The construction and development industry is on the cusp of significant changes in the realm of planning permit regulations.
The government has initiated a move to tighten the control and oversight of construction activities following the issuance of a planning permit when subjected to third-party appeals.
Clearly, this alteration is driven by the potential complications that can ensue if, subsequent to a permit being granted, it is revoked by the Environment and Planning Review Tribunal (EPRT) or the Court of Appeal, particularly when construction operations are already in full swing.
In the current system, the EPRT holds the authority to suspend a planning permit upon the submission of an appeal by a third party. However, this decision is primarily exercised at the tribunal’s discretion.
The government seems to advocate for an automatic suspension of permits. These revisions, although aimed at more efficient and equitable outcomes, are poised to significantly extend the time frame within which permit holders can initiate construction activities.
This delay, encompassing the decision-making process of the EPRT, the notification of all relevant parties, and the legal proceedings before the court of appeal, may last at least 12 months, subjecting applicants – including public entities – to both financial and logistical repercussions.
The 12-month duration assumes that EPRT decision is made within three months and that the notification of all parties during court proceedings is made in time. This time frame doesn’t take into account the increasing trend of appellants seeking a new trial, as happened after the Court of Appeal upheld the non-revocation of the ITS permit.
The impact of these impending changes is significant and permit holders – including government and public entities – should be concerned about the potential consequences. It is crucial to consider legal strategies and measures before parliament enacts the new laws.
One fundamental approach is to ensure that all relevant information is incorporated into the initial appeal application. Applicants should be made to provide witness details and well-structured, pertinent questions when submitting their appeals. Waiting until the hearing stage to supply this information should be avoided.
The impact of these impending changes is significant- Robert Musumeci
Another important strategy is to have pre-hearing reviews by the tribunal to assess the admissibility of evidence and the relevance of questions.
An essential strategy is to entrust the examination and cross-examination of witnesses to authorised individuals. Otherwise, it becomes humanly impossible for the three-panel tribunal to reach decisions within a three-month time frame.
If the appeal and response contain sufficient information to render a judgment, the tribunal may have the authority to reach a decision without formal hearings. A comparable mechanism was recently introduced in judicial appeal proceedings.
Discouraging unjustified appeals is another critical aspect. The imposition of penalties for frivolous appeals would deter appeals that lack substantive grounds or contravene established plans and policies. This would encourage a more judicious and responsible use of the legal system.
Personal accountability for corporate representatives is also an integral element. The individual officially representing that legal body should bear personal responsibility, alongside the corporate entity, for any penalties or payments.
In instances where an appeal escalates to the Court of Appeal, the planning authority should ensure all relevant parties are promptly notified, to prevent unnecessary delays.
All of these considerations are being brought to the attention of parliament. Whether the legislators choose to accept them is entirely within their prerogative.
Robert Musumeci is a planning law lecturer and holds a PhD in the field.