy
If you are a respondent, co-respondent, or co-respondent by election, you should:
- Engage lawyers, counsel, and experts;
- Reconsider or draft reasons for initial refusal; and
- Develop a broad case strategy.
Once the notice of appeal (or originating application) is filed by the appellant (or applicant), copies need to be served on the other parties involved within the required statutory timeframe.
Part 2 – Engaging Experts
Experts play an essential role in QPEC proceedings, providing specialised and objective technical evidence and an understanding of complex scientific, engineering, and planning issues. An expert is a professional (such as an architect, town planner, hydraulic engineer, ecologist, etc.) that can express an opinion that is relevant to the appeal.
The duty of an expert is discussed in Section 33 of the Planning and Environment Court Rules 2018 (Qld), whereby the expert has a duty to assist the Court and comply with requirements under the code of conduct. Furthermore, an expert is not permitted to advocate for any active party in the proceedings nor accept instructions to adopt or reject a particular opinion. An expert’s duties to the court override any obligation to any active party in the proceedings or any persons liable for the expert’s fees and expenses.
Typically, a lawyer will first reach out to an expert to determine whether there is a conflict of interest and whether the expert has sufficient knowledge in the discipline area. Then, the expert will be provided with a brief – a collection of documents including relevant planning scheme sections, DA documents, etc. This assists the expert in reviewing and fully developing their opinions in respect to the appeal and aids in their involvement in strategy moving forward.
Part 3 – Directions Hearings, Reviews and Orders
The QPEC plays an active role in appeal proceedings, which is called case management. Judges regularly monitor and review cases to prepare them for trial, with the court managing cases through orders, directions hearings, and reviews. All parties must attend all hearings and reviews listed before a judge or the Court. Unless granted leave by the Court to appear remotely, all parties must appear in person.
Orders
An order is a binding direction from the Court, requiring parties to take steps in the proceedings by or at certain times. This may include attending a mediation, clearly identifying the issues in dispute, holding joint expert meetings, exchanging evidence between parties, etc.
Directions Hearings
At the directions hearing, the court gives a directions order that explains what steps need to be taken and the relevant timeframes. Usually, the parties agree on a draft order beforehand and give it to the Judge.The first directions hearing is also called the First Return date. The directions order often includes a plan for resolving disputes, like a “without prejudice” conference led by the ADR Registrar or other methods (see below for more on mediations and without prejudice conferences).
Reviews
Review hearings happen during the case to check its progress. At these hearings, parties must tell the court:
- Whether they have followed the directions order.
- If they have not followed the directions order, give an adequate explanation.
- Whether any changes are needed to the timeframes in the directions order.
The Court may schedule another review hearing to make sure things are moving along.
Part 4 – Mediations and Without Prejudice Conferences
Many QPEC proceedings are resolved without the need for a trial, through alternative dispute resolution which can take several forms. Parties can request a referral to the Court’s ADR Registrar or may be ordered by the Court to attend ADR. Alternatively, parties can engage with private mediators or hold “without prejudice” negotiations amongst themselves to try and resolve some or all of the issues before progressing further through the Court process.
Part 5 – Evidence Preparation
In QPEC matters, most of the evidence is given in the form of expert evidence. Evidence in these proceedings is outlined under Part 5 Division 2 of the Planning and Environment Court Act 2016 (Qld).
Evidence can be presented on almost any issue that is presumed to be in dispute in a hearing. However, under Section 25 of the Planning and Environment Court Rules 2018 (Qld), the Court may order that evidence is not required to prove a fact if the fact is not seriously in dispute or the process of acquiring evidence would lead to unnecessary or unreasonable expense, delay, or inconvenience in the proceeding.
Most commonly, evidence is presented through affidavits and reports (including joint, separate, and supplementary reports).
Part 6 – Trial
If all steps in the directions order are completed, and the matter has not been resolved via ADR, a hearing (trial) will decide the outcome of the case.
Before trial, experts will prepare statements of evidence, setting out their opinion. These statements of evidence are exchanged between the parties to be used for the final hearing.
During the trial, the Judge will first hear submissions by the counsel for each party, outlining their case to the Judge. They identify the issues still in dispute, the relevant planning scheme provisions and legislation, and the evidence they will rely on, Then, the experts attend for questioning by counsel, testing the expert’s reasoning, assumptions, and conclusions in their reports. A final hearing may also involve a site inspection by the Judge, if deemed necessary.
The trial will end with either the Judge reserving their decision (the Court will go away, deliberate, and then provide reasons for decision) or handing down the decision then and there (but this is less common). If the appeal is refused, proceedings end unless the matter is appealed to a higher Court. If the appeal is approved, proposed conditions should be provided quickly after reasons are handed down.
Conclusion
Milne Legal has extensive experience in QPEC appeals in a wide range of planning and environmental law matters. If you have any queries or concerns and would like to get in touch, please contact our office on (07) 3210 0943 or email us at admin@milnelegal.com.au.
This publication is general in nature. Its content is current at the date of publication. It does not constitute legal advice and you should always seek legal advice based on your particular circumstances prior to making any decisions relating to matters covered by this publication. Certain details may have been sourced from external references, and we cannot assure the accuracy or timeliness of such information.