Fairer arrangements for developers in court

29 November 2010

In 2009 a new section 97B was inserted in to the Environmental Planning and Assessment Act. This section applies during the merit appeal of development applications in the Land and Environment Court.

Under the section when the Court allows an applicant to file an amended development application the Court is compelled to order the applicant to pay the councils costs. The developer needs to pay for:

  • the assessment of the original development application; and
  • the councils legal costs in the proceedings up to the time the application is amended,

if the changes are more than minor.

This removed the traditional discretion of the Court to impose costs based on the justice of the case. It also goes way beyond the traditional costs orders imposed by Courts which have previously been related to the legal costs of proceedings itself, rather than the costs of development assessment.

We have consistently argued that section 97B is poorly drafted, ill-conceived, and a major impediment to the work of the Land and Environment Court since it was introduced (see our submission here).

Were pleased to report some progress. Legislation has been passed by parliament limiting section 97B to legal costs, rather than all costs associated with the development assessment.

The same legislation also softens the impact on planned reductions in the period available to appeal to the Land and Environment Court. Reforms passed by Parliament in 2008, but not implemented, were going to reduce the appeal period from 12 months to 3 months. Again, we have consistently argued against this change. The new legislation now will only reduce the appeal period to six months.

Other changes (of less significance to developers) were also in the bill. The details are here. You can see some of our concerns with the bill detailed here.

We anticipate the changed arrangements will come into effect in the first half of next year probably February or March.