McMillan v Taylor

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.