Appeals to the Planning and Environment Court

In order to carry out certain types of development an application may need to be made to the Council for a development permit.

The application may need to be detailed and will likely require the assistance of an experienced town planner. Where the application is complex or sensitive, specialised consultants will need to be retained to provide reports.

The application may take months to be properly assessed and reach the decision stage. Where the application requires impact assessment the application will be advertised to the public to allow members of the community an opportunity to make a submission for or against the application.

The Council then decides to either:

• Approve the application subject to conditions; or
• Refuse the application.

Both of the above decisions can be challenged in the Planning and Environment Court, not only by an applicant (that is, the person who made the development application) but, depending on the type of application and appeal, is open to be challenged by a person who lodged a submission during the public notification period.

Applicant Appeals

If you have made a development application and are not satisfied with the conditions of approval or the Council have refused the application, then to challenge the decision you must file a Notice of Appeal in the Planning and Environment Court.

There are strict timeframes to file a Notice of Appeal, being 20 business days after the decision is given and there are court fees associated with filing the Notice of Appeal that can be accessed here. 

The Notice of Appeal must set out the grounds upon which the decision is appealed and the relief sought from the Court. It is recommended that you engage the assistance of a lawyer practicing in planning and environment law to prepare the Notice of Appeal in consultation with your town planning consultant.

An applicant will always have the onus to prove their case, no matter who started the appeal.

Submitter Appeals

If you have lodged a submission about a development application then you have preserved your right to:

• appeal against the Council's decision to approve the development application; or
• join an appeal where an applicant appeals the Council's decision to refuse a development application.

A submitter may appeal the Council's decision to approve an application by filing a Notice of Appeal in the Planning and Environment Court. The court fees for a submitter filing an appeal are identical to the costs of an applicant appeal and the 20 business day timeframe for filing the Notice of Appeal also applies.

Where an appeal has already been started by an applicant, to join that appeal an Entry of Appearance is required to be filed.

The court process

Once the Notice of Appeal has been filed, within 3 months the parties are required to seek orders and directions from the Court as to the conduct of the appeal.

The parties will obtain orders about:

• disclosure and the discovery and inspection of documents
• the nomination of experts and the joint meetings of experts
• the legal representatives participating in a without prejudice case management conference
• the parties participating in a without prejudice mediation on or before the Alternative Dispute Resolution Planning and Environment Court Registrar

The parties will also seek orders for future court reviews and setting the matter down for a trial.

Experts

The Planning and Environment Court is a court of experts.

Initially, experts are identified, retained and briefed and then they are nominated to give evidence in the appeal. Each party is permitted to engage one expert in relation to each field of expertise.

The experts are required to participate in a joint meeting process. The experts must be properly briefed and when they start the meeting process they become quarantined, or as we like to refer, the experts remain in conclave until they produce a report signed by all of the experts who participated in preparing the report.

Like lawyers, the experts have an overriding duty to the court. They cannot be influenced by their instructing party as to which opinions they should accept or reject.

Other matters within the Planning and Environment Court jurisdiction

The Planning and Environment Court of Queensland is a longstanding specialist court.

As well as hearing and deciding appeals, the Planning and Environment Court also has the jurisdiction to hear and decide:

• appeals about infrastructure charges;
• appeals against decisions on compensation claims – for example, for a claim about re-zoning of land;
• appeals from decisions of the Development Tribunal
• applications for enforcement orders, to remedy or restrain the commission of a development offence – for example, the intensification of a use beyond what is approved, or the use of land without a development permit
• applications for declarations

If you wish to get in touch with one of our planning and environment lawyers please contact our office on 4771 5664 to book your appointment today.