Decision-makers, Expert Witnesses and Advocates: The Roles of Planners in Merits Appeals

Abstract

The role of planners is commonly examined in the context of local government decision-making processes. However, planners also participate in other institutional contexts. This article examines planners' roles in merits appeals in two jurisdictions in Australia. The author finds that planners carry out numerous functions in development assessment appeals—they participate as advocates, expert witnesses and decision-makers. However, these roles are not static. They tend to vary depending on the procedural model utilised by the tribunal or court. This article examines the different ways that planning expertise is employed in the Land and Environment Court (NSW) and the Victorian Civil and Administrative Tribunal.

Keywords:

• Planners
• expertise
• development assessment
• merit appeals

Acknowledgements

The research for this article was funded by the University of Sydney—Legal Scholarship Support Fund. The author would like to thank Nicole Gurran for her comments on an earlier draft of the article and Jessica Radburn for research assistance. Of course, the author is responsible for any errors and omissions.

Notes

1. See, for example, Australian Senate, Standing Orders 23(3) and 24(1), Parliamentary Committees Act 2003 (Vic), s 17(a); and Legislation Review Act 1987 (NSW) s 8A(1).

2. The former point was made in one of the foundational, Australian merits review cases, Re Drake (No. 2) (1979) 2 ALD 634 at 639 per Brennan J and the latter is reflected in tribunal legislation: see Land and Environment Court Act 1979 (NSW), s 12 and Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 13 and 14.

3. Objectors participated as parties to the proceedings in none of the 30 LEC cases surveyed in the research for this article. In one case a person was allowed to participate on a limited basis as an ‘intervenor’ rather than a party: Skyton Developments Pty Ltd v. The Hills Shire Council [2009] NSWLEC 1299 at [18].

4. The relevant provisions for merits appeals of council decisions are ss 97 and 98 of the Environmental Planning and Assessment Act 1979 (NSW) and s 39A of the Land and Environment Court Act 1979 (NSW).

5. The relevant provisions for merits appeals of council decisions are ss 82–83A of the Planning and Environment Act 1987 (Vic).

6. Victorian Civil and Administrative Tribunal Act 1998 (Vic), ss 10–14; Land and Environment Court Act 1979 (NSW), Sch 1.