++ AUDAX : AT: FIDELIS + Queensland Planning and Environment Court Bill 2014 Queensland Planning and Environment Court Bill 2014 Contents Page Part 1 Preliminary 1 Short title 2.0... ee ee 6 2 Commencement... .......... 0.0 c cee eee eee 6 3 Dictionary... 2.6... eens 6 Part 2 Establishment and jurisdiction Division 1 Establishment 4 Continuation... 0.0.0... eee eee 6 5 Constituting P&E Court ..... 2... eee 6 Chief Judge has overall responsibility for P&E Court.......... 7 Division 2 General jurisdiction 7 Jurisdiction... 2.6... ete ee 7 8 District Court jurisdiction unimpaired .................0000. 8 9 When P&E Court must remit to tribunal.................0.. 8 10 Principles for exercising jurisdiction ..................0..00. 9 Division 3 Declaratory jurisdiction 11 General declaratory jurisdiction .................00.2..00. 9 12 ay jurisdiction for Ministerial call in of development application Part 3 Rules and orders or directions 13 Rules 2.0.0... eee ee 10 14 Orders and directions. ...........0.. 0.00 cece eee eee 11 Part 4 Powers and procedure (general) Division 1 Alternative dispute resolution Subdivision 1 ADR process 15 Purpose of sdiv1........... 0.0.0 c eee eee eee 12 16 ADR PIroceSS .... 6... eee teens 12 17 Referral to ADR process. ..........0... 0.0 c eee eee 13 Planning and Environment Court Bill 2014 Contents Subdivision 2Subdivision 3Division 2 Division 3Division 4 Part 5 Division 1 Page 2 Resolution agreement Documents to be filed Orders giving effect to resolution agreement................ Preservation of confidentiality .......................000- P&E Court proceedings ADR registrar's powers to hear and decide ................. ADR registrar's powers on Chief Judge's direction............ Conduct of proceedings .............. 0000 cece eee eee Reference to P&E Court by ADR registrar.................. Review by P&E Court ADR registrar's powers ADR registrar's powers—general.................2.2.0005 Provision for exercise Powers of ADR registrar's powers ............. Where P&E Court may sit ........... 000.0... eee eee eee Adjournments...... Subpoenas........ P&E Court may extend period to take an action.............. Taking and recording evidence........................0.0. Power to state case for Court of Appeal.................... Terms of orders etc. . Contempt and contravention of orders..................00. Discretion to deal with noncompliance..................... What happens if P&E incapacitated ...... Parties Planning Minister . . . Appearance ....... Court judge or ADR registrar dies or is Representative proceedings in particular cases.............. Miscellaneous P&E Court proceedings open to public .................... Nature of appeal in general ............... 0.0.0 e eee eee Privileges, protection and immunity ....................... Planning Act proceedings Planning Act appeals Who must prove case 1314 151516 171818192122 Planning and Environment Court Bill 2014 Contents 46 Nature of appeal............0 00... eee eee eee 23 47 Appeal decision ........... 00.0000 c eee eee eee eee 24 Division 2 Evidence in P&E Court proceedings 48 Application of division... 0.0... 0.0... 25 49 Appointments and authority..............0.. ee eee eee eee 25 50 Signatures .. 6.0... 6. eee 26 51 Instruments, equipment and installations................... 26 52 Analyst's certificate or report ..........0..... 000 eee eee 26 53 Evidence of planning instruments or notices of designation .. . . 26 54 Planning instruments presumed to be within power........... 27 55 Evidence of local planning instruments ..................-. 27 56 Effect of planning and development certificates.............. 27 57 Evidentiary aids generally .............. 0... e eee eee eee 27 Part 6 Costs Division 1 Security for costs 58 Security for costs... 2... eee eee 28 Division 2 Costs in P&E Court proceedings 59 General costs provision .............. 000 cece eee eee eee 29 60 Specific criteria for making costs order .................04. 30 61 Provision for participation in ADR process.................. 32 62 Costs provisions for particular proceedings................. 32 Part 7 Appeals to Court of Appeal 63 Who may appeal... .. 6.2.6... eee 33 64 When leave to appeal must be sought and appeal made ...... 33 65 Court of Appeal's powers ............ 5.000 cece eee 33 Part 8 Registry and officers 66 Registrars and other officers .............. 0002.00. eee eee 34 67 ADR registrar... 6... ee teens 34 68 Registries... 2... eee eee 34 69 P&E Court records... 2.2... eee 34 Part 9 Miscellaneous 70 Annual report... 6... ete eee 35 71 Judicial notice... 6... eee eee 35 72 Approval of forms... 0.0.2... cece eee ee eee 35 73 Regulation-making power..... 12.00... 5.00 eee eee eee eee 35 Planning and Environment Court Bill 2014 Contents Part 10 Savings and transitional provisions 74 Definitions for part... 0.0.00... eee eee 36 75 Continuance of existing judgeships ....................0.. 36 76 Existing proceedings and proceeding rights................. 36 77 Continuance of existing orders and directions............... 37 78 Existing references to court ............... 00 cece eee 38 79 Existing rules migrate to this Act ................0-.00000- 38 80 Migration of particular repealed SPA provisions about the P&E Court to the ruleS . 6... eee teens 38 Schedule 1 Dictionary ..........0.. 0.0 eee 40 Page 4 A Bill for An Act about the Planning and Environment Court Planning and Environment Court Bill 2014 Part 1 Preliminary [s 1] The Parliament of Queensland enacts— Part 1 Preliminary 1 Short title This Act may be cited as the Planning and Environment Court Act 2014. 2 Commencement This Act commences on a day to be fixed by proclamation. 3 Dictionary The dictionary in schedule 1 defines words used in this Act. Part 2 Establishment and jurisdiction Division 1 Establishment 4 Continuation (1) The Planning and Environment Court (the P&E Court) is continued in existence. (2) The P&E Court— (a) is acourt of record; and (b) _ has a seal that must be judicially noticed. Page 6 oN 14 16 Planning and Environment Court Bill 2014 Part 2 Establishment and jurisdiction [s 5] 5 Constituting P&E Court d) (2) (3) (4) (5) (6) The Governor in Council may, by gazette notice, appoint 1 or more District Court judges who are each to constitute the P&E Court. A District Court judge appointed to constitute the P&E Court is called a P&E Court judge. The appointment may be for a specific period. If a District Court judge purports to constitute, and make a decision or order of, the P&E Court, the decision or order is valid despite— (a) the judge not having been appointed as a P&E Court judge; or (b) the judge's appointment as a P&E Court judge having ended. More than 1 P&E Court may sit at the same time. When more than 1 P&E Court is sitting at the same time, each may exercise the jurisdiction and powers of the P&E Court. 6 Chief Judge has overall responsibility for P&E Court d) (2) The Chief Judge is responsible for the administration of the P&E Court and for ensuring the orderly and expeditious exercise of the jurisdiction and powers of the P&E Court. Subject to any Act, the Chief Judge has power to do all things necessary or convenient to perform the functions mentioned in subsection (1). Division 2 General jurisdiction 7 Jurisdiction (1) The P&E Court has jurisdiction given to it under any Act (each an enabling Act). Page 7 om IN DN FWHY — So ao Ne pe Ww me Nn Re eon 202328 Planning and Environment Court Bill 2014 Part 2 Establishment and jurisdiction [s 8] Notes— 1 Various Acts give the P&E Court jurisdiction. However, under the Planning Act, chapter 6 and schedule | and part 4 of this Act, its main heads of jurisdiction are— ° appeals against particular planning and planning-related decisions under the Planning Act (in this Act, called "Planning Act appeals') ° appeals against decisions of development tribunals under the Planning Act (in this Act, called 'tribunals'). 2 For when courts have jurisdiction, see also the Acts Interpretation Act 1954, section 49A. (2) A P&E Court decision or order is non-appealable, other than— (a) under part 7; or (b) under the relevant enabling Act; or (c) to the Supreme Court on the ground of jurisdictional error. (3) In this section— non-appealable, for a decision or order, means the decision or order— (a) is final and conclusive; and (b) may not be challenged, appealed against, reviewed, quashed, set aside or called into question in any way in any court. 8 District Court jurisdiction unimpaired A P&E Court judge retains all of the judge's jurisdiction as a District Court judge. 9 When P&E Court must remit to tribunal d) If Page 8 (a) aP&E Court proceeding is, or includes, a matter within a tribunal's jurisdiction; and Om ND PWN ee mn) aeilend Wn Se ns RR on e oo Ne ow N e NNN BWN 27 29 31 (2) Planning and Environment Court Bill 2014 Part 2 Establishment and jurisdiction [s 10] (b) _ the court is satisfied the matter should be dealt with by the tribunal; the court must, by order, remit the matter to the tribunal. On the making of the order, the Planning Act, sections 184 and 193 are taken to apply as if the order were a document starting a tribunal proceeding under that Act. 10 Principles for exercising jurisdiction d) (2) In conducting P&E Court proceedings and applying the rules, the P&E Court must— (a) facilitate the just and expeditious resolution of the issues; and (b) avoid undue delay, expense and technicality. The parties to a P&E Court proceeding impliedly undertake to the court and each other to proceed in an expeditious way. Division 3 Declaratory jurisdiction 11 General declaratory jurisdiction (1) Any person may start a P&E Court proceeding seeking a declaration (a declaratory proceeding) about— (a) amatter done, to be done or that should have been done for this Act or the Planning Act; or (b) _ the interpretation of this Act or the Planning Act; or (c) the lawfulness of land use or development under the Planning Act; or (d) the construction of a land use plan under the Airport Assets (Restructuring and Disposal) Act 2008 and the interpretation of chapter 3, part 1 of that Act; or (e) the construction of the Brisbane port LUP under the Transport Infrastructure Act 1994. Page 9 Dunk WwW Ne 11 14 18 20 23 2528 Planning and Environment Court Bill 2014 Part 3 Rules and orders or directions [s 12] (2) (3) (4) Note— Under the Acts Interpretation Act 1954, section 7, a reference to an Act in this list of subject matter about which a declaration may be sought includes a reference to the statutory instruments made under the Act. However, a declaratory proceeding for a matter relating to a call in under the Planning Act may be started only under section 12. Also, a person may not start a declaratory proceeding for a matter under the Planning Act, chapter 3, part 7, division 2 or 4. The P&E Court may also make an order about any declaration it makes. 12 Declaratory jurisdiction for Ministerial call in of development application d) (2) This section applies to an assessment manager for a development application if— (a) the application is the subject of a call in under the Planning Act; and (b) | when the call in took place, the assessment manager had not decided, or had refused, the development. The assessment manager may start a proceeding (also a declaratory proceeding) in the P&E Court for a declaration about a matter done, to be done or that should have been done in relation to the call in. Part 3 Rules and orders or directions 13 Rules (1) The Governor in Council may make rules of the P&E Court Page 10 about any or all of the following matters— CAD NEWN \o 11 13 15 17 19 21 2325 29 (2) (3) (4) (5) Planning and Environment Court Bill 2014 Part 3 Rules and orders or directions [s 14] (a) anything required or permitted under an enabling Act to be prescribed by the rules; (b) the P&E Court's procedures; (c) anything necessary or convenient for the P&E Court's purposes. Example of a matter the rules may provide for— a matter that may be dealt with by the P&E Court's officers under part 8 However, the rules may be made only with the concurrence of the Chief Judge and a P&E Court judge. The P&E Court's procedures are governed by the rules, subject to relevant enabling Acts. The rules may be uniform rules that apply to other courts. The rules are subordinate legislation. Orders and directions d) (2) (3) (4) (5) (6) The P&E Court may make an order or direction about the conduct of a P&E Court proceeding. The Chief Judge may make directions of general application about the P&E Court's procedures. Note— See, for example, section 23. In making an order or direction under this section, the interests of justice are paramount. An order or direction made under this section may be inconsistent with a provision of the rules. However, if there is an inconsistency between an order or direction made under this section and a provision of the rules, the order or direction prevails to the extent of the inconsistency. The P&E Court or Chief Judge may vary or revoke an order or direction made under this section. Page 11 om nt nun WwW Ne ee re oO eile Ww N 16 18 2022 24 2628 30 Planning and Environment Court Bill 2014 Part 4 Powers and procedure (general) [s 15] Part 4 Division 1 Subdivision 1 Page 12 Powers and procedure (general) Alternative dispute resolution ADR process Purpose of sdiv 1 The purpose of this subdivision is to provide an opportunity for parties to a P&E Court proceeding to participate in an ADR process. ADR process (1) AnADR process is a process, without adjudication, under the rules in which an ADR registrar helps the parties to a dispute the subject of the P&E Court proceeding to achieve an early, inexpensive settlement or resolution of the dispute. (2) The ADR process includes all the steps involved in the process, including the following steps— (a) (b) (c) (d) (e) ADR conferences; pre-ADR conference and _ post-ADR_ conference sessions; joint sessions of some or all of the parties; private sessions; another step prescribed by the rules. (3) An ADR registrar may, as part of the ADR process, confer with the parties about the way to conduct the P&E Court proceeding. OrIrD MN 1113 15 18 2023 Planning and Environment Court Bill 2014 Part 4 Powers and procedure (general) [s 17] Referral to ADR process If a P&E Court proceeding is referred to an ADR process— (a) the proceeding is not stayed, unless the P&E Court orders otherwise; but (b) the P&E Court can not decide the proceeding until the ADR process has been finalised. Resolution agreement d) (2) If the parties agree on a resolution of their dispute or part of it at or after an ADR process, the agreement must be written down and signed by or for each party and by the ADR registrar who conducted the ADR process. The agreement has effect as a compromise. Documents to be filed d) (2) (3) As soon as practicable after an ADR process has finished, the ADR registrar who conducted the ADR process must file a certificate about the ADR process in the approved form. The certificate must not contain comment about the extent to which a party participated or refused to participate in the ADR process. However, the certificate may indicate that a party did not attend the ADR process. Orders giving effect to resolution agreement d) (2) (3) A party may apply to the P&E Court for an order giving effect to an agreement reached at or after an ADR process. However, a party may apply for the order only after the ADR registrar's certificate has been filed. The P&E Court may make any order it considers appropriate in the circumstances. Page 13 Dun PW NY 11 151821 24 26 28 Planning and Environment Court Bill 2014 Part 4 Powers and procedure (general) [s 21] Preservation of confidentiality (1) An ADR registrar must not disclose to anyone information acquired by the ADR registrar during an ADR process, other than under subsection (2). Maximum penalty—S0 penalty units. (2) The ADR registrar may disclose the information— (a) (b) (c) (d) (e) (f) with the agreement of the person to whom the information relates or someone else authorised by the person; or for the purpose of giving effect to this part; or for statistical purposes not likely to reveal the identity of a person to whom the information relates; or for an inquiry or proceeding about an offence happening during the ADR process; or for a proceeding founded on fraud alleged to be connected with, or to have happened during, the ADR process; or if the disclosure is authorised under an Act or another law. Subdivision 2 P&E Court proceedings Page 14 ADR registrar's powers to hear and decide In a P&E Court proceeding, an ADR registrar may hear and decide and make an order or direction (including a final judgment or order) if— (a) (b) the proceeding is a matter within a tribunal's jurisdiction and the chief executive decides under the Planning Act, section 196 or 198, to end the proceeding without establishing another or any tribunal; or the proceeding relates to a minor change to a development application or development approval under the Planning Act; or OAN DN FWHY — So ao Ne pe BW RRR ND eR ow 232628 30 Planning and Environment Court Bill 2014 Part 4 Powers and procedure (general) [s 23] (c) the P&E Court makes a direction (an ADR direction) that an ADR registrar is to hear and decide a particular P&E Court proceeding. Note— For costs relating to a proceeding under paragraph (a) or (b), see section 62(4). For costs because of an ADR direction, see section 61 (3). 23 ADR registrar's powers on Chief Judge's direction The Chief Judge may give directions about the matters and the types of proceedings in which an ADR registrar may exercise the P&E Court's powers for P&E Court proceedings. 24 Conduct of proceedings (1) Subject to section 28, the ADR registrar for a P&E Court proceeding may decide how to conduct the proceeding. (2) However, the ADR registrar must give the parties to the proceeding— (a) notice of the time and place of any hearing; or (b) if the ADR registrar decides the proceeding can be decided on written submissions only—a_ notice requiring the submissions to be given to the ADR registrar within a stated reasonable period. 25 Reference to P&E Court by ADR registrar (1) If an ADR registrar considers it would be more appropriate for the P&E Court to decide a matter in a P&E Court proceeding before the registrar, the registrar may refer the matter to the court. (2) The P&E Court may dispose of the matter or refer it back to the ADR registrar with any direction the court considers appropriate. Page 15 An BR WNe nN ee OMe, <} 13 15 1820 2325 27 Planning and Environment Court Bill 2014 Part 4 Powers and procedure (general) [s 26] Review by P&E Court d) (2) (3) The P&E Court may review any decision, direction or act of an ADR registrar (a court review). A party to a P&E Court proceeding for which an ADR registrar is exercising, or has exercised, powers may apply for a court review only within— (a) 15 business days after the decision, direction or act complained of is made or done; or (b) if the P&E Court is satisfied there are sufficient grounds to allow a longer period—the longer period allowed by the P&E Court. A court review is to be on the material that was before the ADR registrar and any additional material the P&E Court gives leave to consider. Subdivision 3 ADR registrar's powers Page 16 ADR registrar's powers—general d) (2) In a P&E Court proceeding, an ADR registrar may make an order or give a direction as follows— (a) _ if the parties consent in writing; (b) about the conduct of an ADR conference, or at the end of an ADR conference, to ensure the expeditious progress of the proceeding. However, subject to section 22, the order can not be a final judgment or order. Provision for exercise of ADR registrar's powers The following apply for the exercise of powers, including the hearing and deciding of a P&E Court proceeding, by the ADR registrar— (a) the ADR registrar must— CN ANB WN 11 1318 2124 27 (b) (c) (d) Division 2 Planning and Environment Court Bill 2014 Part 4 Powers and procedure (general) [s 29] (i) facilitate the just and expeditious resolution of the issues; and (ii) avoid undue delay, expense and technicality; and (iii) act with as little formality as is consistent with a fair and appropriate consideration of the issues; the provisions of this Act relevant to a P&E Court proceeding apply as if the proceeding were before the P&E Court; the ADR registrar must ensure all parties are afforded natural justice; the ADR registrar may, subject to paragraph (c), prohibit or regulate questioning in the hearing. Powers Where P&E Court may sit The P&E Court may sit at any place. Adjournments The P&E Court may do the following for a P&E Court proceeding— (a) adjourn it from time to time and place to place; (b) adjourn it to a time, or a time and place, to be fixed. Subpoenas (1) The P&E Court may summon a person as a witness and— (a) require the person to produce in evidence documents in the person's possession or power; and (b) examine the person; and Page 17 CID WHR WwW NH \o 12 15 18 20 22 24 Planning and Environment Court Bill 2014 Part 4 Powers and procedure (general) [s 32] (c) punish the person for not attending under the summons or for refusing to give evidence or for failing or refusing to produce the documents. (2) Despite subsection (1), a person is not required to give evidence that may tend to incriminate the person. (3) For subsection (1), a P&E Court judge has the same powers as a District Court judge. 32 P&E Court may extend period to take an action (1) This section applies if the rules or a relevant enabling Act requires an action relating to a P&E Court proceeding or proposed P&E Court proceeding to be taken within a particular period or before a particular time, even if the period has ended or the time has passed. (2) The P&E Court may allow a longer period or different time to take the action if satisfied there are sufficient grounds for the extension. 33 Taking and recording evidence The P&E Court must take evidence on oath, affirmation, affidavit, declaration or in another way the court considers appropriate and must record the evidence. 34 Power to state case for Court of Appeal (1) This section applies if— (a) a question of law arises during a P&E Court proceeding; and (b) _ the proceeding has not ended; and (c) the P&E Court judge presiding considers it desirable that the Court of Appeal decides the question. (2) The P&E Court judge may state the question in the form of a case stated for the Court of Appeal's opinion. Page 18 NAD NS WNK 1113 151922 24 27 29 (3) (4) Planning and Environment Court Bill 2014 Part 4 Powers and procedure (general) [s 35] Until the Court of Appeal decides the case stated, the P&E Court can not make a decision to which the question is relevant. The P&E Court can not, in the P&E Court proceeding, proceed in a way, or make a decision, inconsistent with the Court of Appeal's decision on the case stated. Terms of orders etc. The P&E Court may make an order, give leave or do anything else it is authorised to do on terms it considers appropriate. Contempt and contravention of orders d) (2) A P&E Court judge has the same power to punish a person for contempt as a District Court judge. The District Court of Queensland Act 1967, section 129 applies to the P&E Court in the same way as it applies to the District Court. Discretion to deal with noncompliance d) (2) (3) If the P&E Court finds there has been noncompliance with a provision of this Act or an enabling Act, the court may deal with the matter in the way it considers appropriate. Without limiting subsection (1) and to remove any doubt, it is declared that subsection (1)— (a) applies for a development approval that has lapsed, or a development application that has lapsed or has not been properly made under the Planning Act; and (b) is not limited to— (i) circumstances in relation to a current P&E Court proceeding; or (ii) provisions under which there is a_ positive obligation to take particular action. In this section— Page 19 Dunk WNe nN \o 12 141821 2327 29 Planning and Environment Court Bill 2014 Part 4 Powers and procedure (general) [s 38] noncompliance, with a provision, includes— (a) non-fulfilment of part or all of the terms of the provision; and (b) a partial noncompliance with the provision. provision includes a definition. 38 What happens if P&E Court judge or ADR registrar dies or is incapacitated (1) Subsection (2) applies if, after starting to hear a P&E Court proceeding, the P&E Court judge presiding (the first judge) dies or can not continue with the proceeding for any reason, including, for example, absence or illness. (2) Another P&E Court judge may— (a) after consulting the parties— (i) order the proceeding be reheard; or (ii) adjourn the proceeding to allow the first judge to continue dealing with the proceeding when able; or (b) with the parties' consent, make an order about— (i) deciding the proceeding; or (ii) completing the hearing of, and deciding, the proceeding. (3) If, after starting to perform functions for a P&E Court proceeding, an ADR registrar dies or can not continue with the proceeding for any reason, the proceeding is to be dealt with in the way the P&E Court considers appropriate. Division 3 Parties 39 Planning Minister (1) This section applies for a declaratory proceeding or Planning Act appeal at any time before it is decided. Page 20 an WN ow NO 11 1316 18 20 2224 28 Planning and Environment Court Bill 2014 Part 4 Powers and procedure (general) [s 40] (2) If the planning Minister becomes satisfied the proceeding involves a State interest, that Minister— (a) _ is entitled to be represented in the proceeding; and (b) may elect to be a party in the proceeding by filing in the P&E Court a notice of election in the approved form. (3) The election may be made at any time before the proceeding is decided. (4) In this section— planning Minister means the Minister administering the Planning Act, chapter 6, part 2. State interest see the Planning Act, schedule 2. 40 Appearance A party to a P&E Court proceeding may appear personally or by lawyer or agent. 41 Representative proceedings in particular cases (1) A person (the representative) may start a P&E Court proceeding of the following kind on behalf of someone else (the represented)— (a) adeclaratory proceeding; (b) a proceeding for an enforcement order under the Planning Act. (2) However, the proceeding may be started only if the following consents— (a) _ if the represented is a person—the person; (b) if the represented is an unincorporated body—its committee or other controlling or governing body. (3) The represented may contribute to, or pay, the expenses, including legal costs, incurred by the representative in relation to the proceeding. Page 21 SH Bo OAD WA wW NE 14 1721 23 26 28 Planning and Environment Court Bill 2014 Part 5 Planning Act proceedings Miscellaneous P&E Court proceedings open to public A P&E Court proceeding, other than a proceeding ordered by the court to be decided on written submissions only, must be open to the public, unless the rules provide otherwise. Nature of appeal in general Subject to any relevant enabling Act, an appeal to the P&E Court is by way of hearing anew. Privileges, protection and immunity (1) A person who is 1 of the following in a P&E Court proceeding has the same privileges, protection or immunity as the person would have if the proceeding were in the District Court— the P&E Court judge presiding over the proceeding; a party to the proceeding; a lawyer or agent appearing in the proceeding; a witness attending in the proceeding. (2) In performing the functions of an ADR registrar, the ADR registrar has the same privileges, protection or immunity as a District Court judge performing a judicial function. [s 42] Division 443(a) (b) (c) (d) Part 5 Page 22 Planning Act proceedings Note— The Planning Act provides for matters about starting an appeal. See schedule 1, part 1 of that Act. OAR W NY ona 111416 1823 Planning and Environment Court Bill 2014 Part 5 Planning Act proceedings [s 45] Division 1 Planning Act appeals Who must prove case d) (2) (3) (4) For a Planning Act appeal about any of the following matters, the appellant must establish the appeal should be upheld— (a) an application or request under the Planning Act for which the appellant was the applicant or person making the request; (b) a local government's decision, or the conditions applied, under a local law about the use of premises or the erection of a building or other structure under the Planning Act; (c) an infrastructure charges notice, or a notice amending an infrastructure charges notice, under the Planning Act; (d) adecision by a tribunal. For a Planning Act appeal about a development application by a submitter or referral agency (advice only) under the Planning Act, the applicant must establish the appeal should be dismissed. For a Planning Act appeal by the recipient of an enforcement notice under the Planning Act, the enforcement authority that gave the notice must establish the appeal should be dismissed. For a Planning Act appeal by a person dissatisfied with a decision about compensation under the Planning Act, the local government that decided the claim for the compensation must establish the appeal should be dismissed. Nature of appeal d) (2) A Planning Act appeal is by way of hearing anew. However, if the appellant was the applicant or a submitter for a development application the subject of the appeal, subsection (1) applies subject to subsections (3) to (6). Page 23 Om ANN PW WV 11 13 1618 202325 27 29 Planning and Environment Court Bill 2014 Part 5 Planning Act proceedings [s 47] (3) (4) (5) (6) 7) The Planning Act, section 40 applies for the P&E Court's decision on the appeal as if— (a) the P&E Court were the assessment manager for the development application; and (b) the reference in subsection (6) of that section to when the assessment manager decides the application were a reference to when the P&E Court makes the decision. The P&E Court can not consider a change to the development application unless the change is only a minor change under the Planning Act to the application. The P&E Court can not consider a change to the development approval the subject of the development application unless the change is only a minor change under the Planning Act to the approval. The P&E Court is not prevented from considering and making a decision about a ground of appeal (based on a referral agency response under the Planning Act) merely because that Act required the assessment manager to refuse the development application or approve it subject to conditions. If the appeal is against a decision about a superseded scheme development application under the Planning Act, the P&E Court must— (a) consider the aspect of the appeal relating to the assessment manager's consideration of the superseded scheme in question as if the application had been made under the superseded scheme; and (b) in considering the aspect, disregard the planning scheme in force when the application was made. 47 Appeal decision d) Page 24 In deciding a Planning Act appeal, the P&E Court must decide to do 1 of the following (the appeal decision) for the decision appealed against— (a) confirm it; Com NDN FW Ne — So RR RR BRWNR RR Ree COmMADN NNW NRO NNNN Nun W NN on 31 (2) (3) Planning and Environment Court Bill 2014 Part 5 Planning Act proceedings [s 48] (b) change it; (c) set it aside and— (ij) make a decision replacing it; or (ii) return the matter to the entity that made the decision appealed against with directions the P&E Court considers appropriate. The appeal decision may also include other orders, declarations or directions the P&E Court considers appropriate. The appeal decision (other than one to confirm the decision appealed against or to set it aside and return a matter) is taken, for the Planning Act (other than chapter 6 and schedule 1) to have been made by the entity that made the decision appealed against. Division 2 Evidence in P&E Court proceedings Application of division This division applies to the following proceedings— (a) any Planning Act proceeding; (b) any declaratory proceeding. Note— Under the Planning Act, section 233, this division also applies to a proceeding relating to the Planning Act in a court other than the P&E Court or in a tribunal and to anyone else acting judicially in relation to a proceeding relating to the Planning Act. Appointments and authority It is not necessary to prove either of the following for an enforcement authority CEO— (a) appointment to that office; (b) authority to do anything under the Planning Act. Page 25 OmANI ANH WN See ee BRWNr OO 1720 2224 27 29 Planning and Environment Court Bill 2014 Part 5 Planning Act proceedings [s 50] Page 26 Signatures A signature purporting to be that of an enforcement authority CEO is evidence of the signature it purports to be. Instruments, equipment and installations (1) Any prescribed instrument, equipment or installation used by an appropriately qualified person under any prescribed conditions is taken to be accurate and precise in the absence of evidence to the contrary. (2) In this section— prescribed means prescribed by a regulation under the Planning Act. Analyst's certificate or report A certificate or report purporting to be signed by an appropriately qualified person and stating any of the following matters is evidence of the matter— (a) _ the person's qualifications; (b) the person took, or received from a stated person, a stated sample; (c) the person analysed the sample on a stated day, or during a stated period, and at a stated place; (d) _ the results of the analysis. Evidence of planning instruments or notices of designation (1) A certified copy of a planning instrument or a designation notice is evidence of the content of the instrument or notice. (2) The P&E Court must take judicial notice of a certified copy of a planning instrument or designation notice. Wn Ree OO ONAN F re oO 14 16 18 20 23 25 27 Planning and Environment Court Bill 2014 Part 5 Planning Act proceedings [s 54] (3) Acopy of the gazette or newspaper containing a notice about the making of a planning instrument is evidence of the matters stated in the notice. (4) In this section— certified copy see the Planning Act, schedule 2. designation notice means a notice under the Planning Act, section 31 of the designation of land for the development of infrastructure. Planning instruments presumed to be within power A Minister's or local government's power under the Planning Act to make a planning instrument is to be presumed, unless the issue is raised. Evidence of local planning instruments (1) A local government's chief executive officer may certify a document to be a true copy of all or part of any of its local planning instruments in force at a stated time. (2) The certified document is admissible in evidence as if it were the original. Effect of planning and development certificates A planning and development certificate under the Planning Act is evidence of the matters the certificate states. Evidentiary aids generally (1) A certificate purporting to be signed by an enforcement authority CEO stating any of the following matters is evidence of the matter— (a) astated document is— (i) an appointment or a copy of an appointment; or Page 27 CAD UN fF WNe 111518 21 2427 Planning and Environment Court Bill 2014 Part 6 Costs [s 58] (b) (c) (d) (e) (ii) a direction or decision, or a copy of a direction or decision, given or made under the Planning Act; or (iii) a notice, order, permit or other document, or a copy of a notice, order, permit or other document, given under the Planning Act; on a stated day, or during a stated period, the benefit of a development permit for stated development was or was not vested in a stated person; on a stated day, or during a stated period, a development permit— (i) was or was not in effect for a stated person or development; or (ii) was or was not subject to a stated condition; on a stated day, a stated person was given a stated notice or direction under the Planning Act; a stated amount is payable under the Planning Act by a stated person and has not been paid. (2) In this section— development permit see the Planning Act, section 44(3). Part 6 Division 1 Costs Security for costs 58 Security for costs (1) This section applies for any P&E Court proceeding. (2) On application by a respondent, the P&E Court may— Page 28 CID NWRW NE \o 12 15 17 19 23 (3) (4) Planning and Environment Court Bill 2014 Part 6 Costs [s 59] (a) order the proceeding-starter to give security that the P&E Court considers appropriate for the respondent's costs of and incidental to the proceeding; and (b) make an order under the Planning Act, section 69(2)(b), unless and until the security is given. Without limiting the matters to which the P&E Court may have regard in ordering security for costs, it may have regard to the matters mentioned in section 60 to the extent they are relevant. In this section— proceeding-starter means the party who started the proceeding (whether as an applicant or appellant) regardless of who bears the onus of proof or must prove their case. respondent means a party other than the proceeding-starter or a party joined with the proceeding-starter. Division 2 Costs in P&E Court proceedings 59 General costs provision d) (2) (3) (4) (5) Subject to the following, the costs of a P&E Court proceeding are in the court's discretion— (a) sections 61 and 62; (b) any relevant enabling Act. Subject to section 62(3), the discretion includes the power to order costs against someone who has an interest in the proceeding but is not a party to the proceeding. The P&E Court may order that the amount of costs awarded must be decided under the appropriate procedure and scale of costs for District Court proceedings. A costs order of the P&E Court may be enforced as if it were an order of the District Court. In this section— Page 29 OAND NP WNKE — So RRR WN alive ns 19 21 232629 Planning and Environment Court Bill 2014 Part 6 Costs [s 60] costs— (a) (b) for a P&E Court proceeding of the following type, includes a party's costs to investigate, or gather evidence for, the proceeding that the P&E Court decides the party reasonably incurred— (i) a declaratory proceeding about the lawfulness of land use or development under the Planning Act, including any order under section 11(4); (ii) an appeal against the giving of an enforcement notice under the Planning Act (an enforcement notice appeal); (iii) a proceeding for an enforcement order or interim enforcement order under the Planning Act; and for an enforcement notice appeal, also includes costs relating to investigations or gathering of evidence for the giving of the relevant enforcement notice. proceeding includes a part of a proceeding and an application in a proceeding. 60 Specific criteria for making costs order Without limiting the matters to which the P&E Court may have regard in making a costs order in a P&E Court proceeding, it may have regard to any or all of the following— (a) (b) (c) (d) Page 30 the relative success of the parties; the parties' commercial interests; whether a party commenced or participated in the proceeding for an improper purpose or without reasonable prospects of success; for merit assessment of development under the Planning Act—whether matters to which regard was had, or the assessment was against, were relevant; Note— See the Planning Act, section 40. CAD NPWN 11 13 1518 2124 262932 (e) (f) (g) (h) Planning and Environment Court Bill 2014 Part 6 Costs [s 60] for an appeal where, under section 46(4), the P&E court can consider a change to a development application— (i) the circumstances relating to making the change; and (ii) its effect on the proceeding; whether the proceeding involved an issue that affects, or may affect, a matter of public interest, in addition to any personal right or interest of a party; whether a party has acted unreasonably— (i) leading up to the proceeding; or Example— A Planning Act appeal is against a decision on a development application. An information request under that Act was made of the applicant. The applicant may have acted unreasonably by not, in responding to the request, giving all of the information reasonably required before the decision was made. (ii) in conducting the proceeding; Examples— ¢ not giving another party reasonable notice of intention to apply for an adjournment * — aparty's conduct causing an adjournment whether a party has incurred costs only because another party has done either or both of the following— (i) introduced, or sought to introduce, new material; (ii) contravened all or part of-— (A) a provision of an enabling Act relating to an issue in the proceeding; or (B) the procedural requirements under the rules or an order or direction under section 14; whether a party should have taken a more active part in a proceeding and did not do so. Page 31 C0 AND NN FW NK ee rr oO eetinall selleetlendl end NADUNBWN e oo ee \o NWN ro N N NN RO NY N n WN NN on Wr ow WwW Ww Noe Planning and Environment Court Bill 2014 Part 6 Costs [s 61] Page 32 Example for paragraph (i)— a party does not adduce sufficient evidence for any or all grounds relied on by the party and the P&E Court considers the party could or ought to have done so Provision for participation in ADR process d) (2) (3) This section applies if the parties to a P&E Court proceeding participate in an ADR process under this Act. Note— Under section 80, particular provisions of the repealed Sustainable Planning Act 2009 continue in effect as if they were part of the rules. Unless the P&E Court otherwise orders, the parties must bear their own costs of the proceeding if— (a) _ the participation was early in the proceeding; and (b) the proceeding is resolved during the ADR process or soon after it was finalised. Otherwise, the costs of the proceeding include the costs of the ADR process. Costs provisions for particular proceedings d) (2) (3) (4) The costs of a Planning Act proceeding for an enforcement order or an interim enforcement order follow the event, unless the P&E Court otherwise orders. If the P&E Court declares that an owner wrongly sought the cancellation of a development approval in contravention of the owner's consent requirement under the Planning Act, it must award costs against the owner. If the P&E Court allows an assessment manager to withdraw from an appeal, it can not award costs against the assessment manager. If, under section 22, an ADR registrar hears and decides a P&E Court proceeding, the parties must bear their own costs of the proceeding. BWN worannmn 12 15 17 202325 2730 Part 7 Planning and Environment Court Bill 2014 Part 7 Appeals to Court of Appeal [s 63] Appeals to Court of Appeal Who may appeal d) (2) (3) A party to a P&E Court proceeding may appeal a decision in the proceeding, but only on the ground of error or mistake in law or jurisdictional error. However, the appeal may be made only with the leave of the Court of Appeal. Power to grant leave may be exercised by a single judge of appeal. When leave to appeal must be sought and appeal made d) (2) A party intending to seek the Court of Appeal's leave to appeal against a P&E Court decision must apply for the leave within 30 business days after receiving the decision. A notice of appeal must be served and filed within 30 business days after any grant of the leave unless the Court orders otherwise. Court of Appeal's powers The Court of Appeal may do 1 or more of the following— (a) return the matter to the P&E Court to decide in accordance with the appeal decision; (b) affirm, amend, or revoke the decision appealed against and substitute another order or decision for the decision; (c) make an order it considers appropriate. Note— See also the Planning Act, section 69. Page 33 Com NAD NSFW WV 121518 20 22 24 Planning and Environment Court Bill 2014 Part 8 Registry and officers [s 66] Part 8 Registry and officers 66 Registrars and other officers (1) The P&E Court's principal registrar is the principal registrar appointed for the District Court. (2) The P&E Court's registrars are the registrars appointed for the District Court. (3) The P&E Court's other officers are the other officers appointed for the District Court. 67 ADR registrar The P&E Court's principal registrar may, after consulting the Chief Judge, appoint a registrar or other officer of the P&E Court as an ADR registrar of the court. 68 Registries (1) Each District Court registry is a registry of the P&E Court. (2) The registry of the P&E Court at Brisbane is the P&E Court's principal registry. (3) The P&E Court's registries are under the P&E Court's principal registrar's control. (4) The principal registrar may give directions in connection with the P&E Court and P&E Court proceedings to the P&E Court's registrars and other officers employed in the registries. 69 P&E Court records Page 34 d) (2) The P&E Court's principal registrar must keep records of P&E Court decisions and perform the other functions the court directs. The P&E Court's records held at a place must be kept in the custody of the P&E Court's principal registrar. ON AN FW WV 1114 16 18 202427 Planning and Environment Court Bill 2014 Part 9 Miscellaneous [s 70] Part 9 Miscellaneous 70 Annual report (1) As soon as practicable but no later than 4 months after the end of each financial year, the Chief Judge must prepare and give to the Minister a written report about the operation of the P&E Court during the financial year. (2) The Minister must table a copy of the report in the Legislative Assembly within 14 sitting days after receiving the report. (3) The Chief Judge may combine the report with the District Court report for the same financial year in the 1 report. (4) In this section— District Court report means the report prepared under the District Court of Queensland Act 1967, section 130A, for a financial year. 71 Judicial notice All courts and persons acting judicially must take judicial notice of the appointment and signature of persons holding office under this Act. 72 Approval of forms The Chief Judge and another P&E Court judge may approve forms for use under this Act. 73 Regulation-making power (1) The Governor in Council may make regulations under this Act. (2) A regulation may impose a penalty of no more than 20 penalty units for a contravention of a regulation. Page 35 ON ANFW LV 11 131721 24 26 Planning and Environment Court Bill 2014 Part 10 Savings and transitional provisions [s 74] Part 10 Page 36 Savings and transitional provisions Note— For other transitional provisions concerning the P&E Court, see the Planning Act, chapter 8, part 1. Definitions for part In this part— commencement means the day section 4 commences. court means the Planning and Environment Court continued under repealed SPA, immediately before the commencement. repealed SPA means the repealed Sustainable Planning Act 2009. Continuance of existing judgeships On the commencement, a judge of the court becomes a P&E Court judge for the rest of the judge's unexpired term of office as a judge of the court. Existing proceedings and proceeding rights d) (2) (3) This section applies to a person who was entitled to start proceedings, or had started proceedings, under repealed SPA for a matter under an enabling Act. If proceedings had not been started before repealed SPA was repealed, proceedings may be brought only under this Act. For proceedings that were started in the court before repealed SPA was repealed— (a) repealed SPA continues to apply to the proceedings; and (b) this Act applies to any appeal in relation to the proceedings. EN onan 12 151922 24 27 (4) (5) (6) Planning and Environment Court Bill 2014 Part 10 Savings and transitional provisions [s 77] For applying repealed SPA, a reference to the court is taken to be a reference to the P&E Court. Also, to remove any doubt, it is declared that repealed SPA, section 440— (a) applies also for a development approval that has lapsed; and (b) is not limited to— (i) circumstances in relation to a court proceeding under repealed SPA or a current P&E Court proceeding; or (ii) provisions under which there is a_ positive obligation to take particular action; and (c) applies as if a reference to a provision not being complied with, or not being fully complied with, is taken to include— (i) non-fulfilment of part or all of the provision; and (ii) a partial noncompliance with the provision. In this section— provision includes a definition. Continuance of existing orders and directions d) (2) (3) (4) An order of the court in force immediately before the commencement continues in effect as an order of the P&E Court. The order may be discharged or amended under this Act by the P&E Court. A direction (a practice direction) issued by the Chief Judge of the District Court under repealed SPA, section 446(2), and in force immediately before the commencement continues in force as if it were made under section 14(2). A practice direction must be read with the changes necessary to make it consistent with, and adapt its operation to, all enabling Acts. Page 37 om NY AN FW Ne — So a Ne RRR nw Lt atl el el Conon a 2225 2729 31 Planning and Environment Court Bill 2014 Part 10 Savings and transitional provisions [s 78] Page 38 (5) Subsections (3) and (4) do not prevent further directions from amending or repealing a practice direction. Existing references to court In another Act or document, a reference to the court is taken to be a reference to the P&E Court. Existing rules migrate to this Act d) (2) (3) (4) The Planning and Environment Court Rules 2010 (the 2010 rules) are taken to be the rules under this Act until this section expires. The 2010 rules must be read with the changes necessary to make them consistent with, and adapt their operation to, all enabling Acts. Example— A reference to a provision (the repealed provision) of chapter 7 of repealed SPA must be read as a reference to any provision of this Act or of the Planning Act that corresponds, or substantially corresponds, to the repealed provision. This section does not prevent further rules from amending or repealing the 2010 rules. This section expires on the earlier of the following— (a) 6 months after the commencement; (b) if, during the 6 months, a provision of the rules repeals all of the 2010 rules that were taken to be the rules under this Act—when the provision commences. Migration of particular repealed SPA provisions about the P&E Court to the rules d) Despite their repeal, repealed SPA, sections 456(8) and 459 (the SPA provisions) continue in effect until this section expires for any matter not provided for under the rules as if they formed part of the rules. oN oman a 111517 19 21 2326 2830 (2) (3) (4) Planning and Environment Court Bill 2014 Part 10 Savings and transitional provisions [s 80] The SPA provisions must be read with the changes necessary to make them consistent with, and adapt their operation to— (a) this Act; and (b) the rules (whether they provide for the matter in the same way as, or a different way from, the SPA provisions); and (c) the Planning Act, chapter 6. The rules may amend or repeal the effect of either or both of the SPA provisions under this section. This section expires on the earlier of the following— (a) 6 months after the commencement; (b) _ the repeal, under subsection (3), of the effect of both of the SPA provisions. Page 39 om NYA DANK WNY Se cr CO aeilend Wn Planning and Environment Court Bill 2014 Schedule 1 Schedule 1 Dictionary Page 40 section 3 ADR conference means a mediation or a chaired meeting of experts, a case management conference or without prejudice conference convened under the rules. ADR direction see section 22(c). ADR process see section 16(1). ADR registrar means a person holding appointment under section 67 as an ADR registrar of the P&E Court. appeal decision see section 47(1). approved form means a form approved under section 72. assessment manager see the Planning Act, section 43. business day does not include a day between 26 December of a year and 1 January of the following year. change application see the Planning Act, section 75(1). Chief Judge means the Chief Judge of the District Court. declaratory proceeding see sections 11(1) and 12(2). development application see the Planning Act, schedule 2. development approval see the Planning Act, section 44(1). enabling Act, for a provision about the P&E Court, see section 7(1). enforcement authority see the Planning Act, schedule 2. enforcement authority CEO means the chief executive or the chief executive officer, however called, of an enforcement authority. minor change see the Planning Act, schedule 2. P&E Court see section 4. P&E Court judge see section 5(2). Com ND NSW 12 14 161821 2427 Planning and Environment Court Bill 2014 Schedule 1 P&E Court proceeding means a proceeding before the P&E Court. P&E Court's principal registrar means the P&E Court's principal registrar under section 66(1). party, for a provision about a P&E Court proceeding, means any or all of the following for the proceeding— (a) _ the applicant or appellant; (b) the respondent; (c) any co-respondent; (d) if the Minister is represented, or elects to be a party—the Minister. Planning Act means the Planning and Development Act 2014. Planning Act appeal means an appeal to the P&E Court for which the Planning Act is the enabling Act. Note— For the appeal right, see the Planning Act, schedule 1, part 1. Planning Act proceeding means— (a) a P&E Court proceeding for which the Planning Act is the enabling Act, including a Planning Act appeal; or (b) adeclaratory proceeding relating to the Planning Act; or (c) a proceeding for an enforcement order under the Planning Act. planning instrument means a State planning instrument or a local planning instrument under the Planning Act. relevant enabling Act, for provision about a P&E Court proceeding, means the enabling Act that confers jurisdiction for the proceeding on the P&E Court. rules means the rules of the P&E Court made under section 13(1). tribunal means a development tribunal under the Planning Act. Page 41 oN AN BW NYE 11 14 1619 22 24 2629 31 Planning and Environment Court Bill 2014 © State of Queensland 2014 Authorised by the Parliamentary Counsel Page 42