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Independent court mooted

AN independent Land and Environment Court could be the solution to the lengthy planning and environmental appeal process that have hampered many WA developments.

With the new Labor Government signalling its intention to reform the existing planning appeals system, debate has focused on determining what it should be replaced with.

WA currently has a unique appeals system that gives appellants two forums in which to challenge a decision – a direct appeal to the Planning Minister or the Town Planning Appeal Tribunal.

Planning Minister Alannah McTiernan recently suggested the system of ministerial appeals be abolished and, in the wake of this, the Urban Development Institute of Australia has raised the idea of an independent Land and Environment Court.

And while there is an issue of costs and unnecessary formality, Minter Ellison partner and planning lawyer Graham Castledine believes a Land and Environment Court, based on the New South Wales model, could be the best.

Mr Castledine said the court would be given the same status of the Supreme Court, thus ensuring its independence and transparency.

“Most importantly, it would be a one-stop shop for all matters concerning planning, environment, heritage and other land uses,” he said.

The jurisdiction of the court could include everything from administrative appeals to prosecutions for breaches of legislation to providing remedies such as judicial review or declaratory relief.

“This means that large and complex planning disputes need no longer be fought out in several different courts and tribunals as has been the case in this State from time to time,” Mr Castledine said.

BSD Consultants director and planning manager Jenny Smithson agreed, saying such a court would provide for one appeal process and one set of legislation to be applied to give a single, final decision.

And if a compulsory mediation was included as part of the process, many appeals may not have to go through the full court process.

“At the least, a compulsory mediation process would narrow it down to a few core issues to be debated in court,” Ms Smithson said.

Mr Castledine said the only “real question mark” over the value of the Land and Environment Court was the perception that costs and formality may make it inaccessible to some members of the community.

However, this could be remedied by adopting a flexible approach where non-legally qualified assessors could determine relatively simply appeals and leave the complex matters of law to be debated by the experts.

“The main challenge, if such a model was to be adopted in WA, would be to ensure that its processes are flexible enough to encourage access by all members of the community,” Mr Castledine said.

“In my view, there is no reason why such a system cannot be adopted which would provide developers with the best of both worlds.”

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