Division 4Special provisions respecting
Class 1, 2 or 3 proceedings
34Conciliation
conferences
(1)
If proceedings are pending in Class 1, 2 or 3 of
the Court’s jurisdiction, the Court:
(a)
may arrange a conciliation conference between the
parties or their representatives, with or without their consent,
and
(b)
if it does so, must notify the parties or their
representatives of the time and place fixed for the
conference.
(1A)
It is the duty of each party to proceedings where
a conciliation conference has been arranged under subsection (1) to
participate, in good faith, in the conciliation
conference.
(2)
A conciliation conference is to be presided over
by a single Commissioner.
(3)
If, either at or after a conciliation conference,
agreement is reached between the parties or their representatives as to the
terms of a decision in the proceedings that would be acceptable to the parties
(being a decision that the Court could have made in the proper exercise of its
functions), the Commissioner:
(a)
must dispose of the proceedings in accordance
with the decision, and
(b)
must set out in writing the terms of the
decision.
(4)
If no such agreement is reached, the Commissioner
must terminate the conciliation conference and:
(a)
unless the parties consent under paragraph (b),
must make a written report to the Court:
(i)
stating that no such agreement has been reached
and that the conciliation conference has been terminated,
and
(ii)
setting out what in the Commissioner’s view
are the issues in dispute between the parties, or
(b)
if the parties consent to the Commissioner
disposing of the proceedings, must dispose of the proceedings:
(i)
following a hearing, whether held forthwith or
later, or
(ii)
with the consent of the parties, on the basis of
what has occurred at the conciliation conference.
(5)
The Commissioner, when giving his or her decision
under subsection (4) (b), is to give reasons for the decision:
(a)
in writing, or
(b)
orally and recorded by means that can be
reproduced.
(6)
If satisfied that there is a good reason to do
so, the Commissioner may adjourn the conciliation conference to a time and
place fixed in consultation with the Registrar.
(7)
Subject to this Act and the rules, the
Commissioner disposing of, or hearing and disposing of, proceedings pursuant
to subsection (3) or (4) (b) has and may exercise the functions of the
Court.
(8)
The decision of the Commissioner under subsection
(3) or (4) (b) is taken to be the decision of the Court.
(9)
If a report is made to the Court under subsection
(4) (a), it must, as soon as practicable, furnish a copy of the report to each
of the parties.
(10)
If an agreement is reached between the parties
and proceedings are being dealt with under subsection (3), any document signed
by the parties is admissible as to the fact that such an agreement has been
reached and as to the substance of the agreement.
(10A)
The same privilege with respect to defamation as
exists with respect to judicial proceedings and a document produced in
judicial proceedings exists with respect to:
(a)
a conciliation conference,
and
(b)
a document or other material sent to or produced
to a Commissioner, or sent to or produced at the Court or the registry of the
Court, for the purpose of enabling a conciliation conference to be
arranged.
(10B)
The privilege conferred by subsection (10A)
extends only to a publication made:
(a)
at a conciliation conference,
or
(b)
in a document or other material sent to or
produced to a Commissioner, or sent to or produced at the Court or the
registry of the Court, for the purpose of enabling a conciliation conference
to be arranged.
(11)
Subject to subsections (10) and (12):
(a)
evidence of anything said or of any admission
made in a conciliation conference is not admissible in any proceedings before
any court, tribunal or body, and
(b)
a document prepared for the purposes of, or in
the course of, or as a result of, a conciliation conference, or any copy of
such a document, is not admissible in evidence in any proceedings before any
court, tribunal or body.
(12)
Subsection (11) does not apply with respect to
any evidence or document if the parties consent to the admission of the
evidence or document.
(13)
The Commissioner presiding over a conference
under this section in relation to any proceedings is disqualified from further
participation in those proceedings, unless the parties otherwise
agree.
(14)
Unless otherwise directed by the Chief Judge, the
Registrar may preside over a conference under this section and, in that event,
a reference in this section to a Commissioner includes a reference to the
Registrar.
s 34: Am 1991 No 22,
Sch 1; 1994 No 32, Sch 3; 1998 No 172, Sch 6 [7] [10]; 2002 No 76, Sch 1 [7];
2006 No 107, Sch 1.19 [1]–[4]. Subst 2007 No 56, Sch 6 [15]. Am 2007 No
73, Sch 2; 2008 No 53, Sch 13 [3].
34AProceedings to which on-site
hearing procedures apply
(1)
This section applies to the following
proceedings, if the proceedings have not been disposed of under section
34:
(a)
proceedings in Class 1 of the Court’s
jurisdiction that are brought under section 96 of the Environmental Planning and Assessment Act
1979,
(b)
proceedings in Class 1 of the Court’s
jurisdiction that are brought under section 96AA of the Environmental Planning and Assessment Act
1979,
(c)
proceedings in Class 1 of the Court’s
jurisdiction that are brought under section 97 of the Environmental Planning and Assessment Act
1979,
(d)
proceedings in Class 1 of the Court’s
jurisdiction that are brought under section 121ZK of the Environmental Planning and Assessment Act
1979,
(e)
proceedings in Class 1 of the Court’s
jurisdiction that are brought under section 149F of the Environmental Planning and Assessment Act
1979,
(f)
proceedings in Class 2 of the Court’s
jurisdiction that are brought under section 7 of the Trees
(Disputes Between Neighbours) Act
2006.
(2)
If, in relation to proceedings under section 97
of the Environmental Planning and Assessment
Act 1979, the parties agree, or, in the absence of any
such agreement, the Registrar at the first or a subsequent callover
determines, that the proceedings involve proposed development that:
(a)
has an estimated value that is less than half the
median sale price for the previous quarter for all dwellings in the local
government area in which the development is proposed to be carried out,
and
(b)
if carried out, would have little or no impact
beyond neighbouring properties, and
(c)
does not involve any significant issue of public
interest beyond any impact on neighbouring
properties,
the proceedings are to be dealt with under section 34B,
subject to subsection (6).
(2A)
Proceedings to which this section applies (other
than proceedings under section 97 of the Environmental
Planning and Assessment Act 1979) are to be dealt with
under section 34B, subject to subsection (6), if the Registrar at the first or
a subsequent callover determines that the proceedings:
(a)
have little or no impact beyond neighbouring
properties, and
(b)
do not involve any significant issue of public
interest beyond any impact on neighbouring
properties.
(3)
Proceedings that are dealt with under section 34B
are referred to in this Act as on-site
hearing matters.
(4)
Proceedings to which this section applies, other
than those referred to in subsection (2) or (2A), are to be dealt with under
section 34C, subject to subsection (6).
(5)
Proceedings that are dealt with under section 34C
are referred to in this Act as court
hearing matters.
(6)
At any time before proceedings to which this
section applies commence to be dealt with under section 34B or 34C, the Court,
on the application of a party or of its own motion, may determine that the
proceedings are to be dealt with:
(a)
under section 34C instead of under section 34B,
or
(b)
under section 34B instead of under section
34C.
s 34A: Ins 2002 No
76, Sch 1 [8]. Am 2006 No 107, Sch 1.19 [5]–[9]; 2006 No 126, Sch 2.3
[5].
34BArrangements for dealing with
on-site hearing matters
(1)
Proceedings that are dealt with under this
section are to be dealt with by means of an on-site conference to be heard and
disposed of by one or more Commissioners.
(2)
The on-site conference is to be held on the site
of the proposed development, unless the Commissioner is of the opinion
that:
(a)
it would be unfair to the interests of one or
more of the parties to hold the on-site conference there,
or
(b)
the lack of facilities at that site make it
impractical to hold the on-site conference there.
(3)
The Commissioner may dispose of the proceedings
with or without further hearing, at any time after the conclusion of the
on-site conference.
(4)
The Commissioner, when giving his or her
decision, is to give reasons for the decision:
(a)
in writing, or
(b)
orally and recorded by means that can be
reproduced.
(5)
The provisions of section 36 (2)–(6) apply
to the hearing and disposal of proceedings under this
section.
(6)
In this section, Commissioner means the Commissioner
or Commissioners hearing the on-site hearing matter.
s 34B: Ins 2002 No
76, Sch 1 [8]. Am 2007 No 56, Sch 6 [16]–[19]; 2008 No 53, Sch 13
[4]–[6].
34CArrangements for dealing with
court hearing matters
(1)
Proceedings that are dealt with under this
section are to be dealt with, at the direction of the Chief Judge:
(a)
by a Judge, or
(b)
by a single Commissioner, or
(c)
if, in the opinion of the Chief Judge, the
hearing of the proceedings is likely to be lengthy, or if the proceedings
involve a publicly controversial site, or a publicly controversial
development, or if the proceedings involve a substantial number of issues, or
if the Chief Judge is of the opinion that it is otherwise appropriate to do
so, by a panel consisting of:
(i)
two or more Commissioners, or
(ii)
a Judge and one or more
Commissioners.
(2)
The appointment of a person to a panel is to be
made having regard to the relevance of the person’s expertise and
experience to the subject of the proceedings.
(3)
If a panel consists of two or more Commissioners,
the provisions of section 36 (2)–(7) apply to the proceedings before the
panel in the same way as those provisions apply to proceedings under section
36.
(4)
If a panel consists of a Judge and one or more
Commissioners:
(a)
subject to this Act and the rules, the panel has
and may exercise the functions of the Court, and
(b)
the Judge is to preside at the hearing of the
proceedings before the panel, and
(c)
the Commissioner or Commissioners may advise and
assist the Judge but are not to adjudicate on any matter before the panel,
and
(d)
the provisions of section 37 (4) apply to the
Judge who is a member of the panel in the same way as those provisions apply
to a Judge before whom proceedings referred to in section 37 (1) or (2) are
pending, and
(e)
the decision of the panel is taken to be the
decision of the Court.
(5)
The provisions of section 36 (2), (3), (5), (6)
and (7) apply to the hearing and disposal of proceedings under this section by
a single Commissioner in the same way as those provisions apply to the hearing
and disposal of proceedings under that section by a single
Commissioner.
s 34C: Ins 2002 No
76, Sch 1 [8].
34DSite inspections in court
hearing matters
Before disposing of a court hearing matter, the
Court (or the persons exercising the functions of the Court) must make an
inspection of the site of the proposed development, unless:
(a)
all the parties agree to dispense with an
inspection, or
(b)
the Court (or the persons exercising the
functions of the Court) considers that the matter can be properly determined
without the need for an inspection.
s 34D: Ins 2002 No
76, Sch 1 [8]. Subst 2008 No 53, Sch 13 [7].
35Inquiries by
Commissioners
(1)
Where proceedings are pending in Class 3 of the
Court’s jurisdiction, the Court may, with the consent of the parties,
direct that an inquiry into any issue raised in, or other matter connected
with, the proceedings be made by a single Commissioner.
(2)
The Commissioner making an inquiry pursuant to
this section shall make a report to the Court.
(3)
Where a report is made to the Court under
subsection (2), the Court shall, as soon as practicable, furnish a copy of the
report to each of the parties.
(4)
The Court may, with the consent of the parties,
adopt any findings or observations set out in a report under subsection
(2).
(5)
A Commissioner, in making an inquiry pursuant to
this section, shall have and may exercise the functions of the Court under
section 68 of the Civil Procedure Act
2005.
(6)
A Commissioner who has made an inquiry pursuant
to this section in relation to any proceedings is disqualified from further
participation in those proceedings, unless the parties otherwise
agree.
s 35: Am 1998 No 172,
Sch 6 [10]; 2007 No 56, Sch 6 [20] [21].
36Delegation to
Commissioners
(1)
Where proceedings are pending in Class 1, 2 or 3
of the Court’s jurisdiction (other than proceedings that are being dealt
with under section 34A or 40), the Chief Judge:
(a)
except as provided by paragraph (b) or subsection
(1B), may, of the Chief Judge’s own motion or on the request of a party,
direct that the proceedings be heard and disposed of by one or more
Commissioners, and
(b)
shall, where the proceedings are
proceedings:
(i)
arising under the Aboriginal Land
Rights Act 1983, and
(ii)
of a kind specified in Schedule
2,
direct that the proceedings be heard and disposed of by
a Commissioner.
(1A)
The Governor may, by regulation, amend Schedule 2
by:
(a)
adding thereto any matter,
(b)
altering any matter therein,
or
(c)
omitting any matter
therefrom,
or may, by regulation, omit the Schedule and insert
instead a new Schedule.
(1B)
The Chief Judge may not direct under this section
that proceedings under section 29, 30 or 31 of the Access
to Neighbouring Land Act 2000 are to be heard and disposed
of by one or more Commissioners.
(2)
Subject to this Act and the rules, the
Commissioner or Commissioners hearing and disposing of the proceedings
pursuant to this section shall have and may exercise the functions of the
Court (other than its functions under this section).
(3)
The decision of the Commissioner or Commissioners
shall be deemed to be the decision of the Court.
(4)
Where proceedings are directed to be heard and
disposed of by 2 or more Commissioners:
(a)
if the Senior Commissioner is one of the
Commissioners hearing and disposing of the proceedings—the Senior
Commissioner shall preside at the hearing of the
proceedings,
(b)
if the Senior Commissioner is not one of those
Commissioners—one of those Commissioners directed to do so by the Chief
Judge shall preside at the hearing, and
(c)
if the Commissioners are divided in opinion as to
the decision to be made on any question:
(i)
if there is a majority of the one
opinion—the question shall be decided according to the opinion of the
majority, or
(ii)
in any other case—the question shall be
decided according to the opinion of the Commissioner
presiding.
(5)
Proceedings that are before a Commissioner under
section 34, or under this section, may be referred or removed for hearing and
determination by a Judge in the same way as proceedings before an associate
Judge may be referred or removed for hearing and determination by a Judge in
the Supreme Court.
(6)
The power of a Commissioner to refer proceedings
pursuant to subsection (5) is subject to any contrary order of the Chief
Judge.
(7)
s 36: Am 1983 No 42,
Sch 3; 1994 No 32, Sch 3; 1998 No 172, Sch 6 [6] [7] [12]; 1999 No 31, Sch
2.20 [4]; 2000 No 2, Sch 1 [2] [3]; 2002 No 76, Sch 1 [9]; 2006 No 107, Sch
1.19 [10]; 2007 No 56, Sch 6 [22]; 2008 No 53, Sch 13 [8].
37Commissioners sitting with a
Judge
(1)
Where proceedings are pending in Class 1, 2 or 3
of the Court’s jurisdiction before a Judge (other than proceedings that
are being dealt with under section 34A), the Court may, in hearing the
proceedings, or any part of the proceedings, be assisted by one or more
Commissioners.
(2)
Notwithstanding subsection (1), where proceedings
are pending in Class 3 of the Court’s jurisdiction, being
proceedings:
(a)
arising under the Aboriginal Land
Rights Act 1983, and
(b)
other than of a kind specified in Schedule
2,
the Court shall, in hearing the proceedings or any part
of the proceedings, be assisted by 2 Commissioners or, if the Chief Judge so
directs, by one Commissioner.
(3)
A Commissioner assisting the Court as referred to
in subsection (1) or (2) may assist and advise the Court, but shall not
adjudicate on any matter before the Court.
(4)
A Judge before whom proceedings referred to in
subsection (1) or (2) are pending may commence or continue the hearing of the
proceedings, or any part of the proceedings:
(a)
without the assistance of a Commissioner who is
not available or has ceased to be available to assist in the hearing of the
proceedings or part of the proceedings, and
(b)
without the assistance of Commissioners generally
if, in the opinion of the Judge, the proceedings or part of the proceedings
concern or concerns a question of law only.
s 37: Am 1983 No 42,
Sch 3; 1987 No 162, Sch 1 (1); 1998 No 172, Sch 6 [7] [10]; 2002 No 76, Sch 1
[10]; 2006 No 107, Sch 1.19 [11].
38Procedure
(1)
Proceedings in Class 1, 2 or 3 of the
Court’s jurisdiction shall be conducted with as little formality and
technicality, and with as much expedition, as the requirements of this Act and
of every other relevant enactment and as the proper consideration of the
matters before the Court permit.
(2)
In proceedings in Class 1, 2 or 3 of the
Court’s jurisdiction, the Court is not bound by the rules of evidence
but may inform itself on any matter in such manner as it thinks appropriate
and as the proper consideration of the matters before the Court
permits.
(3)
Subject to the rules, and without limiting the
generality of subsection (2), the Court may, in relation to proceedings in
Class 1, 2 or 3 of the Court’s jurisdiction, obtain the assistance of
any person having professional or other qualifications relevant to any issue
arising for determination in the proceedings and may receive in evidence the
certificate of any such person.
(4)
In proceedings in Class 1, 2 or 3 of the
Court’s jurisdiction, the Court may, in respect of a matter not dealt
with by this Act or the rules, give directions as to the procedure to be
followed at or in connection with the hearing.
(5)
In this section, a reference to the Court
includes a reference to the Commissioner or Commissioners directed under
section 36 to hear and dispose of proceedings.
39Powers of Court on
appeals
(1)
In this section, appeal means an appeal, objection,
reference or other matter which may be disposed of by the Court in proceedings
in Class 1, 2 or 3 of its jurisdiction.
(2)
In addition to any other functions and
discretions that the Court has apart from this subsection, the Court shall,
for the purposes of hearing and disposing of an appeal, have all the functions
and discretions which the person or body whose decision is the subject of the
appeal had in respect of the matter the subject of the
appeal.
(3)
An appeal in respect of such a decision shall be
by way of rehearing, and fresh evidence or evidence in addition to, or in
substitution for, the evidence given on the making of the decision may be
given on the appeal.
(4)
In making its decision in respect of an appeal,
the Court shall have regard to this or any other relevant Act, any instrument
made under any such Act, the circumstances of the case and the public
interest.
(5)
The decision of the Court upon an appeal shall,
for the purposes of this or any other Act or instrument, be deemed, where
appropriate, to be the final decision of the person or body whose decision is
the subject of the appeal and shall be given effect to
accordingly.
(6)
Notwithstanding any other provision of this
section, if an appeal relates to an application made to a council within the
meaning of the Local Government Act
1993 or a consent authority within the meaning of the
Environmental Planning and Assessment Act
1979 and that council or consent authority may not approve
of, consent to, or deal with, or grant a permission in respect of, the
application except after consultation with, or with the concurrence or
approval of, any person or body:
(a)
the Court may determine the appeal whether or not
the consultation has taken place and whether or not the concurrence or
approval has been granted, and
(b)
in a case where the concurrence or approval has
been granted—the Court may vary or revoke any conditions imposed by that
person or body or may impose any conditions that could have been imposed by
that person or body.
(6A)
Notwithstanding any other provision of this
section, if an appeal relates to an application made to a consent authority
within the meaning of the Environmental Planning and Assessment
Act 1979 and the application relates to integrated
development within the meaning of section 91 of that Act:
(a)
the Court may determine the appeal whether or not
the consent authority has obtained the general terms of approval of each
relevant approval body within the meaning of section 90A of that Act,
and
(b)
the Court is not bound to refuse an application
for development consent because an approval body has decided not to grant its
approval or has failed to inform the consent authority whether or not it will
grant its approval, and
(c)
the Court may determine the appeal even though a
development consent granted as a result of the appeal is inconsistent with the
general terms of approval of an approval body.
Section 93 of that Act applies to a development
consent granted as a result of the appeal.
(7)
The functions of the Court under this section are
in addition to and not in derogation from any other functions of the
Court.
(8)
This section (other than subsection (5)) does not
apply to proceedings under section 30 or 31 of the Access
to Neighbouring Land Act 2000.
s 39: Am 1994 No 44,
Sch 19; 1997 No 156, Sch 4.10 [6]; 2000 No 2, Sch 1 [4].
39AJoinder of parties in certain
appeals
On an appeal under section 96 (6), 96AA (3), 96A
(5), 97 or 98 of the Environmental Planning and Assessment
Act 1979, the Court may, at any time, on the application
of a person or of its own motion, order the joinder of a person as a party to
the appeal if the Court is of the opinion:
(a)
that the person is able to raise an issue that
should be considered in relation to the appeal but would not be likely to be
sufficiently addressed if the person were not joined as a party,
or
(b)
that:
(i)
it is in the interests of justice,
or
(ii)
it is in the public
interest,
that the person be joined as a party to the
appeal.
s 39A: Ins 2002 No
76, Sch 1 [11]. Am 2006 No 56, Sch 3.
40Additional powers of
Court—provision of easements
(1)
This section applies if:
(a)
the Court has determined to grant or modify a
development consent pursuant to proceedings on an appeal under the Environmental Planning and Assessment Act
1979, or
(b)
proceedings on an appeal under the Environmental Planning and Assessment Act
1979 with respect to the granting or modification of a
development consent are pending before the Court (whether constituted by a
Judge or by one or more Commissioners).
(2)
The appellant may make an application to the
Court for an order imposing an easement over land.
(3)
The parties to an application under this section
include the owner of the land to be burdened by the easement, and each other
person having an estate or interest in the land, as evidenced by an instrument
registered in the General Register of Deeds or the Register kept under the
Real Property Act
1900.
(4)
In dealing with an application under this
section, the Court may exercise the jurisdiction of the Supreme Court under
section 88K of the Conveyancing Act
1919 and, in that event, section 88K of the Conveyancing Act 1919 applies to the
Court’s exercise of that jurisdiction in the same way as it applies to
the exercise of that jurisdiction by the Supreme Court.
s 40: Am 1993 No 32,
Sch 2; 1994 No 32, Sch 3. Subst 2002 No 76, Sch 1 [12]; 2008 No 53, Sch 13
[9]; 2008 No 107, Sch 14 [9].