Payne JA at [1]; Kirk JA at [2]; Basten AJA at [9]
Decision:
(1) Dismiss the summons for review filed 28 February 2023.
(2) Order that the applicants pay the respondents’ costs in this Court.
Catchwords:
JUDICIAL REVIEW – class 1 decision of Land and Environment Court – application for review by non-party – procedural unfairness – failure to consider merit of objections – whether duty to consider terminating conciliation conference to allow Court to determine appeal on merits – jurisdictional constraint on power of Court to make agreed orders
ENVIRONMENT AND PLANNING – refusal of development application – class 1 appeal to Land and Environment Court – mandatory conciliation conference – agreement to grant of consent on terms and conditions – Court to make orders to give effect to agreed decision if “one that the Court could have made in the proper exercise of its functions”: Land and Environment Court Act 1979 (NSW), s 34(3) – whether Court required to consider merits of decision
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
McMillan v Taylor [2023] NSWCA 183
Case
[2023] NSWCA 183
Decision Date
CaseChat Overview and Summary
McMillan and Ors (applicants) sought judicial review of a decision made by the Land and Environment Court of New South Wales. The dispute arose from a development application that had proceeded to a mandatory conciliation conference in the Land and Environment Court. Following this conference, an agreement was reached between the parties to grant consent for the development, subject to certain terms and conditions. The applicants, who were non-parties to the original development application proceedings, contended that the Court had failed to consider the merit of their objections and that this constituted procedural unfairness.
The primary legal issues before the Court of Appeal were whether the Land and Environment Court had a duty to consider the merits of the applicants' objections, even after an agreement had been reached in conciliation, and whether the Court was obliged to consider terminating the conciliation conference to allow the appeal to be determined on its merits. Central to this was the interpretation of section 34(3) of the *Land and Environment Court Act 1979* (NSW), which governs the Court's power to make orders giving effect to an agreed decision arising from conciliation, stipulating that such orders must be ones the Court could have made in the proper exercise of its functions.
The Court of Appeal held that section 34(3) of the *Land and Environment Court Act 1979* (NSW) did not impose a duty on the Court to consider the merits of objections raised by non-parties once an agreement had been reached in conciliation. The Court reasoned that the statutory scheme contemplated that the conciliation process could lead to an agreed outcome, and the Court's role under section 34(3) was to give effect to such agreements, provided they were within the Court's jurisdictional powers. The Court found no error in the Land and Environment Court's approach, concluding that there was no requirement to terminate the conciliation conference or to embark on a merits assessment of the objections in the circumstances.
The summons for review was dismissed, and the applicants were ordered to pay the respondents' costs in the Court of Appeal.
Orders
Orders of the court
(1) Dismiss the summons for review filed 28 February 2023.
(2) Order that the applicants pay the respondents’ costs in this Court.