Written by The case of McMillan v Taylor [2023] NSWCA 183 saw the Court consider the role of Commissioner in the Land and Environment Court (LEC) pursuant to the Land and Environment Court Act 1979 (NSW) (LEC Act). The Commissioner, in conciliation conferences, predominantly resolves refused development application appeals. If an agreement is reached between the parties, the Commissioner is granted power under s 34(3) of the LEC Act to dispose of the case if it is a decision ‘that the Court could have made in the proper exercise of its functions.’
Facts of the Case
The Woollahra Municipal Council refused a development application to landowners for construction on a residential property in Vaucluse. Proceedings commenced on appeal of the deemed refused development application and the Commissioner conducted an on-site conciliation conference whereby neighbouring residents (Applicants) submitted oral statements against the proposed development application. An agreement was reached between the Council and landowners through the Commissioner; however, the Applicants were dissatisfied with the decision. Given the Applicants were not parties to the proceedings, they could not appeal the decision. Instead, the Applicants challenged the decision under s 69 of the Supreme Court Act 1970 (NSW) which stipulates that the Supreme Court may review decisions of tribunals and other decision-making bodies in NSW.
For more information on initial proceedings between the landowners and Woollahra Municipal Council, see our article ‘Development Application Appeal Upheld.’
Findings
The Commissioners power to dispose of proceedings under s 34(3) of the LEC Act was primarily addressed. The Court considered the importance of community submissions and procedural fairness in the conciliation process. The Court ultimately determined that to dispose of proceedings there must be an agreement between the two parties and that the Commissioner could have made this agreement in the ‘proper exercise of its [LEC] functions.’ The disposal of proceedings may be justified so long as there is an established agreement between the parties made within the jurisdictional power of the LEC. The Court reinforced that procedural fairness is granted in the conciliation process to the community through written and oral submissions. The Commissioners role in the dispute process is to ensure there are no jurisdictional restrictions on the LEC when disposing of proceedings. Therefore, the Commissioner was not required to fully consider if the agreement formed between the two parties addressed the previously raised concerns by the Applicants.
Commissioners often dispose of proceedings under s 34(3) of the LEC Act and this case reinforced their jurisdictional powers under the LEC.