What are “Class 1” proceedings, who are typically involved, and what will the Court require of the parties?

Overview of the LEC and Class 1 of its jurisdiction

The Land and Environment Court of New South Wales (the LEC) is the principal forum for the resolution of disputes relating to the use, development and protection of land in the state of NSW. The court operates under the jurisdiction of the Land and Environment Court Act 1979 (the LEC Act), which sets out its functions and powers.

Class 1 proceedings in the LEC play a crucial role in the resolution of disputes relating to the use, development and protection of land in NSW. Class 1 proceedings are civil proceedings in the LEC that deal with matters arising from the Environmental Planning and Assessment Act 1979 as well as a broad range of other environmental legislation. These proceedings can involve a range of issues, including development applications, compliance and enforcement action, and appeals against decisions made by government agencies.

What types of appeals can be brought in Class 1 of the Court’s jurisdiction?

In this regard, section 17 of the LEC Act relevantly states:

17 Class 1—environmental planning and protection appeals

The Court has jurisdiction (referred to in this Act as “Class 1” of its jurisdiction) to hear and dispose of the following—

(a) appeals under Part 9.2 of the Protection of the Environment Operations Act 1997,

(aa) appeals under section 85 of the Water NSW Act 2014,

(ab) appeals under section 22 of the Dams Safety Act 2015,

(b) appeals under section 114 of the Pesticides Act 1999,

…

(c) appeals under section 368 of the Water Management Act 2000,

(ca) appeals under section 54 of the Biological Control Act 1985,

…

(d) appeals, objections and applications under sections 4.55, 8.7, 8.8, 8.9, 8.16, 8.18, 8.21, 8.22, 8.23 and 8.25 of, and clause 35 of Schedule 5 to, the Environmental Planning and Assessment Act 1979,

…

(e) appeals under section 30, 70, or 70A of the Heritage Act 1977 and appeals remitted to the Court under section 77(1)(b) of the Heritage Act 1977 in respect of applications under the Environmental Planning and Assessment Act 1979,

(ea) appeals to the Court under the Biodiversity Conservation Act 2016,

(eb) appeals to the Court under Part 5A of the Local Land Services Act 2013,

(f) appeals under sections 37–40 of the Environmentally Hazardous Chemicals Act 1985 and applications under section 44(4) of that Act,

…

(h) appeals under Part 6 of the Contaminated Land Management Act 1997,

(ha) appeals under section 18 or 36A of the Radiation Control Act 1990,

(I) appeals under section 24 of the Plantations and Reafforestation Act 1999,

(j) appeals under section 35(1)(a) or 45(1)(a) of the Dangerous Goods (Road and Rail Transport) Act 2008, and

(k) appeals under sections 90L and 91T of the National Parks and Wildlife Act 1974,

(l) appeals under section 9.21 of the Crown Land Management Act 2016,

(m) appeals to the Court under the Plastic Reduction and Circular Economy Act 2021, Part 8.

Who typically are involved in Class 1 proceedings?

These proceedings typically include the involvement of the NSW government, local councils, developers and/or private citizens.

Appeals relating to development applications are a very common type of Class 1 proceedings. These proceedings involve an application for approval of a proposed development and typically involve the consideration of a range of issues, including planning and environmental impacts, community consultation and the potential impacts on neighbouring properties. The LEC is empowered to make a range of decisions in relation to development applications, including approval, rejection, partial approval, deferred commencement approval, or approval subject to conditions.

What can the Court do in Class 1 proceedings?

The LEC is a specialist court that operates in an informal and flexible manner. It aims to resolve disputes efficiently and fairly and to provide clear and concise decisions that are based on the relevant facts and the law. The LEC also provides a range of services to assist parties to resolve disputes, including mediation, conciliation and alternative dispute resolution.

Once proceedings have commenced in Class 1 of the LEC, all parties should expect to be required to participate in a conciliation conference and a hearing. Parties may also participate in “without prejudice” meetings in an attempt to resolve issues as early as possible.

It is also worth noting that in Class 1 proceedings, the LEC:

1. can take a range of evidence into account, including expert evidence, witness statements, and written submissions.
2. has the power to conduct site inspections and to call witnesses to give evidence (either by producing documents or appearing in-person at the Court).
3. is able to make a range of orders to enforce its decisions, including by way of granting or refusing applications.

Further information

You can read more about Class 1 appeals on the LEC website by clicking here.

If you require legal assistance with a Class 1 appeal, please contact Alyce Kliese by clicking here.