The recent decision of Burns v Queanbeyan-Palerang Regional Council provides a concise summary of the principles to consider when appealing a judgment of the Land and Environment Court.

Legislation

Section 56A of the Land and Environment Court Act 1979 (LEC Act) states:

56A Class 1, 2, 3 and 8 proceedings—appeals to the Court against decisions of Commissioners

(1) A party to proceedings in Class 1, 2, 3 or 8 of the Court’s jurisdiction may appeal to the Court against an order or a decision of the Court on a question of law, being an order or a decision made by a Commissioner or Commissioners.

(2) On the hearing of an appeal under subsection (1), the Court shall—

(a) remit the matter to the Commissioner or Commissioners for determination by the Commissioner or Commissioners in accordance with the decision of the Court, or

(b) make such other order in relation to the appeal as seems fit.

(3) Notwithstanding subsection (1), an appeal shall not lie to the Court under that subsection in respect of a question of law that has been referred to, and determined by, a Judge pursuant to section 36.

Accordingly, an appeal against a decision of a Commissioner can only relate to “a question of law”. A “question of law” involves a dispute about the meaning or application of the law. The Court as part of the appeal will determine whether the decision by the Commissioner during the Class 1 proceedings was consistent with the law and the relevant legal principles. This is different to a “question of fact”. A “question of fact” involves the determination of a factual matter, which could include facts about what has happened in the past or is happening in the present.

It is relevant to note that appeals brought pursuant to section 56A of the LEC Act are commonly known as “Section 56A Appeals”.

Summary of the principles for Section 56A Appeals

Burns v Queanbeyan-Palerang Regional Council (Burns) related to an appeal by Fiona Burns against the decision of the Senior Commissioner dismissing her appeal with respect to the refusal by Queanbeyan-Palerang Regional Council of a development application which sought approval for a “recreational facility (outdoor) shooting range” (on a 5000-acre rural property at the northern end of Lake George.

As part of her judgment, Justice Duggan brought attention to the applicable principles to Section 56A Appeals. These principles were summarised by Justice Pepper in SDHA Pty Ltd v Waverley Council, as follows:

12 Prior to examining the Commissioner’s decision, it is worth recalling the principles according to which this appeal falls to be determined:

 

(a) first, the appeal is only concerned with errors or questions of law and not questions of fact … ;

 

(b) second, an overly critical examination of the Commissioner’s decision for relevant error should not be employed … ;

 

(c) third, the Commissioner must give adequate reasons for his decision refusing to approve the modifications. This means that he must refer to evidence that is important or critical to the determination of the principal or central issues in the case … This does not mean, however, that every argument advanced by a party in support of these issues must be considered by the Commissioner or reasons given for accepting or rejecting it … A commissioner’s duty to give reasons is confined to the essential grounds upon which the decision rests and does not encompass a requirement to deal with a submission or contention that is otherwise peripheral to the decision arrived at, provided that the Commissioner’s reasoning process is articulated and relevant to the findings made … ;

 

(d) fourth, and as corollary to the principle above, if the decision of the Commissioner reveals an error on a question of law, the decision is only vitiated if the error is material to the decision made … ; and

 

(e) fifth, an error will not be material to the decision as made if the matter complained of on appeal was a matter that was not the subject of submissions made to the Commissioner below in a way that called for a reasoned consideration of that matter …

What happened in Burns

There were 10 issues raised by Ms Burns in relation to the decision of the Senior Commissioner.

The Court considered all 10 issues and concluded that no error of law was identified. Given that there was no error of law, it followed that no Section 56A Appeal was available. For that reason, the appeal was dismissed and Ms Burns was required to pay the Council’s costs of the appeal.

Further reading

You can read the judgment of Burns v Queanbeyan-Palerang Regional Council by clicking here.

You can read the judgment of SDHA Pty Ltd v Waverley Council by clicking here.